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Eleventh Circuit Overturns 1990 Alabama Death Sentence Over Racially Biased Jury Selection; ACLU Report Shows It Is Still Happening
On June 30, 2025, the United States Court of Appeals for the Eleventh Circuit held that an Alabama prosecutor practiced purposeful discrimination in violation of federal law, clearly established by Batson v. Kentucky, 476 U.S. 79 (1986), when she used peremptory strikes in a racially discriminatory manner during a 1990 trial for capital murder.
Michael Sockwell was tried for being paid to murder Isaiah Harris, a deputy sheriff in Montgomery County, Alabama. There were 55 potential jurors in the venire, 14 of whom were Black. After 13 were struck for cause, 42 remained, including 10 Black people. Assistant District Attorney Ellen Brooks then used eight of her 14 peremptory strikes to eliminate Black jurors.
Sockwell raised a Batson challenge, noting that Brooks used “over fifty percent of their strikes to strike Blacks” and “in effect, struck eighty percent of the Blacks on the venire,” focusing on the strike of Eric Davis.
In explaining the strike, Brooks testified that “Davis, according to my notes, is a Black male, approximately 23 years of age, which would put him very close to the same race, sex, and age of the defendant.” She went on to explain that Davis had said he had heard something about the case but had been vague and unclear, eventually stating that he had overheard people discussing a newspaper article about the case but “could not remember what had been said nor anything about it.” She also said his answer about whether he could apply the death penalty did not give her a lot of clues about how he felt as he said “I could go either way.” The Batson motion was denied and appeals were unsuccessful. See: Sockwell v. State, 675 So.2d 4 (Ala. Crim. App. 1993).
Later, the Alabama Supreme Court (ASC) held that the mention of race by Brooks “was merely a descriptive identification” which she gave for every venire member. It upheld the district court after finding Brooks gave racially-neutral reasons for striking Davis, his “vagueness and lack of candor” regarding what he had heard about the case.
In 2013, Sockwell petitioned an Alabama federal court for a writ of habeas corpus. The writ was denied but the court granted a certificate of appealability as to whether the striking of Davis was racially discriminatory. See: Sockwell v. Hamm, 2023 U.S. Dist. LEXIS 175224 (M.D. Ala.). On appeal, Sockwell was aided by attorneys Melissa Madsen and Michael E. Rayfield of Shook Hardy and Bacon in Miami and New York, Deirdre Jane Farrell and Christos Papapetrou of Baker and Hostetler in Seattle and New York, Shannon L. Holliday of Copeland Franco Screws and Gill in Montgomery, and Christopher James Houpt and Matthew Ingbar of New York’s Mayer Brown.
The Eleventh Circuit noted it was undisputed that Sockwell made a prima facie case that the Davis strike was based on race. Moving on to the second step of a three-step Batson analysis, the Court found that the ASC’s determination was not unreasonable but the direct comparison of the race of Davis and Sockwell “should be considered” in the third step, determining the persuasiveness of the constitutional claim. Then it held that the ASC’s “implicit application of Batson’s third step was unreasonable in light of clearly established law.”
The Court held that the decisive question in determining whether a defendant has established purposeful racial discrimination is whether the prosecution’s race-neutral explanation is believable. See: Hernandez v. New York, 500 U.S. 352 (1991). Examples of relevant evidence include statistics on the use of peremptory strikes, comparisons of questions asked white and Black venire members, side-by-side comparisons of those struck and not struck, and a prosecutor’s historic misuse of peremptory strikes. In examining all the evidence, the Court applies a “‘highly deferential’ standard for reviewing a state court’s Batson rulings.” See: Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1112 (11th Cir. 2013).
“Here, Brooks had a significant history of striking jurors in a racially discriminatory manner right before and during Sockwell’s trial in 1990.” Further, the statistics showed Brooks struck 80% of the qualified Black jurors while striking only 22% of the qualified white jurors. “This statistical evidence establishes a pattern of striking qualified Black jurors far more often than qualified white jurors and provides strong evidence of the disproportionate exclusion of Black jurors against which Batson cautioned,” the Court wrote. See: McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252 (11th Cir. 2009).
Two white jurors gave vague answers about pretrial publicity but were not struck, undermining the main racially-neutral reason given for striking Davis. “The contradiction that Brooks did not strike two white jurors who explicitly stated they did not know what they heard about the case is highly relevant when conducting the Batson three-step analysis,” the Court wrote. This, combined with the direct comparison of the race of Davis and Sockwell by Brooks provided “strong evidence of discriminatory purpose” in striking Davis.
The Court held that “no reasonable and fair-minded jurist could have considered ‘all relevant circumstances’ and still found no Batson violation.” Thus, the ASC “acted unreasonably in applying Batson.”
Reviewing de novo, the Court found a Batson violation, reversed the district court order denying the habeas petition and remanded the case with instructions to issue the writ of habeas corpus with the option of a retrial. See: Sockwell v. Comm’r, Ala. Dep’t of Corr., 141 F.4th 1211 (11th Cir. 2025).
A June 2025 report by the ACLU titled “Fall Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury” reveals that, nearly four decades after the Batson decision, prosecutors throughout the nation continue to bias capital juries in their favor by excluding at above average rates members of racial minorities and certain religious groups. Although prosecutors still use peremptory strikes in a racially-biased manner, they have become adept at expressing a reason for the strike that is sufficiently race-neutral to withstand court scrutiny. However, as the report notes, prosecutors continue to use “death qualifying” in capital cases to exclude disproportionate percentages of minorities, women, and certain religious groups without fear of reversal by an appellate court.
Death qualifying is an archaic procedure by which potential capital jurors must testify that they are willing to apply the death penalty. It has its origins in a bygone era when death was the only sentence available for capital crimes. At that time, it made sense to ask jurors if they were morally, ethically, or religiously opposed to the death penalty as a juror seeking to avoid applying that penalty would have no choice but to find the defendant not guilty. Today, alternate sentences of life or life-without-parole are available in nearly every state, undermining the original justification for death qualification.
The problem with death qualification is that higher percentages of Black people, women, and certain religious groups oppose the death penalty. Thus, it makes the juries more white and more male. Further, death-qualified jurors are less likely to consider mitigating evidence and more likely to convict, skewing the jury in favor of both a guilty verdict and the death penalty. Therefore, death qualification should be reexamined by the courts and modified or eliminated.
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Related legal cases
Sockwell v. Comm’r, Ala. Dep’t of Corr
| Year | 2025 |
|---|---|
| Cite | 141 F.4th 1211 (11th Cir. 2025) |
| Level | Court of Appeals |
Lee v. Comm’r, Ala. Dep’t of Corr
| Year | 2013 |
|---|---|
| Cite | 726 F.3d 1112 (11th Cir. 2013). |
| Level | Court of Appeals |
McGahee v. Ala. Dep’t of Corr
| Year | 2009 |
|---|---|
| Cite | 560 F.3d 1252 (11th Cir. 2009). |
| Level | Court of Appeals |
Hernandez v. New York
| Year | 1991 |
|---|---|
| Cite | 500 U.S. 352 (U.S. Supreme Court 1991) |
SUPREME COURT OF THE UNITED STATES
500 U.S. 352; 111 S. Ct. 1859; 114 L. Ed. 2d 395
DIONISIO HERNANDEZ, PETITIONER v. NEW YORK
No. 89-7645
February 25, 1991, Argued
May 28, 1991, Decided
PRIOR HISTORY:
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
DISPOSITION: 75 N. Y. 2d 350, 552 N. E. 2d 621, 553 N.Y.S.2d 85, affirmed.
SYLLABUS:
Counsel for petitioner Hernandez at his New York trial objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the jurors had brothers who had been convicted of crimes, and petitioner no longer presses his objection to exclusion of those individuals. The ethnicity of one of the other two jurors was uncertain. Without waiting for a ruling on whether Hernandez had established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the prosecutor volunteered that he had struck these two jurors, who were both bilingual, because he was uncertain that they would be able to listen and follow the interpreter. He explained that they had looked away from him and hesitated before responding to his inquiry whether they would accept the translator as the final arbiter of the witnesses' responses; that he did not know which jurors were Latinos; and that he had no motive to exclude Latinos from the jury, since the complainants and all of his civilian witnesses were Latinos. The court rejected Hernandez's claim, and its decision was affirmed by the state appellate courts.
Held: The judgment is affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SOUTER, announced the judgment of the Court, concluding that the prosecutor did not use peremptory challenges in a manner violating the Equal Protection Clause. Under Batson's three-step process for evaluating an objection to peremptory challenges, (1) a defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race, (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question, and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Pp. 358-372.
(a) Since the prosecutor offered an explanation for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue whether Hernandez made a prima facie showing of discrimination is moot. Cf. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478. P. 359.
(b) The prosecutor offered a race-neutral basis for his peremptory strikes. The issue here is the facial validity of the prosecutor's explanation, which must be based on something other than race. While the prosecutor's criterion for exclusion -- whether jurors might have difficulty in accepting the translator's rendition of Spanish-language testimony -- might have resulted in the disproportionate removal of prospective Latino jurors, it is proof of racially discriminatory intent or purpose that is required to show a violation of the Equal Protection Clause. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 50 L. Ed. 2d 450, 97 S. Ct. 555. This Court need not address Hernandez's argument that Spanish-speaking ability bears such a close relation to ethnicity that exercising a peremptory challenge on the former ground violates equal protection, since the prosecutor explained that the jurors' specific responses and demeanor, and not their language proficiency alone, caused him to doubt their ability to defer to the official translation. That a high percentage of bilingual jurors might hesitate before answering questions like those asked here and, thus, would be excluded under the prosecutor's criterion would not cause the criterion to fail the race-neutrality test. The reason offered by the prosecutor need not rise to the level of a challenge for cause, but the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character. Pp. 359-363.
(c) The trial court did not commit clear error in determining that the prosecutor did not discriminate on the basis of the Latino jurors' ethnicity. A trial court should give appropriate weight to the disparate impact of the prosecutor's criterion in determining whether the prosecutor acted with a forbidden intent, even though that factor is not conclusive in the preliminary race-neutrality inquiry. Here, the court chose to believe the prosecutor's explanation and reject Hernandez's assertion that the reasons were pretextual. That decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal, regardless of whether it is a state-court decision and whether it relates to a constitutional issue. See, e. g., 324 Liquor Corp. v. Duffy, 479 U.S. 335, 351, 93 L. Ed. 2d 667, 107 S. Ct. 720. Deference makes particular sense in this context because the finding will largely turn on an evaluation of credibility. Hernandez's argument that there should be "independent" appellate review of a state trial court's denial of a Batson claim is rejected. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949, Miller v. Fenton, 474 U.S. 104, 88 L. Ed. 2d 405, 106 S. Ct. 445, Norris v. Alabama, 294 U.S. 587, 79 L. Ed. 1074, 55 S. Ct. 579, distinguished. Here, the court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, the court could have relied on the facts that he defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which jurors were Latinos, and that ethnicity of the victims and the prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Moreover, the court could rely on the facts that only three of the challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Pp. 363-370.
(d) This decision does not imply that exclusion of bilinguals from jury service is wise, or even constitutional in all cases. It may be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf., e. g., Yu Cong Eng v. Trinidad, 271 U.S. 500, 70 L. Ed. 1059, 46 S. Ct. 619. And, a policy of striking all who speak a given language, without regard to the trial's particular circumstances or the jurors' individual responses, may be found by the trial judge to be a pretext for racial discrimination. Pp. 370-372.
JUSTICE O'CONNOR, joined by JUSTICE SCALIA, while agreeing that the Court should review for clear error the trial court's finding as to discriminatory intent, and that the finding of no discriminatory intent was not clearly erroneous in this case, concluded that JUSTICE KENNEDY's opinion goes further than necessary in assessing the constitutionality of the prosecutor's asserted justification for his peremptory strikes. If, as in this case, the trial court believes the prosecutor's nonracial justification, and that finding is not clearly erroneous, that is the end of the inquiry. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, does not require that a prosecutor justify a jury strike at the level of a for-cause challenge or that the justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race. Pp. 372-375.
COUNSEL: Kenneth Kimerling argued the cause for petitioner. With him on the briefs were Ruben Franco and Arthur Baer.
Jay M. Cohen argued the cause for respondent. With him on the brief were Charles J. Hynes, Peter A. Weinstein, Carol Teague Schwartzkopf, and Victor Barall. *
* E. Richard Larson, Antonia Hernandez, and Juan Cartagena filed a brief for the Mexican American Legal Defense and Educational Fund et al. as amici curiae urging reversal.
JUDGES: KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and WHITE and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 372. BLACKMUN, J., filed a dissenting opinion, post, p. 375. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 375.
OPINION: [*355] [***403] [**1864] JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE and JUSTICE SOUTER join.
Petitioner Dionisio Hernandez asks us to review the New York state courts' rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor's discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts' decision to accept the prosecutor's explanation should be sustained.
Petitioner and respondent both use the term "Latino" in their briefs to this Court. The amicus brief employs instead the term "Hispanic," and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court.
I
The case comes to us on direct review of petitioner's convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline and instead hit two men in a nearby restaurant. The victims survived the incident.
The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of Batson, which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, [*356] defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney's office for a probation violation. Petitioner does not press his Batson claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals.
After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained:
"Your honor, my reason for rejecting the -- these two jurors -- I'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting [***404] these two is I feel very uncertain that they would be able to listen and follow the interpreter." App. 3.
After an interruption by defense counsel, the prosecutor continued:
"We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, [**1865] especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that [*357] in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury." Id., at 3-4. n1
Defense counsel moved for a mistrial "based on the conduct of the District Attorney," and the prosecutor requested a chance to call a supervisor to the courtroom before the judge's ruling.
n1 The prosecutor later gave the same explanation for challenging the bilingual potential jurors:
". . . I felt that from their answers they would be hard pressed to accept what the interpreter said as the final thing on what the record would be, and I even had to ask the Judge to question them on that, and their answers were -- I thought they both indicated that they would have trouble, although their final answer was they could do it. I just felt from the hesitancy in their answers and their lack of eye contact that they would not be able to do it." App. 6.
Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury:
"This case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reason -- there's no reason for me to want to exclude Hispanics because all the parties involved are Hispanic, and I certainly would have no reason to do that." Id., at 5-6. n2
[*358] After further interchange among the judge and attorneys, the trial court again rejected petitioner's claim. Id., at 12.
n2 The trial judge appears to have accepted the prosecutor's reasoning as to his motivation. In response to a charge by defense counsel that the prosecutor excluded Latino jurors out of fear that they would sympathize with the defendant, the judge stated:
"The victims are all Hispanics, he said, and, therefore, they will be testifying for the People, so there could be sympathy for them as well as for the defendant, so he said [it] would not seem logical in this case he would look to throw off Hispanics, because I don't think that his logic is wrong. They might feel sorry for a guy who's had a bullet hole through him, he's Hispanic, so they may relate to him more than they'll relate to the shooter." Id., at 8.
On appeal, the New York Supreme Court, Appellate Division, noted that though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. 140 A.D.2d 543, 528 N.Y.S.2d 625 (1986). The court ruled [***405] that this fact made out a prima facie showing of discrimination. The court affirmed the trial court's rejection of petitioner's Batson claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner's prima facie case.
The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. 75 N.Y.2d 350, 552 N.E.2d 621, 553 N.Y.S.2d 85 (1990). Two judges dissented, concluding that on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor's exclusion of the bilingual potential jurors should not have been permitted. We granted certiorari, 498 U.S. 894 (1990), and now affirm.
II
In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S.
500 U.S. 352; 111 S. Ct. 1859; 114 L. Ed. 2d 395
DIONISIO HERNANDEZ, PETITIONER v. NEW YORK
No. 89-7645
February 25, 1991, Argued
May 28, 1991, Decided
PRIOR HISTORY:
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
DISPOSITION: 75 N. Y. 2d 350, 552 N. E. 2d 621, 553 N.Y.S.2d 85, affirmed.
SYLLABUS:
Counsel for petitioner Hernandez at his New York trial objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the jurors had brothers who had been convicted of crimes, and petitioner no longer presses his objection to exclusion of those individuals. The ethnicity of one of the other two jurors was uncertain. Without waiting for a ruling on whether Hernandez had established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the prosecutor volunteered that he had struck these two jurors, who were both bilingual, because he was uncertain that they would be able to listen and follow the interpreter. He explained that they had looked away from him and hesitated before responding to his inquiry whether they would accept the translator as the final arbiter of the witnesses' responses; that he did not know which jurors were Latinos; and that he had no motive to exclude Latinos from the jury, since the complainants and all of his civilian witnesses were Latinos. The court rejected Hernandez's claim, and its decision was affirmed by the state appellate courts.
Held: The judgment is affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SOUTER, announced the judgment of the Court, concluding that the prosecutor did not use peremptory challenges in a manner violating the Equal Protection Clause. Under Batson's three-step process for evaluating an objection to peremptory challenges, (1) a defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race, (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question, and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Pp. 358-372.
(a) Since the prosecutor offered an explanation for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue whether Hernandez made a prima facie showing of discrimination is moot. Cf. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478. P. 359.
(b) The prosecutor offered a race-neutral basis for his peremptory strikes. The issue here is the facial validity of the prosecutor's explanation, which must be based on something other than race. While the prosecutor's criterion for exclusion -- whether jurors might have difficulty in accepting the translator's rendition of Spanish-language testimony -- might have resulted in the disproportionate removal of prospective Latino jurors, it is proof of racially discriminatory intent or purpose that is required to show a violation of the Equal Protection Clause. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 50 L. Ed. 2d 450, 97 S. Ct. 555. This Court need not address Hernandez's argument that Spanish-speaking ability bears such a close relation to ethnicity that exercising a peremptory challenge on the former ground violates equal protection, since the prosecutor explained that the jurors' specific responses and demeanor, and not their language proficiency alone, caused him to doubt their ability to defer to the official translation. That a high percentage of bilingual jurors might hesitate before answering questions like those asked here and, thus, would be excluded under the prosecutor's criterion would not cause the criterion to fail the race-neutrality test. The reason offered by the prosecutor need not rise to the level of a challenge for cause, but the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character. Pp. 359-363.
(c) The trial court did not commit clear error in determining that the prosecutor did not discriminate on the basis of the Latino jurors' ethnicity. A trial court should give appropriate weight to the disparate impact of the prosecutor's criterion in determining whether the prosecutor acted with a forbidden intent, even though that factor is not conclusive in the preliminary race-neutrality inquiry. Here, the court chose to believe the prosecutor's explanation and reject Hernandez's assertion that the reasons were pretextual. That decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal, regardless of whether it is a state-court decision and whether it relates to a constitutional issue. See, e. g., 324 Liquor Corp. v. Duffy, 479 U.S. 335, 351, 93 L. Ed. 2d 667, 107 S. Ct. 720. Deference makes particular sense in this context because the finding will largely turn on an evaluation of credibility. Hernandez's argument that there should be "independent" appellate review of a state trial court's denial of a Batson claim is rejected. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949, Miller v. Fenton, 474 U.S. 104, 88 L. Ed. 2d 405, 106 S. Ct. 445, Norris v. Alabama, 294 U.S. 587, 79 L. Ed. 1074, 55 S. Ct. 579, distinguished. Here, the court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, the court could have relied on the facts that he defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which jurors were Latinos, and that ethnicity of the victims and the prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Moreover, the court could rely on the facts that only three of the challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Pp. 363-370.
(d) This decision does not imply that exclusion of bilinguals from jury service is wise, or even constitutional in all cases. It may be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf., e. g., Yu Cong Eng v. Trinidad, 271 U.S. 500, 70 L. Ed. 1059, 46 S. Ct. 619. And, a policy of striking all who speak a given language, without regard to the trial's particular circumstances or the jurors' individual responses, may be found by the trial judge to be a pretext for racial discrimination. Pp. 370-372.
JUSTICE O'CONNOR, joined by JUSTICE SCALIA, while agreeing that the Court should review for clear error the trial court's finding as to discriminatory intent, and that the finding of no discriminatory intent was not clearly erroneous in this case, concluded that JUSTICE KENNEDY's opinion goes further than necessary in assessing the constitutionality of the prosecutor's asserted justification for his peremptory strikes. If, as in this case, the trial court believes the prosecutor's nonracial justification, and that finding is not clearly erroneous, that is the end of the inquiry. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, does not require that a prosecutor justify a jury strike at the level of a for-cause challenge or that the justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race. Pp. 372-375.
COUNSEL: Kenneth Kimerling argued the cause for petitioner. With him on the briefs were Ruben Franco and Arthur Baer.
Jay M. Cohen argued the cause for respondent. With him on the brief were Charles J. Hynes, Peter A. Weinstein, Carol Teague Schwartzkopf, and Victor Barall. *
* E. Richard Larson, Antonia Hernandez, and Juan Cartagena filed a brief for the Mexican American Legal Defense and Educational Fund et al. as amici curiae urging reversal.
JUDGES: KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and WHITE and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 372. BLACKMUN, J., filed a dissenting opinion, post, p. 375. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 375.
OPINION: [*355] [***403] [**1864] JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE and JUSTICE SOUTER join.
Petitioner Dionisio Hernandez asks us to review the New York state courts' rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor's discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts' decision to accept the prosecutor's explanation should be sustained.
Petitioner and respondent both use the term "Latino" in their briefs to this Court. The amicus brief employs instead the term "Hispanic," and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court.
I
The case comes to us on direct review of petitioner's convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline and instead hit two men in a nearby restaurant. The victims survived the incident.
The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of Batson, which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, [*356] defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney's office for a probation violation. Petitioner does not press his Batson claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals.
After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained:
"Your honor, my reason for rejecting the -- these two jurors -- I'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting [***404] these two is I feel very uncertain that they would be able to listen and follow the interpreter." App. 3.
After an interruption by defense counsel, the prosecutor continued:
"We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, [**1865] especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that [*357] in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury." Id., at 3-4. n1
Defense counsel moved for a mistrial "based on the conduct of the District Attorney," and the prosecutor requested a chance to call a supervisor to the courtroom before the judge's ruling.
n1 The prosecutor later gave the same explanation for challenging the bilingual potential jurors:
". . . I felt that from their answers they would be hard pressed to accept what the interpreter said as the final thing on what the record would be, and I even had to ask the Judge to question them on that, and their answers were -- I thought they both indicated that they would have trouble, although their final answer was they could do it. I just felt from the hesitancy in their answers and their lack of eye contact that they would not be able to do it." App. 6.
Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury:
"This case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reason -- there's no reason for me to want to exclude Hispanics because all the parties involved are Hispanic, and I certainly would have no reason to do that." Id., at 5-6. n2
[*358] After further interchange among the judge and attorneys, the trial court again rejected petitioner's claim. Id., at 12.
n2 The trial judge appears to have accepted the prosecutor's reasoning as to his motivation. In response to a charge by defense counsel that the prosecutor excluded Latino jurors out of fear that they would sympathize with the defendant, the judge stated:
"The victims are all Hispanics, he said, and, therefore, they will be testifying for the People, so there could be sympathy for them as well as for the defendant, so he said [it] would not seem logical in this case he would look to throw off Hispanics, because I don't think that his logic is wrong. They might feel sorry for a guy who's had a bullet hole through him, he's Hispanic, so they may relate to him more than they'll relate to the shooter." Id., at 8.
On appeal, the New York Supreme Court, Appellate Division, noted that though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. 140 A.D.2d 543, 528 N.Y.S.2d 625 (1986). The court ruled [***405] that this fact made out a prima facie showing of discrimination. The court affirmed the trial court's rejection of petitioner's Batson claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner's prima facie case.
The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. 75 N.Y.2d 350, 552 N.E.2d 621, 553 N.Y.S.2d 85 (1990). Two judges dissented, concluding that on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor's exclusion of the bilingual potential jurors should not have been permitted. We granted certiorari, 498 U.S. 894 (1990), and now affirm.
II
In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S.
Batson v. Kentucky
| Year | 1986 |
|---|---|
| Cite | 476 U.S. 79 (U.S. Supreme Court 1986) |
SUPREME COURT OF THE UNITED STATES
476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69
JAMES KIRKLAND BATSON v. KENTUCKY
No. 84-6263
December 12, 1985, Argued
April 30, 1986, Decided
PRIOR HISTORY:
CERTIORARI TO THE SUPREME COURT OF KENTUCKY.
DISPOSITION: Reversed and remanded.
SYLLABUS:
During the criminal trial in a Kentucky state court of petitioner, a black man, the judge conducted voir dire examination of the jury venire and excused certain jurors for cause. The prosecutor then used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Without expressly ruling on petitioner's request for a hearing, the trial judge denied the motion, and the jury ultimately convicted petitioner. Affirming the conviction, the Kentucky Supreme Court observed that recently, in another case, it had relied on Swain v. Alabama, 380 U.S. 202, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.
Held:
1. The principle announced in Strauder v. West Virginia, 100 U.S. 303, that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded, is reaffirmed. Pp. 84-89.
(a) A defendant has no right to a petit jury composed in whole or in part of persons of his own race. Strauder v. West Virginia, 100 U.S. 303, 305. However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror. Moreover, selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Pp. 85-88.
(b) The same equal protection principles as are applied to determine whether there is discrimination in selecting the venire also govern the State's use of peremptory challenges to strike individual jurors from the petit jury. Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. Pp. 88-89.
2. The portion of Swain v. Alabama, supra, concerning the evidentiary burden placed on a defendant who claims that he has been denied equal protection through the State's discriminatory use of peremptory challenges is rejected. In Swain, it was held that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system as a whole was being perverted. Evidence offered by the defendant in Swain did not meet that standard because it did not demonstrate the circumstances under which prosecutors in the jurisdiction were responsible for striking black jurors beyond the facts of the defendant's case. This evidentiary formulation is inconsistent with equal protection standards subsequently developed in decisions relating to selection of the jury venire. A defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. Pp. 89-96.
3. A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections. Pp. 96-98.
4. While the peremptory challenge occupies an important position in trial procedures, the above-stated principles will not undermine the contribution that the challenge generally makes to the administration of justice. Nor will application of such principles create serious administrative difficulties. Pp. 98-99.
5. Because the trial court here flatly rejected petitioner's objection to the prosecutor's removal of all black persons on the venire without requiring the prosecutor to explain his action, the case is remanded for further proceedings. P. 100.
COUNSEL: J. David Niehaus argued the cause for petitioner. With him on the briefs were Frank W. Heft, Jr., and Daniel T. Goyette.
Rickie L. Pearson, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief were David L. Armstrong, Attorney General, and Carl T. Miller, Jr., Assistant Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, and Sidney M. Glazer. *
* Briefs of amici curiae urging reversal were filed for the NAACP Legal Defense and Educational Fund, Inc., by Julius LeVonne Chambers, Charles Stephen Ralston, Steven L. Winter, Anthony G. Amsterdam, and Samuel Rabinove; for the Lawyers' Committee for Civil Rights Under Law by Barry Sullivan, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Norman J. Chachkin; and for Michael McCray et al. by Steven R. Shapiro.
Robert E. Weiss, Donald A. Kuebler, Robert J. Miller, and Jack E. Yelverton filed a brief for the National District Attorneys Association, Inc., as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the National Legal Aid and Defender Association by Patricia Unsinn; and for Elizabeth Holtzman by Elizabeth Holtzman, pro se, and Barbara D. Underwood.
JUDGES: POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., post, p. 100, and MARSHALL, J., post, p. 102, filed concurring opinions. STEVENS, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 108. O'CONNOR, J., filed a concurring opinion, post, p. 111. BURGER, C. J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 112. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 134.
OPINION: [*82] [***77] [**1714] JUSTICE POWELL delivered the opinion of the Court.
[***HR1A] [1A]
This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to [**1715] exclude members of his race from the petit jury. n1
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n1 Following the lead of a number of state courts construing their State's Constitution, two Federal Courts of Appeals recently have accepted the view that peremptory challenges used to strike black jurors in a particular case may violate the Sixth Amendment. Booker v. Jabe, 775 F.2d 762 (CA6 1985), cert. pending, No. 85-1028; McCray v. Abrams, 750 F.2d 1113 (CA2 1984), cert. pending, No. 84-1426. See People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Riley v. State, 496 A. 2d 997, 1009-1013 (Del. 1985); State v. Neil, 457 So. 2d 481 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979). See also State v. Crespin, 94 N. M. 486, 612 P. 2d 716 (App. 1980). Other Courts of Appeals have rejected that position, adhering to the requirement that a defendant must prove systematic exclusion of blacks from the petit jury to establish a constitutional violation. United States v. Childress, 715 F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S. 1063 (1984); United States v. Whitfield, 715 F.2d 145, 147 (CA4 1983). See Beed v. State, 271 Ark. 526, 530-531, 609 S. W. 2d 898, 903 (1980); Blackwell v. State, 248 Ga. 138, 281 S. E. 2d 599, 599-600 (1981); Gilliard v. State, 428 So. 2d 576, 579 (Miss.), cert. denied, 464 U.S. 867 (1983); People v. McCray, 57 N. Y. 2d 542, 546-549, 443 N. E. 2d 915, 916-919 (1982), cert. denied, 461 U.S. 961 (1983); State v. Lynch, 300 N.C. 534, 546-547, 268 S. E. 2d 161, 168-169 (1980). Federal Courts of Appeals also have disagreed over the circumstances under which supervisory power may be used to scrutinize the prosecutor's exercise of peremptory challenges to strike blacks from the venire. Compare United States v. Leslie, 783 F.2d 541 (CA5 1986) (en banc), with United States v. Jackson, 696 F.2d 578, 592-593 (CA8 1982), cert. denied, 460 U.S. 1073 (1983). See also United States v. McDaniels, 379 F.Supp. 1243 (ED La. 1974).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I
[***78] Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to [*83] exercise peremptory challenges. n2 The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge then denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit jury itself.
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n2 HN1 The Kentucky Rules of Criminal Procedure authorize the trial court to permit counsel to conduct voir dire examination or to conduct the examination itself. Ky. Rule Crim. Proc. 9.38. HN2 After jurors have been excused for cause, the parties exercise their peremptory challenges simultaneously by striking names from a list of qualified jurors equal to the number to be seated plus the number of allowable peremptory challenges. Rule 9.36. Since the offense charged in this case was a felony, and an alternate juror was called, the prosecutor was entitled to six peremptory challenges, and defense counsel to nine. Rule 9.40.
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The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor's use of peremptory challenges. Conceding that Swain v. Alabama, supra, apparently foreclosed an equal protection claim based solely on the prosecutor's conduct in this case, [***79] petitioner urged the court to follow decisions of other States, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979), and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution [**1716] to a jury drawn from a cross section of the community. Petitioner also contended [*84] that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain.
The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner's invitation to adopt the reasoning of People v. Wheeler, supra, and Commonwealth v. Soares, supra. The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire. See Commonwealth v. McFerron, 680 S. W. 2d 924 (1984). We granted certiorari, 471 U.S. 1052 (1985), and now reverse.
II
[***HR2] [2]
[***HR3A] [3A]
HN3 In Swain v. Alabama, this Court recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." 380 U.S., at 203-204. This principle has been "consistently and repeatedly" reaffirmed, id., at 204, in numerous decisions of this Court both preceding and following Swain. n3 We reaffirm the principle today. n4
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n3 See, e. g., Strauder v. West Virginia, 100 U.S. 303 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Norris v. Alabama, 294 U.S. 587 (1935); Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam); Pierre v. Louisiana, 306 U.S. 354 (1939); Patton v. Mississippi, 332 U.S. 463 (1947); Avery v. Georgia, 345 U.S. 559 (1953); Hernandez v. Texas, 347 U.S. 475 (1954); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967) (per curiam); Carter v. Jury Comm'n of Greene County, 396 U.S. 320 (1970); Castaneda v. Partida, 430 U.S. 482 (1977); Rose v. Mitchell, 443 U.S. 545 (1979); Vasquez v. Hillery, 474 U.S. 254 (1986).
[***HR3B] [3B]
HN4 The basic principles prohibiting exclusion of persons from participation in jury service on account of their race "are essentially the same for grand juries and for petit juries." Alexander v. Louisiana, 405 U.S. 625, 626, n. 3 (1972); see Norris v. Alabama, supra, at 589. HN5 These principles are reinforced by the criminal laws of the United States. 18 U. S. C. § 243.
n4 In this Court, petitioner has argued that the prosecutor's conduct violated his rights under the Sixth and Fourteenth Amendments to an impartial jury and to a jury drawn from a cross section of the community. Petitioner has framed his argument in these terms in an apparent effort to avoid inviting the Court directly to reconsider one of its own precedents. On the other hand, the State has insisted that petitioner is claiming a denial of equal protection and that we must reconsider Swain to find a constitutional violation on this record. We agree with the State that resolution of petitioner's claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments.
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[*85] A
HN6 More than a century ago, the [***80] Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully ex
476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69
JAMES KIRKLAND BATSON v. KENTUCKY
No. 84-6263
December 12, 1985, Argued
April 30, 1986, Decided
PRIOR HISTORY:
CERTIORARI TO THE SUPREME COURT OF KENTUCKY.
DISPOSITION: Reversed and remanded.
SYLLABUS:
During the criminal trial in a Kentucky state court of petitioner, a black man, the judge conducted voir dire examination of the jury venire and excused certain jurors for cause. The prosecutor then used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Without expressly ruling on petitioner's request for a hearing, the trial judge denied the motion, and the jury ultimately convicted petitioner. Affirming the conviction, the Kentucky Supreme Court observed that recently, in another case, it had relied on Swain v. Alabama, 380 U.S. 202, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.
Held:
1. The principle announced in Strauder v. West Virginia, 100 U.S. 303, that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded, is reaffirmed. Pp. 84-89.
(a) A defendant has no right to a petit jury composed in whole or in part of persons of his own race. Strauder v. West Virginia, 100 U.S. 303, 305. However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror. Moreover, selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Pp. 85-88.
(b) The same equal protection principles as are applied to determine whether there is discrimination in selecting the venire also govern the State's use of peremptory challenges to strike individual jurors from the petit jury. Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. Pp. 88-89.
2. The portion of Swain v. Alabama, supra, concerning the evidentiary burden placed on a defendant who claims that he has been denied equal protection through the State's discriminatory use of peremptory challenges is rejected. In Swain, it was held that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system as a whole was being perverted. Evidence offered by the defendant in Swain did not meet that standard because it did not demonstrate the circumstances under which prosecutors in the jurisdiction were responsible for striking black jurors beyond the facts of the defendant's case. This evidentiary formulation is inconsistent with equal protection standards subsequently developed in decisions relating to selection of the jury venire. A defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. Pp. 89-96.
3. A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections. Pp. 96-98.
4. While the peremptory challenge occupies an important position in trial procedures, the above-stated principles will not undermine the contribution that the challenge generally makes to the administration of justice. Nor will application of such principles create serious administrative difficulties. Pp. 98-99.
5. Because the trial court here flatly rejected petitioner's objection to the prosecutor's removal of all black persons on the venire without requiring the prosecutor to explain his action, the case is remanded for further proceedings. P. 100.
COUNSEL: J. David Niehaus argued the cause for petitioner. With him on the briefs were Frank W. Heft, Jr., and Daniel T. Goyette.
Rickie L. Pearson, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief were David L. Armstrong, Attorney General, and Carl T. Miller, Jr., Assistant Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, and Sidney M. Glazer. *
* Briefs of amici curiae urging reversal were filed for the NAACP Legal Defense and Educational Fund, Inc., by Julius LeVonne Chambers, Charles Stephen Ralston, Steven L. Winter, Anthony G. Amsterdam, and Samuel Rabinove; for the Lawyers' Committee for Civil Rights Under Law by Barry Sullivan, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Norman J. Chachkin; and for Michael McCray et al. by Steven R. Shapiro.
Robert E. Weiss, Donald A. Kuebler, Robert J. Miller, and Jack E. Yelverton filed a brief for the National District Attorneys Association, Inc., as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the National Legal Aid and Defender Association by Patricia Unsinn; and for Elizabeth Holtzman by Elizabeth Holtzman, pro se, and Barbara D. Underwood.
JUDGES: POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., post, p. 100, and MARSHALL, J., post, p. 102, filed concurring opinions. STEVENS, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 108. O'CONNOR, J., filed a concurring opinion, post, p. 111. BURGER, C. J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 112. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 134.
OPINION: [*82] [***77] [**1714] JUSTICE POWELL delivered the opinion of the Court.
[***HR1A] [1A]
This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to [**1715] exclude members of his race from the petit jury. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Following the lead of a number of state courts construing their State's Constitution, two Federal Courts of Appeals recently have accepted the view that peremptory challenges used to strike black jurors in a particular case may violate the Sixth Amendment. Booker v. Jabe, 775 F.2d 762 (CA6 1985), cert. pending, No. 85-1028; McCray v. Abrams, 750 F.2d 1113 (CA2 1984), cert. pending, No. 84-1426. See People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Riley v. State, 496 A. 2d 997, 1009-1013 (Del. 1985); State v. Neil, 457 So. 2d 481 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979). See also State v. Crespin, 94 N. M. 486, 612 P. 2d 716 (App. 1980). Other Courts of Appeals have rejected that position, adhering to the requirement that a defendant must prove systematic exclusion of blacks from the petit jury to establish a constitutional violation. United States v. Childress, 715 F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S. 1063 (1984); United States v. Whitfield, 715 F.2d 145, 147 (CA4 1983). See Beed v. State, 271 Ark. 526, 530-531, 609 S. W. 2d 898, 903 (1980); Blackwell v. State, 248 Ga. 138, 281 S. E. 2d 599, 599-600 (1981); Gilliard v. State, 428 So. 2d 576, 579 (Miss.), cert. denied, 464 U.S. 867 (1983); People v. McCray, 57 N. Y. 2d 542, 546-549, 443 N. E. 2d 915, 916-919 (1982), cert. denied, 461 U.S. 961 (1983); State v. Lynch, 300 N.C. 534, 546-547, 268 S. E. 2d 161, 168-169 (1980). Federal Courts of Appeals also have disagreed over the circumstances under which supervisory power may be used to scrutinize the prosecutor's exercise of peremptory challenges to strike blacks from the venire. Compare United States v. Leslie, 783 F.2d 541 (CA5 1986) (en banc), with United States v. Jackson, 696 F.2d 578, 592-593 (CA8 1982), cert. denied, 460 U.S. 1073 (1983). See also United States v. McDaniels, 379 F.Supp. 1243 (ED La. 1974).
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I
[***78] Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to [*83] exercise peremptory challenges. n2 The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge then denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit jury itself.
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n2 HN1 The Kentucky Rules of Criminal Procedure authorize the trial court to permit counsel to conduct voir dire examination or to conduct the examination itself. Ky. Rule Crim. Proc. 9.38. HN2 After jurors have been excused for cause, the parties exercise their peremptory challenges simultaneously by striking names from a list of qualified jurors equal to the number to be seated plus the number of allowable peremptory challenges. Rule 9.36. Since the offense charged in this case was a felony, and an alternate juror was called, the prosecutor was entitled to six peremptory challenges, and defense counsel to nine. Rule 9.40.
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The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor's use of peremptory challenges. Conceding that Swain v. Alabama, supra, apparently foreclosed an equal protection claim based solely on the prosecutor's conduct in this case, [***79] petitioner urged the court to follow decisions of other States, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979), and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution [**1716] to a jury drawn from a cross section of the community. Petitioner also contended [*84] that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain.
The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner's invitation to adopt the reasoning of People v. Wheeler, supra, and Commonwealth v. Soares, supra. The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire. See Commonwealth v. McFerron, 680 S. W. 2d 924 (1984). We granted certiorari, 471 U.S. 1052 (1985), and now reverse.
II
[***HR2] [2]
[***HR3A] [3A]
HN3 In Swain v. Alabama, this Court recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." 380 U.S., at 203-204. This principle has been "consistently and repeatedly" reaffirmed, id., at 204, in numerous decisions of this Court both preceding and following Swain. n3 We reaffirm the principle today. n4
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n3 See, e. g., Strauder v. West Virginia, 100 U.S. 303 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Norris v. Alabama, 294 U.S. 587 (1935); Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam); Pierre v. Louisiana, 306 U.S. 354 (1939); Patton v. Mississippi, 332 U.S. 463 (1947); Avery v. Georgia, 345 U.S. 559 (1953); Hernandez v. Texas, 347 U.S. 475 (1954); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967) (per curiam); Carter v. Jury Comm'n of Greene County, 396 U.S. 320 (1970); Castaneda v. Partida, 430 U.S. 482 (1977); Rose v. Mitchell, 443 U.S. 545 (1979); Vasquez v. Hillery, 474 U.S. 254 (1986).
[***HR3B] [3B]
HN4 The basic principles prohibiting exclusion of persons from participation in jury service on account of their race "are essentially the same for grand juries and for petit juries." Alexander v. Louisiana, 405 U.S. 625, 626, n. 3 (1972); see Norris v. Alabama, supra, at 589. HN5 These principles are reinforced by the criminal laws of the United States. 18 U. S. C. § 243.
n4 In this Court, petitioner has argued that the prosecutor's conduct violated his rights under the Sixth and Fourteenth Amendments to an impartial jury and to a jury drawn from a cross section of the community. Petitioner has framed his argument in these terms in an apparent effort to avoid inviting the Court directly to reconsider one of its own precedents. On the other hand, the State has insisted that petitioner is claiming a denial of equal protection and that we must reconsider Swain to find a constitutional violation on this record. We agree with the State that resolution of petitioner's claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments.
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[*85] A
HN6 More than a century ago, the [***80] Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully ex