Lauren Green

In Batson v. Kentucky, the Supreme Court “ended the widespread practice in which prosecutors could (and often would) routinely strike all Black prospective jurors in cases involving Black defendants.”[1] Batson was supposed to raise the bar by requiring trial judges to evaluate a prosecutor’s “neutral explanation” in response to allegations of racially motivated juror strikes.[2] Rather, Batson’s “neutral explanation” standard enables and compels judges to take prosecutors at their word.[3] This creates a vicious circle where courts to continue to approve prosecutors’ reliance on certain explanations and prosecutors therefore continue to use those explanations. In a study that looked at more than 700 cases in California, peremptory challenges were used to eject Black jurors more than 70% of the time.[4] Of the 142 Batson objections ruled on between 1989 and 2019, California’s appeals court found prosecutorial prejudice in only three.[5]

Batson is failing at the state level as courts fail to rigorously apply the standard. This has become particularly troublesome regarding support of and involvement in Black Lives Matter (“BLM”). In a criminal case involving three Black men, prosecutors asked Chrishala Reed, a Black woman, about her involvement in BLM.[6] While the county court did not permit the prosecutors to use BLM as a for cause challenge to remove Reed, prosecutors used one of their peremptory challenges to remove her anyway.[7]

Attorneys for Reed noted that this technique is being implemented across the country: prosecutors ask potential jurors racially loaded questions and use their answers as an avenue to strike Black jurors.[8] For instance, in United States v. Bishop, the Ninth Circuit ruled that asking jurors in Los Angeles if they lived in Compton “served as a mere surrogate for race.”[9] In State v. Gresham, however, the Minnesota Court of Appeals affirmed the prosecutor’s peremptory challenge, over defendant’s objections and after the district court denied the prosecutor’s for cause challenge, upon asking a Black potential juror about her involvement in BLM.[10] The appeals court found that the prosecutor’s explanation regarding the juror’s “bias against the police, her statement that it was difficult to presume innocence, and her ability not to consider the consequences of the verdict” did not reveal inherently discriminatory intent.[11]

One of the attorneys for Reed argues that interrogating a juror’s feelings toward BLM is tantamount to interrogating Blackness.[12] In this sense, asking a Black juror about BLM serves as a mere surrogate for race similar to Bishop. Further, support of BLM is inexplicably tied to questions such as those asked by the prosecutor in Gresham,[13] yet jurors’ answers are subsequently reframed by prosecutors as “race-neutral” to bypass Batson, but still extrapolate bias.[14] The Ninth Circuit explained in Bishop that even assuming the prosecutor’s explanation was sincere, the explanation was not sufficient to satisfy Batson because “a discriminatory intent [was] inherent in the prosecutor’s explanation.”[15] The court noted in finding such that “the justification was tainted by impermissible generalizations regarding racial groups and their environment.”[16]

Simply, asking a potential juror about their support of BLM is a racially loaded question used by prosecutors to assume that juror cannot act impartially toward a Black defendant, but reframed as a bias against the State and law enforcement. The assumption that support of BLM automatically creates bias and impartiality is the type of impermissible generalization regarding racial groups Batson prohibits.[17] As seen above, courts deny prosecutors to use involvement and support of BLM as a for cause challenge but fail to engage in meaningful Batson analysis when reframed as a peremptory challenge. This intentional discrimination disguised as bias against the State harms not only the defendant but reinforces the Black community’s lack of confidence in the criminal justice system—a key motivator to support BLM. Until judges rigorously apply the Batson standard, or a new standard is articulated, voir dire will continue violating the Equal Protection rights of Black defendants and Black jurors, dismantling the protection a trial by jury is supposed to secure and amplifying distrust in the criminal justice system.

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[1] Flowers v. Mississippi, 139 S.Ct. 2228, 2242 (2019) (referencing Batson, 476 U.S. 79, 89 (1986) (reaffirming Swain v. Alabama, 380 U.S. 202, 203–204 (1965) holding that purposeful exclusion of Black potential jurors ran afoul of the Equal Protection Clause)).

[2] Cynthia Rowland-Richers, Batson v. Kentucky: The New and Improved Peremptory Challenge, 38 Hastings L.J. 1195–96 (1987).

[3] Elisabeth Semel et al., Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, Berkley L. Death Penalty Clinic (2020), https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/.

[4] Id.

[5] Id. See also Flowers, 139 S.Ct. 2228 (involving a particularly “relentless” district attorney who had made peremptory challenges of a total of 41 Black prospective jurors over the course of two mistrials and four vacated verdicts).

[6] Andrew Karpan, When Can A Juror Say Black Lives Matter?, Law360 (Aug. 9, 2020, 8:02PM), https://www.law360.com/access-to-justice/articles/1299398/when-can-a-juror-say-black-lives-matter-?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice.

[7] Id. Prosecutors had already used peremptory challenges to remove six other persons of color from serving on the jury in the case. Id.

[8] Id.

[9] 959 F.2d 820, 826 (1992). See Cooper v. State, 432 P.3d 202, 206 (Nev. 2018) (“[W]e are concerned that by questioning a venire member’s support for social justice movements with indisputable racial undertones, the person asking the question believes that a “certain, cognizable racial group of jurors would be unable to be impartial, an assumption forbidden by the Equal Protection Clause.”).

[10] State v. Gresham, No. A15-1691, 2016 WL 7338718, at *1 (Minn. Ct. App. Dec. 19, 2016) (prosecutor asked prospective jurors, “Have you participated in any of the Black Lives Matters kind of marches and stuff like that here?”).

[11] Id. at *3.

[12] Karpan, supra note 6.

[13] The prosecutor asked: “[H]ave you participated in any of the Black Lives Matters kind of marches and stuff like that here?”; “[D]o you believe at least that there are [a] disproportionate amount of people of color who are going to prison?”; and also asked the juror if she believed her son had been racially profiled. Gresham, at *2.

[14] See the Gresham prosecutor’s “race-neutral” explanation at note 11.

[15] U.S. v. Bishop, 959 F.2d at 827 (citing Hernandez v. New York, 500 U.S. 352, 358­–59 (1991)).

[16] Id.

[17] 476 U.S. at 89.