Batson v. Kentucky
is well known, much condemned, but misunderstood. Academic and judicial commentators emphasize Batson’s shortcomings.
They say it fails to stop peremptory strikes that are motivated by race, gender, and other prohibited characteristics.
Despite its promise, Batson permits anyone who is so inclined to make prejudicial peremptory strikes, so long as the striker takes a few perfunctory steps to conceal her intent, or so the argument goes.
A chorus of voices has asserted that discriminatory jury selection is every bit as problematic today as it was at Batson’s inception back in 1986,
and that the only option left for preventing the discriminatory use of peremptory strikes, now that Batson has struck out, is to ban peremptories altogether.
This Article comes at Batson from a different direction. It acknowledges Batson’s failings as a trial doctrine—its inability to prevent and remedy strikes in real time—but shifts the focus to Batson’s virtues in appellate and postconviction proceedings. Rather than dismissing Batson as an abject failure, this Article compares it to other equal protection and antidiscrimination claims that litigants use in their post-trial litigation. This shift in focus is part of the process of resuscitating Batson’s reputation. Indeed, too little attention has been given to how Batson operates post-trial, when it is the lone meaningful doctrine for fighting discrimination in the justice system—the only doctrine defendants can plead and actually win.
As the lone meaningful antidiscrimination doctrine, Batson has been placed under the pressure of enormous expectations, and the doctrine admittedly may not be up to the task. But Batson may be more up for the challenge than previously thought, especially if the focus shifts from Batson’s trial failings to its post-trial potential. This Article argues for a re-evaluation of Batson in light of the fundamental divergence between trial and appellate Batson. It argues that there is great potential for the latter, not only as a doctrine that fights discriminatory peremptory strikes but as a multipurpose vehicle for attacking all forms of discrimination that manifest themselves at trial. Batson is a rare invitation for judges—especially appellate judges—to denounce structural discrimination, and unlike other doctrines, Batson’s automatic-reversal remedy allows judges to attach consequences to their words.
This Article proceeds in three parts. Part I examines the substantial literature criticizing Batson and discusses why Batson is such a surprising standard-bearer of antidiscrimination law. Part II illustrates several significant ways that post-trial Batson claims provide opportunities for litigants that were not available at trial. These include a remedy, post-trial, that elevates the value of a Batson win beyond what it would have been at trial. They also include the increased ability to bring in extra-record evidence that was not, and could not have been, available at trial. In addition, Part II identifies idiosyncrasies of Batson’s pleading structure that make it well suited to survive in the difficult habeas landscape.
Part III discusses the implications of the trial–post-trial divide within the Batson doctrine. Batson should bear more weight in the fight against discrimination by incorporating into the Batson claim any evidence of the prosecutor’s racism at trial—even evidence from proceedings outside of jury selection. That is the first implication of recognizing post-trial Batson’s unique virtues. Second, this Part notes how Batson presents fundamentally different issues to appellate judges than to trial judges. For appellate judges, Batson is the rare opportunity to declaim on structural issues of racism, democracy, and civics—an opportunity that trial judges do not have or want. Finally, Part III argues that the gap between trial and post-trial Batson cannot be closed without undermining key tenets of the doctrine. The divergence, as uncomfortable as it makes people, is built into the doctrine.
Batson appeals are extremely hard to win. There is no denying that. But for all of Batson’s failings, it is still the strongest antidiscrimination doctrine available to litigants, and it provides a unique opportunity for appellate judges to take aim at all manner of discrimination that may have taken place at trial, even outside of the voir dire process.
I. Batson’s Critiques and Batson’s Proper Context
a. Batson’s Practical Failings
In 1986, when the Supreme Court decided Batson v. Kentucky, the announced goal was to end the race-based use of peremptory strikes.
The aims of the doctrine could not have been higher.
Batson was the Court’s official acknowledgement that discrimination in jury selection was an assault on defendant, juror, and justice alike.
From the beginning, though, Batson was received with skepticism by those most intent on eliminating discrimination. In his Batson concurrence, Justice Thurgood Marshall predicted that the decision “will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”
And, in the three decades since, Justice Marshall’s assessment has echoed through judicial opinions and academic articles to the point that it is considered a mainstream view of Batson.
Batson is a great disappointment, if not an outright failure, according to many thoughtful critiques. The doctrine is “toothless”
and a “charade”;
“impotent in preventing discrimination”;
blind to “the inequities that flow from racial- and gender-based discrimination”;
“‘almost surely a failure’ and an ‘enforcement nightmare.’”
To Justice Stephen Breyer, “the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.”
The criticism of Batson is so persistent that it seems everyone who writes about the doctrine must emphasize its failings.
Against this bleak backdrop of Batson scholarship, this Article presents a more positive account—an account informed by observing litigators’ relative enthusiasm for other antidiscrimination doctrines. Before presenting this positive account of Batson, however, it is important to lay out some of the most important critiques of Batson for the reader.
One important complaint about Batson is the ease with which Batson’s prohibitions are evaded.
Batson intended to provide litigants with a mechanism to prevent, identify, and disallow discriminatory peremptory strikes. It established a three-step, burden-shifting framework borrowed from employment discrimination.
At step one of Batson, the person challenging the peremptory strike must make a prima facie showing that the strike was motivated by the juror’s race, gender, or other protected characteristic.
If there is an inference of discrimination, the trial judge moves to step two, where she asks the prosecutor to explain what motivated the strike.
Once that answer is provided, the inquiry moves to the third step, where either party may present additional evidence and where the judge must decide, in light of all the evidence, whether the strike was motivated by discriminatory intent.
As critics have noted, the trouble with this framework is at step two: The prosecutor can make up any justification she wants for the strike, and those justifications can be impossible to disprove.
This is especially true because there is no requirement that the prosecutor’s explanation be logical or plausible, so long as the prosecutor can convince the judge that it is sincerely held.
Bizarre, trivial justifications may count as “race-neutral.” Examples include using a strike because a juror “[w]ore a beret one day and a sequined cap the next,”
or “[m]entioned the word ‘government’ twice in his answers,”
or “[l]acked outside hobbies and interests,”
or “[l]acked ‘hope in the legal system.’”
Anyone with even a modicum of savvy can choose a justification that is not observable on the record—such as the claim that the juror was not making good eye contact—thereby making it impossible for trial judges, and later appellate judges, to disprove the justification.
The prosecutor has so much freedom that she practically cannot get caught unless she picks a demonstrably false or explicitly race-based justification. The ease of inventing pretexts to satisfy step two can make the entire Batson framework feel like a farce. A very significant and legitimate criticism, to be sure.
A second, related criticism concerns Batson’s requirement that defendants prove intentional discrimination.
As with all equal protection claims, Batson requires the court to determine the prosecutor’s subjective intent; it is not enough to show that the prosecutor’s actions have a disparate impact.
The intent requirement has rankled commentators because it is so difficult to prove. And the problem of proof is particularly pronounced, given that the prosecutor is given an opportunity, at step two, to muddy the waters by providing false justifications. Further, the intent requirement has been criticized for creating a certain social awkwardness for judges, insofar as it requires them to say the prosecutor was racist.
According to this critique, the awkwardness of branding the prosecutor racist raises the stakes for all involved and is another impediment to finding a Batson violation.
Still another major critique of Batson is the deference appellate courts owe to trial court determinations.
According to this critique, because Batson claims are fact-intensive, the trial court is entitled to so much deference that there is nothing left for the appellate court to do.
A trial judge could thus doom a Batson claim by making an unfavorable determination that cannot effectively be reviewed. This Article pushes back on the conventional wisdom by pointing out how appellate Batson may offer more opportunities to litigants than the trial doctrine did. Although appellate judges are required to defer to many aspects of the trial court’s Batson rulings, they have found ways to breathe life into Batson claims, even under the extreme deference required by the Antiterrorism and Effective Death Penalty Act (AEDPA).
One of the main projects of this Article is to show how unexpectedly emboldened appellate courts are when it comes to finding Batson violations, in no small part due to the civic, political, and moral stakes of the Batson doctrine.
Another vein of criticism concerns Batson’s limited scope. Critics complain that Batson does not protect enough categories of people.
Supreme Court decisions have recognized that the Batson doctrine now covers race-,
and ethnicity-based peremptories.
State courts and lower federal courts have extended Batson to include other groups.
Well-reasoned criticisms call for extending Batson to strikes based on sexual orientation,
and other characteristics.
There is some tension between the criticism that Batson is ineffectual and the criticism that it covers too few characteristics. If the doctrine were toothless, it should not matter how much or how little it purports to protect. One way to resolve this tension, however, is to think of Batson’s symbolic importance, independent of its effectiveness. The doctrine limits what characteristics may lawfully be used to exclude citizens from participation in the basic civic institution of the jury. Batson’s protection of a particular group is an affirmation that the group members belong as full participants in society.
As argued below, this democratic symbolism is no small part of Batson’s success as a doctrine, especially on appeal and in postconviction proceedings.
B. Batson’s Oddities
The above account catalogues Batson’s functional failings. Another level of criticism takes aim at the doctrine’s theoretical coherence. For better or worse, Batson is something of a doctrinal oddball. This section reflects on several of Batson’s most prominent oddities. These quirks do not, individually or collectively, preclude Batson from playing a prominent role in antidiscrimination law, but they do make Batson something of a surprising choice for this role, especially compared to doctrines that are more theoretically straightforward in their attacks on systemic discrimination.
First is the question of what right (or rights) Batson is supposed to protect. One might be surprised not to find a straightforward answer to this basic question. The Batson Court justified its decision in terms of protecting the constitutional rights of defendants and jurors.
Subsequent Supreme Court cases have emphasized the jurors’ rights over the defendants’ (and included all manner of litigants).
As scholars have noted, this change in emphasis has implicated another doctrinal oddity: The jurors’ rights are vindicated not by the jurors themselves but by third parties, namely, the litigants.
Such third-party standing is rather unusual in constitutional litigation, yet it is the foundation on which Batson rests.
Among its unusual implications, the reliance on third-party standing means that jurors can effectively be barred from service, with no remedy, if both the defendant and the prosecutor choose not to challenge the exclusion.
The remedy for a Batson violation also raises theoretical concerns. At trial, the remedy is to reseat the juror who was struck or, more frequently, to draw an entirely new venire.
Post-trial, the remedy is an automatic reversal of the conviction.
A fascinating academic literature explores the potential mismatch between right and remedy.
If the juror is the one whose rights are violated, how does drawing a new venire vindicate the juror’s rights, as the struck juror will not be in the new venire?
If Batson protects the defendant’s rights, on what theoretical basis does it do so? Is it because a black juror is presumed to vote differently from a white one, so the race-based strike is presumed to have affected the verdict by changing the racial composition of the jury? And does that commit the courts to the uncomfortable position that jurors act differently based on their race? Does it mean that only defendants whose cases would have come out differently with a different jury are entitled to relief? Or is the defendant given a new venire or new trial because of a principled harm: She was tried by a jury tainted by discrimination? But why should this symbolic harm result in the powerful medicine of throwing out a conviction? Later on, this Article returns in more depth to the implications of the almost-unanimous view that Batson violations require automatic reversal, free of any harmless error analysis.
Another oddity—not at all to say flaw—of Batson’s antidiscrimination bona fides is its availability to prosecutors
and civil litigants,
rather than just criminal defendants. There is nothing inconsistent with allowing prosecutors and civil litigants to counteract discrimination in the justice system, but there is some level of irony that a doctrine created to defend African American defendants against deep-seated, institutional racism now allows prosecutors to prevent the removal of white jurors or corporations to prevent the removal of male jurors. The unusual nature of Batson as a doctrine that protects jurors and all litigants—not just criminal defendants—adds to Batson’s effectiveness.
The final oddity to mention involves the theatricality of Batson’s pleading framework. This theatricality, this Article argues, is not incidental to the success of the doctrine.
Unlike any other forum, Batson puts government officials on the spot to account, in a public manner, for their discriminatory actions. This morality play takes the structural racism that pervades the justice system and gives it a human face: the prosecutor’s. This personification makes the racism easier to envision. It also makes the taint of racism seem more limited and manageable than when it is conceptualized in institutional terms.
This theater is an important, and unusual, aspect of constitutional litigation. And, as this Article argues later on, Batson’s pageantry has the key benefit of allowing judges—especially appellate judges—to declaim on broad principles of justice.
Batson transforms the peremptories into a morality play about which citizens may be excluded from civic participation and on what grounds, and it affords appellate judges the rare prompt to talk about structural discrimination in the justice system.
C. Batson’s Antidiscrimination Comparators
The critiques of Batson’s failings and its quirks are in many respects quite reasonable. But they fail to consider Batson in comparison to other antidiscrimination claims. Although Batson is flawed in many respects, it is arguably the only meaningful vehicle for challenging racial discrimination in jury selection and in the justice system more generally.
This section discusses Batson’s less auspicious comparators in antidiscrimination claims, in an effort to show Batson’s comparative strengths.
1. Swain v. Alabama. — Swain v. Alabama
was the immediate predecessor to Batson. Swain prohibited race-based peremptory strikes but only in the most extreme circumstances. Under Swain, the defendant could prevail on equal protection grounds only by showing that the prosecutor had a virtually unbroken pattern of striking African American jurors “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be” such that “no Negroes ever serve on petit juries.”
If the prosecutor struck black jurors most, but not all, of the time, or if the prosecutor struck black jurors only in cases in which the defendant was also black, that pattern would not be enough to satisfy Swain. Likewise, even if the prosecutor’s strikes were persistent enough to satisfy Swain, there was still the problem of proof. The defendant was required to obtain and analyze extensive data on strikes in other cases to establish the prosecutor’s unbroken pattern.
The defendant could not use any evidence from his own case about how the prosecutor had used his strikes.
These extensive data were extremely difficult to gather, even when they existed, and in many instances there was simply no record of whom a prosecutor had struck in other cases, much less that person’s race.
The Court in Batson specifically addressed these shortcomings of Swain and attempted to make such equal protection challenges easier to plead and win.
As will be shown later on in this Article, Swain was not wholly discarded. To this day, litigants wishing to raise Swain claims can do so instead of, or in addition to, Batson claims. They just have to refer to the prosecutor’s behavior in other cases. Indeed, the more Batson claims rely on extra-record evidence to show discriminatory intent, the more Batson begins to resemble Swain.
2. Fair Cross-Section. — Another comparator to Batson is the fair cross-section requirement of the Sixth Amendment, as articulated by the Supreme Court in Duren v. Missouri.
Like Swain, but unlike Batson, fair cross-section claims are systemic challenges. The Sixth Amendment guarantees criminal defendants the right to be tried by an impartial jury of their peers,
and the fair cross-section doctrine requires that the venire—the pool of jurors summoned to appear for service—is sufficiently representative of the community. If the jury-summons system results in significant and repeated underrepresentation of a cognizable group, the fair cross-section requirement may be violated.
In theory, this doctrine has great potential. While it may be impossible to root out discrimination in peremptory strikes, the effect of this discrimination could be blunted by having jury pools that have representatively large numbers of minority jurors—the goal of the fair cross-section doctrine. Or, put another way, if minority jurors are underrepresented in the jury pool, it is easier for the prosecutor to use her peremptory strikes to make the jury entirely white than if there are more minority jurors in the venire. An additional virtue of the fair cross-section doctrine, at least in principle, is that there is no need to prove discriminatory intent; all that is required is a significant and systemic underrepresentation of a cognizable group.
That is true because the Sixth Amendment right, unlike its Fifth Amendment analogue, does not require a showing of purposeful discrimination.
Despite these theoretical advantages, however, subsequent Supreme Court decisions have severely degraded the fair cross-section doctrine described in Duren. For example, the Court has hampered fair cross-section challenges by its insistence that defendants identify, with particularity, what mechanism of the jury-summons process is responsible for the underrepresentation in the venire.
This is a difficult task for defendants to undertake because while the underrepresentation can be relatively easily observed, it may be that no one knows why this underrepresentation is occurring (or it may be that a confluence of factors leads to the underrepresentation). Identifying the particular cause of the underrepresentation is made even more difficult by the policies of many clerks of court to abstain from tracking demographic information about their jury lists—a decision that appears to have been made with the intent of foreclosing fair cross-section challenges.
And still another flaw of the fair cross-section doctrine, as if another flaw were required, is the application of the doctrine to groups that make up a small percentage of the population. Many courts measure the “absolute disparity,” which is the number of percentage points between a group’s representation in the jury-eligible population and that group’s representation in the venire.
(If African Americans make up seventeen percent of the jury-eligible population and just twelve percent of the venire, the “absolute disparity” would be five percentage points.) Although there is no hard-and-fast cutoff, many published decisions parrot the notion that the defendant must show an absolute disparity of seven-plus percentage points—sometimes the threshold is quoted as ten percentage points—in order to make out a fair cross-section violation.
This is a nearly insurmountable bar to fair cross-section protection for groups that make up less than ten percent of the population. It means that even if such group members are completely excluded from the venire, that exclusion will not cross the ten percent threshold needed to trigger a fair cross-section claim.
In sum, these and other flaws with the fair cross-section doctrine have left commentators to bemoan the doctrine’s demise.
A basic search of fair cross-section decisions over the last decade—both state and federal—reveals just a single fair cross-section victory.
Though the search was not exhaustive, and there may be a number of victories that never made it into Westlaw’s database, the result is suggestive of the doctrine’s anemia.
3. Ham and Ristaino. — Still another way to combat discrimination in jury selection is to allow robust questioning about jurors’ racial biases. If racial bias emerges from the questioning in voir dire—and it is an open question whether jurors would admit to as much in court—that could be the basis of for-cause and peremptory strikes. Vigorous questioning seems like an innocuous way to confront racial discrimination, and it has the benefit of not requiring the court to decide who can and cannot serve on the jury. All the court has to do is allow the parties to ask questions to get more detailed information about the jurors. Despite the upside of such questioning, the Supreme Court has pulled back on the notion that the Constitution protects a defendant’s right to ask these questions about racial biases.
In Ham v. South Carolina, a black defendant alleged that his prosecution for possession of marijuana was retaliation for his work as a civil rights activist.
The trial judge denied the defendant’s request to have the jurors questioned about racial prejudice.
The Supreme Court reversed Ham’s conviction on due process grounds because of the judge’s “refusal to make any inquiry as to racial bias of the prospective jurors.”
Three years later, however, the Supreme Court significantly limited this holding in Ristaino v. Ross.
In Ristaino, a black defendant accused of attacking a white security guard was not allowed to question jurors about racial prejudices.
The Supreme Court held it was not a constitutional violation for the judge to prevent such questioning.
The earlier decision in Ham was limited to circumstances in which “[r]acial issues . . . were inextricably bound up with the conduct of the trial”—and that was not the case in Ristaino.
Later cases have tinkered around the edges with defining when questioning is constitutionally required.
But the message is clear: The Constitution will not assist a defendant in questioning her way to a racially impartial jury, except in certain unusual circumstances.
A basic search of a decade’s worth of cases citing Ristaino turned up one victory.
* * *
The picture does not get any rosier if one looks beyond jury selection to other attempts to address race in the justice system. Racial disparities in charging and sentencing have an enormous effect on the criminal justice system. In McCleskey v. Kemp, the Supreme Court was confronted with strong statistical evidence of racial discrimination in capital sentencing decisions.
But McCleskey effectively closed the door on discriminatory-prosecution claims, holding that a strong statistical correlation was not enough to prove discrimination;
the defendant had to show that discrimination was the cause of the sentencing decision in his particular case—an almost impossible burden. The Court’s decision in United States v. Armstrong made discriminatory prosecution even harder to prove by raising the bar for obtaining the very discovery necessary to meet the bar set by McCleskey.
A basic search of a decade’s worth of “discriminatory charging” and “selective prosecution” decisions turned up one trial victory and one intermediate appellate court victory—both of which were reversed by reviewing courts.
One additional case satisfied the threshold for ordering discovery.
Arguably, even this dismal state of affairs is more encouraging than the Fourth Amendment’s position on racial discrimination. In Whren v. United States, the Supreme Court held that the subjective intent of an officer was not relevant to the Fourth Amendment inquiry into the constitutionality of a traffic stop.
While selective enforcement of the laws violates the Constitution, the Court held, the way to challenge that “is the Equal Protection Clause, not the Fourth Amendment.”
According to Whren, “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”
Swain, Duren, Ham–Ristaino, McCleskey, and Whren—this is the antidiscrimination company Batson keeps. Of course, the Supreme Court will occasionally call out racial discrimination in a sui generis criminal case, as it did during the October 2016 term in Pena-Rodriguez v. Colorado
and Buck v. Davis.
But the Court appears to have little appetite for antidiscrimination claims that apply to more than one or two idiosyncratic cases.
Given the lack of alternatives to fight racial discrimination in the justice system, Batson becomes all the more important, despite its flaws. It is the only doctrine in this beleaguered group under which defendants actually have a chance to prevail. The same type of basic Westlaw query that turned up one fair cross-section victory, one jury-questioning victory, and zero discriminatory-prosecution victories in over a decade, turned up forty Batson wins over the same period.
(And there are a number of additional Batson wins, even among the cases cited in this Article, that were not captured by this very elementary search.
) Although this search method is crude, it provides some data for the anecdotal observation that winning Batson decisions are more commonly encountered than other types of antidiscrimination victories.
It is worth adding that Batson claims, not just Batson victories, are probably more numerous than other types of antidiscrimination claims because Batson can easily be raised and preserved in any case in which there was jury selection. Fair cross-section and discriminatory-prosecution claims, on the other hand, require significant extra-record research to raise and preserve—a point this Article returns to shortly.
All of these factors contribute to making Batson a more vibrant and significant doctrine than its antidiscrimination competitors. In criminal cases overrun by racial discrimination, Batson may be the only arrow in the quiver for a judge—especially an appellate judge—who wants to remedy the blight of discrimination. But commentary on Batson has been too quick to dismiss Batson’s virtues, too quick to lose focus of Batson’s proper context, because the commentary has focused too little on what Batson can do post-trial.
II. Batson’s Appellate–Trial Divide
Batson appellate claims are extremely difficult to win. There should be no confusion on this point. It is hard enough to prevail on a Batson claim at trial, but the “great deference” that appellate courts must give to trial court Batson determinations makes it even more difficult.
At the same time, appellate Batson offers a number of opportunities that are not available to litigants at trial. This Article argues that these opportunities cause appellate Batson to punch above its trial weight, and that this divergence between trial and post-trial Batson has not previously been acknowledged.
This may sound like a paradox. How can Batson appellate and postconviction litigation provide more opportunities than Batson trial litigation when the appellate courts owe deference to the trial judgments? The answer has several parts. First, the value of a Batson victory on appeal and habeas is far greater than it is at trial, so even if Batson claims are less likely to succeed post-trial, their victories are nonetheless more valuable. Second, the types of evidence and arguments that can be advanced in post-trial Batson claims differ from, and exceed, those that are available at trial. Indeed, the topic of Part II is one of the main contributions of this Article: an illustration of the ways in which Batson postconviction litigation is more expansive than at trial. This divergence between trial and post-trial Batson has been largely overlooked, obscuring Batson’s potential as a doctrine that can go beyond jury selection. This Part fleshes out the divergence between trial and post-trial Batson and identifies ways in which the appellate side of the doctrine is growing in importance, even as the trial side of the doctrine is receding.
A. Difference in Remedy Between Trial and Appellate–Habeas Litigation
To understand why Batson might be more significant to appellate litigants than trial litigants, start with the remedy. In baseball terms, a trial Batson win is a single or maybe a double. Post-trial, a Batson win is a home run—or more. Consider, for example, that if a Batson violation is recognized at trial, the remedy is to return the struck juror to the box or, more often, to dismiss the current jurors and draw a new venire.
For the defendant, the benefits are uncertain and relatively modest. Reseating the struck juror may improve the ultimate outcome of the case. Or it may not. It is hard to gauge at the outset how any individual juror will vote. Redrawing an entirely new venire could result in a significantly better choice of jurors. Or it could result in a venire that is substantially the same as—or worse than—the original one. This is the sense in which the value of a trial Batson win is uncertain. Granted, if the prosecutor has already struck six African American jurors by the time the court declares the Batson violation, there is good reason to think that the new venire will be more favorable to the defense (assuming the court does not permit the prosecutor to strike African American jurors like that again). But in situations in which there are one or two suspicious strikes, it is far less clear how and whether a Batson win will affect the outcome of the case. The only thing certain is that a Batson win at trial will set back the start of the trial, perhaps by a few hours, perhaps by a few days or weeks. Hardly a significant victory.
On appeal and in postconviction proceedings, however, Batson’s remedy is much more significant: automatic reversal of the conviction. The automatic nature of the reversal is significant in setting apart post-trial Batson from trial Batson and in distinguishing Batson from other appellate and habeas doctrines. The key point is that Batson is a “structural error.”
Structural errors are those that affect not the trial itself but the framework and mechanics for holding the trial.
When a court finds a structural error, it does not go through the steps of analyzing whether any harm accrued to the defendant because of the error.
Rather, the court must throw out the conviction, even if there is such overwhelming evidence against the defendant that she would have been convicted had the error not occurred. “Structural error” claims, like Batson and a few others, stand out for not being subject to “harmless error review.”
The exemption is critically important for appellate and habeas litigants because harmless error analysis is a major hurdle.
In other habeas doctrines, for example, a defendant will not be able to win relief even if she has the most well-documented, clear-cut constitutional violation, if the evidence against her is significant enough that she would have been convicted had the error not occurred.
Such is the challenge of harmless error review: It moots out wide swaths of constitutional rights for defendants who have overwhelming evidence against them. In capital cases, in which there are separate guilt and penalty trials, another threat from harmless error analysis is the potential for the court to find that a constitutional violation affected only the penalty phase of the trial, thus leaving the guilty verdict untouched.
Courts have more latitude in defining what is harmless than in defining what is a constitutional violation, so they can sidestep deciding a constitutional question under the guise of saying that the harmlessness analysis was more clear-cut.
Batson’s immunity from harmless error review gives it a special luster post-trial that it lacks at trial, and this helps to explain part of the divergence between trial and post-trial practice. For inmates serving long prison terms or facing execution, the opportunity to vacate the conviction and to start again with jury selection is one of the biggest legal victories they could hope to achieve. Unlike at trial, going back to the beginning is not a modest remedy with uncertain benefits. For the inmate, the restart is exceedingly valuable, and not just as a means of delay. At trial, there may have been numerous errors—constitutional, tactical, and otherwise—that led to the defendant’s conviction or sentence. Many of those errors may not present winnable claims on appeal, but Batson’s automatic reversal wipes clean the entire slate and allows the defendant a coveted second chance to defend her liberty.
By this measure, Batson is a far more significant victory on appeal and in habeas than at trial.
It could be argued that any constitutional violation is more significant on appeal than at trial. For example, a trial court would remedy a violation of the Confrontation Clause by excluding the unconfronted evidence or by issuing a curative instruction to the jury to ignore the evidence, but these trial remedies pale in comparison to the appellate remedy of throwing out the conviction. Does that mean the trial–post-trial imbalance Batson demonstrates is no different from the Confrontation Clause? No. Batson is different because its status as structural error severs any connection between what happens on appeal and what would have happened at trial. The appellate Batson litigant actually gets more than she would have at trial. In the Confrontation Clause example, the defendant who shows a violation at trial is able to exclude some significant piece of evidence, and that presumably changes the likely outcome of the defendant’s case. The same theory holds on appeal: If the Confrontation Clause violation proves significant to the outcome of the case, the defendant gets a new trial and that piece of evidence will be excluded, presumably giving her a better chance at victory. In the Batson example, it is extremely unclear how the defendant would have been better off at trial if the particular struck juror had not been struck, a point noted in more depth above.
But the appellate Batson litigant clearly benefits from the full reversal, even without showing that the struck jurors would have affected the outcome of her case. This distinction makes the trial–post-trial gap in Batson more significant than in other constitutional doctrines.
B. Difference in Evidence Between Trial and Post-Trial Proceedings
A further manifestation of the divide between trial and appellate Batson can be seen in the way in which habeas litigants use types of evidence that are not available to them at trial. Batson is even more expansive in this respect than other record-expanding habeas doctrines, like Brady v. Maryland
and Strickland v. Washington.
Because of Batson’s focus on the prosecutor’s intent, a surprisingly wide range of evidence becomes relevant—even evidence that was not in existence at the time of trial.
This section discusses several types of evidence and analytical methods that are not available at trial but are available later on. Because much of the discussion concerns extra-record evidence, a brief definition of record and extra-record evidence is useful. Batson is often considered a record-based doctrine.
The evidence needed for a Batson claim typically comes from the record of the defendant’s case: the jurors’ questionnaires and the transcripts of voir dire and the peremptory strikes. There is no need to conduct any research from outside of the case—research that would yield extra-record information.
Indeed, this was one of Batson’s chief innovations over Swain; it relieved defendants of the need to research the prosecutor’s behavior in other cases.
Even though Batson does not require the defendant to look beyond the record of the case, it also does not prevent her from doing so if there is extra-record evidence that reflects the prosecutor’s bias. This extra-record evidence can consist of the prosecutor’s Batson violations in other cases, or the prosecutor’s racist comments in the media, or internal office policies that promote racial discrimination—anything that speaks to the prosecutor’s intent. Another meaning of extra-record evidence is evidence that may relate to the defendant’s own case, but was not part of the record of the case at trial. A prime example can be seen in the prosecutor’s notes from jury selection. These notes may be unavailable at trial insofar as they are considered privileged work product, yet they may become available to the defendant after trial in postconviction proceedings.
As this section shows, extra-record evidence has become increasingly important to Batson. As prosecutors grow more adept at producing sanitized justifications for their strikes at step two of Batson, extra-record evidence of the prosecutor’s discriminatory intent is increasingly important in winning Batson claims. What is particularly significant, for purposes of this Article, is the way in which this extra-record Batson evidence has made a greater impact on post-trial litigation. Even though trial litigants are capable of incorporating most—but not all—types of extra-record evidence into their cases, the extra-record evidence and analytical methods described here remain largely a tool of postconviction and appellate Batson. This divergence provides another example of the split between Batson trial and post-trial practice.
1. Jury-Selection Notes. — There is no better evidence of a prosecutor’s intent than her notes from jury selection. A number of significant Batson opinions—including the Supreme Court’s recent decision in Foster v. Chatman
—have used these jury-selection notes to demonstrate the prosecutor’s bias. But there is a significant difference in the availability of these notes at trial compared to in postconviction proceedings.
In Foster v. Chatman, the prosecutor’s jury-selection notes showed that race was a dominant factor in jury selection, despite the prosecution’s repeated assertions to the contrary.
At trial, Foster asked for the notes, but the prosecutor refused to turn them over, and the court did not force the issue.
When the notes came out years later in postconviction proceedings, they showed that the prosecutor had targeted jurors because of race.
For example, the notes contained the letter “B” next to the names of all the African American jurors—names that the prosecutor had highlighted in green pen.
The notes also showed that all five of the venire’s qualified black prospective jurors made it onto the prosecutor’s list of the six least acceptable prospective jurors.
Three decades after the trial, the jury-selection notes revealed the prosecutor’s obsession with race and led the Supreme Court to throw out the defendant’s conviction.
In a number of other cases from the Supreme Court, the lower federal courts, and the states, jury-selection notes have also played a role in showing grotesquely racist practices in jury selection.
In a notable decision by District Judge Lucy Koh, the notes revealed such attentiveness to race that the prosecutor struck white jurors because one was “interest[ed] in African American culture and had written a book on African American folklore” and another’s answers to voir dire questions suggested she might be married to a black man.
By the same token, prosecutors have used jury-selection notes to defend themselves against Batson allegations when the notes show nondiscriminatory reasons for their strikes.
The difference between trial and habeas access to the notes is significant. At trial, the prosecutor’s notes are generally protected from disclosure under the work-product privilege, based on the theory that the notes reflect the prosecutor’s thinking about tactics and strategy for litigating the case.
Defendants generally do not ask for prosecutors’ notes mid-trial. Nor would courts be likely to grant such requests.
In postconviction proceedings, however, there is a different approach to the notes. Prosecutors may continue to assert that the notes are privileged work product, or they may claim that the notes do not properly fall within the scope of any postconviction discovery right. In many cases, though, the notes wind up being disclosed to the defendant on habeas review, because there is simply less justification for protecting the prosecutor’s strategy and tactics once the trial has already run its course. The disclosure of the notes to the defense sometimes comes about voluntarily.
Often, the district attorney’s office is no longer representing the prosecution in habeas proceedings, and the new agency handling the case—likely the state attorney general’s office—may have less investment in the notes’ secrecy.
Another avenue to accessing the notes is postconviction-discovery litigation. In these discovery proceedings, a state or federal judge must determine whether there has been a sufficient showing to entitle the defendant to access the notes. A range of views exists on what is necessary to trigger disclosure, and some courts have created special carve-outs for when the notes must be disclosed, as in instances when the prosecutor used her notes at trial to refresh her recollection of the strikes.
A popular way to balance the Batson and work-product interests in the notes is to have the court review them in camera to determine whether they contain any support for a Batson claim.
Rounding out this brief survey of disclosure procedures is the example of the federal judge who ordered the notes disclosed in postconviction proceedings because, in his view, the work-product privilege cannot be used to conceal racial discrimination.
Amidst a jumble of conflicting rules about when a defendant may access the notes, the key point is that the notes are much more accessible post-trial than during trial. This is significant because the prosecutor’s notes are the best evidence of her intent, yet the notes are stuck in a legal limbo. No one denies their importance to resolving Batson claims, but they remain beyond the defendant’s grasp at trial. It is only in post-trial proceedings that they may become available to the defendant. This gap in access to the notes provides one striking example of the divergence between trial and post-trial Batson.
2. The Prosecutor’s Behavior in Other Cases and Outside of Court. — The prosecutor’s behavior in other cases or outside of court is another example of extra-record evidence used in post-trial proceedings but largely absent from Batson trial litigation. If a prosecutor has violated Batson in one case, that violation can be proof of her bias in other Batson cases.
The same is true of the prosecutor’s discriminatory statements or actions. Although these instances of discrimination occur outside the four corners of the defendant’s case, they show the prosecutor’s bias. But, for reasons discussed below, this type of evidence is embraced more in postconviction proceedings than at trial, thus furthering the gap between trial and appellate Batson. Indeed, there is an irony in the use of such extra-record evidence.
It feels like Batson has taken a step toward Swain v. Alabama, the peremptory challenge doctrine that required defendants to investigate and describe all the prosecutor’s peremptory strikes in other cases.
Evidence of prosecutors’ misbehavior in other cases can be quite egregious. In one example, a California prosecutor was found to have violated Batson in the defendant’s first trial and subsequent retrial.
When the defendant’s second retrial reached the Ninth Circuit on federal habeas review, Judge Marsha Berzon commented at oral argument that the prosecutor’s history of bias was so pervasive that she would find a prima facie case of racial discrimination anytime the prosecutor struck a minority juror.
Numerous other courts have considered a prosecutor’s behavior in other cases as evidence of discriminatory intent in the defendant’s particular case.
And it is not just Batson violations from other cases that can be used to show a prosecutor’s discriminatory intent in jury selection. Anything the prosecutor says or does, in court or out of court, can potentially show her bias and, thus, serve as evidence that a strike of hers was motivated by race. An unlucky prosecutor in Kentucky, for example, was caught on a hot mic during a court recess talking about jury selection in racial terms: “We’ve got [name deleted], 49, she’s the old lady, the black lady. The other one is already off.”
The recording was discovered soon after the defendant’s conviction and made part of the record to be considered on the direct appeal.
Racist comments made in closing argument provide other examples of evidence relevant to the Batson inquiry because they, again, reflect the prosecutor’s bias.
The same is true of racist comments in the press, civil judgments for discriminatory employment practices, and membership in the Ku Klux Klan.
All of this is relevant to the Batson claim insofar as it shows the prosecutor’s bias.
A detailed illustration of this extra-record evidence can be seen in the Supreme Court’s 2008 decision Snyder v. Louisiana.
In that case, nine local ministers filed an amicus brief cataloguing the many Batson violations that the prosecutor’s office committed.
And Batson violations were only the start. The amicus brief provided statistics on the racial use of peremptories in a dozen other capital prosecutions in the office
and presented the Justices with examples of racially offensive statements that the trial prosecutor and a colleague made to a journalist in a joint interview—statements that referred to “black on black” murder and “white man’s justice” and joked about seating “Nazis on capital juries.”
The brief further recounted that the trial prosecutor’s office displayed “a tiny model electric chair holding cut-out faces of five African-American condemned men,”
and that the prosecutors in the office had “appeared in capital courtroom proceedings with neckties depicting a grim reaper and a hangman’s noose.”
With one example after another, the brief showed how extra-record evidence can be used to demonstrate the prosecutor’s discriminatory intent.
What must again be emphasized, for purposes of this Article, is that the use of this type of extra-record evidence is a greater part of Batson habeas litigation than Batson trial litigation. This is in part a practical matter. Trial attorneys are more likely to plead Batson claims on the fly, typically without thoroughly searching the prosecutor’s history of discrimination in other cases. At trial, given the time constraints and the relatively modest value of winning a trial Batson claim, litigators may feel their time is better spent on other areas of the case. Appellate litigants, on the other hand, are well equipped to conduct the type of record collection and investigation that is required to develop such extra-record evidence. And the enormous benefit of a Batson appellate victory provides an incentive to vigorously pursue such claims.
There is another practical consideration related to the divergence between trial and post-trial use of this type of extra-record evidence: Some of the evidence may not come into existence until after the defendant’s trial. Maybe the prosecutor joined the Ku Klux Klan shortly after the defendant’s conviction. Maybe the prosecutor earned a number of Batson reversals in the years between the defendant’s conviction and the defendant’s postconviction proceedings. Obviously, trial counsel cannot use evidence that is not in existence at the time, but the postconviction proceedings happen so long after the trial that there is a lot of time for this new evidence to come into existence. As will be described in more depth later on,
it is Batson’s focus on the prosecutor’s intent that makes such late-arising, extra-record evidence relevant to the claim.
Litigation style may also explain why extra-record evidence takes on greater importance post-trial than at trial. At trial, a defense attorney must stand in the presence of the prosecutor—perhaps even a prosecutor she will have to work with on a regular basis—and accuse the prosecutor of racial discrimination. If the defense attorney begins to bring in evidence of the prosecutor’s racism from far and wide, the accusations become more and more characterological: It is not just that the prosecutor allowed race to influence this particular strike, but rather, the prosecutor has a racist character. Such broad accusations about the character of the prosecutor are relevant to the Batson claim, of course, but many commentators have noted that defense attorneys may still find it awkward to make these accusations.
Appellate litigation, on the other hand, has a different flavor. The appellate proceedings are carried out mostly on paper, which gives them a more impersonal feel. And, as mentioned earlier, the trial prosecutor is likely not even the attorney representing the state on appeal.
Because of this dynamic, it may be easier for the appellate attorney to present a detailed history of the prosecutor’s racial prejudice.
Regardless of the precise reason, the difference between the trial and post-trial use of this extra-record evidence is significant in creating a gap between the two sides of the Batson doctrine.
3. Policies, Trainings, and Internal Memos. — Internal manuals, training materials, and office policies provide still another category of extra-record material that can be used to show the prosecutor’s intent.
This type of evidence has been part of jury-selection litigation going all the way back to Swain. Just as with the jury-selection notes, these materials are considered powerful, probative evidence, but there is little clarity about when a litigant is entitled to them. The recurring theme, however, is that appellate litigants have easier access to these materials than do trial litigants.
In Miller-El v. Dretke, the fact that the prosecutors’ files contained the Sparling Manual was evidence that “race was on their minds when they considered every potential juror.”
The Sparling Manual proved important in Miller-El and other Texas cases because the manual explicitly instructed prosecutors on how to misuse race in jury selection.
Miller-El also included testimony from a former Dallas prosecutor who was told by a superior that if he allowed an African American on his jury he would be fired.
The Philadelphia District Attorney’s Office provides yet another example of how internal trainings can be used to show a prosecutor’s racist intent. There, a prosecutor was caught in a taped training session explaining to other prosecutors how to remove African Americans—especially African American women—from the jury.
The training came replete with instructions on how to avoid being caught by Batson.
Similarly, North Carolina prosecutors allegedly took part in a “Top Gun” training academy “where they provided a cheat sheet of pat, ‘race-neutral’ explanations” for Batson challenges, according to a publication by one ACLU lawyer.
The list of attendees and the contents of the training have since been distributed within the criminal defense bar to assist in showing attendees’ bias.
In the context of the gap between trial and post-trial Batson, it is important to point out that these internal materials are frequently considered privileged work product and can be difficult to obtain at trial. To the extent that they are obtained and used in Batson cases, it is usually by postconviction litigants. When these policies, trainings, and manuals come to light, it is often through leaks rather than discovery or public records requests.
And the fact that the office-wide materials apply to so many prosecutors in the office means that once these manuals and trainings are leaked to one defendant, they are likely to spread to many others as well. In this way, a trickle of information in one case can turn into a torrent of postconviction claims in other cases, as defendants who were prosecuted by the same offending prosecutor or prosecutor’s office learn of them.
4. Comparative Juror Analysis. — The next example of divergent evidence between trial and post-trial proceedings is conceptually quite different. Here, this Article considers an analytical tool—comparative juror analysis—that is a mainstay of Batson appellate litigation but that is not practically deployable at trial. Comparative juror analysis draws comparisons between those jurors who were struck and those who were seated.
The purpose of the comparisons is to determine whether the prosecutor’s stated reasons for striking a particular juror hold up across the entire venire.
If they do not, that is a sign that the justification for the particular strike may be false. For example, if a prosecutor struck a black juror on the grounds that the juror lacked a college degree, one would expect the prosecutor to strike white jurors who lacked college degrees. If she did not strike white jurors without college degrees, that suggests the demand for a college degree was a pretext and the true motivation for the strike was something else, perhaps race.
Because jurors typically differ on more than one dimension, comparative juror analysis can become quite complicated and time consuming. A careful reading of the jurors’ questionnaires and voir dire answers is required to create the appropriate comparisons. The process is akin to multivariable regression analysis; litigants attempt to show that the two jurors being compared are largely similar except for one salient characteristic: race.
If the juror’s race begins to look like the best predictor of the prosecutor’s strikes, that is powerful evidence of racial discrimination.
The point worth emphasizing is comparative juror analysis’s relative prominence post-trial as compared to at trial.
Unlike the extra-record evidence mentioned above, the inputs for comparative juror analysis are all accessible to the parties at the time of trial. The juror questionnaires, the voir dire transcript, and the transcript of the prosecutor’s strikes provide the data that are used to compare the jurors.
But trial attorneys are not really in a position to use this information for the type of in-depth comparisons that are routine on appeal.
This is not simply a matter of trial attorneys’ time limitations.
A bigger problem is that Batson challenges are generally brought in the midst of jury selection, and at that time no one knows which jurors will end up on the panel and which will ultimately be struck. Without knowing the identities of the seated jurors—or the identities of all the struck jurors—the parties cannot effectively compare those who were seated with those were struck in the way that comparative juror analysis typically envisions.
This is a further reason that comparative juror analysis, a critical tool of post-trial Batson, is not as significant at trial.
Granted, Batson challenges can be raised at the very end of jury selection or even on a motion for a new trial, and in such instances the identities of the seated jurors would be known.
But such delayed Batson challenges are unusual,
so the point remains: Comparative juror analysis, though a powerful tool for showing discriminatory intent, is largely an appellate-only
method of analysis. This discrepancy widens the fissure between Batson claims at trial and Batson claims on appeal.
5. Batson Reconstruction Hearings. — Batson “reconstruction” hearings provide another example of how the trial and post-trial sides of Batson diverge. Reconstruction hearings have not been discussed in the academic literature, but they are of growing importance to Batson.
Here’s how they often come about: At trial, the defendant makes a Batson objection, and the trial judge finds no prima facie case of discrimination.
As a result, the prosecutor is never asked to put his justifications for the strike on the record.
Years later, an appellate court disagrees with the trial judge’s assessment and finds that the defendant did state a prima facie case of discrimination.
The problem emerges that no one knows what the prosecutor’s justification was for the strike because she was never asked to offer one. Without knowing that justification, the Batson inquiry cannot move forward. For years, appellate courts would solve this problem by reviewing the record and guessing at what could have been the prosecutor’s reasons for the strike. The courts would then evaluate these imagined reasons at step three to see whether the prima facie case of discrimination was rebutted.
This practice of conjuring up reasons ran into conflict with the Supreme Court’s demand that the Batson inquiry seek out “actual answers” and “real reasons” for the strike—not just speculation. As the Court held in Johnson v. California, “[I]t does not matter that the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason they were stricken.”
The reconstruction hearings were created as a way to produce these actual answers by reconstructing step two in a live evidentiary hearing.
To get the actual reasons for the strike, the prosecutor is called to the stand and asked about the strike or strikes.
Simple as this sounds, the hearings have become very complicated, and they require a suspension of disbelief. Even though the hearings are supposed to reconstruct the trial proceedings, they actually diverge from trial practice in many significant ways. One divergence is that, unlike at trial, the prosecutor testifies as a sworn witness at the reconstruction hearing, and his testimony is subject to cross-examination.
Another divergence involves the question of the prosecutor’s ability to remember her reasons for the strike.
At trial, there is no question that the prosecutor is capable of remembering her true reasons. Even if she cannot recall the answer off the top of her head, she can consult her notes. On the contrary, in the reconstruction hearings, there are grave doubts about whether the prosecutor has any true memory of why she struck the juror.
Years or even decades may have passed since the strike. If the prosecutor has no notes of the strikes, she may have no way of refreshing her recollection. Even if the prosecutor has a memory of why she struck the juror, her memory may have been influenced by review of the voir dire transcript prior to the reconstruction hearing or by discussions the prosecutor had in preparation for the hearing. In other words, there are grave reasons to doubt that the answer provided by the prosecutor is the real reason, yet the reconstruction hearing treats the answer as if the prosecutor had said it in real time during the trial.
In many ways, the reconstruction hearing is a manifestation of Batson’s appellate ambitiousness. Batson’s strict adherence to its three-part framework, and its insistence on finding the actual reasons for the strikes, fuel the notion that the reasons for the strikes can be reconstructed so long after the trial simply by putting the prosecutor on the stand. In effect, the prosecutor is allowed to do what the appellate courts were prohibited from doing: hypothesize a reason for the strikes years after the fact. The reconstruction hearings provide yet another way in which post-trial Batson has expanded beyond the bounds of the trial doctrine.
C. Difference in Judicial Approach to Trial and Appeal
A further division between trial and post-trial Batson can be found in the growing importance of Batson procedural violations. While appellate judges must defer to the factual and credibility findings of trial judges, they have nonetheless found ways to identify procedural flaws in the way the Batson inquiry was executed. These procedural violations allow the appellate courts to engage with the Batson review in terms of legal questions, rather than factual questions, so deference to the trial court is not required.
As commentators have noted, Batson claims involve many factual determinations on which appellate courts must defer to the trial courts.
Was the juror really slouched in her seat? Did the prosecutor appear genuine in explaining herself at step two? Did the questioning of the black jurors feel more aggressive than the questioning of white jurors? The conventional wisdom is that appellate judges must show great deference on Batson claims because of all these credibility determinations.
But appellate judges who see an injustice at trial and want to correct it have found ways to reframe the factual questions as legal and procedural ones.
Significantly, on these legal, procedural questions, appellate courts need not defer to the trial courts’ decisions. Essentially, appellate courts have found a way to avoid the deference they might otherwise owe to their trial colleagues by identifying errors in the way the trial court implemented Batson’s procedures. While they might not be able to second-guess trial courts’ credibility decisions, appellate courts can insist that the procedures for making these decisions be carried out correctly. After all, if these procedures were improperly carried out, the courts cannot be confident that the “real reasons” for the strikes were ever discovered.
This point about procedural errors is not a small one. Procedural violations are particularly significant in Batson, as compared to in other doctrines, because the Supreme Court has specifically decreed the three-step framework courts must employ to produce the actual reasons for the strikes.
The question of whether the prosecutor had discriminatory intent cannot be separated from the process used to ascertain those intentions. Examples of these procedural violations include cases in which the trial judge applied too demanding a threshold for the prima facie case at step one,
combined step two and step three into one,
offered her own suppositions about the reasons for the strikes before asking the prosecutor,
prevented relevant evidence from being presented,
and misallocated the burden of proof.
Many Batson victories—including remands for further fact-finding—involve these procedural violations. Not surprisingly, these claims about Batson procedural violations are largely confined to appeal. This is not to say that trial litigants are prohibited from complaining about some procedural violation the court has committed, but such complaints at trial would require the trial judge to reverse herself, so they are more feasible to raise on appeal.
The development of “procedural” Batson violations is also related to the intense postconviction pressures applied by AEDPA,
a significant impediment to federal habeas relief. Passed by Congress in 1996, AEDPA prohibits federal courts from granting habeas relief to reverse a state conviction unless the state court’s ruling on the legality of that conviction is “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.”
The term “clearly established Federal law” has come to mean the holdings of Supreme Court cases—not dicta, not logical extensions, not anything else.
As a result of AEDPA, federal courts cannot recognize a constitutional violation in any state prisoner’s case unless the state courts’ decisions denying relief were so egregiously wrong as to have transgressed a direct holding of the Supreme Court.
Although AEDPA’s “clearly established” limitation is a major hurdle to federal habeas relief, this limitation does not apply equally to all types of habeas claims. The doctrines it hits hardest are those that rely on standards like “reasonableness” or on interest balancing.
If the claim asks the state court to appraise the gestalt of some issue, it is difficult to show that the state court got it objectively and egregiously wrong.
On the other hand, with doctrines that are more rule-like—and especially with those that have multiple, clearly defined steps—it is easier to show that the state court misapplied Supreme Court law. Batson falls into this latter category with its mandatory, three-step burden-shifting framework. If the state court failed to follow any of Batson’s three steps, the federal court can point to the transgression of “clearly established Federal law” as grounds for intervening.
Moreover, Batson has the added benefit that the three-part framework has been a core part of the doctrine from the beginning, so there is no doubt that the law was clearly established at the time of the state court decision—still another requirement of AEDPA.
Consider two caveats about these procedural Batson violations. First, there are many Batson claims in which the appellate courts do end up deferring to the decision of the trial judge without searching out some procedural violation.
In discussing procedural violations, this Article describes how appellate judges who want to intervene have found ways to do so in spite of the deference they might owe to the trial courts. This is not to suggest that all or most appellate judges take this route. Second, this argument does not imply that Batson claims are somehow immune from the limitations created by AEDPA. Many Batson claims are felled by the “clearly established” bar, especially when the state court decided an issue for which there is not a Supreme Court case directly on point.
This Article simply argues that, holding AEDPA’s limitations constant across all habeas doctrines, there are some advantages Batson enjoys because of its three-step, mechanical test. These advantages boost the usefulness of Batson claims relative to other habeas doctrines and raise the stature of post-trial Batson relative to trial Batson.
A number of implications flow from Batson’s special strength in appellate and habeas proceedings. These implications should affect the way litigants plead Batson claims, judges decide those claims, and academic commentators talk about Batson.
A. Batson as a Multipurpose Vehicle to Combat Discrimination
The point of discussing Batson relative to other antidiscrimination doctrines is not just to burnish the doctrine’s reputation. Rather, the goal is to suggest how Batson can be deployed as a multipurpose antidiscrimination doctrine capable of protecting against an array of racist acts, even those outside jury selection. For example, in Foster v. Chatman, the prosecutor employed overtly racist messaging in his closing argument. As the cert petition noted, “The prosecutor . . . argued that the jury should impose a death sentence to ‘deter other people out there in the projects.’”
Such a racist comment could be challenged on its own as a form of prosecutorial misconduct, but the showing needed for such a claim is difficult, and the misconduct claim is subject to harmless error review.
Batson, however, provides a more straightforward alternative that is not subject to harmless error review. In other words, the racist statement can be reconceptualized as proof of the prosecutor’s discriminatory intent in jury selection.
Snyder v. Louisiana revealed a similar dynamic. The prosecutor repeatedly compared the black defendant to O.J. Simpson, despite demands by the defendant and the trial court that he not make such a comparison.
When the case reached the Supreme Court, several Justices seized on the O.J. Simpson comparison as evidence of racism’s impact on the trial.
Although the Court’s decision in Snyder did not mention O.J. Simpson, the racist prosecutorial statements seemed to be on the Justices’ minds as they considered the Batson claim.
And with good reason: The prosecutor’s statements to the jury reveal his focus on race at the time of trial and are thus relevant to understanding the motivation behind his peremptory strikes.
The potential synergy between Batson and other antidiscrimination doctrines is not limited to the prosecutorial-misconduct examples above. Claims that the prosecutor’s charging and sentencing decisions were racially motivated could also be reconceptualized as evidence of Batson violations, assuming of course that there were already some red flags to raise questions about the prosecutor’s use of peremptory challenges. As noted earlier, the difficulties are immense when it comes to pleading discriminatory charging or discriminatory sentencing. But any of the evidence that would support such a discriminatory-charging or -sentencing claim could also show the prosecutor’s racist intent at jury selection. For example, in a case recently before the Supreme Court, the prosecutor revealed in postconviction discovery that one of the reasons he sought the death penalty against the defendant was that the defendant was not a citizen.
This national-origin discrimination could support a Batson claim, and putting this evidence of discrimination inside the Batson challenge could give the claim greater legs because of Batson’s appellate virtues.
This is not to say that a fake Batson label should be slapped onto other antidiscrimination claims. Rather, the goal is to illustrate the true capaciousness of Batson. The doctrine can accommodate any type of evidence that speaks to the prosecutor’s discriminatory intent, even evidence that comes to light after the jury has been selected or after the trial has concluded. By acknowledging the breadth of Batson, litigants may find that evidence of discrimination—which could be pleaded as a stand-alone claim of prosecutorial misconduct of some other sort—would also, or better, fit within the Batson framework.
This more expansive view of Batson is also relevant to the oft-suggested “solution” to Batson’s shortcomings: the elimination of all peremptory strikes. Dating back to Justice Marshall’s concurrence in Batson, commentators have suggested that eliminating peremptory strikes altogether is the only way to prevent them from being used in a discriminatory manner.
Practitioners, even those concerned about racial discrimination, often push back by pointing out that peremptory challenges may be the only way defendants can free themselves of jurors who harbor racist (or antidefendant) biases.
To this conversation, this Article adds the consideration that eliminating peremptory strikes altogether would also eliminate any value Batson may have as a multipurpose vehicle for fighting discrimination.
To the extent that Batson sweeps in—or could sweep in—claims of discrimination from anywhere in the trial, it would be a loss to defendants and the justice system for Batson to disappear along with the elimination of peremptory strikes. This is not to say that Batson’s utility as a multipurpose antidiscrimination vehicle justifies the continued use of peremptory strikes. There are many factors to consider in that debate, including the likelihood that eliminating peremptory strikes would result in more aggressive racial discrimination in other parts of the jury-selection system, such as in the jury-summons process or the use of for-cause challenges—doctrines even less equipped than Batson to resist it. But the ongoing debate should consider the harm that would accrue from losing Batson’s ability to fight racial discrimination wherever it rears up in the trial.
B. Appellate Batson’s Symbolism, Rhetoric, and Power
In oral argument and in written decisions, appellate judges have taken on a striking tone of moral outrage toward Batson violations.
Batson has come to be seen not simply as a doctrine that protects black defendants from discrimination but rather as a doctrine that guarantees the bedrock fairness of the judicial system for all litigants. Batson’s development into a guarantor of civic and democratic virtue has supercharged the rhetoric and symbolism of the doctrine, but this transformation has occurred in ways that are far more accessible to appellate judges than their trial colleagues, thus furthering the divide between Batson’s meaning during trial and its meaning after. Understanding the nature of this schism is essential to appreciating Batson’s potential as an appellate doctrine.
As the Batson case law has developed over the years, it has transformed from a doctrine that protected black defendants from the elimination of black jurors into a doctrine that now protects all parties—defendant, prosecutor, and civil litigants—against the removal of jurors for any of an expanding list of characteristics.
Batson is nearly as much about democracy and political community as it is about race. The fact that Batson speaks in terms of democracy and the justice system’s integrity makes it more politically powerful in taking on issues of racial discrimination. Batson violations have become assaults on the judiciary itself because they undermine the fairness of the jury verdicts on which everything else relies.
The outrage that Batson violations provoke goes beyond those characteristics formally protected by the doctrine: race, gender, and national origin. That is because there is something unseemly about manipulating the jury—a body that is supposed to be representative of the population—into a body that over- and underrepresents whole groups of people.
How many tweaks can be made to this civic institution before it stops being representative at all? Such concerns go beyond Batson and equal protection, yet they are part of what judges must wrestle with in deciding Batson claims. Judges face these questions because prosecutors’ justifications for strikes often violate basic notions of how the justice system ought to work, even if they do not violate Batson itself. At one oral argument, the appellate panel appeared incensed by the trial prosecutor’s proffered reason that he struck a juror because she disagreed that those brought to trial are probably guilty:
Judge Michael Daly Hawkins: Do you think it’s appropriate for a prosecutor, who’s prosecuting a criminal case, to, in effect, take the position that he prefers jurors who do not believe in the presumption of innocence?
Deputy Attorney General: That particular question was not actually asked, your honor.
Judge Hawkins: Well what was asked—he stated his reason—one of his reasons was her response to the question, ‘If the prosecution brings someone to trial that person is probably guilty,’ and she checked, ‘Disagree strongly.’ I would hope every American citizen would check the box that way.
Ninth Circuit Judge Stephen Reinhardt has taken issue with striking jurors because they did not go to college, especially because of the disparate impact along racial lines: “Does it bother you that a prosecutor would say people who didn’t go to college shouldn’t be on juries?” he asked a prosecutor in one argument.
A thought-provoking, if obscure, example of Batson’s penumbra comes from a county court in New York, where a reviewing court found a “Batson-like” violation because all licensed hunters had been struck from the jury.
Striking someone for believing in the presumption of innocence or for lacking a college education is not a violation of the Equal Protection Clause, but it is nonetheless offensive.
At a time of enormous divisions and partisanship in American society, it is troubling to think about allowing the bedrock civic institution of the jury to be further splintered. One wonders, for example, whether the jury could function as a civic institution if a prosecutor set out to cleanse it of all registered Democrats or everyone receiving public assistance. The civic and philosophical issues raised by Batson are inherently tied up in the way the doctrine is litigated, and they have created an exoskeleton of symbolism on top of Batson’s equal protection bones.
Significantly, for purposes of this Article, Batson’s symbolism provides appellate judges with an unrivaled opportunity to declaim on the structural issues facing the court system. And these judges have the opportunity to make such pronouncements in the context of a structural error claim—an unusual context that means they are actually empowered to grant relief to the defendant. Their pronouncements on race are given all that much more weight because they are accompanied by the act of throwing out a conviction. And pronounce they have. Appellate decisions about Batson warn of nothing less than the demise of “multiracial democracy” and the “proud” idea of the “melting pot” if Batson’s rules are not enforced.
Batson is uniquely suited to these proclamations about civics and fairness because it is seen as a protector of the whole system, not just the fairness of the particular trial.
This system-wide perspective is an aspect of Batson that appellate, more than trial, judges have access to. Appellate decisions are reasoned and crafted in a manner that is fundamentally different from the decisions of trial courts, which helps account for appellate Batson’s unusual power. In general, appellate decisions are longer, more philosophical, and more far-reaching than trial court decisions. The existence of concurrences and dissents allows judges to stray further from the specific facts of the case and into the broader principles that govern—or ought to govern—the case. Moreover, appellate decisions are binding on future cases and, as a result, are capable of bringing forth systemic changes that go far beyond the individual case.
Trial judges, on the other hand, are generally not in a position to engage with Batson on these high-flying terms. Trial courts do not have the time or the platform to pronounce on Batson’s implications for civics and race; their Batson decisions are typically oral rulings from the bench, and even when they are written, they are unlikely to be published in any official reporter.
Nor are they precedential. These factors mean trial judges have less incentive to make the big pronouncements that their appellate colleagues do.
Granted, of course, there are many appellate Batson decisions that are quite mundane, devoid of anything approaching political or moral philosophy.
And, at the same time, there are some Batson trial decisions that declaim on big issues.
But the point stands that there is an underlying structural difference in the way Batson claims present themselves to appellate judges compared to trial judges.
Appellate courts may also treat Batson claims differently from their trial colleagues because of their distance in space and time from the Batson violations. At trial, as noted earlier, the Batson inquiry is intensely personal.
A defense attorney who wants to challenge a strike must argue that it was motivated by discriminatory intent, and the trial judge must decide the issue on the spot. On appeal, however, the social awkwardness of the Batson inquiry is lessened: The litigation is done mostly on paper rather than in person; years or even decades may have passed so the trial prosecutor may no longer be part of the case; and even if the prosecutor is part of the case, the appellate judges are less likely to be familiar with any of the lawyers.
The appellate deliberative process is slow and secluded, with groups of judges deciding cases behind closed doors rather than a single judge making decisions in the heat of the moment. That is the difference in space.
The difference in time is significant, too, especially in old capital cases that slowly move through the appellate and habeas pipelines. Judges today may be more sensitive to, and aware of, racial discrimination than judges were ten or twenty years ago. (At least, one hopes.) As a result, an appellate court in 2018 considering whether Batson was violated may be applying contemporary understandings of race to a strike that took place in the late 1980s or early 1990s.
Significantly, Batson asks judges to determine whether the prosecutor’s strike was motivated by race, full stop. It is not a question of whether the decision would have been considered racist at the time. That means appellate judges apply their own contemporary understandings of racism to cases from a different era.
To the extent that society’s understanding of racism has grown more sophisticated over time, an appellate judge looking back at the trial from today’s vantage point might be more inclined to see racial intent than the trial judge was at the time.
To be sure, there are countervailing forces that make it is easier for trial judges, rather than appellate judges, to find Batson violations, not least of which is the trial judge’s firsthand view of what transpired in court. Batson, after all, affords “great deference” to the trial judge’s credibility determinations.
This does not diminish the argument about Batson’s unique post-trial virtues. The point is not the relative likelihood of winning a Batson claim at trial versus on appeal. Rather, the point is that post-trial Batson provides unappreciated opportunities that trial Batson does not.
C. The Gap Between the Trial and Appellate Doctrine Is a Feature, Not a Flaw, of Batson.
If there is a divergence between trial and post-trial Batson, the temptation is to find a way to reconcile the two sides of the doctrine. The trouble is that it is not possible to reconcile the two halves of the doctrine without undermining key tenets of Batson. The following section describes why the gap between trial and post-trial Batson will persist and why it is preferable to imposing an artificial symmetry on the two halves of Batson.
1. Evidence: Leveling Up and Leveling Down. — First, consider the gap between the evidence that can be used at trial and the evidence that can be used later on. In other areas of the law, the type of evidence and arguments that can be used post-trial are dictated by what was available at trial. Batson postconviction litigation could be made like Brady v. Maryland or Strickland v. Washington, which limit new evidence to material that could have been obtained at trial, if only the prosecutor had not failed to disclose it or defense counsel had not failed to uncover it.
There is a certain logic to this limitation, because it avoids having a claim at trial that cannot be fully proven until the postconviction proceedings.
However, the trouble with a Brady– or Strickland-style rule for Batson evidence is that it would bar late-arising evidence that may speak directly to the prosecutor’s intent but was not in existence at the time of trial or may have been legally privileged. Examples include racist statements made by the prosecutor in or outside court, Batson violations charged to the prosecutor in cases that were decided after the defendant’s trial, and jury-selection notes that were deemed privileged from disclosure at trial but became available later on.
Leveling down might also prevent the use of comparative juror analysis on appeal, if some important element of it could not have been carried out at trial—even though comparative juror analysis is effectively required of Batson litigants on appeal.
This leveling down of post-trial Batson would force courts to blind themselves to evidence of the prosecutor’s discriminatory intent, and this blindness would directly conflict with Batson’s goal of determining the actual reason behind the strike. As the Supreme Court explained in Foster v. Chatman: “We have ‘made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.’”
It bears repeating that the question Batson poses is not whether the trial court made the right decision in light of the evidence available to it at the time of trial. Rather, the question Batson poses is whether the prosecutor’s strike was motivated by race—that is the importance of the Supreme Court’s insistence on the search for “actual answers.”
A limitation on late-arising evidence would flout that mandate.
This is not to say that Batson ushers all relevant evidence into state and federal habeas proceedings, much less direct appeals. Each of these procedural postures—direct appeal, state habeas, and federal habeas—has its own procedural rules governing what new evidence can be brought into the case, and these apply to all claims, including Batson.
The point is that holding these evidentiary limitations constant, Batson has a broader sweep than other record-expanding doctrines because it is not focused on whether the evidence could have been available at trial. What makes evidence relevant to Batson is its ability to speak to the intent of the prosecutor. Perhaps ironically, it is this focus on the prosecutor’s intent—a much-bemoaned aspect of the Batson inquiry—that sweeps so much evidence into post-trial Batson claims.
If it would not work to level down Batson’s post-trial use of evidence, what about leveling up the trial doctrine’s use of it? One could decree that trial litigants must have access to anything that will (or could) eventually be part of the habeas case. Perhaps that decree would succeed in giving trial attorneys access to materials such as jury-selection notes or internal memoranda, which exist at the time of trial but are often considered legally privileged. But aside from this category of materials, leveling up trial Batson (obviously) could not produce evidence at trial that has not yet come into existence—for example, the prosecutor’s racist statements in subsequent cases or examples of Batson violations from cases that come after the defendant’s trial. So, leveling up could not on its own close the gap.
2. Remedy: Leveling Up and Leveling Down. — Nor is there much to be done to reconcile the value of the trial and post-trial remedies. That is true because going back to the beginning of jury selection is simply more significant on appeal and habeas than at trial. The only way to make a trial Batson win as valuable as a post-trial win is to alter the remedy, and that would involve an overhaul of settled Batson law. The trial remedy could be leveled up, it is true. For example, Professor Charles Ogletree has proposed that Batson violations could result in dismissal of the charges with prejudice against refiling them.
This would certainly raise the significance of Batson’s trial remedy, likely beyond even the appellate and post-trial remedies. It would mean that once a Batson violation was declared, the defendant could never be prosecuted for that crime. But such an innovation would require a sea change in the doctrine and would probably not be politically possible.
Leveling down the appellate remedy would also close the gap. Such leveling down could be accomplished by declaring that Batson violations are not structural error and, thus, must have prejudiced the defendant in order to justify a reversal. Forcing a defendant to show prejudice would greatly reduce the significance of an appellate Batson win, but it would mire the doctrine in the impossible question of demonstrating that the presence or absence of any particular juror affected the outcome. Indeed, one of the reasons Batson must be a structural error is that there is no feasible way to detect or calculate the prejudice that accrues from the taint to the jury.
Because automatic reversal is a foundational aspect of Batson, it seems exceedingly unlikely it could be eliminated in some effort to reconcile trial and post-trial Batson.
3. Broader Reflections on the Trial–Post-Trial Gaps. — The discomfort about allowing appellate Batson to outpace trial Batson is understandable. It upends the typical logic of the appellate system to have a claim that cannot be fully decided by the trial judge and, instead, ripens on appeal or habeas. Judges and prosecutors may naturally worry that even if the Batson objections are resolved at trial, the objections could arise with new force on appeal, endangering hard-earned convictions and injecting an air of unpredictability into every conviction. But the U.S. Supreme Court requires comparative juror analysis, even for the first time on appeal. As has been emphasized throughout, Batson is an absolutist doctrine focused on the question of the prosecutor’s intent, not the question of how his intent would have been perceived at trial. If comparative juror analysis or some other late-arising evidentiary material speaks to that question, it is not for Batson to ignore that evidence just because it was not presented at trial.
Nor is this late-arising potential bad from a policy perspective. A prosecutor who is worried that today’s conviction could be undermined by tomorrow’s Batson appeal is not powerless. The surest way to avoid a Batson challenge in the first place is to accept the jury as-is, without exercising peremptory strikes. Short of that, a prosecutor who uses her strikes parsimoniously, and who voluntarily articulates the basis for the strikes, could do a lot to foreclose future Batson claims. It would be a good outcome if prosecutors were more circumspect about using their peremptories. It would be a welcome side effect of the trial–post-trial divergence if prosecutorial behavior at trial were at least somewhat deterred by the uncertainty about future Batson litigation.
Finally, it is worth noting that there are other doctrines in which trial and post-trial practice dramatically diverge. A claim of judicial bias, for example, faces long odds at trial. The more biased the judge, the more likely the judge would reject the claim. But on appeal it could win. The denial of a public trial, another structural error, would be more likely to succeed on appeal than at trial. That is true not only because the judge who improperly closed the hearing would seem less likely to grant the public-trial objection but also because the public-trial right serves a purpose that is larger than the particular trial—preserving the public confidence in the integrity of the judiciary—and might thus have more purchase for appellate judges who must consider a wider range of cases. Juror-misconduct claims also fit within the trial–post-trial rubric, as the evidence needed to win on a juror-misconduct claim usually becomes available only when the record is expanded in postconviction litigation.
What makes Batson stand out from the examples above is the duality between trial and post-trial proceedings. Batson can be raised at trial using only the evidence on the record and then it can be raised in a very different way post-trial with the extra-record evidence. This postconviction pivot distinguishes Batson from the claims discussed above, which can be alleged in only the most skeletal form at trial and must wait for record-expansion to be alleged in earnest. This pivot is a testament to the fact that Batson did not fully eclipse its extra-record-only predecessor, Swain; it just provided an easier route to get to the same place. Litigants can use a record-based Batson claim to preserve the issue for appellate and postconviction litigation, and then supplement that objection with later-acquired extra-record evidence that speaks to the prosecutor’s actual intent. And the courts must consider this additional evidence because the Supreme Court’s equal protection jurisprudence has explicitly set the focus on the prosecutor’s actual intent.
Batson has received significant and sustained criticism for what it fails to do. And while there is much that the critics get right about Batson, the criticism has failed to distinguish between the trial and post-trial sides of the doctrine. Unlike other criminal procedure doctrines, Batson plays out very differently on appeal than at trial. And, as this Article has shown, appellate Batson provides a number of opportunities for litigants and courts to address the stain of racial discrimination in ways that were not possible at trial. This Article is not an apology for Batson or an attempt to say that the doctrine is functioning fine. Rather, it aims to show Batson in a different light from the standard trial-focused critique. And it attempts to call attention to Batson’s strengths relative to other antidiscrimination doctrines.
Batson holds great potential to address the harm caused by racial discrimination in the justice system. Because it protects all litigants—criminal defendants, prosecutors, and civil litigants—and because it ultimately protects jurors and the judicial system itself, it has survived intact over the years, even as courts have cast other antidiscrimination doctrines aside. One of the abiding ironies this Article discusses is that evidence of systemic racism can be used to prove a Batson violation, but the violation only necessarily implies a single act of wrongdoing. The doctrine is thus more palatable to the judiciary than fair cross-section, discriminatory-charging, and other claims that imply widespread discrimination. Perhaps in this unusual brew of universalism, third-party standing, and systemic-but-one-off jurisprudence, there is a model for other antidiscrimination doctrines.