Solving the Batson paradox: harmless error, jury representation, and the Sixth Amendment.

• Author: Muller, Eric L.

1. Introduction: The Batson Paradox

   "[E]very right ... must have a remedy . . . .'"(1) Although this idea runs deep through our jurisprudence, it is not strictly true. The challenge is to determine which rights are so important as to require a remedy. Sometimes this is easy, as in the case of Batson v. Kentucky,(2) which established that the Equal Protection Clause forbids prosecutors from exercising peremptory challenges to strike prospective jurors on account of their race.(3) Under Batson, a prosecutor is free to exercise peremptory challenges until the defendant objects on the ground that the prosecutor has engaged in intentional discrimination on the basis of race.(4) If the court finds that the defendant has made a prima facie showing of racial discrimination, the burden then shifts to the prosecutor to present a race-neutral explanation for the strike.(5) If the court discredits that explanation, or if the defendant can show the race-neutral explanation to be pretextual, then a Batson violation has occurred.(6)

   Batson's timing alone suggests that it announced an important principle. The case was decided in 1986 - a time when the Court was not particularly friendly to the claims of criminal defendants. It overruled Swain v. Alabama,(7) a case decided in 1965, when the Court's concerns for protecting criminal defendants' rights, and for combatting racial discrimination, were at their apex. Even more remarkably, in the years since Batson - years in which the Court has grown no friendlier to defendants' claims(8) - the Court has clung tenaciously to the Batson norm, continually expanding its scope.(9) Obviously, the Court believes that it is on to something important in Batson and its progeny.

   If every important right has a remedy, then surely there ought to be a remedy for a Batson violation.(10) Undoubtedly there is - at least at the trial level. Upon finding a violation of Batson, the trial court may order that the improperly challenged jurors remain seated, or it may dismiss the jurors already seated and begin the process of jury selection anew.(11) But what if the trial court errs, finding no Batson violation where there actually was one?(12) What is the appropriate remedy on direct appeal?(13)

   In keeping with its view that Batson error is serious business, the Supreme Court has assumed, but never formally ruled, that the appropriate appellate remedy is automatic reversal of the conviction. That is, the Court has never suggested that a conviction tainted by Batson error might nonetheless be affirmed if, for example, the evidence against the defendant were overwhelming; it has instead simply reversed convictions outright without performing harmless error analysis.(14)

   Because the Court has never directly addressed the question of remedy, its reasons for choosing automatic reversal over harmless error analysis are not clear. Perhaps the Court agrees with Susan Herman's instinct that "harmless error analysis would seem irrelevant"(15) on Batson appeals. The Batson "right" is actually a package of equal protection rights: rights of the defendant to a fair trial free of the stigma of racial prejudice, and rights of prospective jurors both to be free of that stigma and to participate fully in the criminal justice system. Especially where the injury is to the jurors, rights, the Court may think that it would be beside the point to examine the impact of that injury on the verdict. Where it is the defendant who is injured by the discrimination, the Court may believe that the effects of the injury are so diffuse as to make harmless error analysis impossible.

   The Court may even be right: Batson error may indeed be ill-suited to appellate review for impact on the verdict. But this does not necessarily mean, as the Court seems to assume, that the appropriate remedy for a Batson violation is a rule of automatic reversal. For as the Supreme Court (albeit a very different majority from the one that produced Batson) has made clear in recent years, the remedy of appellate reversal exists for one purpose only - to protect the reliability of the jury's "factual finding" on the question of the defendant's guilt or innocence.(16) If Batson error does not undermine the reliability of verdicts, then appellate courts should affirm, not reverse, convictions.

   Herein lies part of the paradox of Batson. For all of the Court's heated rhetoric about the evils of discrimination in the exercise of peremptory challenges, the Court has firmly rejected the idea that a juror's race or gender has any bearing on how that juror will view the evidence in a case or vote on the question of guilt or innocence. By taking this position, the Court has defined Batson violations in a way that absolutely forecloses any possibility that such violations affect the reliability of the verdict. Batson violations do other bad things, of course: they stigmatize litigants and jurors, and wrongly prevent jurors from participating in the justice system. These are serious equal protection harms, but they have nothing to do with the reliability of verdicts. Thus the Court has articulated a package of rights which, in logic, require no appellate remedy.

   That, however, is not the whole paradox. For there are indeed Justices on the Court who should see harm in a Batson scenario - not just any kind of harm, but the kind that makes verdicts unreliable and warrants reversal on appeal. These are Justices who embrace the idea that a juror's race or gender is at least a minimally rational predictor of that juror's likely perspective on certain issues in a criminal trial. But these are also the Justices who have opposed and criticized the entire Batson enterprise and who see no error of any kind in a Batson situation. This, then, is the full paradox of Batson: the Justices who would find harm in a Batson violation cannot; the Justices who can find harm in a Batson violation will not.

   In this Article, I will explain and resolve this paradox about the true nature of the harm that Batson error causes to criminal verdicts. To do so, I will first show how the paradox arises - how it is that the Court's proponents of the Batson norm have managed the incoherent task of creating a type of error that is, by definition, harmless in every case. I do this in Parts II through IV. In the balance of the Article, I show that the resolution of the paradox emerges not from curing the incoherence in the views of Batson's proponents, but from resolving the far deeper incoherence in the views of the Justices who have opposed and criticized the Batson norm. I argue that the discriminatory use of peremptory challenges does indeed undermine the reliability of criminal verdicts and should trigger a rule of automatic reversal on appeal, but not because it violates any value in the Equal Protection Clause.(17) Rather, this sort of discrimination violates the Sixth Amendment's guarantee of a jury that represents the community.(18) I conclude that the Court must deploy the Batson rule to protect the Sixth Amendment value of community representation on the jury, and that the Court should therefore overrule its holding to the contrary in Holland v. Illinois.(19)

2. Do Race and Gender Suggest Viewpoint?

   The Life, Death, and Life of the Theory of Difference" in the

   Supreme Court

   In the prosecutor's office where I once worked, a supervisor always counseled new attorneys litigating drug cases to use a peremptory challenge to remove any prospective juror who came to court with a coffee mug or shoulder bag bearing the emblem of the local public broadcasting station. He reasoned that people get such merchandise in only one way - by donating money to public broadcasting. Anyone who would give money to public broadcasting, he argued, was too much of a mushy-headed liberal to give the government's case a favorable hearing.

   Such rough inferences drive our system of peremptory challenges. The supervisor knew that the inference was ridiculously overbroad, but his experience told him that it was not flatly irrational. He saw enough of a correlation between a juror's television and radio preferences and her likely viewpoint on drug enforcement to make the peremptory strike worthwhile.

   For many years, the Supreme Court has struggled with the similar question of whether it is rational for an attorney to draw inferences about viewpoint from a prospective juror's race or gender. This inquiry has been just one piece of a larger problem that has plagued the Court@ Is it ever rational, in any context, to attribute distinctive views or beliefs to a segment of the community defined by an immutable characteristic like race or gender? At times the Court seems to have thought so. For example, in Metro Broadcasting, Inc. v. FCC,(20) the Court approved a system of preferential licensing for minority-owned broadcasting companies on the theory that such a system would enhance broadcast diversity. The Court deemed it "a legitimate inference ... to draw that as more minorities gain ownership and policymaking roles in the media, varying perspectives will be more fairly represented on the airwaves."(21) The Metro Broadcasting Court found it rational for Congress to attribute certain broad views and preferences, even if not a "cohesive, collective viewpoint,"(22) to minority groups.

   On the other hand, the Court has often scolded parties for drawing precisely this inference. In Miller v. Johnson,(23) the Court held that when a state draws voting district lines for the predominant purpose of turning racial minorities into district majorities, that plan violates the Equal Protection Clause of the Fourteenth Amendment regardless of the district's geographical shape.(24) According to the Court, mapping districts in this way is inevitably infected with the offensive and demeaning assumption that voters of a particular race, because of their race, `think alike, share the same political interests, and will prefer the same...