Oral argument: April 18, 2005
Appealed from: Court of Appeal of California, First Appellate District
Criminal procedure, jury selection, peremptory challenges, Batson v. Kentucky, jury bias
Following his murder conviction by an all-white jury, African-American Jay Shawn Johnson argues that the prosecutor improperly used peremptory challenges to remove all African-Americans from the pool of prospective jurors. This case raises the question of how strong a case a criminal defendant must make to show that a prosecutor is exercising race-based peremptory challenges before a trial court will demand an explanation from the prosecutor. Both the United States Supreme Court and the California Supreme Court have previously held that race-based peremptory challenges violate the Constitution, and both have held that after defendants make a prima facie case of discriminatory challenges, trial judges should weigh the case against the prosecutor's explanation. In this case the Court will consider just how a strong a case the defendant must make to be considered 'prima facie' and trigger an order for an explanation.
[Question(s) presented] | [Summary] | [Analysis]
Question(s) presented
Whether to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986), the objector must show that it is more likely than not that the other party's peremptory challenges, if unexplained, were based on impermissible group bias?
Summary
An all-white jury convicted African-American Jay Shawn Johnson of second-degree murder in 1998 for causing the death of the 19-month-old daughter of his white girlfriend and another man. During jury selection, after making a series of challenges for cause to remove prospective jurors, the prosecution used peremptory challenges against all three African-Americans who passed the first round of jury selection. After the second peremptory challenges of an African-American, defense counsel argued that the prosecutor should have to explain the challenges. Defense counsel argued that the prosecutor had no reason to challenge the prospective juror "other than [her] racial identity." People v. Johnson, 30 Cal.4th 1302, 1307 (2003). The trial judge denied the motion, saying "there's not been shown a strong likelihood that the exercise of the peremptory challenges were based upon a group rather than an individual basis." Id. The prosecutor then exercised another peremptory challenge against the third and final African-American in the jury pool, and defense counsel renewed his motion. Id. The trial judge once again denied the motion, noting that the Court had concerns of its own regarding the prospective juror's qualifications, which justified the prosecutor's exercise of a peremptory challenge. Id. The prosecutor never had to justify the peremptory challenges, which removed all African-Americans from the jury pool.
The California Court of Appeal reversed Johnson's conviction, holding that Johnson had established a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986). The California Supreme Court reversed the Court of Appeal and reinstated the trial court's ruling. The U.S. Supreme Court heard oral argument on this case in May 2004, but dismissed the case on the grounds that the state court had not made a conclusive final judgment. The California Court of Appeal decided the remaining issues and the California Supreme Court denied review. The U.S. Supreme Court granted certiorari again in January 2005.
Legal background
The ultimate issue before the Supreme Court is what evidentiary standard should a court utilize when ruling on a so-called "Batson challenge?" The Supreme Court's decision in Batson prohibits prosecutors from using their peremptory challenges to eliminate prospective jurors solely on the basis of race. Batson created a three-step process for handling an allegation that a prosecutor used race in exercising peremptory challenges. First, the party making the allegation "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 93-94. Then, if the prima facie case is established, "the burden shifts to the State to explain adequately the racial exclusion." Id. at 94. Lastly, the court determines if the exclusions were based on some impermissible bias. See Purkett v. Elem, 514 U.S. 765, 767 (1995).
Here, because the trial court ruled that Johnson did not establish a prima facie case, it never required the prosecutor to explain the reasons for the peremptory challenges. Herein lies the nub of this case: Johnson claims that to make out a prima facie case and demand an explanation as to why the prosecutor challenged the three African American jurors, he need only show that enough evidence exists to permit an "inference" of discrimination. See Brief for Petitioner, Johnson v. California, at 21. California, on the other hand, claims that Johnson must show it is "more likely than not" that the challenges were race-based in order to make out his prima facie case, hear the prosecutor's explanation, and obtain a ruling from the court. See Brief for Respondent, Johnson v. California, at 4. The distinction may seem subtle, but Johnson claims California's standard prevented him from mounting a prima facie case. He essentially claims that, without hearing the prosecutor's explanations for the challenges, he can't expose the prosecutor's explanations as pretexts and prove his case. See Brief for Petitioner at 22.
California responds that the "more likely than not" standard is simply inherent in a prima facie case. See Brief for Respondent at 4. California argues that "[a]s a general principle of the law of evidence, a prima facie case that shifts the burden of production is one that entitles the moving party to relief unless the opposing party meets the shifted burden of production." Id. at 5. California claims that Johnson must prevent enough evidence to plausibly prove his argument that the prosecutor employed racial bias in the peremptory challenges; the ultimate burden belongs to him. California supports its case by tracing the development of the prima facie standard used in Batson. The state notes that when the U.S. Supreme Court decided Batson, it cited a California decision, People v Wheeler, 22 Cal.3d 258 (1978), in which the California Supreme Court used two terms, "reasonable inference," as well as "strong likelihood," to describe the threshold for a prima facie case of racially biased peremptory challenges.
The outcome of the case could impact jury selection procedures in California and beyond. The California Supreme Court rejected Johnson's argument in People v. Johnson, 30 Cal.4th 1302 (2003), interpreting Batson as consistent with the "more likely than not" standard. If the Supreme Court reverses the California court, criminal defendants in the nation's most populous state could get a new weapon with which to challenge prosecutors, and perhaps restrict prosecutors' freedom to exercise peremptory challenges. California warns that if the Supreme Court endorses the less-stringent threshold requirements for a prima facie case, it risks giving defense lawyers an opportunity to employ "abusive motions and delays in jury selection." Brief for Respondent at 9. "[I]t is a test with such a low threshold as to disrupt voir dire, infringe on the State's interest in its peremptory challenge scheme, and interfere with the striking party's significant (sometimes constitutional) interest in preserving work-product and attorney-client privileges even where it is more probable than not that the striking party did not engaging in discriminatory jury selection." Id.
Johnson maintains that California stands alone among American jurisdictions with its more rigorous requirement for showing a prima facie case. See Brief for Petitioner at 21. Johnson points to precedent from a variety of state courts using the less stringent standard, and he also argues that federal courts employ the less stringent standard as well. See id. at 25-30. A victory for California might tempt other jurisdictions to ratchet up their requirements for Batson challenges as well. No matter what standard of review emerges, California at least seems willing to give its trial judges sufficient leeway to act when they suspect racially motivated peremptory challenges. It should be remembered that at least in California, state law requires appellate courts, reviewing paper records of trials, to give strong deference to trial judges' rulings on peremptory challenges. "[Attempting] to make such an analysis of the prosecutor's use of his peremptory challenges is highly speculative and less reliable than the determination made by the trial judge who witnessed the process by which the defendant's jury was selected." Johnson, 30 Cal.4th at 1319.
Analysis
In 1978, the California Supreme Court established procedures for California courts to follow when one party objects to the other's use of suspected racially motivated peremptory challenges. People v Wheeler, 22 Cal.3d 258 (1978). Eight years later, the United States Supreme Court addressed the issue and established procedures for all courts to follow in such situations. See Batson, 476 U.S. 79 (1986). Exercising peremptory challenges because of group bias, rather than for reasons specific to the challenged prospective juror, violates both Wheeler and Batson.
In Wheeler, the California Supreme Court established that when a trial court is faced with alleged racially motivated peremptory challenges, "in any given instance the presumption must be that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground." Id. at 278. However, "it is only a presumption, and must be rebuttable if the foregoing constitutional right is not to be nullified even by honest zeal." Id. The issue that arose was the showing that is necessary to rebut the presumption of permissibility. The Court required a "burden of proof which a party may reasonably be expected to sustain in meritorious cases, but which he cannot abuse to the detriment of the peremptory challenge system." Id.
The Wheeler court set forth a process that a trial court should use in order to determine the necessary burden of proof. "If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court." Id. at 280. The Court then required a three-step showing. First, the opponent should "make as complete a record of the circumstances as is feasible." Id. Second, "he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule." Id. Third, "from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." Id.
The Wheeler court then discussed the types of evidence the opponent could use. A "party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group" Id. A party can also "demonstrate that the jurors in question share only this one characteristic -- their membership in the group -- and that in all other respects they are as heterogeneous as the community as a whole" Id. When appropriate, the opponent may supplement his showing by "such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all" Id. Additionally, "the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention." Id.
Once the defendant presents this type of evidence, a court then must determine whether a reasonable inference arises that the accused party used peremptory challenges on the ground of group bias alone. The Wheeler court said trial judges, as opposed to appellate-level judges, should make this decision because they are in a good position to observe the process, are familiar with local prosecutors, and are generally closer to the situation. Once a court finds a prima facie case under Wheeler, the burden then shifts to the other party to show alternate reasons for the peremptory challenges. While the justification given by the accused party must be reasonably relevant to the particular case, the party can also look at the totality of the circumstances.
The United States Supreme Court in Batson held that the principles of equal protection "forbid discrimination on account of race in selection of the petit jury." Batson at 88. The court continued that the 'burden is, of course,' on the defendant who alleges discriminatory selection of the venire 'to prove the existence of purposeful discrimination.' Id. at 93. A party alleging discriminatory use of peremptories "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Id. Once the opponent makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. Id. The party alleging that he has been the victim of intentional discrimination carries the ultimate burden of persuasion.
The Batson Court then addressed the standards for assessing a prima facie case in the context of discriminatory selection of the venire. The defendant must first 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. Id. at 96. The trial court must also consider all relevant circumstances, such as any apparent patterns of striking, as well as the prosecutor's statements or questions. The Batson Court had confidence that trial judges could effectively consider such circumstances. As in Wheeler, after a defendant makes a prima facie showing, the burden then shifts to the accused party to articulate a neutral explanation.
The California Supreme Court, in Johnson, evaluated the necessary showing for a prima facie case. Wheeler used "strong likelihood" and "reasonable inference" as standards. The California Supreme Court reasoned that these represented the same standard. See Wheeler; People v. Box, 23 Cal.4th 1153 (2000). The question that arose was whether Wheeler's "strong likelihood" test violates Batson's "inference of discriminatory purpose" test. Batson at 94. Batson also used Title VII of Civil Rights Act of 1964 cases to "explain the operation of prima facie burden of proof rules." Id. at fn. 18. The California Supreme Court mentioned that the United States Supreme Court has repeatedly cited title VII cases as authoritative in Batson context. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Purkett v. Elem, 514 U.S. 765, 767 (1995); Hernandez v. New York, 500 U.S. 352 (1991). Batson also cited McDonnell Douglas to say that the opponent of the peremptory challenges carried the initial burden of showing actions "from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.'" McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Batson also cited Burdine, which said that the opponent must prove "by the preponderance of the evidence a prima facie case of discrimination" and that "the prima facie case raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
However, the reliance on Title VII may oversimplify and possibly confuse, the standard. The dissent in Johnson points out that, although a Title VII plaintiff has the ultimate burden of proving discrimination by a preponderance of the evidence, whether or not a plaintiff has met that burden is assessed at the last stage in the procedure. See St. Mary's Honor Center v. Hicks 509 U.S. 502 (1993). In St. Mary's Honor Center, the court held that the trial court must decide whether a preponderance of the evidence shows that the employer acted with a discriminatory purpose after the defendant has offered explanations. Id. at pp. 509-510. Even when the plaintiff presented no additional evidence to rebut the defendants' explanation of its action the defendant was not automatically entitled to judgment under theses circumstances; instead the trier of fact still had the duty to determine at the last stage of the procedure whether the plaintiff has proved discriminatory purpose by a preponderance of evidence. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000). The Ninth Circuit itself has also interpreted McDonnell Douglas to state that a prima facie case is one in which the plaintiff has met the immediate burden of production, but not necessarily the ultimate burden of persuasion. See Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, (9th Cir. 1982). Under this view, the ultimate purpose of the Wheeler-Batson motion is not whether the trial judge or an appellate court can find a possible neutral reason why a prosecutor might want to challenge a juror, but whether the prosecutor's actual reason for the challenge was based on group bias. "The trial court must determine not only that a valid reason existed but also that the reason actually promoted the prosecutor's exercise of the particular peremptory challenge." People v. Fuentes 54 Cal. 3d 707 (1991).
The California Supreme Court mentioned that there are two different interpretations of the term prima facie. The lower burden is a "duty of producing some evidence" sufficient to allow a matter to go to the jury. Johnson at 1315. The higher burden is the establishment of a legally mandatory, rebuttable presumption. Id. (citing McDonnell Douglas; 9 Wigmore, Evidence (Chadbourne rev. ed.1981) ยง 2494, p. 378). The Supreme Court could find that the threshold for establishing a prima facie case should be relatively low so that close cases are decided not at the first stage of inquiry, but only after the trial judge has heard the prosecutor's explanations and is in a better position to determine the propriety of the challenges. This view is supported by the idea that the prosecutor's explanation is often critical to the decision about whether the challenge was proper. Just as a reasonable explanation will dispel the suspicion of group bias, proof that an explanation is unworthy of credence is probative of intentional discrimination, and it may be quite persuasive. Johnson 30 Cal. 4th 1302, 1339. (citing Reeves, 530 U.S. at p. 147). Although the California Supreme Court further said that "other states, though not all" follow the same standards, specifically mentioning Maryland and Connecticut, the dissent in Johnson noted that Connecticut only adhered to the higher standard rule for one year before abolishing the prima facie case requirement for a different procedure. See State v. Holloway 209 Conn. 635,553 (1989). Also the Maryland case quotes a Florida Supreme Court opinion stating that "any doubt as to whether the complaining party has met its initial burden should be resolved in that party's favor." Stanley v. State (1988) 313 Md. 50, 542.
Finally, the California Supreme Court argued that Batson referenced Wheeler. Id at 1317. The court points out that, though not dispositive, "the Batson court itself considered Wheeler's procedures comparable to its own. It did not specifically cite Wheeler's 'strong likelihood' language, but it referred to this court's 'procedures implementing its version of [Batson's evidentiary] standard' without suggesting there was anything wrong with those procedures." Id.