Batson and Peremptory Strikes in Criminal and Civil Cases
Ada Brown
Dallas Bar Association Headnotes
September 2007
Too often, in polite American society, we deal with racial differences by ignoring them. This phenomenon can become a problem when we apply this avoidance approach to our legal system. In order to have juries who are diverse, trial lawyers and judges should pay attention to race.
In 1938, an African-American college president was tossed out of the Dallas County Courthouse because he would not leave the potential-juror waiting room. In 1942, the Supreme Court heard testimony that no African-American had ever served on a Dallas County grand jury because no blacks were considered “qualified,” despite the fact 55,000 blacks resided in Dallas County at the time. In 1949, more than 80 years after the law allowed blacks to sit on juries, the first African-American juror was seated in Dallas County.[1]
African-Americans, in general, are very aware of race. In his book, The Souls of Black Folk, W.E.B. DuBois referred to this as a “double consciousness.”[2] It’s important for any good trial lawyer to understand this.
Before and After Batson
The 1986 decision of Batson v. Kentucky was not the first case concerning the racial makeup of juries on which the U.S. Supreme Court has ruled. In 1880, in Strauder v. West Virginia, the Court declared that purposeful exclusion of jurors who are the same race as a criminal defendant offended the Equal Protection Clause.
At the heart of Strauder was a West Virginia law allowing only white men to serve as jurors. Racial politics were changing rapidly, and the Supreme Court saw Strauder as an opportunity to breathe life into the ideals of the 14th Amendment, which had recently been ratified. The Court in Strauder took a giant step toward assuring that recently freed slaves had “all the rights and privileges as any other citizen.”
The 1965 Supreme Court ruling in Swain v. Alabama, a criminal case in which a black man was given the death penalty for raping a white woman, was the next to tackle racial discrimination in jury selection methods. In Swain, not only were there no blacks on the defendant’s jury, according to Justice Arthur Goldberg’s dissent, no black person “within the memory of persons now living has ever served on any petit jury in any civil or criminal case tried in Talladega County, Alabama.”
According to the Court in Swain, racial discrimination in a solitary case was insufficient proof. To make a successful showing, the proponent had to establish a continuing pattern of discrimination by the prosecution, rather than simply prove discrimination in the current case.
In 1986, Justice Byron White, the author of the Swain decision, joined the majority in overruling Swain with Batson’s 7-2 opinion. In Batson, the Supreme Court changed the rules for proving racially discriminatory use of peremptory strikes. A criminal defendant has the burden of raising the issue and making a showing that both he or she and the potential juror are members of a minority group. The prosecution then bears the burden of providing a race-neutral explanation for excluding the potential juror. Ultimately, the judge makes a determination of whether or not a Batson violation has taken place.
In 1991, Powers v. Ohio established that not only is a Batson violation a trespass on the defendant’s Equal Protection rights, it is also a violation of the rights of the potential juror. Powers also established that the potential juror and the defendant need not be of the same race in order to raise a successful Batson challenge. In Powers, the Supreme Court held that even white defendants had an Equal Protection right to have blacks serve on their juries.
The Supreme Court’s 1991 decision of Edmonson v. Leesville Concrete held that Batson’s peremptory strike prohibitions applied to civil cases, as well as criminal cases. Subsequently, the 1992 ruling of Georgia v. McCollum extended Batson to criminal defense attorneys and their peremptory strikes.
In 1994, in J.E.B. v. Alabama, the Supreme Court extended the ruling of Batson to prohibit gender discrimination on the grounds that the purposeful exclusion of jurors based on sex is also a violation of the Equal Protection Clause.
What Judges & Lawyers Can Do
Trial court judges often have difficulty applying Batson, and appellate courts are handicapped by only being able to read words in a record.
To aide in following the philosophy of Batson, judges can give litigants as much time as possible to talk to the panel members so the attorneys can make their strikes based on meaningful interactions with potential jurors, rather than stereotypes and assumptions.
In a perfect world, juries would look like their communities with no additional effort. Until then, lawyers can honor the spirit of Batson, by making it a philosophy in practice, rather than viewing it as a mandate.
Having served as a criminal court judge, and chief prosecutor in the Dallas County District Attorney’s office, Ada Brown is currently a trial lawyer with McKool Smith.
[1] Steve McGonigle & Ed Timms, Race Bias Pervades Jury Selection, Dallas Morning News, Mar. 9, 1986.
[2] W.E. Burghardt DuBois, The Souls of Black Folk (3rd ed. 1903).