True lies: the role of pretext evidence under Batson v. Kentucky in the wake of St. Mary's Honor Center v. Hicks.

• Author: Sutphen, David A.

During the course of voir dire in State v. McRae,(1) a prosecutor questioned the only African-American veniremember regarding her views on the fairness of the justice system: [Prosecutor:] Did you also understand that there may be certain jurors who have certain feelings or attitudes about whatever ... that [] they couldn't for example, find somebody guilty because they just don't think the system is fair...[Veniremember:] I understand that. [Prosecutor:] Okay. Knowing what you know about, you know, your belief that the system maybe isn't perfect, should I be concerned? Is it something where you don't think you could convict him if he's proven - [Veniremember:] No, no no. [Prosecutor:] Okay. [Veniremember:] I would base my judgment on the evidence.(2) After responding to this line of inquiry, which was not posed to any of the white veniremembers, the prospective juror was peremptorily challenged by the State.(3) Concerned that the prosecutor's strike was racially motivated, defense counsel raised an objection under Batson v. Kentucky.(4)

After determining that the defendant had established a prima facie case of discrimination,(5) the trial judge afforded the prosecutor an opportunity to proffer a legitimate nondiscriminatory reason for the peremptory challenge. In his defense the prosecutor offered two justifications. First, that the stricken veniremember "had an attitude that where she thought that basically, the system is unfair to minorities, and the defendant's being black is - and her being black would over compensate by basically letting this guy off."(6) government simply would collapse if it could not delegate decisionmaking authority to agencies that use informal hearing procedures,(122) if Congress employs language in a statute implying that the agency's procedural scheme is constitutionally sufficient, there is good reason for courts to defer to that implication. Second, that she "thinks the whole jury process is [a] fraud."(7) Notwithstanding the defendant's claim that these explanations were [pretextual:], the trial judge concluded that there "was an articulable basis for the prosecutor's challenge in this case."(8) Thus, the case proceeded to trial, and the defendant was eventually convicted of second-degree criminal sexual conduct.(9) On appeal to the Minnesota Supreme Court, however, the trial judge's ruling was reversed on the ground that the prosecutor's explanation for the challenged strike was unworthy of credence because it was unsupported by the voir dire transcript.(10)

The facts of State v. McRae are representative of a large number of Batson cases in which the validity of a prosecutor's explanation for a peremptory challenge is the main point of inquiry both during the trial and on appeal.(11) This emphasis is largely a function of the fact that, under Batson, proof of pretext is the legal equivalent of proof of intentional discrimination.(12) In other words, if a defendant challenging a peremptory strike can convince a trial judge during the final stage of the Batson hearing that the explanation offered by a prosecutor in support of a peremptory strike is pretextual,(13) then she will prevail as a matter of law.(14)

In the process of determining whether a peremptory strike is valid, lower courts rely on the Title VII burden-shifting framework originally laid out by the Supreme Court in McDonnell Douglas Corp. v. Green.(15) As a result, the order and presentation of proof in Batson cases deliberately parallels the order and presentation of proof in Title VII intentional discrimination suits. In light of this similarity, the Supreme Court's recent Title VII ruling in St. Mary's Honor Center v. Hicks(l6) - that proof of pretext under the McDonnell Douglas framework is not the legal equivalent to proof of intentional discrimination - raises questions regarding the role of pretext evidence in the operation of the present Batson proof structure.

This Note argues that notwithstanding Batson's reliance on the McDonnell Douglas burden-shifting framework, the current standard of proof under Batson should not be altered along the lines suggested by Hicks. Part I contends that Batson and its progeny are an affirmative effort by the Court to eliminate racism in jury selection. Part 11 analyzes the Court's ruling in Hicks and specifically focuses on the Court's reasons for rejecting proof of pretext as the legal equivalent of proof of intentional discrimination in Title VII cases. Finally, Part III argues that there are fundamental differences between the Title VII employment discrimination context and Batson cases, and as such, the logic underlying Hicks breaks down when applied in cases alleging the discriminatory use of peremptory challenges.

1. BATSON: ITS PURPOSE AND APPLICATION

   This Part examines the Court's landmark ruling in Batson and describes how lower courts have applied it. Section I.A argues that Batson was a reaction to Swain v. Alabama, and was intended to ease the burden of proof on criminal defendants challenging the States' use of peremptories. Section I.B explores the operation of Batson's three-part proof structure. Section I.C argues that establishing pretext is presently the critical question in Batson cases.

   1. An Interpretation of Batson

      To understand Batson it is important to recognize that Batson was a direct response to an earlier, much maligned, peremptory challenge case: Swain v. Alabama.(17) The decision in Batson was a clear rejection of the notion embraced by the Court in Swain that it was reasonable to assume that a prosecutor's strikes were based on legitimate considerations. Section I.A.1 argues that Batson eased Swain's excessive burden of proof and reversed Swain's presumption regarding the discriminatory potential of peremptory challenges. Section I.A.2 contends that in addition to relieving Swain's excessive burden of proof, Batson sought to alleviate two other harms caused by discriminatory peremptories: harm to the excluded juror, and harm to the integrity of the justice system.

      1. Batson as a Reaction to Swain

         For over a century the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment forbids racebased exclusion of blacks from service on grand and petit juries.(18) It was not until 1965, however, that the Court first addressed the specific question of whether race-based peremptory challenges violate the Fourteenth Amendment. In Swain v. Alabama,(19) the Court recognized that, in principle, proof of the systematic exclusion of blacks through the State's use of peremptory challenges was sufficient to establish a violation of the Constitution.(20)

         Nevertheless, in practice, the burden of proof required to prevail under Swain was nearly insurmountable. In order to show a constitutional violation, a defendant had to demonstrate that the prosecutor challenged blacks "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be."(21) As a result, Swain did little, on a case-by-case basis, to deter prosecutors from challenging veniremembers solely on the basis of race.(22)

         By the mid-1980s, faced with compelling evidence of the continued use of racially motivated peremptory challenges,(23) the Supreme Court decided to reconsider its primary holding in Swain. In Batson v. Kentucky,(24) the Court held that race-based peremptory challenges in a criminal case where the defendant and struck juror are both black violate the Equal Protection Clause of the Fourteenth Amendment.

         James K. Batson, a black man, was arrested and charged by the State of Kentucky with second-degree burglary and receipt of stolen goods.(25) During the course of jury selection, the State used four of its six peremptory challenges to excuse all four black veniremembers(26) In response, Batson moved to discharge the jury on the ground that the State's challenges violated his constitutional rights under the Fourteenth Amendment.(27) The trial judge, however, rejected Batson's argument noting that the parties could "strike'anybody they want to.' "(28) The Supreme Court ultimately granted certiorari and ruled that race-based peremptory challenges were unconstitutional and that, in order to prevail, a criminal defendant need not prove that the individual prosecutor had a history of exercising discriminatory strikes.(29)

         The Court in Batson clearly rejected the notion underlying Swain, that it was reasonable - even if the State had peremptorily challenged all black veniremembers - to assume that a prosecutor's strikes were based on legitimate considerations.(30) In fact, Batson explicitly recognized that peremptory challenges allow "those to discriminate who are of a mind to discriminate"(31) and that Swain's crippling burden of proof" essentially had immunized such challenges from constitutional review.(32)

         Batson recognized that the burden in Swain had been insurmountable and established a new three-stage analysis, based on Title VII, which was clearly aimed at making objections to discriminatory peremptory challenges more viable.(33) Furthermore, the Court stated that in meeting Batson's lower burden of proof, the objecting party could rely on the fact that the peremptories offer the opportunity to discriminate.(34) The Batson Court's decision to lessen the standard of proof required to show a constitutional violation makes it substantially easier for a defendant to prevent a prosecutor from exercising racially motivated peremptory challenges.

      2. Batson's Three Harms

         Although Batson primarily focused on the constitutional harm suffered by the criminal defendant as a result of race-based peremptory challenges,(35) the Court also identified two additional harms arising from discriminatory peremptory challenges: the harm to the excluded juror, and the harm to the integrity of the justice system as a whole.(36) In the cases that expanded Batson - Powers v. Ohio,(37) Edmonson v. Leesville Concrete Co.,(38)...