The reverse-Batson: wrestling with the habeas remedy.

• Author: Tetelbaum, Elina

Since the landmark case Batson v. Kentucky, (1) the use of Batson challenges has become very popular in criminal cases to prevent prosecutors from systematically excluding jurors based on race. Far less attention has been paid to reverse-Batson challenges, where defense attorneys are challenged for excluding jurors for race-based reasons. (2) Batson is generally considered a pro-defense doctrine in that it prevents overzealous prosecutors from appealing to racial biases instead of evidence to obtain a guilty verdict. Yet in an ironic extension of Batson, (3) reverse-Batson challenges put defendants at risk when a trial judge erroneously believes the defense counsel's use of peremptory challenges is racially motivated. An improper granting of a reverse-Batson challenge allows an individual who should have been excluded to sit on a jury and evaluate a defendant's fate. What remedies are afforded to a defendant convicted by a jury in a trial that contained an improperly granted reverse-Batson challenge?

The Supreme Court addressed a related issue last Term in Rivera v. Illinois, (4) which held that a denial of a defendant's peremptory challenge does not constitute a structural error requiring automatic reversal. The holding relied on precedent that peremptory challenges are not constitutionally mandated (5) and are not necessary for a fair trial. (6) The Court concluded that when "a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern." (7)

Still at issue is whether criminal defendants can obtain habeas corpus relief when they are denied peremptory strikes by a trial court's misapplication of Batson and its progeny. This question is especially relevant for defendants who have exhausted their state appeals and seek recourse at the federal level. Only two circuit courts have addressed the issue and have come to completely opposite conclusions. Petitioners convicted by jurors improperly included on the jury as a result of a misapplication of Batson have no recourse to the writ in the Second Circuit, whereas completely similarly situated petitioners in the Seventh Circuit do. As the recent Rivera decision has taken automatic reversal off the table, defendants convicted by improperly seated jurors may increasingly look to the writ as a remedy.

This Comment argues that a trial court's violation of the clearly established procedure for contesting peremptory strikes set down in Batson is cognizable on habeas review and merits habeas relief. An improper granting of a prosecution's reverse-Batson challenge is a denial of protections promised by the Supreme Court of the United States. The Second Circuit overlooks the substantive difference between being denied the exercise of peremptory challenges and being denied the protection of well-settled federal law concerning the use of those challenges. The Supreme Court should provide guidance so that lower courts do not erroneously believe they lack subject matter jurisdiction to review the claims. Not only do federal courts have such jurisdiction, but when presented with evidence that a defendant suffered a reverse-Batson violation, the Antiterrorism and Effective Death Penalty Act (AEDPA) enables them to grant habeas relief. (8)

This Comment proceeds as follows. Part I will introduce Batson and its progeny and explore the requirements for post-conviction habeas relief in light of the AEDPA. Part II will describe the Second Circuit and Seventh Circuit split about whether reverse-Batson violations are cognizable for habeas review. Part III will argue that the improper granting of a reverse-Batson motion sufficiently violates "clearly established federal law" so that it merits habeas review and relief.

1. BATSON AND ITS PROGENY: CLEARLY ESTABLISHED FEDERAL LAW

   Habeas corpus review shall be available where a petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. (9) In 1996, after Congress passed and the President signed the AEDPA, the availability of habeas review for post-conviction relief was greatly limited. (10) Even more significant for reverse-Batson purposes were the new limitations on habeas relief. Under 28 U.S.C. [section] 2254(d)(1), the writ shall not be granted unless the adjudication of a claim's merits in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (11) Additionally, state court decisions can be set aside under [section] 2254(d)(2) when they have "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (12)

   The Batson line of cases is the exemplar of such clearly established federal law. (13) In its most basic formulation, Batson forbids prosecutors from exercising peremptory challenges to strike prospective jurors on account of their race. If the defense makes a Batson challenge, the trial judge must then apply Batson's three-step framework.

   In Step One, the trial judge must evaluate whether the defense has made a prima facie showing of racial discrimination. To establish a prima facie case of purposeful discrimination under Batson, the defendant must show: (1) that he is a member of a cognizable racial group; (2) that peremptory challenges have been used to remove members of the defendant's race from the jury; and (3) that the facts and other relevant circumstances raise an inference that the prosecutor used peremptory challenges in a racially discriminatory manner. (14) If that showing is made, Step Two requires that the burden shift to the prosecutor to present a race-neutral explanation for the strike. (15) In Purkett v. Elem, a key holding in the Batson line of cases, the Supreme Court held that a race-neutral explanation need not be persuasive, or even plausible, to advance Batson analysis to the ultimate question of purposeful discrimination. (16) The reason offered will be considered race neutral in the absence of inherent discriminatory intent in the prosecutor's explanation. The court then moves to Step Three and determines whether the moving party has carried the...