South Carolina Lawyer
Vol. 10, No. 2, Pg. 20.
Batson: Then and Now Part I
20BATSON: Then and Now Part IBy John H. Blume and Elizabeth PiliavinIt has been over a decade since the U.S. Supreme Court handed down the seminal Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) decision. In the succeeding years, courts throughout the United States have interpreted Batson's holding and extended Batson's reach.
This article--intended to pick up where the previous article published in this magazine ("Applying Batson v. Kentucky in South Carolina Cases," Nov./Dec. 1991) left off--will outline the major Supreme Court decisions construing Batson since 1991 and the South Carolina cases that have followed them. The article will answer some of the questions not yet determined when the original piece was published and will discuss areas of Batson jurisprudence that are still undecided, and thus, potentially ripe for future litigation.
BATSON V. KENTUCKY
First, a brief Batson recap. Following his convictions for second-degree burglary and receipt of stolen goods, James Kirkland Batson filed an appeal arguing that the prosecutor's use of peremptory challenges to strike all four black members of the venire violated his rights under the Sixth and Fourteenth Amendments. Batson, 476 U.S. at 83-84. The Kentucky Supreme Court affirmed Batson's convictions.
The U.S. Supreme Court granted certiorari and reversed. Id. at 100. The Court, overruling its prior decision in Swain v. Alabama,extended Strauder v. West Virginia, 100 U.S. 303 (1880) (State denied black defendant equal protection of the laws when it put him on trial before a jury chosen from a venire from which members of his race had been excluded by law) to the selection of the petit jury and specifically to the state's use of peremptory challenges. Batson, 476 U.S. at 88-89. The Court concluded that "a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Id. at 96.
This article is the first of a two-part series on Batson. Part II will be published in the next issue.
22In order to make out a prima facie case, Batson required a defendant to "show that he or she is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id. (citations omitted).
The Court held that the defendant "must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id. Once the defendant makes out a prima facie case of discrimination, the burden then shifts to the state to provide a neutral explanation for the peremptory challenges. Id. at 97.
While the Batson Court suggested that at this stage the trial court should make its determination as to whether the defendant has established purposeful discrimination, many courts, including the South Carolina Supreme Court and the Fourth Circuit, have interpreted Batson to require an additional stage in the hearing. Where the State offers racially neutral explanations for its disputed challenges, the court should give the defendant an opportunity to establish that the proffered explanations are pretextual. See e.g., Howard v. Moore, 131 F.3d 399, 407 (4th Cir. 1997); State v. Oglesby, 298 S.C. 279, 379 S.E.2d 891 (1989); see also, U.S. v. Alcantar, 897 F.2d 436, 438 (9th Cir. 1990); U.S. v. Alston, 895 F.2d 1362, 1374 (11th Cir. 1990); U.S. v. Davis, 816 F.2d 433, 434 (8th Cir. 1987), cert. denied, 488 U.S. 832, 109 S.Ct. 88 (1988).
In State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989), the South Carolina Supreme Court offered guidance to trial courts in their analyses of possible pretext in solicitors' purported race neutral reasons, suggesting that the trial judge consider whether a solicitor's explanation is: neutral; related to the case to be tried; clear and...