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

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1418 IOWA LAW REVIEW [Vol. 97:1393 deferential standards of review are satisfied, appellate courts are justified in overturning fact findings. Several facts persuaded the Justices that, in Miller- El, the intent-to-discriminate issue was debatable. “[S]tatistical evidence” showed that the prosecutor used peremptories “to exclude 91% of the eligible African-American venire members”; 213 the prosecutor treated black and white jurors disparately, striking blacks for supposedly race-neutral reasons equally applicable to white jurors and questioning them differently during voir dire; 214 the prosecution used a “jury shuffle” mechanism to decrease the odds of black jurors reaching the jury; 215 and there was potent “historical evidence of racial discrimination” by the prosecutor’s office. 216 The Fifth Circuit considered Miller-El’s appeal, as required on remand, “reject[ing his] Batson claim on the merits.” 217 The Supreme Court again granted review, and a six-Justice majority again reversed the appellate court, concluding that “Miller-El [was] entitled to prevail.” 218 The majority stressed that a “facially neutral reason” that is “false” does not “suffice[]” in step three and that “sometimes” a judge must “look[] beyond the case at hand” and consider “all relevant circumstances” to assess a reason’s truthfulness. 219 In Miller-El, the same facts that dictated appealability revealed the falsity of the reasons offered for removing two black jurors and proved purposeful discrimination. The “numbers” were “remarkable”—only one of twenty black venirepersons served; ten were struck after nine had been disqualified. 220 A comparison of struck black venirepersons to whites “allowed to serve” provided even more powerful evidence because the putative reasons for barring some blacks “appeared equally on point as to some white jurors who served.” 221 This suggested “that race was significant in determining who was challenged.” 222 In addition, the “broader patterns of practice during the jury selection”—the “shuffling of the venire panel” and the differential inquiries of black and white jurors about the “death penalty” and about “minimum acceptable sentences”—“indicate[d] decisions 213. Id. at 342. 214. Id. at 342–45. 215. Id. at 346. 216. Id. at 346–47. There was proof that “the culture of the District Attorney’s Office in the past was suffused with bias against African-Americans in jury selection.” Id. at 347. 217. Miller-El v. Dretke, 545 U.S. 231, 237 (2005). 218. Id. at 235, 237. 219. Id. at 240 (quoting Batson v. Kentucky, 476 U.S. 79, 96–97 (1986)) (internal quotation marks omitted from last quotation). 220. Id. at 240–41. 221. Id. at 241 (citing Miller-El I, 537 U.S. 322). The demonstration that some of the “raceneutral reasons” proffered to explain strikes were pretextual provided further evidence of “the very discrimination the explanations were meant to deny.” Id. at 265. 222. Id. at 252.
2012] TWENTY-FIVE YEARS OF BATSON 1419 probably based on race.” 223 “Finally, . . . the general policy of the . . . District Attorney’s Office to exclude black venire members from juries at the time Miller-El’s jury was selected” confirmed “the appearance of discrimination.” 224 A step-three determination of intent required consideration of all the evidence “cumulatively,” and the “direction” of the cumulative evidence in Miller-El was “too powerful to conclude anything but discrimination.” 225 For two excluded jurors, it was unrealistic “to deny” that they were struck “because they were black.” 226 The state court’s contrary conclusion was clearly and convincingly “wrong” and “unreasonable as well as erroneous.” 227 In 2008, the Roberts Court reached a similar conclusion in another capital case. In Snyder v. Louisiana, the government “eliminated” all five black jurors who remained in the pool after challenges for cause. 228 With respect to one strike, seven Justices found “clear error” in the state court finding that the prosecutor lacked discriminatory intent. 229 According to the Court, the trial judge’s “pivotal role” in Batson’s third step requires evaluation of the striking attorney’s “credibility,” and the attorney’s “demeanor” is often “the best evidence [of discriminatory intent].” 230 Moreover, because “race-neutral reasons . . . often” refer to “a juror’s demeanor,” a judge’s “firsthand observations” of jurors can be very important in deciding whether an explanation accurately describes the juror’s behavior. 231 The deference to a judge’s step-three determination reflected in the “clearly erroneous” standard of review is appropriate because credibility and demeanor assessments “lie ‘peculiarly within a trial judge’s province.’” 232 In Snyder, the prosecution offered two reasons for striking one black juror—that he appeared nervous and that he reported a student-teaching obligation. 233 The prosecution argued that the latter could make the juror desire a quick end to the trial, prompting him to return a lesser verdict to 223. Id. at 253. For detailed discussion of these matters, see id. at 253–63. 224. Id. at 253. For further explanation of the policy of systematic exclusion, see id. at 263– 64. 225. Id. at 265. 226. Id. at 266. 227. Id. 228. Snyder v. Louisiana, 552 U.S. 472, 475–76 (2008). 229. Id. at 474. The defendant contested two of the strikes, but the Court found it necessary to consider only one of the two. Id. at 477–78. As in Miller-El, the accused had been convicted and sentenced to death. Id. at 476. 230. Id. at 477 (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991)) (alteration in original) (internal quotation marks omitted). 231. Id. 232. Id. (quoting Hernandez, 500 U.S. at 365). 233. Id. at 478.
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