Batson's Grand Jury DNA

Author:Roger A. Fairfax, Jr.
Position:Professor of Law, George Washington University Law School
Pages:1511-1530
 
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1511
Batson’s Grand Jury DNA
Roger A. Fairfax, Jr.
INTRODUCTION .................................................................................... 1512
I. THE GRAND JURYS RELEVANCE TO BATSON ......................................... 1512
A. CHARLES HAMILTON HOUSTON AND THE CRAWFORD CASE .............. 1512
B. CONTEXT MATTERS ....................................................................... 1516
II. GRAND JURY SELECTION EQUAL PROTECTION JURISPRUDENCE ON
THE ROAD TO BATSON .......................................................................... 1518
III. GRAND JURY SELECTION AND THE DEVELOPMENT OF THE BATSON
FRAMEWORK ......................................................................................... 1524
CONCLUSION ....................................................................................... 1529
Professor of Law, George Washin gton University Law School. A.B., Harvard College;
M.A., University of London; J.D., Harvard Law School. I would like to thank the organizers and
participants associated with the 2011 “Batson at Twenty-Five: Perspectives on the Landmark,
Reflections on Its Legacy” Symposium at the University of Iowa College of Law. I am grateful to
Andrea Dennis, Lisa Fairfax, Kris Henning, Renee Hutchins, Michael Pinard, and Kami Chavis
Simmons for their feedback and comments on earlier versions of this Essay. This Essay is
dedicated to the memory of Judge Robert L. Carter (1917–2012), former District Judge, United
States District Court for the Southern District of New York, and John A. Payton (1946–2012),
former President and Director–Counsel of the NAACP Legal Def ense and Educational Fund,
Inc.
1512 IOWA LAW REVIEW [Vol. 97:1511
INTRODUCTION
Batson v. Kentucky was a landmark decision imposing constitutional
restrictions on peremptory challenges in the petit jury selection process.
Batson was a culmination of a long line of cases addressing racial
discrimination in jury selection. However, the role of anti-discrimination
doctrine in grand jury selection is often overlooked when the story of Batson
is considered. Many of the key equal protection cases underpinning the
Batson decision were grand jury cases. Furthermore, the evidentiary
framework applied to challenges to race-based peremptory strikes in Batson
was forged in a century’s worth of grand jury discrimination doctrine. This
Essay, prepared for the “Batson at Twenty-Five: Perspectives on the
Landmark, Reflections on Its Legacy” Symposium at the University of Iowa
College of Law, highlights this significant jurisprudence—Batson’s grand jury
DNA—and explores the import of its legacy.
Part I of this Essay sets the stage with the story of one defendant’s
extraordinary 1933 challenge—orchestrated by his brilliant lawyer, Charles
Hamilton Houston—to the exclusion of blacks from the Loudoun County,
Virginia grand jury that indicted him for murder. This Part suggests that,
despite the significantly different contextual backdrop of the nonadversarial
grand jury process (most notably, the absence of peremptory challenges in
grand jury selection), there is sufficient reason to investigate the grand jury’s
role in the story of Batson. Part II chronicles how many of the significant
equal protection gains in the jury selection arena were won and solidified in
the context of challenges to discrimination in the selection of grand jurors.
Indeed, the Supreme Court’s equal protection jurisprudence in grand jury
discrimination cases would lay the foundation for Batson. Part III explains
how Bat son’s articulation of the quantum of proof necessary for
demonstrating a violation of the Equal Protection Clause in the exercise of a
peremptory challenge can be attributed to the grand jury discrimination
cases of the previous century. This Essay concludes by contemplating
whether the lessons we have drawn from the quarter-century experience
under Batson might have some relevance for how we select and utilize grand
juries in contemporary criminal justice.
I. THE GRAND JURYS RELEVANCE TO BATSON
A. CHARLES HAMILTON HOUSTON AND THE CRAWFORD CASE
In 1932, Agnes Boeing Ilsley, a white socialite, and Nina Buckner, her
housekeeper, were murdered at the Ilsley home in Loudoun County,
Virginia.1 A black man named George Crawford, a former Ilsley household
1. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND
BLACK AMERICAS STRUGGLE FOR EQUALITY 147 (2004).

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