'I didn't like the way he looked.' (standard for racially neutral peremptory challenge)

When is an explanation for a peremptory challenge race-neutral under Batson v. Kentucky? (476 U.S. 79 (1986).)

Constitutional scrutiny of peremptory challenges is something of a contradiction. Any challenge subjected to review is less than peremptory. On the other hand, any challenge that is unreviewable is almost certain to be abused. The Supreme Court has struggled with this dilemma for 30 years.

In Swain v. Alabama, the Court rejected an equal protection challenge brought by a black defendant who was sentenced to death for the rape of a white woman. (380 U.S. 202 (1965).) The jury-selection system in Swain permitted each side to strike prospective jurors (the defense enjoying two strikes to each one allowed the prosecution) until a panel of 12 remained. The prosecutor struck all the blacks. No black person had ever served as a juror in that county.

The Court, however, held that striking all the blacks from the venire did not establish intentional discrimination offensive to the Equal Protection Clause. While evidence that the prosecution systematically struck all blacks might have made out such a showing, the record in the instant case revealed that in at least a few cases the defense had struck some blacks from venires. The failure of the record to show an invariable pattern of strikes by the prosecution precluded a finding of intentional discrimination.

Swain was motivated by the desire to keep peremptory challenges peremptory. The Court agreed that

challenges without cause, without explanation and without judicial scrutiny ... afford a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial. This system, it is said, in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes.

(Id. at 211-12.)

Unfortunately, Swain gave constitutional sanction to the widespread use of the peremptory challenge to maintain all-white juries. (See generally McCray v. Abrams, 750 F.2d 1113, 1121 (2d Cir. 1984); James O. Pearson Jr., Annotation, Use of Peremptory Challenges to Exclude from Jury Persons Belonging to a Class or Race, 79 A.L.R. 3d 14 (1977).)

Sixth Amendment Scrutiny

In response, a number of lower courts began to scrutinize race-based peremptory challenges under the Sixth Amendment, rather than the Fourteenth. The Supreme Court's Sixth Amendment jurisprudence had recognized that the right to an impartial jury implied that the jury should include a fair cross-section of the community. Peremptory challenges that stripped minority group members from the jury, it was argued, violated this requirement. (See, e.g., McCray, 750 F.2d 1113; Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985); People v. Wheeler, 583 P.2d 748 (Cal. 1978); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979).)

Logically, however, the Sixth Amendment approach was at war with the peremptory challenge. The fair cross-section requirement protected members of "cognizable groups," not just members of suspect classes. Suspicion about a potential juror's performance that fell short of justifying a challenge for cause would all but invariably be based on a generalization about some group to which the juror belongs. That is what the peremptory challenge is for, and lawyers typically have no other basis for the exercise of their peremptories.

Sixth Amendment development was pretermitted, however, by the Supreme Court's decision in Batson. The Court relied on equal protection to overrule Swain and establish a three-step test for determining when peremptory challenges violate the Fourteenth Amendment.

First, the defense must make out a prima facie case of intentional discrimination. Second, the prosecution must "come forward with a neutral explanation for challenging black jurors." (476 U.S. 79, 97.) Third, the court has "the duty to determine if the defendant has established purposeful discrimination." (Id. at 98.)

But the Batson Court wanted to have its cake and eat it too.

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant's prima facie case of assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race.... Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirming [his] good faith in making individual selections." If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause "would be but a vain and illusory requirement."

(Id. at 97-98 (citations omitted; brackets in original).)

Thus, prosecutorial peremptory challenges on occasion must be justified, but by less of a reason than would satisfy a challenge for cause. But the reason nonetheless must go beyond an unsupported assertion of suspected juror bias.

The struggle to accommodate the Constitution with the peremptory challenge goes on. In Hernandez v. New York (111 S. Ct. 1859 (1991) (plurality opinion)), six justices agreed peremptory challenges to potential Spanish-speaking jurors were racially neutral because the prosecutor expressed doubt about their ability to accept the court translator's English version of Spanish testimony. Hernandez was a hard case because the government's concern was legitimate but targeted jurors along ethnic lines. The more common problem concerns a prosecutor who gives a feeble, but facially neutral, explanation for using peremptory challenges to remove minority group members from the jury.

Facing the Issue

The Court has now confronted this situation. In Purkett v. Elem, the Court upheld a decision that rejected the defendant's Batson claim after the prosecutor explained he had struck potential black jurors because he didn't "like the way they looked, with the way the hair is cut." (No. 94-802, 1995 WL 283453 (U.S. May 15, 1995) (per curiam).)

Elem, who is black, was convicted of robbery in Missouri state court. (See State v. Elem, 747 S.W.2d 772 (Mo. Ct. App. 1988).) The victim was a black woman. The prosecution struck both of the black males from the venire but did not strike the one black female. In response to the defendant's Batson claim, the prosecutor explained that both jurors had long, unkempt hair and facial hair as well.

The trial judge rejected the claim, and the state appellate court affirmed. The Missouri court relied on that state's supreme court opinion in State v. Antwine, which had recognized a prosecutor's right to base peremptory challenges on "legitimate 'hunches' and past experience, so long as racial discrimination is not the motive." (743 S.W.2d 51, 65 (Mo. 1987).)

On Elem's petition for federal habeas corpus, the district court denied the petition, but the Eighth Circuit Court of Appeals reversed with directions to grant the writ. (See Elem v. Purkett, 25 F.3d 679 (8th Cir. 1994).) The court reasoned that

[i]n a case such as this, where the prosecution strikes a prospective juror who is a member of the defendant's racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person's ability to perform his or her duties as a juror. In the present case, the prosecutor's comments, "I don't like the way [he] look[s], with the way the hair is cut ... And the mustache and the beard look suspicious to me," do not constitute such legitimate, race neutral reasons for striking juror 22.

(Id. at 683 (ellipses and brackets in original).)

When the case reached the Supreme Court, the Court held that what Batson meant by a "legitimate reason" for a peremptory challenge "is not a reason that makes sense, but a reason that does not deny equal protection." (No. 94-802, 1995 WL 283453, at *3.) Hair length is a race-neutral consideration that satisfied the prosecution's duty, at Batson's second stage, of coming forward with a nonracial explanation for peremptory challenges. Thus, Elem was really complaining about the state trial judge's resolution of the third stage of the Batson process--deciding to accept the prosecutor's explanation for the strikes rather than find intentional discrimination.

As to that decision, on federal habeas corpus petitions, the state court's factual findings are presumed to be correct and may be set aside only if unsupported by the record. "Here the Court of Appeals did not conclude or even attempt to conclude that the state court's finding of no racial motive was not fairly supported by the record." (Id.) Accordingly, the Supreme Court reversed summarily.

Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented. In their view, "It is not too much to ask that a prosecutor's explanation for his strikes be race neutral, reasonably specific, and trial related." (Id. at *6 (Stevens, J., dissenting).) The prosecution's naked assertion of arbitrary antipathy to a particular prospective juror would not suffice. "I didn't like the way he looked," in Justice Stevens's view, "may well be pretextual as a matter of law." (Id. at *7.)

The dissent's position undercuts the rationale of peremptory challenges. Why should anybody, of any race in any case, be kept off a jury because one of the lawyers doesn't approve of her appearance? The Elem majority is willing to answer that this kind of arbitrary exclusion is a small price to pay for juries that are, in the language of Swain, "in fact and in the opinion of the parties fair and impartial." (380 U.S. 202, 211.)

Only when race is the supposed source of arbitrary treatment does the extraordinary inquiry mandated by Batson come into play.

But if the dissent is in tension with peremptory challenges, the majority is in tension with equal protection. If "I didn't like the way he looked" is an acceptable race-neutral justification for peremptories, only a very stupid prosecutor will ever again lose a Batson claim.

Elem may not go so far; the facts and procedural posture of the case need to be kept in mind. The prosecutor's complaining witness was black, and the prosecutor left one of three black jurors on the panel. To substitute the judgment of a federal court hearing a habeas petition for the judgment of the trial judge who saw the jury selection process would have been an unattractive option.

So the quest for an approach that abolishes the racial abuse of peremptory challenges, yet permits some objectively unjustifiable challenges of even minority-race prospective jurors, continues. Given the conflict between the peremptory challenge's embrace of arbitrary disqualification from jury service and the Constitution's ban on arbitrary discrimination, it is a quest that seems unlikely to succeed. Elem means that, at least for now, lawyers must pursue that quest primarily at the trial stage, rather than on appellate or collateral review.