A wrong without a remedy: can the erroneous grant of a Batson objection ever constitute reversible error?

• Author: Colan, Jonathan D.
• Position: Appelate Practice

Despite the oft-repeated promise that "a right implies a remedy," (1) in establishing a procedure to guard against unconstitutional discrimination in jury selection, the U.S. Supreme Court may have created a right without a remedy. In appellate parlance, the erroneous granting of a Batson objection may be an error that is never reversible.

In Batson v. United States, 476 U.S. 79 (1986), and its progeny, the U.S. Supreme Court has set forth a procedure that the federal courts are required to use in order to prevent racial and other forms of prohibited discrimination during jury selection. In appropriate cases, if the trial court fails to follow this procedure or fails in its application while denying a Batson objection, and, thus, allows a discriminatory use of a parties' jury challenges, the appellate court will reverse the ensuing judgment and remand the matter for retrial before a properly selected jury. (2) The harm from allowing discrimination against a protected class in jury selection is a violation of the U.S. Constitution's Equal Protection Clause, and the error from wrongfully denying a Batson challenge is, thus, reversible. (3) This error is remediable regardless of whether the discriminating party is a civil or criminal litigant, (4) or whether it is the prosecution or the defense who attempts to exercise a discriminatory jury challenge. (5) If, however, the trial court errs in its application of the Batson procedure by improperly granting a Batson objection, it is possible that such an error might never be reversible.

In Rivera v. Illinois, 556 U.S. 148 (2009), the Court held that "the mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here," constitute either a constitutional violation or a structural error automatically requiring reversal. (6) Because "Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury," the U.S. Supreme Court affirmed the Illinois Supreme Court conclusions that "the improper seating of a competent and unbiased juror [did] not convert the jury into an ultra vires tribunal" and that any error in denying Rivera's peremptory challenge was harmless. (7)

If a trial court erroneously grants a Batson objection and, thus, denies that party the ability to excuse a juror through a peremptory challenge, that error will never be responsible for seating a biased jury. Erroneously denying the party's attempt to exercise a for-cause challenge to a juror can result in such a harm, but erroneously denying a party's attempt to exercise a peremptory challenge cannot. While there may be sound policy reasons to ensure a party's ability to help select the jury of his or her preference through the use of peremptory challenges, the record on appeal will never show an impairment of one's constitutional right to an impartial jury resulting from the erroneous grant of the Batson objection denying the use of the peremptory strike. The trial court will have erred, but the error will always be harmless. The trial court will have committed a wrong without a remedy.

The Batson Process

In Batson, the U.S. Supreme Court reaffirmed the principle that "racial discrimination in jury selection offends the Equal Protection Clause." (8) That principle has since been expanded to prohibit discrimination in jury selection against certain additional protected classes, such as gender and ethnicity. (9) The Court held that a "defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria," explaining that class discrimination in the jury selection process "undermine[s] public confidence in the fairness of our system of justice." (10) Even the potential jurors, themselves, have a constitutional right not to be excluded from jury service on the basis of their race, gender, or ethnicity. (11)

To implement Batson's holding, federal courts are required to engage in a three-part process when a party believes the other is attempting to exercise one or more peremptory strikes in a discriminatory manner. First, the party objecting to the use of one or more peremptory challenges on Batson grounds "must establish a prima facie case to raise the inference of discriminatory intent." (12) A party "satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (13) Once the objecting party establishes its prima facie case, the party seeking to exercise the peremptory challenge or challenges "may rebut the inference [of discriminatory intent] by articulating legitimate, [class] neutral reasons for its exercise of its peremptory strikes." (14) After the party seeking to exercise its peremptory strikes proffers its nondiscriminatory reasons for its actions, "[t]he court must then evaluate the plausibility of the stated reasons 'in light of all evidence with a bearing on [them].'" (15) The objecting party "maintains at all times, however, the ultimate burden of proving intentional discrimination." (16) The trial court's assessment of the striking party's discriminatory intent is entitled to "great deference" and is reviewed only for clear error. (17) If the trial court denied the Batson objection, but an appellate court found that the trial court clearly erred in not finding discriminatory intent, the judgment reached by the tainted jury would be vacated. (18)

Interestingly, the remedy a trial court should employ if it finds that a party is attempting to strike one or more jurors with discriminatory intent is not clear. In its Batson decision, the Supreme Court refrained from instructing the trial courts "whether it is more appropriate ... for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire." (19) The 11th Circuit has "decline[d] the invitation to craft any kind of brightline rule," but has held the reseating of the challenged juror to be within the trial court's discretion. (20)

Although Florida state courts follow a similar procedure, (21) "Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices," premised on the Florida Constitution's express guarantee of a right to an "impartial jury" in criminal cases. (22) The Florida Supreme Court has...