Vol. 10, No. 3, Pg. 20. Batson: Then and How, Part II.

• Author: By John H. Blume and Elizabeth Piliavin

South Carolina Lawyer

1998.

Vol. 10, No. 3, Pg. 20.

Batson: Then and How, Part II

20BATSON: Then and How, Part IIBy John H. Blume and Elizabeth PiliavinThis article is the second of a two-part series on Batson. Part I was published in the last issue.

There are three stages of the Batson analysis. The first is making out a prima facie case f discrimination. Initially, many courts declined to reach beyond Batson's original statement of a prima facie case. "To establish [a case of prima facie discrimination], the defendant first must show that he 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." Batson v. Kentucky, 476 U.S. 79, 96,106 S.Ct. 1712 (1986).

However, these requirements have been effectively eliminated by the Supreme Court's expansion of Batson's coverage. To make out a prima facie case, defendants no longer need to meet the prerequisite of membership in a cognizable racial group. Rather, a defendant can raise a Batson challenge to the exclusion of a racial or gender grouping of venire members whether or not he or she is a member of the group in question. Essentially, "any person regardless of race or gender may set forth a valid Batson claim." State v. Easier, 322 S.C. 333, 471 S.E.2d 745, 753 (S.C. App. 1996), aff'd., 327 S.C. 121, 489 S.E.2d 617 (1997).

In South Carolina, the state Supreme Court has determined that the State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987), criterion prescribing when a trial court should hold a Batson hearing are outdated. In State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995), the Court held that trial courts should hold a Batson hearing whenever one is requested; "requesting a Batson hearing in effect sets out a prima facie case of discrimination." Id. at 305-06.

The second stage is asking what constitutes a racially neutral explanation. In 1995 the Supreme Court adopted a new standard for evaluating proffered explanations for peremptory strikes challenged under Batson. See, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995). Under this test, the party opposing the peremptory strike(s) will make a case of prima facie discrimination in the same manner as he or she would have under the old test.

However, at the second step of the analysis, the proponent of the strike must only provide a race-neutral explanation for the strike, they need no longer meet the requirement that the explanation be "at least minimally persuasive" or plausible. 115 S.Ct. at 1771. Nevertheless, at the third step ofthe analysis, the opponent of the strike may argue, and the trial court must decide, whether, the explanation is pretextual. Id. "Implausible or fantastic justifications may (and probably will) be found to be pretexts for discrimination." Id.

The South Carolina Supreme Court adopted Purkett v. Elem in State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996); see also, State v. Easter, 322 S.C. 333, 471 S.E.2d 745 (S.C.App. 1996). At trial, the defense exercised its peremptory challenges to exclude seven Caucasians from the venire. Id. at 123. The prosecution requested a Batson hearing, and the judge found a Batson violation determining that defense counsel's explanations for two strikes were not racially neutral. Id.

The Court found error in the trial court's decision to quash the jury panel, citing Purkett. Id. at 124. Now, the proponent of a peremptory strike will not have any burden of presenting reasonably specific, legitimate explanations for the strike. The explanation need only be racially neutral. Id. at 123.

22The Court reasoned that the new approach to evaluating claims of discrimination in the exercise of peremptory challenges "does not vitiate Batson, . . . . The Purkett approach simply returns to the opponent of the strike the ultimate burden of showing purposeful discrimination." Id.

PRETEXTIIAL EXPLANATIONS

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