Johnson v. California

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JOHNSON v. CALIFORNIA

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

No. 04–6964. Argued April 18, 2005—Decided June 13, 2005

Petitioner Johnson, a black man, was convicted in a California state

court of assaulting and murdering a white child. During jury selec-

tion, a number of prospective jurors were removed for cause until 43

eligible jurors remained, three of whom were black. The prosecutor

used 3 of his 12 peremptory challenges to remove the prospective

black jurors, resulting in an all-white jury. Defense counsel objected

to those strikes on the ground that they were unconstitutionally

based on race. The trial judge did not ask the prosecutor to explain

his strikes, but instead simply found that petitioner had failed to es-

tablish a prima facie case of purposeful discrimination under the gov-

erning state precedent, People v. Wheeler, which required a showing

of a strong likelihood that the exercise of peremptory challenges was

based on group bias. The judge explained that, although the case

was close, his review of the record convinced him that the prosecu-

tor’s strikes could be justified by race-neutral reasons. The Califor-

nia Court of Appeal set aside the conviction, but the State Supreme

Court reinstated it, stressing that Batson v. Kentucky, 476 U. S. 79,

permits state courts to establish the standards used to evaluate the

sufficiency of prima facie cases of purposeful discrimination in jury

selection. Reviewing Batson, Wheeler, and their progeny, the court

concluded that Wheeler’s “strong likelihood” standard is entirely con-

sistent with Batson. Under Batson, the court held, a state court may

require the objector to present not merely enough evidence to permit

an inference that discrimination has occurred, but sufficiently strong

evidence to establish that the challenges, if not explained, were more

likely than not based on race. Applying that standard, the court ac-

knowledged that the exclusion of all three black prospective jurors

looked suspicious, but deferred to the trial judge’s ruling.

2 JOHNSON v. CALIFORNIA

Syllabus

Held: California’s “more likely than not” standard is an inappropriate

yardstick by which to measure the sufficiency of a prima facie case of

purposeful discrimination in jury selection. This narrow but impor-

tant issue concerns the scope of the first of three steps Batson enu-

merated: (1) Once the defendant has made out a prima facie case and

(2) the State has satisfied its burden to offer permissible race-neutral

justifications for the strikes, e.g., 476 U. S., at 94, then (3) the trial

court must decide whether the defendant has proved purposeful ra-

cial discrimination, Purkett v. Elem, 514 U. S. 765. Batson does not

permit California to require at step one that the objector show that it

is more likely than not the other party’s peremptory challenges, if

unexplained, were based on impermissible group bias. The Batson

Court held that a prima facie case can be made out by offering a wide

variety of evidence, so long as the sum of the proffered facts gives

“rise to an inference of discriminatory purpose.” 476 U. S., at 94.

The Court explained that to establish a prima facie case, the defen-

dant must show that his membership in a cognizable racial group,

the prosecutor’s exercise of peremptory challenges to remove mem-

bers of that group, the indisputable fact that such challenges permit

those inclined to discriminate to do so, and any other relevant cir-

cumstances raise an inference that the prosecutor excluded venire

members on account of race. Id., at 96. The Court assumed that the

trial judge would have the benefit of all relevant circumstances, in-

cluding the prosecutor’s explanation, before deciding whether it was

more likely than not that the peremptory challenge was improperly

motivated. The Court did not intend the first step to be so onerous

that a defendant would have to persuade the judge—on the basis of

all the facts, some of which are impossible for the defendant to know

with certainty—that the challenge was more likely than not the

product of purposeful discrimination. Instead, a defendant satisfies

Batson’s first step requirements by producing evidence sufficient to

permit the trial judge to draw an inference that discrimination has

occurred. The facts of this case illustrate that California’s standard

is at odds with the prima facie inquiry mandated by Batson. The

permissible inferences of discrimination, which caused the trial judge

to comment that the case was close and the California Supreme

Court to acknowledge that it was suspicious that all three black pro-

spective jurors were removed, were sufficient to establish a prima fa-

cie case. Pp. 10–11.

Reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST,

C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and

BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J.,

filed a dissenting opinion.

Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–6964

_________________

JAY SHAWN JOHNSON, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 13, 2005]

JUSTICE STEVENS delivered the opinion of the Court.

The Supreme Court of California and the United States

Court of Appeals for the Ninth Circuit have provided

conflicting answers to the following question: “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?” Pet.

for Cert. i. Because both of those courts regularly review

the validity of convictions obtained in California criminal

trials, respondent, the State of California, agreed to peti-

tioner’s request that we grant certiorari and resolve the

conflict. We agree with the Ninth Circuit that the question

presented must be answered in the negative, and accord-

ingly reverse the judgment of the California Supreme Court.

I

Petitioner Jay Shawn Johnson, a black male, was con-

victed in a California trial court of second-degree murder

and assault on a white 19-month-old child, resulting in

death. During jury selection, a number of prospective

jurors were removed for cause until 43 eligible jurors

2 JOHNSON v. CALIFORNIA

Opinion of the Court

remained, 3 of whom were black. The prosecutor used 3 of

his 12 peremptory challenges to remove the black prospec-

tive jurors. The resulting jury, including alternates, was

all white.

After the prosecutor exercised the second of his three

peremptory challenges against the prospective black

jurors, defense counsel objected on the ground that the

challenge was unconstitutionally based on race under both

the California and United States Constitutions. People v.

Johnson, 30 Cal. 4th 1302, 1307, 71 P. 3d 270, 272–273

(2003).1 Defense counsel alleged that the prosecutor “had

no apparent reason to challenge this prospective juror

‘other than [her] racial identity.’ ” Ibid. (alteration in

original). The trial judge did not ask the prosecutor to

explain the rationale for his strikes. Instead, the judge

simply found that petitioner had failed to establish a

prima facie case under the governing state precedent,

People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978),

reasoning “ ‘that 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,’ ” 30 Cal.

4th, at 1307, 71 P. 3d, at 272 (emphasis added). The judge

did, however, warn the prosecutor that “ ‘we are very

close.’ ” People v. Johnson, 105 Cal. Rptr. 2d 727, 729

(2001).

Defense counsel made an additional motion the next day

when the prosecutor struck the final remaining prospec-

tive black juror. 30 Cal. 4th, at 1307, 71 P. 3d, at 272.

Counsel argued that the prosecutor’s decision to challenge

all of the prospective black jurors constituted a “system-

atic attempt to exclude African-Americans from the jury

panel.” 105 Cal. Rptr. 2d, at 729. The trial judge still did

not seek an explanation from the prosecutor. Instead, he

——————

1 Petitioner’s state objection was made under People v. Wheeler, 22

Cal. 3d 258, 583 P. 2d 748 (1978).

Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

explained that his own examination of the record had

convinced him that the prosecutor’s strikes could be justi-

fied by race-neutral reasons. Specifically, the judge opined

that the black venire members had offered equivocal or

confused answers in their written questionnaires. 30 Cal.

4th, at 1307–1308, 71 P. 3d, at 272–273. Despite the fact

that “ ‘the Court would not grant the challenges for cause,

there were answers . . . at least on the questionnaires

themselves [such] that the Court felt that there was suffi-

cient basis’ ” for the strikes. Id., at 1308, 71 P. 3d, at 273

(brackets added). Therefore, even considering that all of

the prospective black jurors had been stricken from the

pool, the judge determined that petitioner had failed to

establish a prima facie case.

The California Court of Appeal set aside the conviction.

People v. Johnson, 105 Cal. Rptr. 2d 727 (2001). Over the

dissent of one judge, the majority ruled that the trial judge

had erred by requiring petitioner to establish a “strong

likelihood” that the peremptory strikes had been imper-

missibly based on race. Instead, the trial judge should

have only required petitioner to proffer enough evidence to

support an “inference” of discrimination.2 The Court of

Appeal’s holding relied on decisions of this Court, prior

California case law, and the decision of the United States

Court of Appeals for the Ninth Circuit in Wade v. Terhune,

202 F. 3d 1190 (2000). Applying the proper “reasonable

inference” standard, the majority concluded that peti-

tioner had produced sufficient evidence to support a prima

facie case.

Respondent appealed, and the California Supreme

Court reinstated petitioner’s conviction over the dissent of

——————

2 In reaching this holding, the Court of Appeal rejected the notion

that a showing of a “ ‘strong likelihood’ ” is equivalent to a “ ‘reasonable

inference.’ ” To conclude so would “be as novel a proposition as the idea

that ‘clear and convincing evidence’ has always meant a ‘preponderance

of the evidence.’ ” 105 Cal. Rptr. 2d, at 733.

4 JOHNSON v. CALIFORNIA

Opinion of the Court

two justices. The court stressed that Batson v. Kentucky,

476 U. S. 79 (1986), left to state courts the task of estab-

lishing the standards used to evaluate the sufficiency of

defendants’ prima facie cases. 30 Cal. 4th, at 1314, 71

P. 3d, at 277. The court then reviewed Batson, Wheeler,

and those decisions’ progeny, and concluded that

“Wheeler’s terms ‘strong likelihood’ and ‘reasonable infer-

ence’ state the same standard”—one that is entirely con-

sistent with Batson. 30 Cal. 4th, at 1313, 71 P. 3d, at 277.

A prima facie case under Batson establishes a “ ‘legally

mandatory, rebuttable presumption,’ ” it does not merely

constitute “enough evidence to permit the inference” that

discrimination has occurred. 30 Cal. 4th, at 1315, 71

P. 3d, at 278. Batson, the court held, “permits a court to

require the objector to present, not merely ‘some evidence’

permitting the inference, but ‘strong evidence’ that makes

discriminatory intent more likely than not if the challenges

are not explained.” 30 Cal. 4th, at 1316, 71 P. 3d, at 278.

The court opined that while this burden is “not onerous,” it

remains “substantial.” Ibid., 71 P. 3d, at 279.

Applying that standard, the court acknowledged that

the case involved the “highly relevant” circumstance that

a black defendant was “charged with killing ‘his White

girlfriend’s child,’ ” and that “it certainly looks suspicious

that all three African-American prospective jurors were

removed from the jury.” Id., at 1326, 71 P. 3d, at 286. Yet

petitioner’s Batson showing, the court held, consisted

“primarily of the statistical disparity of peremptory chal-

lenges between African-Americans and others.” 30 Cal.

4th, at 1327, 71 P. 3d, at 287. Although those statistics

were indeed “troubling and, as the trial court stated, the

question was close,” id., at 1328, 71 P. 3d, at 287, the court

decided to defer to the trial judge’s “carefully considered

ruling.” Ibid.3 We granted certiorari, but dismissed the

——————

3 In dissent, Justice Kennard argued that “[r]equiring a defendant to

Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

case for want of jurisdiction because the judgment was not

yet final. Johnson v. California, 541 U. S. 428 (2004) (per

curiam). After the California Court of Appeal decided the

remaining issues, we again granted certiorari. 543 U. S.

___ (2005).

II

The issue in this case is narrow but important. It con-

cerns the scope of the first of three steps this Court enu-

merated in Batson, which together guide trial courts’

constitutional review of peremptory strikes. Those three

Batson steps should by now be familiar. First, the defen-

dant must make out a prima facie case “by showing that

the totality of the relevant facts gives rise to an inference

of discriminatory purpose.” 476 U. S., at 93–94 (citing

Washington v. Davis, 426 U. S. 229, 239–242 (1976)).4

Second, once the defendant has made out a prima facie

case, the “burden shifts to the State to explain adequately

the racial exclusion” by offering permissible race-neutral

justifications for the strikes. 476 U. S., at 94; see also

Alexander v. Louisiana, 405 U. S. 625, 632 (1972). Third,

“[i]f a race-neutral explanation is tendered, the trial court

must then decide . . . whether the opponent of the strike

has proved purposeful racial discrimination.” Purkett v.

——————

persuade the trial court of the prosecutor’s discriminatory purpose at

the first Wheeler-Batson stage short-circuits the process, and provides

inadequate protection for the defendant’s right to a fair trial . . . .” 30

Cal. 4th, at 1333, 71 P. 3d, at 291. The proper standard for measuring

a prima facie case under Batson is whether the defendant has identified

actions by the prosecutor that, “if unexplained, permit a reasonable

inference of an improper purpose or motive.” 30 Cal. 4th, at 1339, 71

P. 3d, at 294. Trial judges, Justice Kennard argued, should not specu-

late when it is not “apparent that the [neutral] explanation was the

true reason for the challenge.” Id., at 1340, 71 P. 3d, at 295.

4 An “inference” is generally understood to be a “conclusion reached

by considering other facts and deducing a logical consequence from

them.” Black’s Law Dictionary 781 (7th ed. 1999).

6 JOHNSON v. CALIFORNIA

Opinion of the Court

Elem, 514 U. S. 765, 767 (1995) (per curiam).

The question before us is whether Batson permits Cali-

fornia to require at step one that “the objector must show

that it is more likely than not the other party’s peremp-

tory challenges, if unexplained, were based on impermis-

sible group bias.” 30 Cal. 4th, at 1318, 71 P. 3d, at 280.

Although we recognize that States do have flexibility in

formulating appropriate procedures to comply with Bat-

son, we conclude that California’s “more likely than not”

standard is an inappropriate yardstick by which to meas-

ure the sufficiency of a prima facie case.

We begin with Batson itself, which on its own terms

provides no support for California’s rule. There, we held

that a prima facie case of discrimination can be made out

by offering a wide variety of evidence,5 so long as the sum

of the proffered facts gives “rise to an inference of dis-

criminatory purpose.” 476 U. S., at 94. We explained that

“a defendant may establish a prima facie case of pur-

poseful discrimination in selection of the petit jury

solely on evidence concerning the prosecutor’s exercise

of peremptory challenges at the defendant’s trial. To

establish such a case, the defendant first must show

that he is a member of a cognizable racial group, and

that the prosecutor has exercised peremptory chal-

lenges to remove from the venire members of the de-

fendant’s race. Second, the defendant is entitled to

rely on the fact, as to which there can be no dispute,

——————

5 In Batson, we spoke of the methods by which prima facie cases could

be proved in permissive terms. A defendant may satisfy his prima facie

burden, we said, “by relying solely on the facts concerning [the selection

of the venire] in his case.” 476 U. S., at 95 (emphasis in original). We

declined to require proof of a pattern or practice because “ ‘[a] single

invidiously discriminatory governmental act’ is not ‘immunized by the

absence of such discrimination in the making of other comparable

decisions.’ ” Ibid. (quoting Arlington Heights v. Metropolitan Housing

Development Corp., 429 U. S. 252, 266, n. 14 (1977)).

Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

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 these facts and any other relevant circum-

stances raise an inference that the prosecutor used

that practice to exclude the veniremen from the petit

jury on account of their race.” Id., at 96 (citations

omitted) (quoting Avery v. Georgia, 345 U. S. 559, 562

(1953)).

Indeed, Batson held that because the petitioner had

timely objected to the prosecutor’s decision to strike “all

black persons on the venire,” the trial court was in error

when it “flatly rejected the objection without requiring the

prosecutor to give an explanation for his action.” 476

U. S., at 100. We did not hold that the petitioner had

proved discrimination. Rather, we remanded the case for

further proceedings because the trial court failed to de-

mand an explanation from the prosecutor—i.e., to proceed

to Batson’s second step—despite the fact that the peti-

tioner’s evidence supported an inference of discrimination.

Ibid.

Thus, in describing the burden-shifting framework, we

assumed in Batson that the trial judge would have the

benefit of all relevant circumstances, including the prose-

cutor’s explanation, before deciding whether it was more

likely than not that the challenge was improperly moti-

vated. We did not intend the first step to be so onerous

that a defendant would have to persuade the judge—on

the basis of all the facts, some of which are impossible for

the defendant to know with certainty—that the challenge

was more likely than not the product of purposeful dis-

crimination. Instead, a defendant satisfies the require-

ments of Batson’s first step by producing evidence suffi-

cient to permit the trial judge to draw an inference that

discrimination has occurred.

8 JOHNSON v. CALIFORNIA

Opinion of the Court

Respondent, however, focuses on Batson’s ultimate

sentence: “If the trial court decides that the facts estab-

lish, prima facie, purposeful discrimination and the prose-

cutor does not come forward with a neutral explanation for

his action, our precedents require that petitioner’s convic-

tion be reversed.” Ibid. For this to be true, respondent

contends, a Batson claim must prove the ultimate facts by

a preponderance of the evidence in the prima facie case;

otherwise, the argument goes, a prosecutor’s failure to

respond to a prima facie case would inexplicably entitle a

defendant to judgment as a matter of law on the basis of

nothing more than an inference that discrimination may

have occurred. Brief for Respondent 13–18.

Respondent’s argument is misguided. Batson, of course,

explicitly stated that the defendant ultimately carries the

“burden of persuasion” to “ ‘prove the existence of purpose-

ful discrimination.’ ” 476 U. S., at 93 (quoting Whitus v.

Georgia, 385 U. S. 545, 550 (1967)). This burden of per-

suasion “rests with, and never shifts from, the opponent of

the strike.” Purkett, 514 U. S., at 768. Thus, even if the

State produces only a frivolous or utterly nonsensical

justification for its strike, the case does not end—it merely

proceeds to step three. Ibid.6 The first two Batson steps

govern the production of evidence that allows the trial

court to determine the persuasiveness of the defendant’s

constitutional claim. “It is not until the third step that the

persuasiveness of the justification becomes relevant—the

——————

6 In the unlikely hypothetical in which the prosecutor declines to

respond to a trial judge’s inquiry regarding his justification for making

a strike, the evidence before the judge would consist not only of the

original facts from which the prima facie case was established, but also

the prosecutor’s refusal to justify his strike in light of the court’s

request. Such a refusal would provide additional support for the

inference of discrimination raised by a defendant’s prima facie case. Cf.

United States ex rel. Vajtauer v. Commissioner of Immigration, 273

U. S. 103, 111 (1927).

Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

step in which the trial court determines whether the

opponent of the strike has carried his burden of proving

purposeful discrimination.” Purkett, supra, at 768.7

Batson’s purposes further support our conclusion. The

constitutional interests Batson sought to vindicate are not

limited to the rights possessed by the defendant on trial,

see 476 U. S., at 87, nor to those citizens who desire to

participate “in the administration of the law, as jurors,”

Strauder v. West Virginia, 100 U. S. 303, 308 (1880). Un-

doubtedly, the overriding interest in eradicating discrimi-

nation from our civic institutions suffers whenever an

individual is excluded from making a significant contribu-

tion to governance on account of his race. Yet the “harm

from discriminatory jury selection extends beyond that

inflicted on the defendant and the excluded juror to touch

the entire community. Selection procedures that purpose-

fully exclude black persons from juries undermine public

confidence in the fairness of our system of justice.” Bat-

son, 476 U. S., at 87; see also Smith v. Texas, 311 U. S.

128, 130 (1940) (“For racial discrimination to result in the

exclusion from jury service of otherwise qualified groups

not only violates our Constitution and the laws enacted

——————

7 This explanation comports with our interpretation of the burden-

shifting framework in cases arising under Title VII of the Civil Rights

Act of 1964. See, e.g., Furnco Constr. Corp. v. Waters, 438 U. S. 567,

577 (1978) (noting that the McDonnell Douglas Corp. v. Green, 411

U. S. 792 (1973), framework “is merely a sensible, orderly way to

evaluate the evidence in light of common experience as it bears on the

critical question of discrimination”); see also St. Mary’s Honor Center v.

Hicks, 509 U. S. 502, 509–510, and n. 3 (1993) (holding that determina-

tions at steps one and two of the McDonnell Douglas framework “can

involve no credibility assessment” because “the burden-of-production

determination necessarily precedes the credibility-assessment stage,”

and that the burden-shifting framework triggered by a defendant’s

prima face case is essentially just “a means of ‘arranging the presenta-

tion of evidence’ ” (quoting Watson v. Fort Worth Bank & Trust, 487

U. S. 977, 986 (1988)).

10 JOHNSON v. CALIFORNIA

Opinion of the Court

under it but it is at war with our basic concepts of a de-

mocratic society and a representative government” (foot-

note omitted)).

The Batson framework is designed to produce actual

answers to suspicions and inferences that discrimination

may have infected the jury selection process. See 476

U. S., at 97–98, and n. 20. The inherent uncertainty

present in inquiries of discriminatory purpose counsels

against engaging in needless and imperfect speculation

when a direct answer can be obtained by asking a simple

question. See Paulino v. Castro, 371 F. 3d 1083, 1090

(CA9 2004) (“[I]t does not matter that the prosecutor

might have had good reasons . . . [w]hat matters is the real

reason they were stricken” (emphasis deleted)); Holloway

v. Horn, 355 F. 3d 707, 725 (CA3 2004) (speculation “does

not aid our inquiry into the reasons the prosecutor actu-

ally harbored” for a peremptory strike). The three-step

process thus simultaneously serves the public purposes

Batson is designed to vindicate and encourages “prompt

rulings on objections to peremptory challenges without

substantial disruption of the jury selection process.”

Hernandez v. New York, 500 U. S. 352, 358–359 (1991)

(opinion of KENNEDY, J.).

The disagreements among the state-court judges who

reviewed the record in this case illustrate the imprecision

of relying on judicial speculation to resolve plausible

claims of discrimination. In this case the inference of

discrimination was sufficient to invoke a comment by the

trial judge “that ‘we are very close,’ ” and on review, the

California Supreme acknowledged that “it certainly looks

suspicious that all three African-American prospective

jurors were removed from the jury.” 30 Cal. 4th, at 1307,

1326, 71 P. 3d, at 273, 286. Those inferences that dis-

crimination may have occurred were sufficient to establish

a prima facie case under Batson.

The facts of this case well illustrate that California’s

Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

“more likely than not” standard is at odds with the prima

facie inquiry mandated by Batson. The judgment of the

California Supreme Court is therefore reversed, and the

case is remanded for further proceedings not inconsistent

with this opinion.

It is so ordered

Cite as: 545 U. S. ____ (2005) 1

BREYER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–6964

_________________

JAY SHAWN JOHNSON, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 13, 2005]

JUSTICE BREYER, concurring.

I join the Court’s opinion while maintaining here the

views I set forth in my concurring opinion in Miller-El v.

Dretke, post, p.___.

Cite as: 545 U. S. ____ (2005) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–6964

_________________

JAY SHAWN JOHNSON, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 13, 2005]

JUSTICE THOMAS, dissenting.

The Court says that States “have flexibility in formulat-

ing appropriate procedures to comply with Batson [v.

Kentucky, 476 U. S. 79 (1986)],” ante, at 6, but it then tells

California how to comply with “the prima facie inquiry

mandated by Batson,” ante, at 11. In Batson itself, this

Court disclaimed any intent to instruct state courts on

how to implement its holding. 476 U. S., at 99 (“We de-

cline, however, to formulate particular procedures to be

followed upon a defendant’s timely objection to a prosecu-

tor’s challenges”); id., at 99–100, n. 24. According to Bat-

son, the Equal Protection Clause requires that prosecutors

select juries based on factors other than race—not that

litigants bear particular burdens of proof or persuasion.

Because Batson’s burden-shifting approach is “a prophy-

lactic framework” that polices racially discriminatory jury

selection rather than “an independent constitutional

command,” Pennsylvania v. Finley, 481 U. S. 551, 555

(1987), States have “wide discretion, subject to the mini-

mum requirements of the Fourteenth Amendment, to ex-

periment with solutions to difficult problems of policy,”

Smith v. Robbins, 528 U. S. 259, 273 (2000); Dickerson v.

United States, 530 U. S. 428, 438–439 (2000). California’s

procedure falls comfortably within its broad discretion to

craft its own rules of criminal procedure, and I therefore

respectfully dissent.