By: Natalie Kilker
As jurors are seated in the long-anticipated trial of Derek Chauvin – charged with second-degree murder, third-degree murder, and manslaughter – in response to his deadly encounter with George Floyd that sparked a nation-wide reckoning on racism and police brutality, special attention is being paid to the voir dire in Minneapolis. The racial makeup of the jury is garnering enhanced scrutiny given the undeniable racial tensions and through-lines of institutional racism pervading every aspect of the incident that culminated in the violent death of an unarmed Black man on harrowing display for the world to see. Chauvin’s defense attorneys have reportedly struck at least three Hispanic prospective jurors under peremptory challenges, prompting prosecutors to twice raise Batson challenges. With the judge denying both challenges, the resulting focus on Batson elevates an important issue to the forefront – what are Batson challenges, and do we trust them to work as intended?
The Batson framework was established in the U.S. Supreme Court’s 1986 decision in Batson v. Kentuckyin which the majority held that racial discrimination in the selection of jurors is unconstitutional. The Court set forth a three-prong framework under which peremptory challenges can be opposed. First, the challenging party must establish a prima facie showing of discrimination in the peremptory strike; second, the striking party must address the objection by providing a race-neutral justification for the strike; and third, the judge acts as gatekeeper in determining whether the challenging party sufficiently demonstrated purposeful discrimination in the strike. While the framework represented a positive step towards a more equitable justice system, Justice Marshall’s concurrence envisaged the challenges that the infant Batson framework faced in application, “[t]he decision today will not end the racial discrimination…[in] the jury selection process.” Justice Marshall accurately predicted the primary criticisms the Batson framework would face, “First, defenders cannot attack the discriminatory use of peremptory challenges at all unless the challenges are so flagrant as to establish a prima facie case…. Second, when a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors’ motives.”
Justice Marshall’s prescient trepidation towards the Batson framework holds strong decades after the decision in Batson v. Kentucky. Legal scholars critique the framework on these same outcomes – now, in fact, realized – arguing that Batson challenges are rarely successful. Evidenced in his first concern about establishing prima facie cases only upon blatant discriminatory evidence, the Supreme Court’s 2019 decision in Flowers v. Mississippireaffirmed the due cause for this criticism. The majority overturned Curtis Flowers’ murder conviction on the grounds that the State violated his Constitutional rights during the jury selection process by exercising racially biased peremptory strikes. Flowers, a Black man inconceivably tried six times for the same crime, argued that the prosecution’s invidious pattern of striking Black jurors was a violation of Batson such that the lower courts erred in upholding his conviction. While the Supreme Court ruled in his favor, the majority narrowly construed their decision by emphasizing the unique circumstances surrounding the case that supported their decision.
Justice Kavanaugh, writing for the majority, discussed the importance of the history of the case, notably considering the six trials cumulatively to determine whether a clear pattern of discriminatory intent existed on behalf of the State; over the course of six trials, the State struck 41 of the 42 Black prospective jurors. Justice Kavanaugh stressed that the Court “need not and [does] not decide that any one of [the]…facts alone” would require overturning the conviction. Clearly, the evidence of discriminatory intent was only sufficiently clear to a reviewing Court upon consideration of exceptional factors over a period of six trials in two decades, a case history often described as “unprecedented.” In his concurrence, Justice Alito took pains to highlight the unconventional nature of the case, concluding that “[w]ere it not for the unique combinations of circumstances present here, I would have no trouble affirming the decision of the [lower court] …[b]ut viewing the totality of the circumstances present here, I agree with the Court that petitioner’s capital conviction cannot stand.”
Flowers necessarily begs the question that Justice Marshall first grappled with in his Batson concurrence, is flagrant violation the threshold for establishing a prima facie case? Given the Court’s overall hesitation in their holding despite extraordinary evidence of purposeful discrimination in any one of Flowers’ six trials, it appears that the legal threshold is, in fact, egregious discrimination such as to render a case legally unprecedented. Justice Marshall’s first concern manifested in the very Court he voiced it.
Justice Marshall’s second concern revolved around the difficulty of the court in assessing prosecutors’ intentions. Batson challenges have rarely been successfully raised and sustained by courts, in large part because of the ease in articulating “race-neutral” justifications for the peremptory strike. The burden under Batson for the reviewing judge is to determine whether the strike was purposefully discriminatory against the prospective juror. Research shows, however, that people can convey compelling explanations for their behavior even if racial bias is an unspoken influential factor and, moreover, that attorneys are unlikely to admit to racial bias even when it is. A Harvard experiment on the psychology underlying Batson revealed “clear empirical evidence” of the influence of a prospective juror’s race on peremptory challenges and the small likelihood that self-report justifications will effectively identify the influence of race, concluding “[t]he practical implications…are clear: even when attorneys consider race during jury selection, there is little reason to believe that judicial questioning will produce information useful for identifying this bias.” It isn’t hard to imagine, in our racially charged reality fueled by indignant outcries over “political-correctness”, that this psychological theory is exacerbated today.
Coupled with the concerns over influences of racial bias in purported race-neutral justifications, there’s the added judicial burden of proving “purposeful” discrimination. This requirement asks a judge to denounce her colleague for overt racism, a big ask in a career in which being labelled a racist – even tangentially – would carry severe professional detriments. The Batson framework, as it stands, is loosely connected to psychological realities and provides little incentive for courts to overcome their burden of proof.
One of the biggest criticisms of Batson is that the framework doesn’t account for implicit bias, thereby providing a legal loophole through which certain discrimination escapes judicial scrutiny. The ABA, itself, recognizes the deficiencies in Batsonin addressing discrimination in the use of peremptory strikes. In a panel on Batson, a member discussed research findings from jury selection statistics in North Carolina post-Batson; of 7,421 potential jurors, prosecutors struck over 50% of eligible Black jurors compared to only 25% of jurors of other races.
With this background, it’s unsurprising to hear that Batson reform efforts are being effectuated at the state level. Washington has thus far led the reformation charge, with the Washington Supreme Court promulgating rule “GR37” to expand Batson’s coverage. The new rule stipulates that either a party or the court, on its own, may raise objections to a peremptory challenge, made simply through citation of the rule. In addition, the rule establishes a new standard for the presiding judge, evincing a less controversial and cumbersome burden of proof to overcome. The court must evaluate the objection in light of the totality of the circumstances and if the court determines that “an objective observer” could view race or ethnicity as a factor influencing the peremptory challenge, the challenge shall be denied. Through this new standard, the court no longer needs to find “purposeful” discrimination in the peremptory challenge. Washington goes a step further in defining “objective observer” as someone who is aware of implicit, institutional, and unconscious bias. The rule also lists various circumstances that the court should consider in their determination of what result an objective observer would find under the totality of the circumstances, addressing previously wielded “race-neutral” justifications or past practices as subject to heightened scrutiny, including, among others, the “number and types of questions posed to the prospective juror.”
Batson reform conversations have also made their way to Arizona, with some new developments emerging. On January 9, 2020, the Central Arizona National Lawyers Guild submitted a petition to amend the Rules of the Supreme Court of Arizona by adopting a new jury selection rule, Rule 24. The proposed amendment reads almost exactly like Washington’s GR37, proposing an overhaul and expansion of Batson’s coverage. Interestingly, in May 2020, the petitioners withdrew their petition. In their motion to withdraw, the petitioners cited the intention of the Arizona State Bar’s joint working group to study the proposal, develop a consensus, and submit their own petition for Batson reform for the court’s consideration in August 2021.
While we wait in anticipation for proposed reform in Arizona, we must understand the shortcomings of Batson and where, in particular, change is needed to bolster the protections promised but yet unfulfilled in Batson’s anti-discrimination framework. The tide is changing, and Arizona’s courts are demonstrating interest in welcoming a new wave of reform. On April 9, 2020, Chief Judge Swann for the Arizona Court of Appeals Division One remanded the case State v. Porterupon finding that the trial court’s denial of a Batson challenge was improper. In his opinion, Chief Judge Swann implored the Arizona Supreme Court to take up the task of reforming the Batson framework, “Arizona has continued to apply the Batson framework with little reevaluation or alteration. I believe the time has come for us to discuss reformulating our structure to meaningfully further Batson’s purpose.”