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Law Practice,
Constitutional Law,
Civil Rights

Mar. 24, 2020

Goldilocks and the 3 Batson fixes

Batson’s prohibition is easy to articulate, but significantly harder to enforce.

0822 ldj brian hoffstadt b

2nd Appellate District, Division 2

Brian M. Hoffstadt

Associate Justice, California Court of Appeal

UCLA School of Law, 1995

Racism, as the U.S. Supreme Court recently put it, is "'odious in all aspects, [and] is especially pernicious in the administration of justice.'" Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017). Racism is most pernicious when it can be easily masked as a legitimate discretionary decision and, hence, be difficult to detect. And nowhere do litigants have more discretion than when they are allowed to peremptorily excuse jurors from the petit jury "'for any reason at all'" with "no questions asked." Batson v. Kentucky, 476 U.S. 79, 89 (1986); Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019).

In Batson v. Kentucky, the Supreme Court declared unconstitutional the practice of using peremptory challenges in a racially discriminatory manner; doing so, the court reasoned, violates the rights of the parties to have a fair and impartial jury, violates the rights of the excluded juror(s) to "participat[e] in jury service," and "undermine[s] public confidence in the fairness of our system of justice." Batson at 85-88. (Subsequent cases have extended Batson to categories beyond race.)

Batson's prohibition is easy to articulate, but significantly harder to enforce. That is because Batson grounded its holding in the law of equal protection, which looks to whether the litigant exercising the strike did so with a "racially discriminatory purpose" they subjectively and actually held. Id. at 86, 93 (emphasis added); People v. Harris, 57 Cal. 4th 804, 879 (2013). Because people typically keep their racially discriminatory motives to themselves, Batson typically "'demands a sensitive inquiry into such circumstantial ... evidence of intent as may be available.'" Foster v. Chatman, 136 S. Ct. 1737, 1748 (2016).

To navigate this "sensitive inquiry," Batson erected its now-familiar, three-step test. In the first step, the party moving to invalidate a peremptory challenge bears an initial burden of production to show, from "all relevant circumstances," that the "totality of [the] relevant facts" "gives rise to an inference of discriminatory purpose." Batson at 94-97; Johnson v. California, 545 U.S. 162, 168, 170 (2005). If this first step is met, the party who exercised the challenge bears a burden of production in the second step to come forward with a race neutral reason for the strike. Batson at 94, 96. As long as the reason is race-neutral, it is sufficient -- no matter how "implausible," "frivolous," "fantastic[al]" or "utterly nonsensical" it is. Johnson at 171; Purkett v. Elem, 514 U.S. 765, 768 (1995). And if this proffered reason meets this low threshold, the trial court in the third step has "the duty to determine" if the moving party has carried its ultimate burden of proving purposeful discrimination, which typically turns on whether the striker's race-neutral reason was "sincere" and "genuine." Batson at 98; Johnson at 168; People v. Reynoso, 31 Cal. 4th 903, 926 (2003).

Recently, however, Batson's test has come under fire.

California Supreme Court Justice Goodwin Liu and California Court of Appeal Justice Jim Humes have penned separate opinions criticizing the Batson test's ability to root out the discriminatory use of peremptory challenges. People v. Rhoades, 8 Cal. 5th 393, 456-69 (2019) (Liu, J., dissenting); People v. Johnson, 8 Cal. 5th 475, 528-35 (2019) (Liu, J., dissenting); People v. Bryant, 40 Cal. App. 5th 525, 544-49 (2019) (Humes, J., concurring). Both jurists threw down the proverbial gauntlet in inviting the courts or legislature to modify Batson's test. Rhoades at 469; Bryant at 548-49.

And both branches have picked up that gauntlet. Chief Justice Tani Cantil-Sakauye convened a working group to "study [] how Batson[] operates in practice in California and whether modifications or additional measures are warranted." News Release, Jan. 29, 2020. And the California Legislature has introduced two bills, Assembly Bills 3070 and 2200.

The appetite for reform appears to be there. But are these proposals (or, as to the working group, the proposed areas of study) too much, not enough or "just right"? They fall into three broad categories.

The first category would modify the existing Batson test for assessing whether a peremptory challenge was made with a discriminatory purpose. So far, this category has four variations.

• The first would modify the first step of Batson's test. Currently, the court's preliminary inquiry into whether the "totality of [the] relevant facts" "gives rise to an inference of discriminatory purpose" looks to several factors, including (1) statistical data, such as whether the striker used a "disproportionate number of his peremptories against [a certain racial] group" or used them to bump "most" members of that group from the panel, (2) whether the striker only engaged in "desultory" questioning of those jurors, (3) whether any of the parties or victim(s) is a member of those jurors' race, and (4) whether the court perceives any "nondiscriminatory reasons for the peremptory strike that 'necessarily dispel any inference of bias,' so long as those reasons are apparent from and clearly established in the record." Rhoades at 423, 430-31, 435; People v. Reed, 4 Cal. 5th 989, 999-1000 (2018). The first flavor would eliminate the fourth factor because it ends up justifying a strike for "hypothesiz[ed] reasons" rather than the striker's actual reasons, a result at odds with Batson's focus on the striker's actual purpose. Rhoades at 457. This is what Justice Liu suggested for all but the "truly obvious" of reasons. Id. at 467.

• The second would eliminate the first step altogether, requiring the striker to provide a reason for every challenged strike. This is what AB 3070 would do.

• The third would eliminate the first step and modify how courts are to evaluate proffered reasons for a strike. Some reasons would be deemed "presumptively invalid" due to their "historical[]" "associat[ion] with improper discrimination," such as prior negative experiences with law enforcement, receipt of state benefits or fluency in multiple languages. Other reasons would be valid only if the striker called the court's attention to them prior to the strike, such as a prospective juror's inattentiveness, body language or demeanor. This is also what AB 3070 would do.

• The fourth would modify the focus of Batson's final step from the striker's actual, subjective purpose to whether "an objective observer" "aware" of "implicit, institutional, and unconscious biases" "could view race ... as a factor in the use of the peremptory challenge." This is also what AB 3070 would do, and what Washington State did recently. See State v. Jefferson, 192 Wn.2d 225 (Wash. 2018).

The second category of proposed reforms would shift Batson's focus from discriminatory purpose to discriminatory impact. Currently, the disparate impact of the use of peremptory strikes is a relevant factor because the "numbers" can "speak loudly," Flowers at 2245; Washington v. Davis, 426 U.S. 229, 248, but that impact is not a dispositive one, Rhoades at 435. Disparate impact is itself actionable under Title VII of the Civil Rights Act and California's Fair Employment and Housing Act. Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971); Sisemore v. Master Financial, Inc., 151 Cal. App. 4th 1386, 1419 (2007). This is one area that the chief justice's working group will examine.

The third category would invalidate any and all criminal convictions or sentences and render a person "[in]eligible" for the death penalty, if "race" "was a factor in the exercise of peremptory challenges." This is what AB 2200 would do for all convictions and sentences, whether pending or final. AB 2200 would go further by invalidating convictions if (1) the judge or "attorney in the case," "law enforcement officer involved in the case," "expert witness," or "juror" "was biased against a defendant because of the defendant's race"; (2) any of those persons "used racially discriminatory language or otherwise demonstrated bias or animus based on race" against anyone; or (3) the "offense" of conviction is, without more, "more frequently sought or obtained" against persons of defendant's race. The new law would also require the prosecution to "disclose to the defense all evidence relevant to" any of its new rules, ostensibly displacing the limits on discovery erected by the Criminal Discovery Act, Penal Code section 1054 et seq.; Pitchess v. Superior Court, 11 Cal.3d 531 (1974); and selective prosecution law.

What was too little or too much in the fairy tale was a function of Goldilocks' appetite. What degree of Batson reform is "just right" will be a function of how we define Batson's shortcomings and whether the reform adopted does enough to fix those shortcomings or instead goes too far. 


Ben Armistead

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