Vol. 10, No. 2, Pg. 20. Batson: Then and Now Part I.

• Author: By John H. Blume and Elizabeth Piliavin

South Carolina Lawyer

1998.

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 reasonably specific; and legitimate. Id. At 709.

There are several more commonly asked questions.

To Whom Does Batson Apply? Initially, many courts construed the Batson decision quite narrowly. See, e.g., U.S. v. Rodriguez, 917 F.2d 1286 (11th Cir. 1990) (Hispanic defendant did not have standing to challenge prosecutor's exercise of peremptory challenges to exclude black persons), cert. denied, 493 U.S. 1069, 110 S.Ct. 1109 (1990); U.S. v. Hamilton, 850 F.2d 1038 (4th Cir. 1990) (rejecting argument that Equal Protection Clause required extension of Batson to peremptory challenges exercised on the basis of gender); Chavous v. Brown, 302 S.C. 308, 396 S.E.2d 98 (1990) (holding Batson did not apply to civil cases because the Equal Protection clause applied only to prohibit discriminatory action by the State), vacated, 501 U.S. 1202, 111 S.Ct. 2791 (1991).

However, in the last 12 years the Supreme Court has consistently extended Batson's reach, granting its protections to areas of law and individuals not necessarily envisioned by the original opinion.

Can Civil Litigants Challenge the Use of Opposing Counsel's Peremptories Under Batson? Yes. In Edmonson v. Leesville Concrete Co., 111 S.Ct. 2077 (1991), the Supreme Court extended Batson's holding to civil jury trials.

The Court held that the Equal Protection component of the Fifth Amendment's Due Process Clause prohibits private litigants from using peremptory challenges to strike prospective jurors because of their race. The Court held that such race-based exclusion violates the excluded jurors' equal protection rights, and that the party opposing the challenge has third party standing to complain. Id. at 2080, 2087.

The Court found the necessary state action in the government's essential involvement in the jury selection process. "The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises the challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the 'final and practical denial' of the excluded individual's opportunity to serve on the petit jury." Id., at 2084-85. The private party "becomes a government actor for the limited purpose of using peremptories during jury selection." Id. at 2086.

The Supreme Court, however, was divided in Edmonson. Justice O'Connor, joined by Chief Justice Rehnquist and Justice Scalia, dissented, stating that "[n]ot everything that happens in a courtroom is state action. . .[A] peremptory strike by a private litigant is not state action, but a matter of private choice." Id. at 2089.

Distinguishing Edmonson from Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that state court enforcement of racially restrictive covenant against sale of real property amounted to state action in violation of the Fourteenth Amendment), Justice O'Connor would have found that "[a] judge does not 'significantly encourage' discrimination by the mere act of excusing a juror in response to an unexplained request."

Id. at 2091.

Further, she opined that the enforcement of a discriminatorily exercised peremptory challenge is fundamentally different from the coercive force used by the state courts in Shelley. The former "does not compel anyone to

23 discriminate; the discrimination is wholly a matter of private choice." Id.

Justice Scalia also dissented, predicting that the Court's holding would ultimately hinder minority litigants' efforts to obtain racially diverse juries. Id. at 2095. He drew specific attention to the natural extension of the Court's holding to criminal prosecutions, and to defendants' exercise of peremptory challenges. Id. He noted that, in some cases, the majority's decision would damage defendants' efforts to use peremptories to assure racially diverse juries. Id.

Further, he went on to discuss the vast amount of time and energy that would be expended on such claims in the future and the cost these expenditures would exact from the system of justice. Scalia went so far as to suggest that states and Congress might decide to abolish peremptory challenges altogether, rather than endure the burden imposed by the majority's decision. Id. at 2095-96.

South Carolina courts have followed the mandate of Edmonson in a number of cases since 1991. See e.g., Payton v. Kearse, 1998 WL 11689 (1998) (trial court erred in failing to find respondent's peremptory strikes during jury selection in civil negligence action were racially motivated); Chavous v. Brown, 305 S.C. 387, 409 S.E.2d 356, 356-57 (1991) (concurring in Court of Appeals' holding that petitioner's race-neutral explanations for strikes were pretextual); Foster v. Spartanburg Hospital System, 314 S.C. 282, 442 S.E.2d 625 (S.C. App. 1994) (respondent hospital failed to meet its burden of establishing race neutral reasons for exclusion of four of the five black jurors from the jury panel).

Does a White Defendant Have Standing to Object to the Exclusion of Black Venire members? Yes. The Supreme Court first addressed a white defendant's standing to object to the exclusion of blacks from his jury in Holland v. Illinois, 493 U.S. 474 (1990).

Holland brought a Sixth Amendment claim, arguing that the prosecution's exclusion of blacks violated his right to a jury representing a fair cross-section of the community. Id. at 475. While the Court held that Holland had standing to raise the issue, it ruled against him on the basis that the Sixth Amendment fair cross section requirement did not apply to the petit jury. Id. at 478-79.

In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364 (1991) the Court reaffirmed Holland's holding that a criminal defendant has standing to object to the prosecution's peremptory challenges of venirepersons regardless of whether the defendant and the excluded jurors share the same race, Id. at 1370-73, but also held that the Equal Protection clause protects all defendants and the community at large from discrimination in jury selection and provides individual jurors the right not to be excluded on a discriminatory basis. Id.

South Carolina has followed Powers in a number of cases. See State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995) (remanding case for Batson hearing where trial court should have granted white male defendant's request for Batson hearing after state exercised peremptory challenges against four white male jurors); State v. Dyar, 317 S.C. 77, 452 S.E.2d 603 (1994)(white defendant has standing to object to prosecutor's race-based peremptory challenges of black venire persons).

Can the State make a Batson Challenge to Defense's Exercise of Peremptories? Yes. In 1992 the U.S. Supreme Court realized Justice Scalia's 1991 prediction in Edmonson, 111 S.Ct. at 2095, and held, in Georgia v. McCollum, 502 U.S. 1056 (1992), that a criminal defendant's discriminatory use of peremptory challenges was unlawful state action inflicting the harms addressed by Batson. The Court also held that prosecutors have standing to raise the constitutional challenge and that the defendant's constitutional rights do not preclude the extension of Batson and its progeny to his peremptory strikes. Id.

The Court again stated that the constitutional harm is to the challenged juror as well as to the integrity of the courts. Id. at 505 U.S. at 48-49. Justice Blackmun, joined by Chief Justice Rehnquist and Justices White, Stevens, Kennedy and Souter, drew on the Court's analysis in Edmonson to hold that a criminal defendant's right to exercise peremptory challenges has its source in state authority and that "[b]y enforcing discriminatory peremptory challenges, the Court would . . . place its power, property and prestige behind the [alleged] discrimination." Id. at 51-52.

Furthermore, having laid the analytical framework for

25 evaluating third-party standing to raise the equal protection rights of excluded jurors in Powers one year earlier, the Court merely applied the Powers rationale to McCollum to determine that the state has standing to assert excluded jurors' rights. Id. at 55-56.

The Court went on to opine that the limitations placed on criminal defendants by its decision did not impinge upon any rights guaranteed to them under the U.S. Constitution. Id. at 57-59. In fact, the Court suggested, lilt is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race." Id. at 57.

The South Carolina Supreme Court applied McCollum in a number of cases. See e.g., State v. Hicks, No. 24784, slip op (S.C. 1998) (trial court properly granted State's Batson motion where black appellant did not offer clear, reasonably Gender, like race, is an unconstitutional proxy for juror competence and impartiality." Id. at 1421. specific or legitimate reasons for striking two white jurors); State v. Govan, 312 S.C. 71, 439 S.E.2d 263 (S.C. 1993) (court applied McCollum and Powers to uphold the trial court's grant of the State's motion to strike the jury where a black criminal defendant was found to have purposefully discriminated against white jurors in the exercise of his peremptory challenges); see also, State v. Easier, 322 S.C. 333, 471 S.E.2d 745 (S.C.App. 1996) (finding no error in trial court's decision to quash jury panel on the basis of determination that defendant had exercised his peremptory challenges in a discriminatory manner).

Does Batson Extend to Gender-Based Discrimination in Peremptory Strikes? Yes. The Supreme Court extended Batson to gender-based discrimination in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

The Court held that it violated the Equal Protection Clause to strike male jurors solely on the basis of their gender. "Discrimination in jury selection, whether based on race or gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. Gender, like race, is an unconstitutional proxy for juror competence and impartiality." Id. at 1421.

Interestingly, Batson's expansion to gender-based discrimination occurred in a civil suit, only

26relatively recently covered by Batson's protections. At trial, the court, over petitioner's objection under Batson, empaneled an all-female jury to hear the sate's case against him for paternity and child support. Of a panel of 36 potential jurors, only 12 were male and two of those 12 were excused for cause. The state used nine of its ten peremptory challenges to remove male jurors, and petitioner struck the tenth male juror. The jury found petitioner to be the father of the child in question, and the trial court ordered him to pay child support. The lower courts affirmed.

In reversing the Court of Civil Appeals of Alabama, the Supreme Court drew on historical precedent from Strauder v. Virginia and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261 (1946) (women may not be excluded from the venire in federal trials in states where women were eligible for jury service under local law) to Powers v. Ohio and Edmonson v. Leesville Concrete Co., in holding that the Batson rationale extended to gender-based peremptory challenges. Applying the heightened or intermediate scrutiny analysis developed by the Court to evaluate gender discrimination claims, the Court determined that discrimination on the basis of gender in jury selection does not substantially further the state's legitimate interest in achieving a fair and impartial trial. Id. at 1426 & n.8.

In reaching its decision, the Court refused to accept and employ gender stereotypes to predict juror attitudes, as it would if the similar generalizations were offered on the basis of race. Id. at 1426-27.

While the South Carolina Supreme Court has yet to squarely address a claim of gender discrimination in jury selection, it has acknowledged parties' rights to assert such a claim where one exists. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, 359, cert. denied, 516 U.S. 856, 116 S.Ct. 160 (1995); State v. Chapman, 317 S.C. 302, 305, 454 S.E.2d 317 (1995).

John H. Blume is a visiting professor and director of the Death Penalty Project at Cornell Law School. Elizabeth Piliavin is the Judy Clarke Fellow at the Center for Capital Litigation.