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self-study / Constitutional Law

Batson is back

Laura Kelly

Mai Linh Spencer

Associate Clinical Professor of Law, UC Hastings College of the Law

Labor & Employment

200 McAllister Street
San Francisco , CA 94102-4707

Phone: (415) 565-4743

Fax: (415) 565-4743


New York Univ Law School

Three years ago, dissenting from his colleagues' rejection of a Batson/Wheeler claim, Associate Justice Goodwin Liu wondered aloud whether the California Supreme Court would ever find such a violation short of a prosecutor admitting that she had struck a juror based on race. People v. Chism, 58 Cal. 4th 1266 (2014). Last week, that question was answered in the affirmative, breathing new life into Batson/Wheeler and signaling that counsel and courts have some hard work ahead.

For only the second time in over 25 years, the California Supreme Court has found that a peremptory challenge violated the constitutional prohibition against racial discrimination in jury selection. In People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), writing for a unanimous court, Associate Justice Mariano-Florentino Cuéllar found that the prosecutor - who had used 10 of his 16 peremptories on Hispanics, thereby eliminating 10 of the 12 Hispanics on the panel at the time - struck a Hispanic juror because of her race. The court did so only after a detailed, searching, record-based review - the very "sincere and reasoned" analysis that it found the courts below had failed to conduct.

Even a single race-based strike violates the equal protection of both juror and litigants - and undermines the integrity of a trial, amounting to structural error. As a result, the court reversed the convictions of three defendants (all Hispanic themselves), two of whom had been convicted of premeditated attempted murder, and all three of whom had been convicted of active participation in a street gang.

Gutierrez does more than simply "clarify the constitutionally required duties of California lawyers, trial judges, and appellate judges" when faced with a Batson/Wheeler challenge. It makes clear that, rather than routinely deferring to lower courts' generalized or conclusory rejection of Batson/Wheeler claims, the court will carefully examine those rulings and the claims they rest on.

Putting the Reason Back in "Sincere and Reasoned" Review

Batson v. Kentucky, decided by the U.S. Supreme Court in 1986, established a three-step framework for deciding claims of discrimination in the exercise of peremptory challenges. First, the claiming party must make a prima facie case of discrimination, often by showing that opposing counsel has excused a disproportionate number of jurors of a particular group, or has used a disproportionate number of her strikes against jurors of that group. (Batson itself addressed strikes based on race, but has been applied where strikes were of women and other cognizable groups.) The burden then shifts to the attorney exercising the peremptory challenge - typically, in cases on appeal, the prosecutor - to state her race-neutral reason for the challenge. Finally, the trial court determines whether it is more likely than not that the peremptory strike was based on race or another impermissible factor.

The trial court in Gutierrez found a prima facie case of discrimination, and the prosecutor provided reasons for each Hispanic juror he had removed, including a teacher who had several family members in law enforcement - a characteristic usually sought by prosecutors. The teacher was from Wasco, a small Kern County city. The prosecutor struck her, he said, because she was unaware of gang activity in Wasco, adding that a prosecution witness was a Wasco gang member. After some discussion, the court made a blanket finding that the strikes were nonpretextual; with respect to this particular juror, the court noted that the prosecutor had accepted the panel five times before ultimately striking her and (erroneously) that the prosecutor had stated that she lacked life experience. The Court of Appeal affirmed.

For decades, the Supreme Court has repeatedly stated that at step three, the trial judge must conduct a "sincere and reasoned" effort to assess whether the apparently neutral rationale is pretextual; if it does not, the ruling will not be reviewed with deference on appeal. But despite this language, as Justice Liu has pointed out in concurring and dissenting opinions - for example, People v. Mai, 57 Cal. 4th 986 (2013) (concurring), and People v. Williams, 56 Cal. 4th 630 (2013) (dissenting) - the court has continued to defer as a matter of course, refusing to impose a duty to make explicit and detailed findings and engage in on-the-record analysis.

Gutierrez kicks what Justice Liu called in Mai the "habit[] of unwarranted deference," putting the "reason" back in the "sincere and reasoned" standard, and demanding that the trial judge do more than rubber-stamp a prosecutor's proffered rationale. Rather, the judge must probe each articulated reason, decide whether the record supports it, and consider whether it applies equally to unchallenged jurors who are not members of the cognizable group at issue. Throughout, the Gutierrez court said, the judge may not improve on or supplement counsel's rationale: "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." Here, the Supreme Court found, the prosecutor should have fallen: why a juror who was unaware of gang activity in Wasco would be biased against a witness who was a Wasco gang member was not self-evident, and the prosecutor's brief questioning of the juror shed no light on the matter.

The Hard Work Ahead for Trial Courts

The careful inquiry the trial court must undertake, Gutierrez makes clear, is not for the faint of heart. Adequately developing the trial record will be "onerous." Moreover, discerning intent is never easy; no attorney today will admit to racial, ethnic or gender bias in the exercise of peremptory strikes. Rather, as Justice Liu wrote in his Gutierrez concurrence, courts will need to conduct a detailed analysis that considers "all relevant circumstances[.]"

While the majority opinion does not explicitly itemize the circumstances to consider, at various points in its analysis, it identifies the following factors as bearing on whether a facially race-neutral reason is in fact likely to be pretextual:

* The prosecutor's demeanor;

* How reasonable or improbable the race-neutral explanation is;

* Whether the rationale is based on accepted trial strategy;

* Whether the prosecutor has passed on challenges while the juror was on the panel before ultimately striking her;

* Whether the facially neutral reason applies only to members of the protected group;

* How long and how meaningfully the prosecutor questions the juror, particularly about the matter later proffered as his reason for excusal;

* Whether the juror had other attributes the prosecutor viewed favorably (such as law enforcement connections);

* How many of the prosecutor's strikes (out of the total used) were used on members of the protected group, and whether the prosecutor excluded a large proportion of that group;

* Whether the defendant shares the same race or ethnicity as the excluded jurors;

* Whether the stated reasons are supported by the record;

* Whether comparative juror analysis - itself a detailed and time-consuming process - reveals that a proffered reason applied equally to jurors not in the cognizable group;

* Whether the proffered reason was applied consistently even within the group.

In addition, Justice Liu's concurring opinion specifies that circumstantial evidence of discriminatory intent can include a facially neutral reason's disproportionate effect on a group. And presumably, given the mandate to consider all relevant circumstances, the above list is not exhaustive. The analysis is not only potentially time consuming, but fraught. As Justice Liu notes, "the adjudication of a Batson claim is, at bottom, a credibility determination." It is worth remembering that a trial judge will not be assessing the credibility of some abstract player in a cold transcript, but an individual attorney, often a prosecutor who is well-known to the judge and who is literally standing in front of her. Gutierrez exerts needed pressure on trial judges, who may be reluctant to appear to find that a prosecutor discriminated - and then dissembled.

Perhaps in an effort to address this reluctance - which may extend to the appellate level as well, even without the pressures of live, face-to-face adjudication - Justice Liu's concurrence tries to remove the sting of individual judgment by declining to label anyone a liar or a bigot. Sustaining a Batson objection, he reminds us, is not a "definitive finding of deceit or racism." Rather, the question is only whether it was more likely than not that the strike was improperly motivated.

We expect that Gutierrez will have far-reaching impact on jury selection in California trials and - ideally - beyond. Attorneys will need to prepare to defend their disproportionate or otherwise suspect peremptory strikes with lucid, record-based, race-neutral reasons. Trial judges will need to pay close and sustained attention throughout jury selection, attending to all of the enumerated circumstances and more, so that their findings are both explicit and supported by the facts. Appellate courts, in turn, must stand ready to conduct the searching inquiry Batson requires, particularly where the trial court has not.

Complying with this more rigorous standard may seem unfairly onerous to already overburdened courts and counsel. Anyone who has conducted jury selection knows how mentally taxing, and often prolonged, it can be. Voir dire in the three-defendant Gutierrez trial extended a week and a half; in many cases, scores of prospective jurors are questioned and considered. But Batson - and the principles it stands for - demand no less.

A Changed and Changing World

Gutierrez - and in particular, Justice Liu's concurring opinion - may reflect our evolving understanding of how racial bias operates. As he points out, the "smoking gun" of express discrimination has, we hope, become rare. But, thanks in large part to social science research into implicit bias, and social justice movements such as Black Lives Matter, there is widening recognition that racial discrimination can permeate every aspect of the system, even when individual actors are well-intentioned.

What has not changed, however, is Batson's key role in shoring up public confidence in the racial fairness of our criminal justice system, which by many indications remains shaky. Gutierrez endorses thorough, sincere, and reasoned scrutiny at every level, of every player, in service of enhancing that public trust. Fulfilling Batson's role in fostering public confidence in the system will require all the hard work and sensitivity Gutierrez calls for, and the continuing vigilance of the state Supreme Court.


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