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Supreme Court Revisits Use of Peremptory Challenges in Jury Selection
By Ted A. Donner

In a line of case beginning with Batson v. Kentucky,1 in 1986, the United States Supreme Court found that attorneys’ discretionary use of peremptory challenges, to exclude jurors for reasons that did not rise to a level that would support a cause challenge, could not be used for reasons based on the race or gender of the prospective juror. Then, in Purkett v. Elem,2 the Court reiterated that, although race and gender bias may not serve as a basis for peremptory challenges, such challenges are still intended to give attorneys an ability to rely upon their own gut instincts and attorneys are thus still free to exclude prospective jurors based on “silly or superstitious” reasons.

Following Purkett, for almost ten years, the Court put the issue aside altogether. The Court rejected a host of cases that could have resolved whether attorneys are entitled to use peremptories to exclude other Constitutionally protected classes (including religion, age, sexual orientation and disability). But then this last term, the Court picked up where it left off, although heading in a completely unexpected direction. The Court considered the quantum of proof necessary to establish a Batson violation and reiterated how much the analysis under Batson resembles that for employment discrimination. But, as emphasized in a series of concurring opinions authored by Justice Breyer, the Court also rendered decisions suggesting that, should attorneys continue to abuse the availability of peremptory challenges, the Court is ready to do away with their use altogether.

On June 13, 2005, the Court issued two opinions which make clear that the decision in Batson3 was not wholly gutted by the Court’s later decision in Purkett.4 In Johnson v. California,5 the Court found that California could not require that the movant under Batson establish that discrimination had more likely than not occurred and in Miller-El v. Dretke,6 the Court found that the Dallas prosecutor’s office (the same office whose conduct was at issue in Batson itself) had engaged in discrimination in its exercise of peremptory challenges, despite findings by the trial and appellate courts in Texas to the contrary.

The Decision in Johnson v. California.
In Johnson, the Court found that a prima facie case may be established under Batson through inference. Specifically, the Court held that:

The issue in this case is narrow but important. It concerns the scope of the first of three steps this Court enumerated in Batson, which together guide trial courts’ constitutional review of peremptory strikes. Those three Batson steps should by now be familiar. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. The question before us is whether Batson permits California to require at step one that the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias. Although we recognize that States do have flexibility in formulating appropriate procedures to comply with Batson, we conclude that California’s more likely than not standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case....7

The disagreements among the state-court judges who reviewed the record in this case illustrate the imprecision of relying on judicial speculation to resolve plausible claims of discrimination. In this case the inference of discrimination was sufficient to invoke a comment by the trial judge that ‘we are very close,’ and on review, the California Supreme Court acknowledged that ‘it certainly looks suspicious that all three African-American prospective jurors were removed from the jury.’ Those inferences that discrimination may have occurred were sufficient to establish a prima facie case under Batson.8

The Decision in Miller-El v. Dretke.
In Dretke, the Court likewise revisited the applicable standard from Batson and found a host of reasons why a prosecutor’s purported reasons for exercising peremptory challenges to exclude almost every available African American were pretext. The Court held that:

It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals’s and the dissent’s substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions.9

The prosecution had not only excused African American jurors for reasons which could not be reconciled with the similar questioning of white jurors, they had used jury shuffles (a process by which the list of prospective jurors is reshuffled to change the order in which they are examined) to avoid prospective African American jurors.10 Questions on the subject of the death penalty were tailored differently, depending upon the race of the prospective juror, to elicit different responses, 11 It was thus error for the trial and appellate courts in Texas to accept the prosecutor’s claimed reasons for using peremptories - just as it had been in Batson - and the Court thus reversed yet another decision involving the Dallas States Attorneys’ use of peremptory challenges.12

The Decision in Rice v. Collins.
In Rice v. Collins,13 another case decided this last term, the Court again considered a case involving the exercise of peremptory challenges under Batson. In this case, however the Court affirmed the lower court, solely because the Court found that credibility determinations are the province of the trial court:

Viewing the panel majority’s concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor’s credibility regarding Juror 16’s alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral justifications and conclude Collins had shown a Batson violation. Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination.14

Justice Breyer’s Concurring Opinions.
None of the Court’s three most recent decisions on peremptory challenges, standing alone, would appear to be of particular consequence. Indeed, they are remarkable more for their number than anything else, given how few cases the Court considers in a year’s time and the extent to which they focused these decisions were on specific, technical applications of the existing rule in Batson.. What is notable about these decisions, however, is the concurring opinions of Justice Breyer and how those concurring opinions seem to explain why, despite their seeming lack of significance, the Court elected to consider these cases.
In each of these three cases, in his concurring opinion, Justice Breyer emphasized the logistic difficulties that these cases highlight and argued that the bar’s seeming inability to use peremptory challenges in a Constitutionally appropriate manner may be of significance as to demonstrate the impracticality of peremptories altogether. As Justice Breyer concluded in Johnson:15
Twenty years ago Justice Thurgood Marshall warned that the test [in Batson] would fail to ferret out unconstitutional discrimination in the selection of jurors.... In my view, history has proved Justice Marshall right.... And today’s case, like Miller-El, helps to illustrate Batson’s fundamental failings.

For one thing, the prosecutor’s inability in this case to provide a clear explanation of why she exercised her peremptory challenges may well reflect the more general fact that the exercise of a peremptory challenge can rest upon instinct not reason. Insofar as Batson asks prosecutors to explain the unexplainable, how can it succeed? *** How can trial judges second-guess an instinctive judgment the underlying basis for which may be a form of stereotyping invisible even to the prosecutor?16
Justice Breyer argued that Batson’s utility may be inherently stymied by an inability of the bench to properly monitor the use of peremptory challenges by attorneys:

[T]he case before us makes clear that ordinary mechanisms of judicial review cannot assure Batson’s effectiveness. The reasons are structural. The trial judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge is best placed to determine whether, in a borderline case, a prosecutor’s hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation. These circumstances mean that appellate courts will, and must, grant the trial courts considerable leeway in applying Batson. *** The upshot is an unresolvable tension between, on the one hand, what Blackstone called an inherently ‘arbitrary and capricious’ peremptory challenge system, and, on the other hand, the Constitution’s nondiscrimination command. Given this constitutional tension, we may have to choose.... I have argued that legal life without peremptories is no longer unthinkable.... I continue to believe that we should reconsider Batson’s test and the peremptory challenge system as a whole.17

The Court’s recent trilogy of decisions with regard to peremptory challenges may thus be more important for what they foreshadow than anything else. The Court has observed, time and again, that peremptories are not Constitutionally protected. The resource may be important. Certainly, it helps to have an ability to exclude one or more jurors who counsel do not believe can fairly decide the case, without having to depend upon whether the judge agrees or not. But the tendency among lawyers to make such decisions based on the race or gender of individual juror remains a substantial and insidious problem in the courts.

The Court appears to be on the verge of abolishing this right altogether. Attorneys must thus be more mindful of their own tendencies to prejudice and careful to use peremptory challenges in the manner for which they were intended. Absent such an effort, the bar risks the possibility that the Court will do away with this most powerful of resources altogether.

1. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
2. Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).
3. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
4. Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).
5. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).
6. Miller-El v. Dretke, (545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
7. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005).
8. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2419, 162 L.Ed.2d 129 (2005).
9. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2332, 162 L.Ed.2d 196 (2005).
10. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2333, 162 L.Ed.2d 196 (2005).
11. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2334, 162 L.Ed.2d 196 (2005) (A number of African-American jurors were told, “[W]hen the death penalty is assessed, at some point Mr. Thomas Joe Miller-El—the man sitting right down there—will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. So that’s basically our position going into this thing.” White jurors were given a far less grisly description of what to expect).
12. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2340, 162 L.Ed.2d 196 (2005).
13. Rice v. Collins, ___ U.S. ___, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
14. Rice v. Collins, ___ U.S. ___, 126 S.Ct. 969, 975-76, 163 L.Ed.2d 824 (2006).
15. Rice v. Collins, ___ U.S. ___, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006); Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2419, 162 L.Ed.2d 129 (2005). <.fnt>
16. Rice v. Collins, 126 S.Ct. 969, 976-77, 163 L.Ed.2d 824 (2006).
17. Rice v. Collins, 126 S.Ct. 969, 976-77, 163 L.Ed.2d 824 (2006).