Batson in practice: What we have learned about Batson and peremptory challenges

Notre Dame Law Review

Volumn 71, Issue 3, 1996, Pages 447-502

  Melilli, Kenneth J ^a  

^a UNION UNIVERSITY   (United States)

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EID: 21344461166     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (174)

1. JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE § 11.10 (1985).
2. JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE (1985) Id.
3. JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE (1985) Id.
4. Stephen A. Saltzburg & Mary Ellen Powers, Peremptory Challenges and the Clash between Impartiality and Group Representation, 41 MD. L. REV. 337, 342 (1982);
5. Roger S. Kuhn, Jury Discrimination: The Next Phase, 41 S. CAL. L. REV. 235, 287 n.211 (1968).
6. Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 TEMP. L. REV. 369, 370 (1992); Saltzburg & Powers, supra note 4, at 373.
7. Saltzburg & Powers, supra note 4, at 356; Barbara Allen Babcock, Voir Dire: Preserving "Its Wonderful Power," 27 STAN. L. REV. 545, 553-54 (1975).
8. Batson v. Kentucky, 476 U.S. 79, 91 (1986); Swain v. Alabama, 380 U.S. 202, 219 (1965); Stilson v. United States, 250 U.S. 583, 586 (1919).
9. E.g., Pointer v. United States, 151 U.S. 396, 408 (1894); Lewis v. United States, 146 U.S. 370, 376 (1892).
10. Brian E. Leach, Comment, Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?, 19 S. ILL. U. L.J. 381, 384 (1995).
11. 380 U.S. 202 (1965).
12. "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1.
13. Swain, 380 U.S. at 220-21.
14. 476 U.S. 79 (1986).
15. Id. at 96-98.
16. Id.
17. Id.
18. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 648 (1986).
19. While this is certainly true as a technical matter, the word "discrimination" undoubtedly takes on quite different qualitative connotations in different contexts. Thus, most people would be flattered to be described as discriminating buyers, but equally offended to be reputed to be discriminating employers.
20. See Kuhn, supra note 4, at 240.
21. Batson v. Kentucky, 476 U.S. 79, 84 (1986).
22. Id. at 90-93.
23. Swain v. Alabama, 380 U.S. 202, 205-09 (1965).
24. Id. at 209-10.
25. Id. at 222-23.
26. Id. at 220.
27. Id. at 221. In this respect, the Swain majority opinion bears a striking resemblance to the dissenting opinion of Justice Rehnquist in Batson: In my view, there is simply nothing "unequal" about the State's using its peremptory challenges to strike blacks from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so on. This case-specific use of peremptory challenges by the state does not single out blacks, or members of any other race for that matter, for discriminatory treatment. Batson v. Kentucky, 476 U.S. 79, 137-38 (1976) (Rehnquist, J., dissenting).
28. Swain, 380 U.S. at 222-23.
29. Id. at 223.
30. Id. at 223-24 (citations omitted) (emphasis added).
31. Id. at 224-26.
32. Batson v. Kentucky, 476 U.S. 79, 93 (1986).
33. By characterizing the Batson decision as a mere evidentiary adjustment rather than a major substantive change in the definition of impermissible discrimination, the Batson Court managed to blithely ignore the havoc that Batson played with prosecutorial peremptory challenges. Batson essentially told prosecutors that they knew all along that, as a matter of constitutional law, race should not be a basis for their peremptory challenges, but that now they might well be called upon to explain their peremptory challenges to insure constitutional compliance. In many such cases, in which prosecutors struggled to find race-neutral reasons for their peremptory challenges, the truth was that venirepersons had been struck precisely because, in whole or in part, they shared the same race as the defendant. Saltzburg & Powers, supra note 4, at 364-65. Cf. Kuhn, supra note 4, at 284-85. And prosecutors had done so, not because the relatively relaxed evidentiary standard of Swain made it easy to avoid detection, but rather because Swain had endorsed this type of case-specific discrimination as an entirely appropriate use of the peremptory challenge. This problem was only exacerbated when Batson was held to be applicable to all cases pending on direct review or not yet final at the time of the Court's decision in Batson, Griffith v. Kentucky, 479 U.S. 314 (1987), hinging the preservation of convictions upon the "recollection" of race-neutral reasons that prosecutors, at the time the peremptory challenges were exercised, did not then know were required.
34. Batson, 476 U.S. at 96.
35. Id. (citation omitted).
36. Id. at 96-97.
37. Id. at 97. More recently, in Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995), the Court determined that such an explanation need not be "persuasive, or even plausible." If the explanation offered is facially valid, i.e., discriminatory intent is not inherent in the explanation, the burden shifts back to the party raising the Batson challenge to prove purposeful discrimination. Id.
38. Batson, 476 U.S. at 97.
39. Id.
40. Id. (citation omitted).
41. Id.
42. Saltzburg & Powers, supra note 4, at 382.
43. Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is it, Anyway?, 92 COLUM. L. REV. 725, 731-32 (1992).
44. See, e.g., JON M. VAN DYKE, JURY SELECTION PROCEDURES, 10 (1977);
45. Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 CORNELL L. REV. 1, 5 n.12 (1990).
46. See Saltzburg & Powers, supra note 4, at 370. Indeed, given the extent to which peremptory challenges are exercised on the basis of stereotypes, Batson arguably disallows the stereotype that litigants believe to be the most valid. See also Saltzburg & Powers, supra note 4, at 366-67, 373-74. For example, prior to the selection of the jury in the O. J. Simpson murder trial, "the Field Poll, a leading California opinion research agency, reported that while 62 percent of whites believed that Mr. Simpson was 'very likely or somewhat likely' guilty, only 38 percent of blacks agreed with them." Seth Mydans, In Simpson Case, an Issue for Everyone, N.Y. TIMES, July 22, 1994, at A4.
47. Even after much of the evidence had been presented by the state in the Simpson case, an Associated Press poll revealed that "[b]lacks are about four times as likely as whites to doubt the charges." Howard Goldberg, Poll: Few Doubt Simpson's Guilt, But A Third Would Oppose Retrial, ORANGE COUNTY REGISTER, May 29, 1995, at A10.
48. The theory might be that the problem for the black defendant is the racial bias of an allwhite jury, not the loss of supposedly sympathetic black jurors. But we need not resolve the issue of who is biased and who is fair in absolute terms to reach some very simple conclusions. First, if a prosecutor seeking a conviction of a black defendant benefits from the removal of blacks from the jury, then that same defendant benefits from the inclusion of those same black jurors. Second, if a black defendant seeking acquittal benefits from the inclusion of black jurors, then a prosecutor seeking a conviction benefits from the exclusion of those same black jurors.
49. See Underwood, supra note 42, at 733; Michael A. Cressler, Powers v. Ohio: The Death Knell for the Peremptory Challenge?, 28 IDAHO L. REV. 349, 380 (1991-92).
50. See Kuhn, supra note 4, at 273.
51. Karen M. Bray, Reaching the Final Chapter in the Story of Peremptory Challenges, 40 UCLA L. REV. 517, 559 (1992); Kuhn, supra note 4, at 286.
52. Kuhn supra note 4, at 287.
53. See Leach, supra note 9, at 399-400; Underwood, supra note 42, at 726-27, 730-31, 774.
54. Broderick, supra note 5, at 370-71, 405, 418.
55. Batson v. Kentucky, 476 U.S. 79, 87 (1986). Although the Court in Batson thus acknowledged that the right of potential jurors was a component of the Court's analysis, the bulk of the Court's opinion focuses upon the Court's conclusion that "[t]he Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race . . . ."Id. at 86 (citation omitted). As discussed in the text, this emphasis upon the defendants' right is misplaced. Indeed, if the primary concern is truly that a black defendant will suffer the consequences of insufficient black representation on the jury, then the focus ought to be on the actual composition of such juries and not upon the selection process. See Underwood, supra note 42, at 730-31. The failure of the Court in Batson to make clear that the primary emphasis must logically be on the right of potential jurors has, as will be demonstrated, contributed to a great deal of confusion in the implementation of Batson. In particular, the Batson Court's emphasis upon the defendants' right has led some courts, in evaluating whether a defendant has made a prima facie showing of a Batson violation, to focus upon the racial composition of the selected jury and not upon the racial identity of the venirepersons excluded by the prosecutors' peremptory challenges. See infra notes 87-92 and accompanying text.
56. 499 U.S. 400 (1991).
57. Id. at 406.
58. Id. at 406-10. Obviously, the white defendant in Powers did not suffer the same potential harm suffered by one who has venirepersons of the same race excluded. Nevertheless, the Court found that such a defendant suffers a sufficient injury to merit standing to raise the equal protection claims on behalf of the excluded jurors. Id. at 410-16.
59. 505 U.S. 42 (1992).
60. Id. at 58-59. A necessary component of this decision was the conclusion that the defendant's exercise of peremptory challenges constituted state action for the purpose of the application of the Equal Protection Clause of the Fourteenth Amendment. Id. at 51-55. This conclusion was substantially predetermined by the Court's decision in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), holding that Batson applies to peremptory challenges exercised by private litigants in civil cases.
61. See Deborah Zalesne & Kinney Zalesne, Saving the Peremptory Challenge: The Case for a Narrow Interpretation of McCollum, 70 DENV. U. L. REV. 313, 326, 328 (1993). As a practical matter, the decision in McCollum may well have been influenced by the consequences of prohibiting only one side in a criminal case from using race-based peremptory challenges. For example, in McCollum, three white defendants were charged with assaulting two black victims. If the proscriptions of Batson applied only to the government, then defense counsel of a mind to secure an all-white jury could almost certainly accomplish that goal. In such circumstances, assuming that there is some merit to the perception that the racial identity of the jurors with the litigants is of some significance, the government would be unfairly prejudiced.
62. McCollum, 505 U.S. at 57 (citations omitted).
63. 114 S. Ct. 1419 (1994).
64. Id. at 1421.
65. Id. at 1424-25. This heightened scrutiny is premised upon the history of race-based and gender-based discrimination in this country. Id. Thus, Batson and its progeny erect no barrier to the exercise of peremptory challenges on the basis of stereotypes or classifications which do not reinforce historical denials of fundamental opportunities. Id. at 1428 n.14. In J. E. B., the Court specifically endorsed the use of peremptory challenges on the basis of group discriminations which have received only the lower, "rational basis" level of scrutiny under the Court's equal protection analysis. Id. at 1429. Thus, in addition to race and gender, national origin and religion are apparently prohibited stereotypes under Batson; but age, disability, occupation, education and wealth are probably permissible criteria. Underwood, supra note 42, at 764-66 & nn. 172-79.
66. J.E.B., 114 S. Ct. at 1427-28, 1430.
67. Id. at 1427 n.11.
68. Kuhn, supra note 4, at 287.
69. T. E. B., 114 S. Ct. at 1429; Georgia v. McCollum, 505 U.S. 42, 57-58 (1992); Batson v. Kentucky, 476 U.S. 79, 98-99 (1986).
70. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991); Powers v. Ohio, 499 U.S. 400, 416 (1991); Batson, 476 U.S. at 99.
71. Some explanation should be given about criteria and methodology. Substantial effort has been made to include every published decision within the specified time period. Because it is very unlikely that no cases have fallen through the cracks, this goal undoubtedly has not been accomplished. Nevertheless, the real objective has been to collect a substantial data base, both in terms of sheer numbers of cases and in terms of a substantial percentage of all relevant cases, and that goal surely has been accomplished. If a lower court decision was reviewed on appeal, then that particular litigation has been considered only one "case" for purposes of the data. If a lower court decision was reversed on appeal, the lower court decision has been disregarded to the extent of the reversal. In analyzing the cases, each decision has been examined for its conclusion as to whether a prima facie case had been established and whether the proffered explanations, if any, were found to be neutral and acceptable. This sometimes created interpretive problems and required case-specific judgments. In many cases, the courts explicitly or implicitly assumed the existence of a prima facie case arguendo. See, e.g., Alan Raphael, Discriminatory Jury Selection: Lower Court Implementation of Batson v. Kentucky, 25 WILLAMETTE L. REV. 293, 310 (1989). In such instances, the decisions have not been included in any compilations concerning the establishment of a prima facie case. In some cases, the court's conclusion as to the establishment of a prima facie case was not clear because the court proceeded immediately to examine the adequacy of the proffered explanations. These have been generally excluded from any compilations regarding the prima facie case prong of Batson, with two exceptions: cases in which the opinion fairly allows for the conclusion that the court had implicitly found that prima facie cases had been established; and, those cases in which the court ultimately found a Batson violation, thus indicating an implicit finding of a prima facie case. Some interpretive problems were also presented by state court decisions following procedures slightly at variance with those specified in Batson. In fact, several state courts had enacted rules similar or identical to Batson even prior to the Batson decision. See, e.g., State v. Neil, 457 So. 2d 481 (Fla. 1984); People v. Thompson, 435 N.Y.S.2d 739 (N.Y. App. Div. 1981); State v. Crespin, 612 P.2d 716 (N.M. Ct. App. 1980); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979), cert. denied, 444 U.S. 881 (1979); People v. Wheeler, 583 P.2d 748 (Cal. 1978). In one state, for example, the trial courts have been required to consider the proffered neutral explanations as a factor in determining the existence of a prima facie case. State v. Antwine, 743 S.W.2d 51 (Mo. 1987), cert. denied, 486 U.S. 1017 (1988). Decisions following such a procedure have been included only to the extent that the results can be measured in accordance with the usual Batson procedural steps, which occasionally required some interpretation and judgment. In addition, no attempt has been made to distinguish between rules of decision and dicta. For example, if a decision indicates that no prima facie case had been established and that, nevertheless, the proffered explanations were satisfactory, each of these conclusions would be treated as having been established by the case, even though the second conclusion was not necessary for the ultimate decision of the court. Finally, it must be recognized that the data is somewhat self-selective because it consists solely of published decisions on the Batson issue. How many unreported Batson decisions there are, what the results of those decisions are, and how the inclusion of that information might have altered the information gathered here are all matters of speculation.
72. This category includes plaintiffs in habeas corpus proceedings seeking to overturn convictions.
73. This category includes defendants in habeas corpus proceedings seeking to overturn convictions.
74. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
75. Georgia v. McCollum, 505 U.S. 42 (1992).
76. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8 cmt. (1991).
77. See Brian J. Serr & Mark Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. CRIM. L. & CRIMINOLOGY 1, 60, 62-63 (1988).
78. See, e.g., James R. Acker, Exercising Peremptory Challenges After Batson, 24 CRIM. L. BULL. 187, 197 (1988); Serr & Maney, supra note 73, at 43, 47, 62-63.
79. See Serr & Maney supra note 73 and accompanying text.
80. J. E. B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994), in which the Court authoritatively extended Batson to gender-based peremptory challenges, was not decided until after the survey period closed, which fact undoubtedly contributes to the relatively few Batson claims based upon gender.
81. These cases were those in which the Batson complainant alleged that the Batson respondent was exercising peremptory challenges so as to exclude some combination of unspecified minority-group venirepersons.
82. The total in Table E-1 is greater than the total in Table A-1 because some Batson complainants claimed discrimination against more than one targeted group.
83. If true, this hypothesis could only account for a deflation in the success rate of these claims by the inclusion of some number of patently unmeritorious claims in the figures collected. It is clear, however, that the most obvious explanation for the large number of Batson claims brought on behalf of black and Hispanic jurors is that it is these venirepersons who are primarily victimized by Batson violations. As Table E-2 demonstrates, 179 successful Batson claims have involved peremptory strikes used against blacks or Hispanics. This total represents over 92% of the 195 successful Batson claims detailed in Table E-2.
84. Federal district courts have been included within their respective circuits.
85. Rodger L. Hochman, Abolishing the Peremptory Challenge: The Verdict of Emerging Caselaw, 17 NOVA L. REV. 1367, 1381-83 (1993).
86. As will be explored later, different courts use different tests for determining whether a prima facie case has been established. See infra Table G-1.
87. See supra notes 73-74 and accompanying text.
88. Batson, 476 U.S. at 96-97.
89. See, e.g., Alan B. Rich, Peremptory Jury Strikes in Texas after Batson and Edmondson, 23 ST. MARY'S L.J. 1055, 1065 n.55 (1992); Serr & Maney, supra note 73, at 28, 30 n.170, 35-36.
90. Cf. Serr & Maney, supra note 73, at 35-36.
91. See supra notes 41-64 and accompanying text. This misfocus on the actual makeup of the jury does not always benefit the Batson respondent. For example, in State v. Sholl, 743 P.2d 406 (Ariz. Ct. App. 1987), a prima facie case was found despite the fact that the Batson respondent used no peremptory challenges against any members of the targeted group. However, because the Batson respondent had not used all available peremptory challenges, the sole targeted group member in the venire was not reached. The Arizona courts found this to be a prima facie case, and the Batson respondent was put to the test of providing neutral explanations for not striking non-targeted-group venirepersons!
92. Willis v. State, 411 S.E.2d 714 (Ga. Ct. App. 1991), cert. denied, No. S92C0235, 1991 Ga. LEXIS 1016 (Ga. Dec. 4, 1991), and cert. denied, No. S92C0815, 1992 Ga. LEXIS 411 (Ga. May 8, 1992).
93. Shaw v. State, 411 S.E.2d 534 (Ga. Ct. App. 1991).
94. Hood v. State, 598 So. 2d 1022 (Ala. Crim. App. 1991), cert. denied. No. 1911122, 1992 Ala. LEXIS 801 (Ala. May 29, 1992).
95. Scott v. State, 599 So. 2d 1222 (Ala. Crim. App.), cert. denied, 599 So. 2d 1229 (Ala. 1992).
96. For example, consider the cases discussed supra notes 88-91 and the accompanying text.
97. See supra Table D-1.
98. When examined on a juror by juror basis, Batson respondents offering neutral explanations thus have a success rate of 82.20%. This compares with a success rate of 77.97% when examined on a case by case basis. See supra Table D-1. It also compares with a success rate of 78.40% when examined on a targeted group per case basis. See supra Table E-5. It is perhaps surprising that these figures are so similar, given the much larger total of jurors than cases and the fact that only one peremptory challenge has to be inadequately explained to result in a case in which the explanations are found to be inadequate. Perhaps this can be accounted for by the way many courts go about addressing the adequacy of proffered explanations. Although there are some cases in which the courts, within a single case, segregate the acceptable explanations from the improper explanations, frequently it is an "all or nothing" affair. In other words, in many cases in which the courts specifically find less than all of the proffered explanations to be unacceptable, they either neglect to address the other explanations or determine that the other explanations are also inadequate because they are tainted by the determination that the Batson respondent has acted with discriminatory intent as to some of the peremptory challenges in the same case.
99. The total of 632 rationales exceeds the total of 533 jurors for whom proffered neutral explanations were found unacceptable because sometimes courts supplied more than one rationale for rejecting the proffered explanations of the Batson respondent.
100. See Acker, supra note 74, at 201.
101. One of the difficulties with this explanation is that it does not address why the targeted-group member, as opposed to some other venireperson, was selected for a peremptory challenge in order to reach the "better" juror.
102. Cf. Broderick, supra note 5, at 421-22.
103. Cases within the survey period were all decided prior to the extension of Batson to women in J. E. B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994). See supra notes 59-64 and accompanying text.
104. In J. E. B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994), the Court made explicitly clear that the Equal Protection Clause does not prohibit the use of peremptory challenges on the basis of group discriminations that have received only "rational basis" scrutiny, id. at 1429, which would surely include virtually all of the group stereotypes listed in Table H-2.
105. Saltzburg & Powers, supra note 4, at 341 n.21.
106. Serr & Maney, supra note 73, at 58-59.
107. See Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995), discussed supra at note 36.
108. See Bray, supra note 47, at 555; Serr & Maney, supra note 73, at 63.
109. Batson v. Kentucky, 476 U.S. 79, 127 (1986) (Burger, C. J., dissenting).
110. Bray, supra note 47, at 555; see also Serr & Maney, supra note 73, at 63.
111. Batson, 476 U.S. at 102-08 (Marshall, J., concurring).
112. See, e.g., Zalesne & Zalesne, supra note 57; Cressler, supra note 45, at 381; Saltzburg & Powers, supra note 4, at 382.
113. See, e.g., Broderick, supra note 5, at 420-23; Bray, supra note 47.
114. Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson's Unfortunate Failure to Eradicate Invidious Discrimination from Jury Selection, 43 DEPAUL L. REV. 625, 639 (1994); Broderick, supra note 5, at 421.
115. Broderick, supra note 5, at 371.
116. Morehead, supra note 110, at 639; Bray, supra note 47, at 545-46, 554, 568.
117. In fact, although the number of Batson respondents who were criminal defendants or civil litigants was small, there was no noticeable difference in the categories of explanations offered by these respondents.
118. The 3,898 accepted reasons for exercising peremptory challenges should be contrasted with a total of 2,461 peremptory challenges which were found to have been adequately explained by the Batson respondents. The former number is significantly larger than the latter one because, quite often, a Batson respondent offers more than one accepted explanation for the scrutinized peremptory challenge.
119. E.g., Saltzburg & Powers, supra note 4, at 355; Frederick L. Brown et al., The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 NEW ENG. L. REV. 192, 235 n.244; Kuhn, supra note 4, at 243.
120. See, e.g., Barbara Allen Babcock, Voir Dire: Preserving "Its Wonderful Power", 27 STAN. L. REV. 545, 549-50; Kuhn, supra note 4, at 243.
121. In cases in which a criminal defendant's challenge for cause is wrongfully denied, with the result that the defense is forced to remove that venireperson with a peremptory challenge and is thereby effectively deprived of a peremptory challenge that would otherwise have been available to use against another venireperson, no federal constitutional right of the defendant has been violated, and the erroneous denial of the challenge for cause is effectively unreviewable. Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
122. See Saltzburg & Powers, supra note 4, at 340.
123. Hochman, supra note 81, at 1401-02; Broderick, supra note 5, at 422; Bray, supra note 47, at 557-58.
124. This subcategory includes venirepersons who had been convicted of, arrested for, or even just suspected of, engaging in criminal activities.
125. This subcategory includes venirepersons who had close friends or relatives who had been convicted of, arrested for, or suspected of, engaging in prior criminal activity.
126. Examples of cases which involve more than the subcategories described in Table III-B would be situations in which the venireperson's relative was a victim of the same crime which is the subject of the instant prosecution or situations in which the same individual prosecutor successfully convicted the venireperson's relative.
127. This subcategory includes venirepersons who were variously described as inattentive, uninterested, nonresponsive, distracting or apathetic, and also includes individuals who fell asleep or who arrived late for court.
128. This subcategory includes individuals who requested that they be excused, as well as venirepersons who exhibited hostility toward the process or the obligation of jury service.
129. This subcategory includes venirepersons variously described as timid, hesitant, shy, indecisive, fearful, nervous, weak or anxious.
130. This subcategory includes venirepersons who were described as insufficiently attentive to the Batson respondent or were described as making poor eye contact with the Batson respondent.
131. This subcategory includes venirepersons who were described as having engaged in strange, bizarre, silly or frivolous behavior.
132. This subcategory includes venirepersons who were described as smiling at, seeking to make eye contact with, or casting sympathetic glances toward, the opposing party.
133. This subcategory includes venirepersons who were variously described as assertive, aggressive or strong-willed or as leaders.
134. This subcategory refers to situations in which venirepersons commented generically about the credibility of certain relevant categories of witnesses, such as police officers or rape victims.
135. To the extent that a person, incidental to being old, lacked the capacity to serve as a juror, that characteristic is tabulated elsewhere. For our purposes here, individuals in this subcategory were simply "old."
136. Specifically, this subcategory consisted of thirty-one teachers, twenty-four social workers, twenty-two blue collar workers, fourteen members of the clergy, twelve health care workers, ten counselors, nine mental health care workers, nine postal workers, eight government employees, seven corrections officers, seven law office employees, six students, five homemakers, five venirepersons with unspecified jobs carrying little responsibility, five venirepersons with unspecified jobs which would cause them to be sympathetic to the opposing party, four lawyers, four security guards, three civilian employees of the police department, three people with the same job as the opposing party, two librarians, two musicians, two professionals, two volunteers, and one each of accountants, artists, church organists, day care workers, detectives, engineers, hairdressers, janitors, journalists, massage therapists, military police, pharmacists, pipeline operators, Playboy Club employees, "salesgirls," salesmen, theater employees and an employee who worked for a television station that, independent of the venireperson, once broadcast a documentary that was not complimentary to the police. Only occasionally did the Batson respondents (predominantly prosecutors) explain their theories as to the undesirability of the people with these occupations. When they did so, however, they revealed that these peremptory challenges were premised upon such stereotypes as: people in jobs that involve caring for other people are too liberal and too lenient; accountants and engineers are too meticulous; people in the arts use drugs; people in law enforcement other than the police are jealous and critical of the police; librarians, church organists and salesmen are too liberal; government employees make bad jurors; journalists just want to get on a jury to get a story; and postal workers are, apparently depending upon which lawyer you talk to, liberal, tolerant of violence or dishonest. In none of these instances was there any indication that the lawyers' inferences from the venirepersons' occupations were in any way corroborated during the voir dire.
137. This subcategory includes venirepersons who had friends or relatives in certain occupations, including eight lawyers, seven police officers, five members of the clergy, five venirepersons who were divorced from police officers (or who had friends or relatives who were divorced from police officers), four corrections officers, three social workers, three teachers, two persons with unspecified jobs also held by the opposing party, two persons with unspecified jobs which would provoke sympathy for the opposing party, two law office employees, two mental health care workers, two postal workers, and one each of blue collar workers, civilian employees of police departments, counselors, homemakers, and one spouse of a venireperson who worked for a radio station that had, without any participation by the venireperson's spouse, once broadcast a documentary that had not been complimentary to the police. In none of these cases was there any indication that the voir dire specifically exposed any connection between the occupation of the friend or relative and any relevant predisposition on the part of the friend or relative. Further, in none of these cases was there any indication that the voir dire specifically exposed any connection between any relevant predisposition on the part of the friend or relative and any relevant predisposition on the part of the venireperson.
138. This subcategory includes nine venirepersons with some legal training and eight others with some education or training in psychology, social work, sociology or theology.
139. This subcategory includes venirepersons who, by experience or education, were fluent in Spanish. In each of these cases, the Batson respondent was concerned that these venirepersons might not accept the official translations of the testimony of Spanish-speaking witnesses. In none of these cases was there any reason advanced for this concern other than that the venirepersons were fluent in Spanish.
140. This subcategory consists of one person for whom (for reasons not disclosed) it was not possible to determine whether the person lived in the jurisdiction and thus whether the person was qualified to sit on a jury within that jurisdiction.
141. This subcategory includes venirepersons for whom jury service would be a physical or financial hardship, as well as those individuals with responsibilities for the caring of children or invalids.
142. Although several challenges included in this subcategory were not further explained, most of the explanations included here had to do with appearance, rather than behavior. Examples include manner of dress, wearing sunglasses in the courtroom, chewing gum in the courtroom, using a toothpick in the courtroom and wearing curlers.
143. This subcategory includes venirepersons who served on juries in prior cases which resulted in hung juries or the "wrong" verdicts from the perspective of the Batson respondent, such as cases in which the Batson respondent was a prosecutor and the prior jury acquitted the defendant.
144. J. E. B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994).
145. This subcategory includes venirepersons who appeared to be very religious, were members of exotic religious sects, or were members of religious groups whose tenets were viewed by the Batson respondent as unfavorable in the context of the particular case. In none of these instances is there any indication that the Batson respondent inquired particularly of the venireperson to test the inference about the impact of the venireperson's religious beliefs upon that individual's predispositions in the case at hand.
146. In one instance, the organization was the NAACP and in the other instance the organization was the Black Caucus.
147. We started with 3,898 explanations, see supra Table III-A, and deleted one, see supra Table III-Q and accompanying text.
148. See, e.g., Hochman, supra note 81, at 1396-97; Broderick, supra note 5, at 413; Hans Zeisel & Shari Seidman Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491, 517 (1978).
149. See Brown et al., supra note 115, at 232-33.
150. Broderick, supra note 5, at 411.
151. See supra notes 49-64 and accompanying text.
152. Consider again, for example, the public opinion polls demonstrating substantial discrepancies, based upon race, in the perception of the guilt or innocence of O. J. Simpson. See supra note 43. By contrast, other than gender (which is now an illegal basis for peremptory challenges) there do not appear to be any similar poll results for any case based on any of the group distinctions listed in Table III-S.
153. See supra note 56.
154. Note, Peremptory Challenges and the Meaning of Jury Representation, 89 YALE L.J. 1177, 1182 (1980).
155. See, e.g., VAN DYKE, supra note 43, at 160, 162; Zeisel & Diamond, supra note 144, at 531.
156. Hochman, supra note 81, at 1396; Broderick, supra note 5, at 411.
157. VAN DYKE, supra note 43, at 160, 162; Kuhn, supra note 4, at 245-46.
158. VAN DYKE, supra note 43, at 162; Morehead, supra note 110, at 639; Broderick, supra note 5, at 371.
159. Indeed, the Court has explicitly acknowledged that the rights of jurors to nondiscriminatory selection procedures must be balanced against the importance of the peremptory challenge in providing litigants with fair trials, not favorable jurors. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1426 (1994).
160. Id. at 1429. The heightened scrutiny afforded to race and gender is justified because of the long history of discrimination in this country against blacks and women. Id. at 1425.
161. See Underwood, supra note 42, at 763; Saltzburg & Powers, supra note 4, at 364, 372.
162. Even the heightened scrutiny of the Equal Protection Clause extends to racial discrimination against whites and sex discrimination against men, e.g., J. E. B, 114 S. Ct. at 1430, suggesting that, even for equal protection purposes, there is something objectionable about such group stereotypes even in the absence of a long history of discrimination against the particular targeted groups.
163. Kuhn, supra note 4, at 247.
164. Bray, supra note 47, at 568.
165. Kuhn, supra note 4, at 246.
166. Broderick, supra note 5, at 417; Kuhn, supra note 4, at 246-47.
167. VAN DYKE, supra note 43, at 35.
168. See supra Tables III-H and III-K.
169. See Kuhn, supra note 4, at 239, 313.
170. See, e.g., Saltzburg & Powers, supra note 4, at 341 n.21.
171. See supra Table III-R.
172. See supra note 144 and accompanying text.
173. Compare, for example, some of the specific facts advanced in support of the proposition that particular venirepersons lacked the intelligence or education to serve listed supra Table III-J, with the unsupported allegations that jurors "seemed unintelligent" or "will not understand [the] evidence, issues or law" supra Table III-T.
174. Carl H. Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 LOY. L.A. L. REV. 247, 269 (1973).