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

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1414 IOWA LAW REVIEW [Vol. 97:1393 error in the state trial court’s determination that the strikes based on those reasons did not constitute “intentional[] discriminat[ion].” 178 The Supreme Court found fault with the appellate court’s analysis because the step-two inquiry requires only “a race-neutral explanation . . .[,] not . . . an explanation that is persuasive, or even plausible.” 179 The facialvalidity requirement is satisfied by a race-neutral reason, and a reason is race-neutral “[u]nless a discriminatory intent is inherent in the . . . explanation.” 180 It is wrong to require that a party furnish a justification that is “not just neutral but also at least minimally persuasive.” 181 Because persuasiveness and plausibility are irrelevant at the second step, even “a silly or superstitious reason” suffices. 182 It is only at the third step—when a judge determines the real reason for a peremptory challenge—that such considerations come into play. 183 The Batson Court had stated that the rebuttal step required “legitimate reasons” that were “related to the particular case to be tried.” 184 According to Purkett, these statements did not require more than race neutrality and were intended to preclude mere denials of “discriminatory motive” or simple affirmations of “good faith.” 185 Thus, it is constitutional error to demand that a justification be logical or have substance or to require a party to articulate a rational connection to the trial. A reason that is not racially discriminatory can rebut a prima facie case of intentional discrimination because a peremptory challenge exercised for such a reason is constitutional. Hernandez and Purkett limited Batson’s ability to combat discrimination by diminishing the potency of the rebuttal demand. In Johnson v. California, however, the Court rejected an interpretation of Batson’s prima-facie-case step that would have further weakened the protection it provides against discriminatory peremptories. 186 In Johnson, a black defendant on trial for murder objected when the prosecutor used three of twelve peremptory challenges to remove all of the remaining black jurors. 187 At issue was whether Batson allows a jurisdiction to 178. Id. at 684. 179. Purkett, 514 U.S. at 767–68. 180. Id. at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)) (internal quotation marks omitted). 181. Id. 182. Id. 183. Id. 184. Batson v. Kentucky, 476 U.S. 79, 98 & n.20 (1986) (internal quotation marks omitted). 185. Purkett, 514 U.S. at 769. An explanation is “legitimate” and satisfies step two if it “does not deny equal protection.” Id. (internal quotation marks omitted). 186. Johnson v. California, 545 U.S. 162 (2005). 187. Id. at 164.
2012] TWENTY-FIVE YEARS OF BATSON 1415 “require at step one” 188 a showing “that it is more likely than not” that the contested peremptory challenges were discriminatory. 189 An eight-Justice majority concluded that the “‘more likely than not’ standard [was] at odds with the prima facie inquiry.” 190 According to the Court, a more likely than not standard at the prima-facie-case stage was inconsistent with Batson’s language, which did not demand that an objecting party “persuade the judge” but merely required “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred.” 191 Once an inference arose, Batson’s “burden-shifting framework” prescribed two additional steps that afforded “the trial judge . . . the benefit of all relevant circumstances . . . before deciding whether it was more likely than not that the challenge was improperly motivated.” 192 Batson observed that a party is entitled to relief if she establishes a prima facie case and the opponent does not offer a neutral explanation. 193 This did not mean that an objecting party had to satisfy the ultimate burden of persuasion on purposeful discrimination at step one. 194 While that burden always rests on the objecting party and never shifts to the party that exercised the peremptory challenges, the function of “[t]he first two Batson steps [is to] govern the production of evidence that allows the trial court to determine the persuasiveness of the . . . constitutional claim” in step three. 195 The majority found additional support for this interpretation in “Batson’s purposes,” which include “the overriding interest in eradicating discrimination from our civic institutions.” 196 Batson’s doctrinal scheme was “designed to produce actual answers” when there is reason to suspect discrimination and to avoid “speculation” when a court can obtain “direct answer[s].” 197 The “three-step process” prescribed—including the demand for a mere “inference of discrimination” in step one—vindicates Batson’s 188. Id. at 168. 189. Id. (quoting People v. Johnson, 1 Cal. Rptr. 3d 1, 13 (2003), rev’d, 545 U.S. 162) (internal quotation marks omitted). California had held that to establish a prima facie case of discrimination, the party raising a Batson objection must show that it is “more likely than not” that the striking party had “discriminatory intent” and had concluded that the trial court had not erred in finding that the defendant had not met that standard. Id. at 167 (quoting Johnson, 1 Cal. Rptr. 3d at 10) (internal quotation marks omitted). 190. Id. at 173. 191. Id. at 170. 192. Id. 193. See id. 194. Id. 195. Id. at 171. In the “unlikely” case that a party declines to proffer any reason, this “refusal to justify [a] strike in light of [a] court’s request . . . would provide additional support for the inference of discrimination raised by [the] . . . prima facie case.” Id. at 171 n.6. 196. Id. at 171–72. 197. Id. at 172.
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