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

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1396 IOWA LAW REVIEW [Vol. 97:1393 that no discrimination shall be made against them by law because of their color. 15 The Justices had no doubt that West Virginia’s statute was discriminatory. 16 By restricting jury service to whites, West Virginia deprived potential black jurors of their constitutional entitlement. 17 Moreover, the statute unconstitutionally discriminated against black defendants who were put on trial. 18 In West Virginia, white men were entitled to trials by juries of their peers “selected without discrimination.” 19 Black men, who had no such entitlement, were denied the equal “protection of life and liberty against race or color prejudice.” 20 To subject a black man to trial “by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone” denied him “equal legal protection.” 21 B. SWAIN V. ALABAMA: PEREMPTORY STRIKES OF BLACK JURORS AND EQUAL PROTECTION Eighty-five years later, Robert Swain, another black man, invoked Strauder’s “principle” in support of a quite different equal protection claim. 22 Swain had been tried for and convicted of rape. 23 He alleged that the prosecutor had violated the Fourteenth Amendment by using peremptory challenges to strike the six black members of the venire. 24 Alabama argued that its peremptory-strike system, which was a means of obtaining “fair and impartial” juries, “in and of itself, provide[d] justification for striking any 15. Id. at 307. 16. Id. at 308. 17. Id. (explaining that the denial of the “right to participate in the administration of the law, as jurors, because of their color, . . . [was] practically a brand upon them, . . . an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing . . . equal justice”). 18. Id. at 309. 19. Id. 20. Id. According to the Court, the “framers of the [Fourteenth A]mendment” knew of the prejudices that “often exist[ed] against particular classes in the community” and were motivated by an “apprehension that through [such] prejudice [black persons] might be denied . . . equal protection” of the laws and discriminated against. Id. 21. Id.; see also id. at 310 (“[T]he statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State . . . .”). 22. Swain v. Alabama, 380 U.S. 202, 203 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1985). 23. Id. at 203. 24. Id. at 209–10. Peremptory challenges entitle a party to remove jurors without furnishing any reason. Each side in a criminal case has a prescribed number of peremptories.
2012] TWENTY-FIVE YEARS OF BATSON 1397 group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes.” 25 The Court validated Alabama’s position. 26 The Court recounted the long history of peremptory challenges in England and the United States, 27 observing that their “function . . . is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors . . . will decide on the basis of the evidence . . . and not otherwise.” 28 Peremptories thereby promote “the appearance of justice.” 29 Their “very availability” enables lawyers to ask “probing questions” that might uncover “bias” and “facilitates the exercise of challenges for cause by removing the fear” that questions and for-cause challenges might antagonize jurors. 30 The essence of a peremptory challenge is an entitlement to exclude jurors without providing any “reason” and without any “inquiry” or “control” by the judge. 31 A party may reject jurors based on the jurors’ “real or imagined partiality,” their habits, associations, looks, or gestures or because of the party’s impressions, prejudices, or feelings. 32 Moreover, peremptories are “frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations” of potential jurors. 33 In assessing the likelihood of partiality, parties do not always judge jurors “as individuals,” but rather, evaluate them “in light of the limited knowledge” possessed, “which may include their group affiliations, in the context of the case to be tried.” 34 Swain asserts that the core “principle” of Strauder was that the purposeful denial to African Americans of the right to serve as jurors violates the Equal Protection Clause. 35 The government’s strikes of blacks in an individual case could not violate the Strauder principle because when peremptories are exercised in an effort to secure “an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.” 36 Moreover, by examining the bases, the reasons, 25. Id. at 211–12. 26. Id. at 212. 27. Id. at 212–19. 28. Id. at 219. 29. Id. (quoting In re Murchison, 349 U.S. 133, 136 (1955)) (internal quotation marks omitted). 30. Id. at 219–20. 31. Id. at 220. 32. Id. 33. Id. (emphasis added). 34. Id. at 221 (emphasis added). 35. Id. at 203–04. 36. Id. at 221.
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