Twenty-Five Years of Batson: An Introduction to ... - University of Iowa

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1412 IOWA LAW REVIEW [Vol. 97:1393 challenges to rebut the inference of discrimination with an adequate explanation. Assuming rebuttal, in the crucial third step a judge must decide whether the objector carried the burden of proving intentional discrimination on race or gender grounds. The most significant doctrinal developments clarified the explanations that are sufficient to satisfy the rebuttal demand. Hernandez v. New York involved a Hispanic defendant’s objection to the prosecution’s strikes of Hispanic jurors. 158 The prosecutor explained that he struck bilingual jurors because of concerns that they might not be able to follow the official interpreter’s translation of Spanish testimony and that “they would have an undue impact upon the jury.” 159 The lower courts deemed the explanation adequate. 160 On review, the Supreme Court focused on Batson’s demand that the proponent of peremptory strikes “articulate a race-neutral explanation for striking the jurors in question,” concluding that reasons lack “race neutrality” if, assuming them true, the “challenges violate the Equal Protection Clause as a matter of law.” 161 Because discriminatory intent is necessary, a rebuttal reason is not unacceptable merely because it has a “racially disproportionate impact.” 162 At step two of the Batson “inquiry,” “the issue is . . . facial validity,” and an explanation “based on something other than the race of the juror” is a facially valid rebuttal. 163 In Hernandez, the Court found the prosecutor’s explanation for striking Hispanic jurors to be race-neutral. It did not reflect an “intention to exclude Latino or bilingual jurors” or “stereotypical assumptions about Latinos or bilinguals.” 164 Because it was rooted in concerns generated by the jurors’ responses during voir dire, the rebuttal demand was met. 165 Because the prosecution furnished a race-neutral reason, step three obligated the trial judge to decide whether the accused carried his burden of proving discrimination. 166 At this stage, a judge may consider the disproportionate exclusionary impact upon a racial or ethnic group as an 158. Hernandez v. New York, 500 U.S. 352, 356 (1991) (plurality opinion). 159. Id. at 357 (internal quotation marks omitted). 160. Id. at 355–58. 161. Id. at 358–59. 162. Id. at 359–60 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977) (internal quotation marks omitted)); see also id. at 360 (stating that “[u]nless a discriminatory intent is inherent in the . . . explanation, the reason offered . . . [is] race neutral”). 163. Id. at 360. Although the preceding excerpts are all from a plurality opinion joined by only four Justices, two additional Justices supported the principles reflected in this paragraph. See id. at 372–75 (O’Connor, J., concurring in the judgment). 164. Id. at 361 (plurality opinion). 165. Id. 166. Id. at 363.
2012] TWENTY-FIVE YEARS OF BATSON 1413 indication that the reason provided was “a pretext for racial discrimination.” 167 However, if a trial judge, taking into account “the demeanor of the attorney who exercise[d] the challenge,” believes the “raceneutral explanation” offered, that “finding of fact” is entitled to “great deference on appeal.” 168 Reversal is appropriate only if the “finding on the issue of discriminatory intent . . . was clearly erroneous.” 169 In Hernandez, the judge did not commit clear error. 170 Hernandez created some ambiguity about the meaning of “race neutral.” The plurality opinion declined to decide how broadly “the concept of race should be defined.” 171 Justice Kennedy did suggest that some reasons could be so associated with race that they “should be treated as . . . surrogate[s] for race under an equal protection analysis.” 172 Whether such surrogates exist remains unresolved. Four years later, Purkett v. Elem clarified a point implicit in Hernandez. 173 The defendant challenged a prosecutor’s strikes of two black men during jury selection for his robbery trial. 174 The prosecutor explained that he struck the jurors based on hair length, facial hair, and the fact that one of them had a shotgun pointed at him during a robbery. 175 The state courts rejected the defendant’s objection, 176 but in a subsequent habeas corpus proceeding, the Eighth Circuit concluded that Batson’s step two required a plausible explanation of how reasons that are facially irrelevant to a juror’s ability to serve in a case might affect the juror’s performance. 177 The court deemed the hair-length and facial-hair reasons “pretextual” and found clear 167. Id. 168. Id. at 364–65. 169. Id. at 369. 170. Id. at 369–70. 171. Id. at 371. Whether Spanish-speaking ability was race-neutral did not have to be decided because the prosecutor did not strike jurors on that ground. See id. at 360, 371. 172. Id. at 371 (“It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race . . . .”). Justices O’Connor and Scalia would have foreclosed the possibility of “surrogates” for race. In their view, the only reason that cannot rebut a prima facie case is race. Batson “does not require that the justification be unrelated to race” but “only that the . . . reason for striking a juror not be the juror’s race.” Id. at 375 (O’Connor, J., concurring in the judgment). It seems likely that the three dissenters would have agreed that some reasons might be disqualified as “surrogates” for race. See id. at 375 (Blackmun, J., dissenting); id. at 375–79 (Stevens, J., dissenting). 173. Purkett v. Elem, 514 U.S. 765 (1995) (per curiam). 174. Id. at 766. 175. Id. 176. Id. 177. Elem v. Purkett, 25 F.3d 679, 683 (8th Cir. 1994), rev’d, 514 U.S. 765 (1995).
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