Amicus Curiae Brief — Johnson v. California

[Ss ipreme Court. US

/2) JAN 2 2 2004

No. 03-6539 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JAY SHAWN JOHNSON,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

On Writ Of Certiorari To The Supreme Court of California

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. , THE AMERICAN

CIVIL LIBERTIES UNION, THE AMERICAN CIVIL

LIBERTIES UNION OF NORTHERN CALIFORNIA,

THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW, AND THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

ELAINE R. JONES

Director-Counsel

THEODORE M. SHAW

*NORMAN J. CHACHKIN

MIRIAM GOHARA

CHRISTINA A. SWARNS

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16” Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

[Additional Counsel listed inside front cover]

[Listing of Counsel continued from cover]

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10025

(212) 549-2500

ALAN L. SCHLOSSER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA

1663 Mission Street

San Francisco, CA 94103

(415) 621-2493

DAVID M. PORTER

Co-CHAIR, NACDL AMICUS

COMMITTEE

801 I Street, 3rd Floor

Sacramento, CA 95814

(916) 498-5700

BARBARA R. ARNWINE

THOMAS J. HENDERSON

MICHAEL L. FOREMAN

AUDREY WIGGINS

SARAH CRAWFORD

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER

LAW

1401 New York Ave., N.W.

Suite 400

Washington, D.C. 20005:

(202) 662-8600

BARRY SULLIVAN

MARGARET J. SIMPSON

ADAM MILLER

DUANE POZZA

JENNER & BLOCK LLP

One IBM Plaza, Suite 4300

Chicago, Illinois 60611

(312) 222-9350

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

ee rrr ili

EE ers eee eee ee l

de ey ae iee ese ban ee l

ARGUMENT —

The California Supreme Court’s Decision and the

Procedure that Court has Established for Trial

Court Consideration of Objections to Peremptory

Challenges as Discriminatory Departs from this

Court’s Ruling in Batson and is Inadequate to

Safeguard the Constitutional Rights Batson was

po .

A. The Batson Decision

1. Strauder and Swain: The Onerous Burden

es re ee ee ee

Be TD bc oki Wesdwceséccnccs

3. TheFederal Courts Consistently Interpret

Batson as Requiring, at Stage 1, no more

than a Showing of Facts from which a

Court might Infer Discriminatory Use of

Peremptory Challenges by the Prosecutor

in order to Trigger the Prosecutor’s

Obligation to Give Reasons for Strikes... ...

il

TABLE OF CONTENTS (continued)

Page

B. The California Supreme Court Ruling

Departs from Batson and Rests on Flawed

Interpretations of this

Court’s

GUTITOGOMES 2... ccc cc crc cccccccccens

1.

The California Court’s Tortured Reading

of Wheeler and Batson Produces a

Standard Closer to Swain’s than Batson’s

Experience under the California Rule

Demonstrates the Gulf between the |

California Supreme Court Formulation

and the Requirements for Showing a

Prima Facie Case under Batson ..........

The California Supreme Court

Misunderstood this Court’s Reference to

Title VII-in Batson and Relied Upon a

Wholly Mistaken Interpretation of Title

VII’s Requirements for Making Out a

POE os cov ccs udeeeessccesecs

C. The Approach of the California Supreme Court

is Inadequate to Fulfill the Guarantees of the

Fourteenth Amendment ...................

3.

Petitioner has Established a Prima Facie

Case of Discrimination .................

ill

TABLE OF CONTENTS (continued)

Page

2. The California Supreme Court’s Prima

Facie Case Requirement Shields, Rather

than Reveals and Corrects,

Discriminatory Use of Peremptory

Challenges by Prosecutors .............. 24

Pe ee ee ore ere eee 30

TABLE OF AUTHORITIES

Cases:

Avery v. Georgia,

er ED 6u kdb Oiedd dae soneesanedess 6

Ballard v. United States,

I rns er 30

Balzac v. Porto Rico,

ED i Ck keh eeuaeeddecnsseneasas 5n

Barnes v. Anderson,

y PR ge ee re 9n

Batson v. Kentucky,

476 U.S. 79 (1986) ........... PP Serre passim

Birdine v. Hubbard,

No. C-99-037-MJJ, 2000 WL 1229112

Perr rere eee 15n

iv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Brown v. Kinney Shoe Corp.,

yoy pe Te | ee 10n

Bryant v. State,

565 So. 2d 1298 (Fla. 1990) ...............0... 16n

Bui v. Haley,

Rae Tl a | ee 27n

Byrd v. Roadway Express,

og bh gk |. ee rrr 19n

Cooperwood v. Cambra,

245 F.3d 1042 (9" Cir. 2001) ..............005. 15n

Furnco Constr. Co. v. Waters,

438 U.S. 567 (1978) ....... 2. eee eee eee ee eee 21

Halsell v. Kimberly Clark Corp.,

683 F.2d 285 (8 Cir. 1982) .............0 000 ee 19n

Hardcastle v. Horn, |

No. 98-CV-3028, 2001 WL 722781

(E.D. Pa. June 27, RT bi0aney nn dua Cae eweeese 27n

Harris v. Kuhlman,

ot a | le rr 22n

Vv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Heno v. Sprint/United Mgmt. Co., ;

208 F.3d 847 (10 Cir. 2000) .............2005- lin

\

Hernandez v. New York,

Fe a SU CUOED occ cccccccenscecs 23, 25,28, 29

Hernandez v. Texas,

ee EE 0.6 wh.cedbecduncabensedeandas 22

Horton v. Zant,

941 F.2d 1449 (11™ Cir. 1991) ..............005. 4n

Johnson v. Love,

ok ge 10n

Jones v. Davis,

03S F.26 GBS.(11" Cir. 1998) on bc ccccccccscces 4n

Jones v. Ryan,

987 F.2d 960 (3° Cir. 1993) ............... lln, 24n

King v. Moore,

196 F.3d 1327 (11 Cir. 1999) ............ 8n, 15, 16

Mahaffey v. Page,

162 F.3d 481 (7" Cir. 1998) ....... 10n, 22n, 24n, 26n

vi

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

McCain v. Gramley,

96 F.3d 288 (7" Cir. 1996), cert.

SE, Se eas CONT CHO 66 oo cc cndccrwccces 22n

McCray v. New York,

ee ED oes bunesawcdennsaeceneeens 30

Miller v. Lockhart,

fk lf ae 8 nr 4n

Miller-El v. Cockrell,

ee ys Is 6056s ueewexacecaeesans 28, 29

Neil v. State,

ee es re A SD a in iodskdedivenns suds 15

Overton v. Newton,

aR be ge eee On

Overton v. Newton,

146 F.Supp. 2d 267 (E.D.N.Y. 2001),

rev'd on other grounds, 295 F.3d 270

RRR EST oe Me ee Re ae 14

People v. Arias,

Pe ED ok cbdasedawieddeanecue es 16n

People v. Bernard,

27 Cal. App. 4th 458 (Ct. App. 1994) ..... 14, 16, 17n

Vii

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

People v. Bittaker,

Py ee SPE 60 ck bh. ce0 cu scduddwudeus 16n

People v. Box,

ee ee SED hn 6 6 hess cecdenseeseess 17

People v. Buckley,

53 Cal. App. 4th 658 (Ct. App. 1997) ............ 13

People v. Crittenden,

Pe ED bons csdcrentoancecnas 16n, 18

People v. Davenport,

Se Sy EE NUE cen cescccseucssoseeves 16n

People v. Fuentes,

SP PE bandh obs dndaneseseeences 16n

People v. Fuller,

136 Cal. App. 3d 403 (Ct. App. 1982) ........ 16, 17n

People v. Garceau,

PED 6p h.00 056460 eccnesnteceue 16n

People v. Howard,

EEE. pe-d-ccan occcbwscsunenanns 18

People v. Johnson,

30 Cal. 4th 1302 (2003) ............ 12, 13, 23n, 26n

Vili

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

People v. Mayfield,

SOG PERSE ce ckcccctrvvcccccesevess 16n

People v. Montiel,

ie eg ererrrrerrrrrr Terr 16n

People v. Sanders,

be BF ot PP rrrrrrr errr eee 17, 18

People v. Turner,

i: Bt | PPPrerrrTrTrrTre TT rT ieee 16n

People v. Welch,

BP FEE GE Svcvncenecneveenssoceses 16n

People v. Wheeler,

rode Bo}. ere rere ere 12, 16, 17

People v. Williams,

SG OD 6 vc kscebccvecnsoceceiei 16n

Powers v. Ohio, :

GP es EINER ood ccesccdcctcosseseses Sn, 6n

Purkett v. Elem,

PP PPE bred scecdedsceseveces 7, 26, 27

Ramseur v. Beyer,

FED Fe 08s COG Ue. TRUS cc cccsccccesccsceve 5n

ix

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Riley v. Taylor,

277 F.3d 261 (3d Cir. 1999) ............. eee 27n

St. Mary’s Honor Ctr. v. Hicks,

ee 2, 19, 20n

State v. Slappy,

Se PE OED sci censcccscvsisens 15n

Strauder v. West Virginia,

EE acc cceesesoncdnapeeevees 3, 30

Simmons v. Luebbers,

299 F.3d 929 (8" Cir. 2002), cert. denied

sub nom. Roper v. Simmons, 123 S. Ct.

ES cnied de nekedsescaseateasnedear lln

Swain v. Alabama,

ree 1, 3, 5, 12, 28

Tankleff v. Senkowski,

Bee Cae ee EE GE BOSE ve ccccacssvenddsces lln

Taylor v. Louisiana,

Ss SE kv oducendansisedeaskenuene 30

Texas Dept. of Cmty. Affairs v. Burdine,

as SED k'g'c.e vi.ceweeccueessos 19, 20, 21

xX

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Thiel v. S. Pac. Co.,

Po re er eee 30

Turner v. Marshall,

121 F.3d.1248 (9™ Cir. 1997) .......... cece ee 27n

United States v. Allen-Brown,

A hy Te S| | 9n

United States v. Bergodere,

ee Gk BE vv crenceesepiccenedes 9n

United States v. Cooper,

PPP. ISSO” Gir, BUDD on. oc cccvccsccccees 10n

United States v. Diaz,

SPO OSE Gee UOUED occ vcccccvccevecusess 9n

United States v. Escobar-de Jesus,

Se ee Ge GE OED 6 dnc cic ccudsesceeeve 9n

United States v. Grimmond,

137 F.3d 823 (4" Cir. 1998) ..............0000- 10n

United States v. Joe,

PARE Fe Se ee lin

United States v. Johnson,

873 F.2d 1137 (8" Cir. 1989) .............. 008 12n

xi

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

United States v. Mahan,

190 F.3d 416 (6" Cir. 1999) ............... lin, 27n

United States v. Sowa,

34 F.3d 447 (7" Cir. 1994), cert.

Gemed, $13 U.S. 1117 (1995)... 0. ccc cccees 12n, 22n

United States v. Williams,

rer ga) Tel 2 | nr 12n

United States v. Williams,

y a OT ae S| ree 27n

United States v. Wolk,

SOF P.O TOF BS Cae. BOD noc ciccccvcsecccess lin

United States ex rel. Pruitt v. Page,

No. 97C-2115, 1999 WL 652035

UA Gs A A SE cv cBnbccceseddceceeene 27n

United States Postal Serv. v. Aikens,

GP ee FEO ED be ocdbevsccdcens geseusueees 21

Wade v. Terhune,

202 F.3d 1190 (9" Cir. 2000) ....... ore + | % e,

Washington v. Davis,

PUTED wcucdducudecceahveueceeses 28

Xli

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Williams v. Chrans,

945 F.2d 926 (7" Cir. 1991),

cert. denied, 505 U.S. 1208 (1992) .............. 24n

Williams v. Woodford,

306 F.3d 665 (9" Cir. 2002) .............000 eee 23n

Statutes:

GED vat kdnws scenes ivaeseaoues 13

Other Authorities:

Jeffrey Abrahamson,

We The Jury: The Jury System and

the Ideal of Democracy (1994) .................. 4n

Black’s Law Dictionary (6" ed. 1990) ................ 13

1 Barbara Lindemann & Paul Grossman,

Employment Discrimination Law

SE SR ends URES edeks deed okananeee ane 19n

Wigmore on Evidence (3d ed. 1940) ........... 18, 20, 21

——

l

Interest of Amici

Amici are non-profit organizations that seek to protect and

further constitutional and statutory rights, including in

particular the right to be free from racial discrimination in any

contacts with the criminal justice system. More detailed

descriptions of the amici and their interest in this matter are

contained infra at Appendix A.

Summary of Argumer*

This Court’s decision in Batson v. Kentucky, 476 U.S. 79

(1986) was intended to create a workable mechanism to prevent

racial discrimination through peremptory strikes from infecting

criminal trials. Batson replaced the “crippling burden of proof”

necessary to show discrimination in the use of peremptory

challenges that had been erected by the ruling in Swain v.

Alabama, 380 U.S. 202 (1965), with the now-familiar three-

~part procedure: First, the defendant must establish a prima

facie case by showing facts and circumstances that “raise an

inference” of discrimination; second, once the prima facie case

has been established, the prosecutor must offer a facially

nondiscriminatory reason for the challenged strike; and third,

after the prosecutor articulates such a reason, the defendant may

offer additional evidence, either to demonstrate that the

proffered justification is pretextual or to meet in any other way

his burden of persuading the trier of fact that the strike was

motivated by discriminatory purpose. The tral court

determines whether discrimination occurred by considering all

relevant evidence offered by any party at any stage.

This matter involves what showing must be made to

establish a prima facie case — a subject that the Court has not

* Letters of consent to the filing of this brief have been lodged

with the Clerk of this Court. No counsel for any party authored thi.

brief in whole or in part, and no person or entity, other than amici

made any monetary contribution to its preparation.

2

revisited since Batson. Lower federal courts consistently

interpret the prima facie burden to require that a defendant

prove only facts that support an inference of discrimination.

Historically and in the decision below, however, the

California Supreme Court has required a substantially greater

evidentiary showing at the prima facie case stage. Both before

and after Batson, that Court has held that proof sufficient for an

inference of discrimination “is not conclusive,” and no prima

facie case exists unless the defendant proves more, i.e., a

“strong likelihood” of discrimination.

The Supreme Court of California sought to justify its

prima facie case standard by misreading this Court’s Title VII

cases. But Title VII, like Batson, imposes only a “minimal”

burden on plaintiffs at the prima facie stage. St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

The higher standard for the prima facie case that was

applied by the courts below is contrary to Batson and

inadequate to protect defendants’ Fourteenth Amendment

rights, as the facts of this case demonstrate. Petitioner clearly

presented sufficient proof to support an inference that the

prosecution’s strikes were discriminatory: Petitioner is an

African American; the prosecutor used peremptory challenges

to remove ali African Americans from the jury; a

disproportionate number of the prosecutor’s peremptory

challenges were lodged against African-American

venirepersons; the prosecution asked no questions of the

African Americans on the venire before seeking to strike them;

and the circumstances of the offense had racial overtones (the

victim was the child of Petitioner’s white girlfriend).

This Court should disapprove the standard enunciated by

the Court below because, as detailed herein, it impedes the

discovery and eradication of racial discrimination that was the

purpose of Batson.

wc ran

3

ARGUMENT

The California Supreme Court’s Decision and the

Procedure that Court has Established for Trial

Court Consideration of Objections to Peremptory

Challenges as Discriminatory Departs from this

Court’s Ruling in Batson and is Inadequate to

Safeguard the Constitutional Rights Batson was

Intended to Protect

A. The Batson’ Decision

1. Strauder and Swain: The Onerous Burden of Proof

Although this Court announced nearly 125 years ago that

excluding individuals of a criminal defendant’s race from

serving on his jury violates his right to equal protection under

the Fourteenth Amendment, Strauder v. West Virginia, 100

U.S. 303 (1879), the exclusion of African-American

prospective jurors remained a notorious feature of criminal

trials throughout most of the 20" Century. This was in part

because Strauder’s general rule lacked any specific mechanism

for enforcement at trial until 1965, when the Court decided

Swain v. Alabama, 380 U.S. 202 (1965).

This Court’s decision in Swain offered the first guidance

to lower courts seeking to determine whether the use of

peremptory challenges for the purposeful exclusion of African

Americans violated the Fourteenth Amendment. But Swain’s

requirement of systemic proof created a virtually insuperable

barrier for defendants alleging discrimination in the

prosecutor’s use of peremptory challenges and failed to

ameliorate the very problem it was meant to solve. Swain

demanded that the defendant show that the prosecution,

“whatever the circumstances, whatever the crime and whoever

the defendant or victim may be, is responsible for the removal

of Negroes ... with the result that no Negroes ever serve on

' Batson v. Kentucky, 476 U.S. 79 (1986).

4

petit juries... .” Swain, 380 U.S. at 223. As the Court later put

it, the “crippling burden of proof” established in

Swain represented a stumbling block in this Court’s “unceasing

efforts to eradicate racial discrimination.””

Twenty years after Swain was decided, racial

discrimination in jury selection remained a fixture in many

American courtrooms.’ In fact, in the two decades immediately

following Swain, not a single federal court made a finding that

any peremptory challenges had been exercised in a

discriminatory manner.’ The reality, of course, was that

African Americans were virtually openly excluded from

participation in a system of justice purporting to promise

equality and fairness. The gulf between constitutional promise

and everyday practice bred cynicism and distrust in the criminal

justice system.

Against this backdrop, the Court abandoned Swain in

Batson, largely because it concluded that the formidable Swain

2 Batson, 476 U.S. at 92.

3 Td. at 85.

* This was documented in several successful Swain challenges

in the late 1980’s and the 1990’s. See, e.g., Horton v. Zant, 941 F.2d

1449, 1455-60 (11" Cir. 1991) (Swain test satisfied where evidence

showed prosecution struck 90% of African-American jurors in

capital cases over a seven-year period, in addition to other evidence

showing prosecutor took steps to lessen minority participation in

jury system); Miller v. Lockhart, 65 F.3d 676, 680-82 (8" Cir. 1995)

(Swain test satisfied where prosecutor used ten: strikes against

African-American jurors in instant case and other evidence showed

African Americans excluded peremptorily in large numbers in five-

year period preceding Miller’s trial); Jones v. Davis, 835 F.2d 835

(11" Cir. 1988) (testimony of six practicing attorneys showed black

jurors routinely struck by prosecutors in jurisdiction; Swain standard

satisfied).

5 See JEFFREY ABRAHAMSON, WE THEJURY: THE JURY SYSTEM

AND THE IDEAL OF DEMOCRACY 134 (1994).

5

standard was insulating discriminatory conduct from judicial

remedy.° The Batson Court recognized that the exclusion of

even a single African American from a jury because of race

violated the Fourteenth Amendment. It established a

framework intended to lower Swain’s virtually insurmountable

_ proof requirements to make it possible to demonstrate that

discrimination had occurred in a single trial, or with respect to

a single peremptory strike.’ This reform of the Swain standard

was intended by the Court also to restore public faith in the

criminal justice system among criminal defendants, prospective

jurors, and the public generally.*

° Indeed, Swain’s author, Justice White, wrote in his concurring

opinion in Batson: “It appears, however, that the practice of

peremptorily eliminating blacks from petit juries in cases with black

defendants remains widespread, so much so that I agree that an

opportunity to inquire should be afforded when this occurs.” 476

USS. at 101.

’ “The standard we adopt under the Federal Constitution is

designed to ensure that a State does not use peremptory challenges

to strike any black juror because of his race.” Batson, 476 U.S. at 99

n.22 (emphasis added).

* «The jury system postulates a conscious duty of participation

in the machinery of justice. . .. One of its greatest benefits is in the

security it gives the people that they, as jurors actual or possible,

being part of the judicial system of the country can prevent its

arbitrary use or abuse.’”” Powers v. Ohio, 499 U.S. 400, 406 (1991)

(quoting Balzac v. Porto Rico, 258 U.S. 298, 310 (1922)).

“Discrimination in the jury selection process undermines the justice

system, and, thereby, the whole of our society.” Ramseur v. Beyer,

983 F.2d 1215, 1225 (3° Cir. 1992); see Batson, 476 U.S. at 86 (“The

petit jury has occupied a central position in-our system of justice by

safeguarding a person accused of crime against the arbitrary exercise

of power by prosecutor or judge . . . Those on the venire must be

‘indifferently chosen’ to secure the defendant’s right under the

Fourteenth Amendment . . . .”) (citation omitted); id. at 87

(prospective juror stricken because of race suffers unconstitutional

discrimination).

2. The Batson Holding

In Batson, this Court set forth the now-familiar three-part

procedure for establishing discriminatory use of peremptory

challenges that has been applied in thousands of criminal cases:

At the first stage, the defendant must establish a prima

facie case by showing that: (a) he is a member of a cognizable

racial group, (b) the prosecution has exercised peremptory

challenges to strike veniremembers of the defendant’s race

from the jury, and (c) “these facts and any other relevant

circumstances raise an inference that the prosecutor used

[peremptory strikes] to exclude the veniremen from the petit

jury on account of their race.” Batson, 476 U.S. at 96

(emphasis added).?

As the Batson Court recognized, one relevant circumstance

is that peremptory challenges “permit[] ‘those to discriminate

who are of a mind to discriminate.’” Batson, 476 U.S at 96

(quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)).'° This

Court also offered a non-exhaustive list of other potentially

pertinent circumstances, including a pattern of strikes against

jurors of a cognizable group, and questions and statements

during voir dire by the proponent of the peremptory challenge.

Id. at 97.

At the second stage, the burden shifts to the prosecution to

offer a race-neutral reason for its contested strikes. Jd. The

* Cf. Powers v. Ohio, 499 U.S. at 402, 415 (extending Batson to

permit defendant to challenge discriminatory use of peremptory

strikes against venire members not of the defendant’s own race).

'° The Court in Batson relied upon long-settled principles

developed in cases involving constitutional challenges to the

composition of jury venires in fashioning the prima facie case

standard that it enunciated for challenges to the use of peremptory

strikes: the “combination of factors in the empaneling of the petit

jury, as in the selection of the venire, raises the necessary inference

of purposeful discrimination.” 476 U.S. at 96 (emphasis added).

ao. eaeannga lpia

7

proponent of the strike may not rely on the “assumption — or

[an] intuitive judgment — that the [excluded venire members]

would be partial to the defendant because of their shared race.”

Id. Neither may the proponent rebut a prima facie case by

simply denying a discriminatory motive or “affirming [its] good

faith in making individual selections.” Jd. at 98 (citations

omitted). Rather, the strike’s proponent must articulate a race-

neutral reason related to the particular case being tried. Jd.

However, under Batson, the proponent’s explanation “need

not rise to the level justifying exercise of a challenge for

cause.” Jd. at 97. In Purkett v. Elem, 514 U.S. 765 (1995), the

Court further explained that the facially valid reason for

striking a prospective juror offered by the strike’s proponent at

the second stage of the Batson procedure need not be

“persuasive, or even plausible” because a “‘legitimate reason’

is not a reason that makes sense, but a reason that does not deny

equal protection.” Jd. at 768-69. See also Hernandez v. New

York, 500 U.S. 352 (1991).

Purkett significantly lowered the bar for parties seeking to

rebut a prima facie case: any reason not facially race-based is

acceptable at this stage. This lowering of the bar practically

insures that courts will reach the third stage of Batson and thus

helps explain why most rulings on the existence of

discrimination in peremptory strikes are made at the third stage.

At the third stage, Batson requires courts to decide whether

the defendant has indeed established that the prosecution

purposely used its peremptory strikes in a racially

discriminatory manner. Batson, 476 U.S. at 98. At this stage,

the court is to consider all the evidence before it, including the

evidence offered to make out the prima facie case and the

proffered race-neutral reason for the strikes, as well as any

additional relevant circumstances, and determine whether the

prosecution’s reasons are valid or whether they are merely

pretext for racial discrimination. See Purkett, 514 U.S. at 768.

8

3. The Federal Courts Consistently Interpret Batson as

Requiring, at Stage 1, no more than a Showing of

Facts from which a Court might Infer

Discriminatory Use of Peremptory Challenges by

the Prosecutor in order to Trigger the Prosecutor’s

Obligation to Give Reasons for Strikes

The State of California supported a grant of review in this

case because the Ninth Circuit, which hears appeals from

California federal District Court habeas corpus decisions, has

rejected the California Supreme Court’s requirements for

establishing a prima facie case at Stage 1 of the Batson

procedure. The Ninth Circuit holds that the state court’s

formulation does not afford criminal defendants the protection

to which they are entitled under the Fourteenth Amendment.

See infra pp. 14-15 & n.23 (discussing Wade v. Terhune, 202

F.3d 1190 (9" Cir. 2000), and similar cases). The Ninth Circuit

does not stand alone in its view of the prima facie case burden.

Rather, the California Supreme Court’s interpretation of the

prima facie case under Batson is inconsistent with the

understanding of each of the federal circuits to have addressed

the issue."’

While the courts of appeals’ precise implementation of the

prima facie case has necessarily depended on the facts and

circumstances of individual cases, none of the federal circuits

has described the initial burden in a Batson challenge to be as

onerous as the formulation of the California Supreme Court.

The Eleventh Circuit, like the Ninth Circuit, has expressly

rejected the California view, holding that the “strong

likelihood” formulation imposes a burden on the objecting

party that is impermissibly “higher than Batson’s.”"? The

'! The D.C. Circuit has not had occasion to address the quantum

of proof necessary to establish a prima facie case under Batson.

'? King v. Moore, 196 F.3d 1327, 1334 (11th Cir. 1999)

(rejecting a pre-Batson state standard for a prima facie showing that

9

Eleventh Circuit has held that a trial court should proceed to the

second stage of the three-part Batson procedure whenever it has

a “reasonable suspicion” of discrimination.”

The other courts of appeals have adopted similar

formulations of the modest requirements for a prima facie case

under Batson. Thus, the First Circuit has stated that the prima

facie burden is “not onerous,” and that the objector need only

show “circumstances sufficient . . . to raise an inference” of

discrimination.'* The Second Circuit has held that the

objecting party has the “minimal burden” to show that the

“circumstances surrounding the peremptory challenges raise an

inference of discrimination.”'* The Third Circuit has said that

the prima facie case requires “circumstantial evidence tending

to support such an inference [of discrimination]” and reasoned

that the “evidence . . . [need] not mandate a conclusion that

discrimination occurred, but . . . [need only provide] sufficient

reason to believe that discrimination may have been at work

required a “strong likelihood” of discrimination as “higher than

Batson’s” but concluding that the defendant had failed to make out

a prima facie showing under the proper Batson standard) (citing Neil

v. State, 457 So. 2d 481, 486-87 (Fla. 1984)).

'? United States v. Allen-Brown, 243 F.3d 1293, 1298 (11th Cir.

2001) (“The ‘prima facie’ requirement of Batson is not simply a

limit on the court's intrusion into counsel's thought processes; it also

compels the trial court to act if it has a reasonable suspicion that

Constitutional rights are being violated in its presence.”).

'* United States v. Escobar-de Jesus, 187 F.3d 148, 164-65 (1*

Cir. 1999) (quoting United States v. Bergodere, 40 F.3d 512, 516

(1st Cir. 1994)).

'S Overton v. Newton, 295 F.3d 270, 277, 279 n.10 (2° Cir.

2002); see also Barnes v. Anderson, 202 F.3d 150, 155-56 (2° Cir.

1999) (stating that the first step of a Batson inquiry “merely requires

the movant to ‘show that the circumstances raise an inference of

racial discrimination’” (quoting United States v. Diaz, 176 F.3d 52,

76 (2° Cir. 1999) (emphasis added)).

10

here to require the state to come forward with an explanation of

its actions.”"®

The Fourth Circuit, while not directly deciding the

question because the Batson claim was rejected by the trial

court at the third stage of the process, described the defendant’s

burden at the first stage as being “to raise at least an inference

that the Government used its strikes to exclude potential jurors

based on their race.”'” Similarly, the Fifth Circuit has held that

“‘a party is required to show that the circumstances surrounding

the peremptory challenges raise an inference of purposeful

discrimination.”"*

The Seventh Circuit has explained that “To establish a

prima facie case for purposeful discrimination under Batson,

(the defendant] must . . . point to facts and circumstances

raising an inference that the potential jurors were excluded

because of race.”'? The Eighth Circuit most recently phrased

the standard as requiring a “showing [of] circumstances that

‘© Johnson v. Love, 40 F.3d 658, 665-66 (3° Cir. 1994)

(alternative holding).

'? United States v. Grimmond, 137 F.3d 823, 834 (4" Cir. 1998).

'8 Brown v. Kinney Sk > Corp., 237 F.3d 556, 561 (5® Cir.

2001). In that case, the ...ch Circuit refused to disturb the trial

court’s rejection of the Batson objection at the prima facie stage

where the objector presented no more than the “scant facts” that four

white jurors had been stricken peremptorily, even though the Court

of Appeals identified other circumstances that could have been

presented to the trial court that “might have made a more convincing

showing,” id. at 562-63.

'° United States v. Cooper, 19 F.3d 1154, 1159 (7® Cir. 1994).

See also Mahaffey v. Page, 162 F.3d 481, 484 (7" Cir. 1998)

(“Batson requires us to look to all the relevant facts and

circumstances in assessing whether an inference of discrimination

should arise.”).

che mes sme >

1]

give rise to a reasonable inference of racial discrimination.””°

The Sixth and Tenth Circuits have applied the Batson

“inference” standard in a manner obviously contrary to the

approach of the court below by finding a prima facie case to be

established in circumstances where the only member of a

particular group in the venire was struck.”'

?° United States v. Wolk, 337 F.3d 997, 1007 (8" Cir. 2003)

(quoting Simmons v. Luebbers, 299 F.3d 929, 941 (8 Cir. 2002) (no

error in trial court ruling that evidence limited to single fact that

three blacks were struck from jury did not amount to prima facie

showing), cert. denied sub nom. Roper v. Simmons, 123 S. Ct. 1582

(2003).

?! United States v. Mahan, 190 F.3d 416, 424-25 (6" Cir. 1999)

(holding that the government had “more than sufficient[ly]”

established a prima facie case where a white defendant charged with

a hate crime had struck the only potential black juror, explaining that

“[(t]here is simply no requirement that the government establish the

existence of a pattern of discrimination”); Heno v. Sprint/United

Memt. Co., 208 F.3d 847, 854 (10" Cir. 2000) (“Ms. Heno met her

prima facie case by showing that Sprint used a peremptory to strike

the only black juror on the panel.”); United States v. Joe, 8 F.3d

1488, 1499 (10" Cir. 1993) (“We conclude that the defendant

established a prima facie case of purposeful discrimination because

Joe is a member of a cognizable racial group, Native Americans, and

the prosecutor’s use of one peremptory challenge to strike Dawn

Ferguson, the only Native American juror on the venire, raised an

inference that Dawn Ferguson was excluded on account of her

race.”).

The Second, Third, Seventh and Eighth Circuits have found

prima facie cases to be established where all or nearly all members

of a particular group in the venire were struck. See Tankleff v.

Senkowski, 135 F.3d 235, 249 (2° Cir. 1998) (“the fact that the

government tried to strike the only three blacks who were on the

panel constitutes a sufficiently dramatic pattern of actions to make

out a prima facie case”); Jones v. Ryan, 987 F.2d 960, 971 (3¢ Cir.

1993) (prima facie case established where prosecutor exercised three

of four peremptory challenges to strike black jurors, allowing only

12

B. The California Supreme Court Ruling Departs from

Batson and Rests on Flawed Interpretations of this

Court’s Jurisprudence

1. The California Court’s Tortured Reading of

Wheeler and Batson Produces a Standard Closer to

Swain’s than Batson’s

The California Supreme Court’s application of Batson and

People v. Wheeler, 22 Cal. 3d 258 (1979), in the ruling below

more closely approaches the discarded Swain burden of proof

than it does the Batson standard for establishing a prima facie

case. The decision below rests on the premise that

“reasonable inference” and “strong likelihood” (both phrases

were used in Wheeler), are synonymous with each other and

with the “inference” standard articulated in Batson. See People

v. Wheeler, 22 Cal. 3d at 280-81; People v. Johnson, 30 Cal.

4th 1302, 1312, 1313, 1318 (2003) (“Wheeler’s standard for

establishing a prima facie case . . . is, and always has been,

compatible with Batson. It merely means that to state a prima

facie case, the objector must show that it is more likely than not

the other party’s peremptory challenges [were racially

one black on otherwise all-white jury); United States v. Williams,

272 F.3d 845, 862 (7" Cir. 2001) (“Because the government

excluded all four African-American members of the jury pool, the

district court did not err in requiring the government to state a race-

neutral explanation for its exercise of peremptories for these

jurors.”); United States v. Sowa, 34 F.3d 447, 452 (7" Cir. 1994)

(“The government easily made its prima facie case that the

peremptory challenges were motivated by race; each and every black

venireperson was challenged.”), cert. denied, 513 U.S. 1117 (1995);

United States v. Johnson, 873 F.2d 1137, 1140 (8" Cir. 1989) (prima

facie case established where, although two African-American venire

members were seated on the jury, “the Government struck black

veniremen at a disproportionate rate and struck blacks who did not

respond during voir dire but did not strike whites who similarly did

not respond.”).

13

discriminatory. ]”) (emphasis added). The California Supreme

Court’s attempt to equate Batson’s “inference of

discrimination” with a showing that “it is more likely than not”

that discrimination occurred simply cannot be squared with the

well-established meaning of the words that it is using.

“c“

In California evidentiary law, an “inference” is “a

deduction of a fact that may logically and reasonably be drawn

from another fact or group of facts found or otherwise

established in the action.” (CAL. EVID. CODE § 600; see also

BLACK’S LAW DICTIONARY 778 (6" ed. 1990) (defining

inference as “[a] logical and reasonable conclusion of a fact not

presented by direct evidence but which, by process of logic and

reason, a trier of fact may conclude exists from the established

facts”)). There is no suggestion in the statute or the definition

that any specific quantum of evidence is required to trigger the

logical deduction. “Strong likelihood,” on the other hand,

though not defined by statute, is a standard that California

appellate courts have recognized is not easy to meet. See, e.g.,

People v. Buckley, 53 Cal. App. 4th 658, 663 n.17 (Ct. App.

1997) (noting that “the ‘strong likelihood’ phrase has been

repeated often by the [California] Supreme Court” and that “the

phrase conveys the clear message that the test is not an easy

one (a message we take to heart in the present case)” [in which

the majority affirmed the trial court’s refusal to find that the

defendant had made out a prima facie case of discriminatory

peremptory challenges]) (emphasis added).

Yet, in the present case, the California Supreme Court

equates “inference” with “strong likelihood” in a clearly

incorrect reading of Batson: “Batson 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.”

Johnson, 30 Cal. 4th at 1315, 1316. This interpretation simply

flies in the face of Batson. No federal court interpreting Batson

14

has ever asserted that the opponent of the peremptory strike

must do anything more than establish an “inference of

discrimination” at the prima facie stage.” As one federal court

explained, Batson’s requirement that the opponent show an

“inference of discrimination” means just that and nothing more:

It is sufficient to recognize that the clearly established

governing legal rule pertaining to the prima facie burden

announced in Batson is simply to be taken at face value: an

inference of racial discrimination satisfies a prima facie

case. Although inferences of racial discrimination defy

standardization or quantification, as implicitly recognized

by Batson, they are nonetheless self-evident and the

subject of good common sense. See Furnco Constr. Corp.

v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d

957 (1978) (commenting in the context of a Title VI

action that inferences of racial discrimination are to be

drawn in “light of common experience”); see also 4

Leonard B. Sand, et al., Modern Federal Jury Instructions

q{ 75.01 (1998) (jurors are charged that “[iJn drawing

inferences, [they] should exercise [their] common sense”

and “are permitted to draw . . . such reasonable inferences

as would be justified in light of their experience”).

Overton v. Newton, 146 F. Supp. 2d 267, 278 (E.D.N.Y. 2001),

rev'd on other grounds, 295 F.3d 270 (2° Cir. 2002).

Two Courts of Appeals — the Ninth and Eleventh Circuits

— have expressly rejected the “strong likelihood” standard on

the ground that it imposes a higher burden than Batson’s

“inference” requirement. In Wade-v. Terhune, the Ninth

Circuit held that the “strong likelihood” standard, as interpreted

by California courts following People v. Bernard, 27 Cal. App.

4th 458 (Ct. App. 1994), “does not satisfy the constitutional

2 See supra § A.3. Moreover, this interpretation of the

“inference” standard goes against well-settled Title VII law, as

discussed infra, in § B.3.

15

requirement laid down in Batson” and applies “a lower

standard of scrutiny to peremptory strikes than the federal

Constitution permits.” 202 F. 3d at 1192.” In King v. Moore,

196 F.3d 1327, 1334 (11" Cir. 1999), the Eleventh Circuit

rejected the standard applied by the trial court, which had found

no prima facie showing of discrimination in the exercise of

peremptory challenges by applying the test in Neil v. State, 457

So. 2d 481 (Fla. 1984), a decision that, like Wheeler, required

a showing of a “strong likelihood” of discrimination at the

prima facie stage.“ (The Eleventh Circuit ultimately ruled in

3 Accord, e.g., Cooperwood v. Cambra, 245 F.3d 1042, 1046-

47 (9 Cir. 2001); Birdine v. Hubbard, No. C-99-037-MJJ, 2000 WL

1229112 at *4 n.2 (N.D. Cal. Aug. 21, 2000) (“[T]he ‘strong

likelihood’ standard is not the correct standard for discriminatory

jury challenges; rather, defendants need only raise an inference of

discrimination”) (following Wade).

?4 In King, the Eleventh Circuit reasoned that “Neil’s standard

for a prima facie case . . . is higher than Batson’s: Neil requires the

party opposing a strike to point to facts establishing a ‘strong

likelihood’ that the strike had racial motives[, while] Batson, on the

other hand, requires the party merely to raise an inference of

improper motive.” Jd. at 1334. On the basis of this reasoning, the

Eleventh Circuit re-examined the state court determination under

_ “the more relaxed standard of Batson.” Ibid.

After Batson was decided, the Florida Supreme Court itself

revisited the issue. Although the Court did not expressly overrule

Neil, in State v. Slappy, 522 So. 2d 18, 20-21 (Fla. 1988), the

Florida Supreme Court substantially relaxed its definition of the

prima facie standard to bring it in line with Batson:

Recognizing, as did Batson, that peremptory challenges permit

“those to discriminate who are of a mind to discriminate,”

[Batson,] 476 U.S. at 96, 106 S.Ct. at 1723, we hold that any

doubt as to whether the complaining party has met its initial

burden should be resolved in that party’s favor. If we are to err

at all, it must be in the way least likely to allow discrimination.

16 -

King v. Moore that under the proper Batson standard, the

defense had not established a prima facie case.)

The “strong likelihood” language of Wheeler caused

confusion among intermediate appellate courts about the

appropriate standard when prosecutors’ use of peremptory

strikes was challenged, both before and after Batson.” In

People v. Fuller, 136 Cal. App. 3d 403 (Ct. App. 1982) the

court recognizeu that Wheeler included both “inference” and

“strong likelihood” language but held that a defendant need

only show “a reasonable inference of group bias” to establish

the prima facie case. Id. at 423. Twelve years later, post-

Batson, another California appellate court reached the opposite

conclusion from Fuller. See People v. Bernard, 27 Cal. App.

4th at 465 (rejecting “a reduction of the prima facie standard to

a ‘reasonable inference’ test’’).

In a series of decisions spanning the decade preceding Mr.

Johnson’s trial, the California Supreme Court repeatedly

applied the words “strong likelihood” as the standard for

establishing a prima facie case, while omitting any reference to

the “reasonable inference” standard.”® Finally, after the Ninth

Slappy, 522 So. 2d at 22; see also Bryant v. State, 565 So. 2d 1298,

1300 (Fla. 1990).

5Unlike the Florida Supreme Court, see supra note 24, the

California Supreme Court never abandoned the “strong likelihood”

language after this Court’s decision in Batson.

6 See, e.g., People v. Welch, 20 Cal. 4th 701, 745 (1999);

People v. Williams, 16 Cal. 4th 635, 663-64 (1997); People v.

Mayfield, 14 Cal. 4th 668, 723 (1997); People v. Arias, 13 Cal. 4th

92, 134-35 (1996); People v. Davenport, 11 Cal. 4th 1171, 1199-

1200 (1995); People v. Crittenden, 9 Cal. 4th 83, 115 (1994); People

v. Turner, 8 Cal. 4th 137, 164-65 (1994); People v. Garceau, 6 Cal.

4th 140, 171 (1993); People v. Montiel, 5 Cal. 4th 877, 909 (1993),

People v. Howard, | Cal. 4th 1132, 1153-54 (1992); People v.

Fuentes, 54 Cal. 3d 707, 714 (1991); People v. Bittaker, 48 Cal. 3d

1046, 1092 (1989). To the extent that California courts perceived

17

Circuit’s decision in Wade v. Terhune, the California Supreme

Court again revisited the issue of the compatibility of the two

standards articulated in Wheeler, and concluded that, contrary

to the appellate court’s holding in Bernard, “reasonable

inference” and “strong likelihood” were synonymous. See

People v. Box, 23 Cal. 4th 1153, 1188 n.7 (2000).

Until Box, no opinion of the California Supreme Court had

clearly asserted that the two incongruent standards should be

interpreted as synonyms. In this case, the very fact that the trial

court applied only the “strong likelihood” standard to reject Mr.

Johnson’s Wheeler claim suggests that the trial court applied

the higher of the two standards, at least as they were

understood, pre-Box, to be distinct.

2. Experience under the California Rule Demonstrates

the Gulf between the California Supreme Court

Formulation and the Requirements for Showing a

Prima Facie Case under Batson

The California courts’ tortured interpretation of the prima

facie standard of Wheeler has not only led to inconsistent

applications of California cases. It has also produced results

that are irreconcilable with Batson. Innumerous pre-Box cases,

both before and after Bernard was decided, the California

Supreme Court applied a rule that evidence sufficient to “raise

an inference” of discrimination was insufficient to establish a

prima facie case. See People v. Sanders, 51 Cal. 3d 471, 500-

01 (1990) (concluding that even though the prosecution’s

“removal of all members of a certain group may give rise to an

inference of impropriety,” the defendant still “failed to

the two standards as inconsistent after Fuller and Bernard, the

repeated application of the “strong likelihood” standard, without

reference to the “reasonable inference” language, acted as an

endorsement of the former and reinforced the impression that a

showing of a “reasonable inference” of discrimination was

insufficient to establish a prima facie case under Wheeler.

18

demonstrate a strong likelihood” of discrimination and

therefore no prima facie case had been established); see also

People v. Howard, | Cal. 4th 1132, 1154, 1156 (1992) (tral

court did not err in finding no prima facie case; defendant must

show “from all the circumstances in the case . . . a strong

likelihood” of discrimination, and “although the removal of all

members of a certain group may give rise to an inference of

impropriety, especially when the defendant belongs to the same

group, the inference is not conclusive”) (citing Sanders, 51 Cal.

3d at 500) (emphasis in original); see also People v. Crittenden,

9 Cal. 4th 83, 119 (1994) (citing People v. Howard, | Cal. 4th

at 1156; People v. Sanders, 51 Cal. 3d at 500).

In short, in several cases prior to Mr. Johnson’s trial in

1998, the California Supreme Court had indicated that a

demonstration of an “inference of impropriety” was not

“dispositive” of a prima facie case. This approach is patently

inconsistent with Batson, which requires only that the opponent

of the peremptory strike demonstrate that an “inference” of

discrimination arises from a consideration of all of the relevant

circumstances in order to shift the burden to the proponent to

articulate a nondiscriminatory reason for the strike.

3. The California Supreme Court Misunderstood this

Court’s Reference to Title VII in Batson and Relied

Upon a Wholly Mistaken Interpretation of Title

VII’s Requirements for Making Out a Prima Facie

Case

The California Supreme Court interprets Batson’s

discussion of a number of this Court’s Title VII decisions,

along with WIGMORE ON EVIDENCE, as authority for its

conclusion that “Batson 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.”

Johnson, 30 Cal. 4th at 1316. Neither supports this conclusion.

19

This Court’s Title VII jurisprudence is quite to the

contrary. Nowhere in any of this Court’s discussion of the

standards for a prima facie case is there any endorsement of a

“strong evidence” test. Rather, this Court’s Title VII decisions

universally recognize, like Batson, that what is required to

make out a prima facie case is evidence showing circumstances

that give rise to an inference of discrimination. E.g., Texas

Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)

(“The plaintiff must prove by a preponderance of the evidence

that she applied for an available pos¥ion for which she was

qualified, but was rejected under circumstances which give rise

to an inference of unlawful discrimination.”) (emphasis

added).?” The Court has described the necessary showing as

“not onerous,” id., and as “minimal,” St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993).

Nor do this Court’s Title VII cases support the California

Supreme Court’s view that evidence sufficient to draw an

inference of discrimination, as compared to that needed to

create a presumption, is the “lower of the two burdens.”

27 See also 1BARBARA LINDEMANN & PAUL GROSSMAN,

EMPLOYMENT DISCRIMINATION LAW 16 and n.46 (3° ed. 1976)

(“The central inquiry in evaluating whether plaintiffs have met their

initial burden is whether the circumstantial evidence presented is

sufficient to create an inference (i.e., a rebuttable presumption) that

a basis for an employment-related decision was an illegal criterion.”)

(citing Byrd v. Roadway Express, 687 F.2d 85, 87 n.3 (5® Cir. 1982)

(purpose of prima facie showing is to identify actions taken by

employer from which discrimination can be inferred) and Halsell v.

Kimberly Clark Corp., 683 F.2d 285, 289 (8" Cir. 1982) (to establish

prima facie case, plaintiff must produce evidence supporting

inference of discrimination. )].

28 In describing this Court’s use of the term “prima facie case,”

the California Supreme Court interpreted Burdine as defining “prima

facie” to require a greater evidentiary burden to shift the burden of

production to defendant than is required for drawing an inference of

discrimination. 30 Cal. 4th at 1315-16.

20

Neither Burdine, 450 U.S. at 254 n.7, (upon which the

California Court specifically relies), nor any of this Court’s

other Title VII cases, requires a higher evidentiary burden for

creation of a presumption than the quantum of evidence

necessary to permit an inference of discrimination. Footnote 7

in Burdine is a description of the varying historical uses of the

term “prima facie case” to refer to two different situations, one

involving a presumption and one not. It is not an interpretation

of Title VI law. Title VII creates no dichotomy between

evidence sufficient to permit an inference of discrimination and

evidence sufficient for a presumption. Rather, evidence

sufficient to permit the drawing of an inference is all that is

required for the creation of the presumption, and Burdine, 450

U.S. at 254 n.8, states expressly that “the word ‘presumption’

properly used refers only to a device for allocating the

production burden” (citations omitted).”

The California Court uses the term “presumption” to

indicate much more than a device to shift a production burden,

but as a rule requiring that a prima facie case is established

only through evidence that persuades the trier of fact on the

ultimate issue of discrimination — a burden much higher than

this Court’s Title VII jurisprudence requires.”

Nor does the language cited from WIGMORE ON EVIDENCE

29 As this Court noted in Hicks, “the McDonnell-Douglas

presumption places upon the defendant the burden of producing an

explanation to rebut the prima facie case... . In this regard, it

operates like all presumptions, as described in Federal Rules of

Evidence 301: ‘In all civil actions and proceedings not otherwise

provided for by Act of Congress or by these rules, a presumption

imposes on the party against whom it is directed the burden of going

forward with evidence to rebut or meet the presumption, but does not

shift to such party the burden of proof in the sense of the risk of

nonpersuasion, which remains throughout the trial upon the party on

whom it was originally cast.” Hicks, 509 U.S. at 506-07.

3° See supra pp. 18-20 & nn.27, 29.

21

support the California Supreme Court’s “strong evidence”

requirement. In the section of WIGMORE relied upon by the

California Supreme Court (9 WIGMORE ON EVIDENCE, § 2494

(3d ed. 1940)), Wigmore simply notes that historically, one of

the uses of the term “prima facie” has been to describe the

situation where a party with the burden of proof, because of

either a presumption or by a general mass of “strong evidence,”

is entitled to judgment if his opponent produces no evidence.

Nowhere does Wigmore state that “strong evidence” is a

prerequisite to the creation of the presumption. Nor does this

Court, in its citation to WIGMORE in Burdine, impose such an

evidentiary burden.

This Court’s minimal burden for showing a prima facie

case in Title VII cases is entirely appropriate in light of the

realities of litigating claims of racial discrimination. As this

Court noted in United States Postal Serv. v. Aikens, 460 U.S.

711, 715 (1983), the McDonnell-Douglas standard is a

“sensible, orderly way to evaluate the evidence in light of

common experience as it bears on the critical question of

discrimination,” [quoting Furnco, 438 U.S. at 577 (1978)] and

only after the three-stage process outlined in McDonnell-

Douglas does the trier of fact “ha[ve] before it all the evidence

it needs to decide whether ‘the defendant intentionally

discriminated against the plaintiff” [quoting Burdine, 450 U.S.

at 253]. A higher burden at the first stage for establishing a

prima facie case would effectively deny the trier of fact

evidence that is critical to assess the issue of discrimination.

See discussion infra § C.2.

C. The Approach of the California Supreme Court is

Inadequate to Fulfill the Guarantees of the Fourteenth

Amendment

1. Petitioner has Established a Prima Facie Case of

Discrimination

22

In this case, Petitioner has clearly presented sufficient

evidence from which to infer that the state’s peremptory

challenges, if unexplained, were based on race. The record

demonstrates that after the challenges for cause, three A frican-

American potential jurors — Clodette Turner, Sara Edwards

and Ruby Lanere — remained available for service on

Petitioner’s jury. The state, however, used its peremptory

challenges to exclude ail three of these potential jurors. The

circumstances surrounding the state’s exercise of these

peremptory challenges suggest that the strikes were racially

motivated.

First, the state used its peremptory challenges to exclude

all African-American potential jurors from service on

Petitioner’s jury. As this Court has noted, “[p]roof of

systematic exclusion from the venire raises an inference of

purposeful discrimination because the ‘result bespeaks

discrimination.’” Batson, 476 U.S. at 94-95 (quoting

Hernandez v. Texas, 347 U.S. 475, 482 (1954)). Furthermore,

in several federal Circuits, this fact alone is sufficient to

establish a prima facie case of discrimination.*!

*! See, e.g., Harris v. Kuhlmann, 346 F.3d 330, 346 (2° Cir.

2003) (prima facie case of discrimination established “in

highlighting a 100% pattern of the use of peremptory strikes against

prospective black jurors”); Mahaffey v. Page, 162 F.3d at 484 (7"

Cir. 1998) (pattern raising inference of discrimination “plainly is

evident in the State’s juror challenges here, where the prosecutor

excused each and every African-American member of the jury

venire”); McCain v. Gramley, 96 F.3d 288, 292 (7® Cir. 1996)

(inference of discrimination may be drawn “where there are only a

few members of a racial group on the venire panel and one party

strikes each one of them”), cert. denied, 520 U.S. 1147 (1997);

United States v. Sowa, 34 F.3d at 452 (in challenge to use of

peremptory challenges by defense counsel, “[t]he government easily

made its prima facie case that the peremptory challenges were

motivated by race; each and every black venireperson was

challenged”).

tae tet elt

23

Second, the prosecutor used a disproportionate number of

his peremptory challenges to exclude African-American

potential jurors. Specifically, the prosecutor used 25 percent of

his challenges (3 of 12) to exclude African-American jurors

even though such jurors represented less than 7.5 percent (3 of

40) of the qualified jurors passed for cause. This fact also

suggests that the prosecutor’s strikes were racially motivated.

See Hernandez v. New York, 500 U.S. 352, 362 (1991).”

Third, although it had the opportunity to do so, the state

elected not to ask questions of any of the African-American

potential jurors before exercising its peremptory challenges.

See JA at 20, 23-24, 31. This pattern of non-inquiry also

supports an inference of discrimination, see Batson, 476 U.S.

at 97, because it suggests an apparent lack of interest on the part

of the prosecutor in any characteristic of the struck jurors other

than their race. This failure was particularly significant in the

case of Ms. Turner, who was excused without inquiry of any

kind despite the fact that during voir dire by the trial court, she

offered answers that indicated she might be inclined to favor

the prosecution over the defense.*°

Finally, the offense at issue invojved a black defendant and

a victim who was the child of a white woman. The likelihood

32 See also Williams v. Woodford, 306 F.3d 665, 682 (9® Cir.

2002) (“Statistical facts like a high proportion of African-Americans

struck and a disproportionate rate of strikes against African-

Americans can establish a pattern of exclusion on the basis of race

that gives rise to a prima facie Batson violation.”).

°3 See JA at 19 (Ms. Turner had been the victim of a crime).

The probative value of the failure to voir dire the African-American

venirepersons is not neutralized by the prosecutor’s failure to

question non-minority individuals on the venire, see Johnson, 30

Cal. 4th at 1328; moreover, such an approach would create the

tactical opportunity for a prosecutor intent on excluding African

Americans from a jury to mask his motives by remaining silent

during voir dire.

24

that peremptory challenges will be exercised in a racially

discriminatory manner is significantly increased when the crime

is of an interracial nature. This, too, is a circumstance

recognized by the federal courts as supporting an inference of

discrimination sufficient to establish a prima facie case under

Batson.*

Together, these factors constitute ample evidence from

which to infer that the state’s peremptory challenges were based

on race. Petitioner, therefore, more than adequately set forth a

prima facie case of discrimination under Batson.

2. The California Supreme Court’s Prima Facie Case

Requirement Shields, Rather than Reveals and

Corrects, Discriminatory Use of Peremptory

Challenges by Prosecutors

Although it characterized many of the facts set forth in the

preceding subsection as “highly relevant,” Johnson, 30 Cal. 4th

at 1326, “troubling,” id., and “warrant[ing of] careful scrutiny,”

4 See, e.g., Mahaffey v. Page, 162 F.3d at 484 (“And lest we

forget, the crimes at issue in this case were obviously racially

sensitive — Mahaffey, a young African-American male from

Chicago’s south side, was charged with murdering a white couple on

the North side, and with attempting to murder their young son. This

is therefore a case in which the racial composition of the jury could

potentially be a factor in how the jury might respond to Mahaffey’s

defense at trial, as well as to his arguments in mitigation at the

capital sentencing ,hase.”); Jones v. Ryan, 987 F.2d 960, 971 (3°

Cir. 1993) (taking into account that defendant was charged with a

violent offense against a white victim in finding a prima facie case);

Williams v. Chrans, 945 F.2d 926, 944 (7® Cir. 1991) (“In a case

where the defendant is black and the victim is white, we recognize,

at the prima facie stage of establishing a Batson claim, that there is

a real possibility that the prosecution, in its efforts to procure a

conviction, will use its challenges to secure as many white jurors as

possible in order to enlist any racial fears or hatred those white

jurors might possess.”), cert. denied, 505 U.S. 1208 (1992).

25

id., the California Supreme Court nonetheless concluded that

Petitioner had failed to present sufficient evidence to establish

a prima facie case of discrimination, id. at 1328. Thus, the trial

prosecutor was never required to proffer race-neutral reasons

for his peremptory challenges, Petitioner was never given the

opportunity to demonstrate that such explanations were

pretextual, and no court has had the opportunity to decide

whether the strikes were actually discriminatory. By conflating

the prima facie case with the ultimate burden of proof, the

California standard substantially undermines what Batson was

designed to achieve, an efficient and reliable system for

determining whether peremptory challenges are tainted by

racial discrimination. See Hernandez v. New York, 500 U.S. at

358-59. Instead of facilitating the discovery of unlawful racial

discrimination, the California standard it improperly leaves

“prosecutors” peremptory challenges . . . largely immune from

constitutional scrutiny.” Batson, 476 U.S. at 92-93. It does

so in at least three ways:

First, the California rule places the defendant at a

substantial evidentiary disadvantage. As this Court has made

clear (and the reported cases outside of California confirm), the

decision whether discrimination has occurred is normally made

at the third stage of the Batson analysis, and not before.*® It is

at that stage that a court examines the totality of the

circumstances to determine the plausibility of whatever

explanation has been offered for the disputed peremptory

*> Because California’s interpretation of Batson places such a

heavy burden on defendants at the first step of the inquiry, California

prosecutors are less frequently required to justify their strikes,

California defendants are less likely to secure judicial findings of

discrimination, and California prosecutors who are “of a mind to

discriminate,” Batson, 476 U.S. at 80, are given greater incentive and

opportunity to discriminate, increasing the odds that a criminal

defendant may be tried by a unconstitutionally constituted jury.

*°See supra pp. 6-7.

26

challenges. Purkett v. Elem. Under California's approach, by

contrast, the defendant must prove discrimination before

anyone knows the purported basis on which the peremptory

challenges have been made. Instead of becoming a basis for

further inquiry, the prima facie case serves both as the effective

point of decision and as a barrier to further probative evidence

on the question.

Even worse, the defendant is required not only to mount

the initial hurdle of offering “strong evidence” of

discrimination, but inquiry into the prosecutor’s purported

justification for a strike is further insulated from scrutiny by

allowing the trial judge, as here, to hypothesize possible neutral

explanations for the peremptory challenges and then to rely on

those hypotheses in evaluating whether a prima facie case has

been established.*” This testing of the defendant’s evidence

against hypothetical bases for a strike makes clear that the

determination of discrimination occurs before the prosecutor is

required to reveal a basis for the challenge. It also imposes a

much more demanding standard for a prima facie case than

Batson requires for the Stage 3 determination whether

discrimination occurred. Under Batson, the court must

determine whether the evidence demonstrates that the reason

for the strike was discrimination — not whether there is any

theoretically neutral basis on which a challenge might have

been made.** A record of proceedings to empanel a jury will

37 In this case, the California Supreme Court relied on the fact

that the the trial court hypothesized reasons why the trial prosecutor

might have stricken the three African-American potential jurors, see

30 Cal. 4th at 1325-27, in upholding the prima facie case ruling: “if

the record suggests grounds on which the prosecutor might

reasonably have challenged the jurors, we affirm,” id. at 1325.

38 This Court has said that only the trial prosecutor’s “legitimate

reasons” for strikes are relevant to the Batson inquiry. Batson, 476

U.S. at 98 n.20. The lower federal courts have held similarly. See

Mahaffey, 162 F.3d at 483-84 n.1 (because apparent reasons do not

27

almost always contain hypothetical race-neutral reasons for

peremptory challenges of African Americans, or members of

any cognizable group. As this Court held in Purkett, such

reasons need be only facially non-discriminatory, and virtually

every single potential juror likely possesses some characteristic

that could justify a peremptory challenge under this standard.”

Moreover, the fact that a trial judge can hypothesize a

race-neutral explanation for a peremptory challenge says

nothing about whether the prosecutor engaged in intentional

reflect prosecutor’s actual motivation they “cannot be mistaken for

the actual reasons for a [peremptory challenge.]”); Riley v. Taylor,

277 F.3d 261, 282 (3° Cir. 2001) (en banc) (“Apparent or potential

reasons do not shed any light on the prosecutor’s intent or state of

mind when making the peremptory challenge.”); Bui v. Haley, 321

F.3d 1304, 1313-15 (11" Cir. 2003) (reasons offered by assistant

prosecutor insufficient to rebut prima facie case because there was

no evidence that lead prosecutor actually relied on them); Turner v.

Marshall, 121 F.3d 1248, 1253 (9" Cir. 1997); Hardcastle v. Horn,

No. 98-CV-3028, 2001 WL 722781 at *11 (E.D. Pa. June 27, 2001)

(“While the apparent reasons gleaned from the record could have

been the prosecutor’s operative reasons that she might have offered

in response to a Batson objection, no reviewing court could

reasonably say that they probably were the prosecutor’s reasons

without engaging in sheer and unsupported speculation.”); United

States ex rel. Pruitt v. Page, No. 97C-2115, 1999 WL 652035 at *7,

(N.D. Ill. Aug. 20, 1999) (“To say that certain facts known about a

juror could have supported a non-discriminatory challenge cannot

establish that nondiscriminatory reasons existed.”) (emphasis in

original).

° Under Purkett, an enormous variety of traits or observations

has been held sufficient to meet the prosecutor’s burden of

production at Stage 2 of a Batson inquiry. See, eg., U.S. v.

Williams, 264 F.3d 561, 571 (5® Cir. 2001) (prosecutor's statement

that venireperson smiled at defendant satisfied Stage 2 of the Batson

analysis); U.S v. Mahan, 190 F.3d at 425 (prosecutor's assertion that

venireperson who was divorced or widowed might harbor hostility

towards men was race-neutral reason sufficient to satisfy Stage 2).

28

discrimination. Under Washington v. Davis, 426 U.S. 229

(1976), which the Court repeatedly cited in Batson, it is the

prosecutor’s subjective intent that is critical, not the trial

judge’s. Like Swain, the California rule thus significantly

increases the likelihood that racial discrimination will go

undiscovered, both because it impedes the development of a

full trial record and because it asks the wrong question at the

wrong stage of the proceeding.

Second, the absence of a full trial record has obvious

consequences for appellate review. On the one hand, it makes

appellate review more difficult. In Miller-El v. Cockrell, 537

U.S. 322 (2003), the Court engaged in a probing review of the

prosecutor's stated reasons for his peremptory challenges, even

in the context of a preliminary inquiry into whether the

defendant was entitled to a certificate of appealability that

would enable him to pursue his Batson claim in further habeas

proceedings. When a court is actually reviewing a Batson

claim on the merits, a fully developed record is more essential

and its absence more severely compromises the appellate

process.

The absence of a fully developed record also makes

reversal more likely. In Batson and the cases that followed it,

this Court has stressed that a trial court's findings on a Batson

claim are entitled to deference. But that deference is based on

the assumption that the trial court's critical findings “largely

will turn on. . . credibility,” Batson, 476 U.S. at 98 n.21, and

that “evaluation of the prosecutor's state of mind based on

demeanor and credibility lies peculiarly within a trial judge's

province.” Hernandez, 500 U.S. at 365 (internal quotations and

citations omitted). Because the California courts have

front-loaded so much of Batson into a threshold determination

regarding the prima facie case, it will often be the-case (as here)

that no judgment will have been made about the prosecutor's

credibility. An appellate court's review will be more vigorous

29

in such circumstances, with a diminished deference to the trier

of fact’s determinations that is likely to produce more frequent

reversals.

Third, even reversal is much less likely to lead to a fair

and just result if the prosecutor has not been required to provide

a contemporaneous explanation for his peremptory challenges

because of an inflated standard for assessing the defendant's

prima facie case. Indeed, this Court identified precisely that

problem in less extreme circumstances in Miller-El, 537 U.S.

at 342-43:

As we have noted, the trial court held its Batson hearing

two years after the voir dire. While the prosecutors had

proffered contemporaneous race-neutral justifications for

many of their peremptory strikes, the state trial court had

no occasion to judge the credibility of those explanations

at that time because our equal protection jurisprudence

then, dictated by Swain, did not require it. As a result, the

evidence presented to the trial court at the Batson hearing

was subject to the usual risks of imprecision and distortion

from the passage of time.

In short, California's interpretation of Batson increases the

chances of wrong results initially, increases the chances of

appeal and reversal, and increases the chances that racial

discrimination will never be uncovered because of delay. If

Batson was designed to permit “prompt rulings on objections

to peremptory challenges without substantial disruption of the

jury selection process,” Hernandez, 500 U.S. at 358, the

approach adopted by the California courts is far more likely to

achieve the opposite result.

30

CONCLUSION

For all of these reasons, the California Supreme Court’s

ruling in this case makes it harder to empanel a jury with the

“diffused impartiality,” Taylor v. Louisiana, 419 U.S. 522,

530 (1975) (quoting Thiel v. S. Pac. Co., 328 U.S. 217, 227

(1946) (Frankfurter, J., dissenting)), necessary to protect a

criminal defendant[‘s] “life and liberty against race or color

prejudice,” Strauder v. West Virginia, 100 U.S. at 309; allows

African-American jurors to be excluded because of their race in

California criminal trials; thereby creates the improper

impression that the State believes African Americans are unfit

to serve on a petit jury, Batson, 476 U.S. at 87 (citing Thiel, 328

U.S. at 227 (Frankfurter, J., dissenting)); and “undermine(s]

public confidence in the fairness of our system of justice,”

Batson, 476 U.S. at 87 (citing Ballard v. United States, 329

U.S. 187, 195 (1946) and McCray v. New York, 461 U.S. 961,

968 (1983) (Marshall, J., dissenting)). The judgment below

should be reversed.

Respectfully submitted,

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10025

(212) 549-2500

ALAN L. SCHLOSSER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA

1663 Mission Street

San Francisco, CA 94103

(415) 621-2493

DAVID M. PORTER

Co-CHAIR, NACDL AMICUS

COMMITTEE

801 I Street, 3rd Floor

Sacramento, CA 95814

(916) 498-5700

ELAINE R. JONES

Director-Counsel

THEODORE M. SHAW

*NORMAN J. CHACHKIN

MIRIAM GOHARA

CHRISTINA A. SWARNS

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND,

INC.

99 Hudson Street, 16" Floor

New York, NY 10013

(212) 965-2200

BARBARA R. ARNWINE

THOMAS J. HENDERSON

MICHAEL L. FOREMAN

AUDREY WIGGINS

SARAH CRAWFORD

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1401 New York Ave., N.W.

Suite 400

Washington, D.C. 20005

(202) 662-8600

BARRY SULLIVAN

MARGARET J. SIMPSON

ADAM MILLER

DUANE POZZA

JENNER & BLOCK LLP

One IBM Plaza, Suite 4300

Chicago, Illinois 60611

(312) 222-9350

*Counsel of Record

Counsel for Amici Curiae

la

Interest of Amici Curiae

The NAACP Legal Defense and Educational Fund, Inc.

(LDF) is a non-profit corporation formed to assist African-

Americans in securing their rights by the prosecution of

lawsuits. LDF has a long-standing concern with the influence

of racial discrimination on the criminal justice system in

general, and on jury selection in particular. We represented the

defendants in, inter alia, Swain v. Alabama, 380 U.S. 202

(1965), Alexander v. Louisiana, 405 U.S. 625 (1972) and Ham

v. South Carolina, 409 U.S. 524 (1973); pioneered in the

affirmative use of civil actions to end jury discrimination,

Carter v. Jury Commission, 396 U.S. 320 (1970), Turner v.

Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae

in Miller-El v. Cockrell, 537 U.S. 322 (2003), Batson v.

Kentucky, 476 U.S. 79 (1986), Edmonson v. Leesville Concrete

Co., Inc., 500 U.S. 614 (1991), and Georgia v. McCollum, 505

U.S. 42 (1992).

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more than

400,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation's civil

rights laws. The ACLU of Northern California is one of its

regional affiliates. Since its founding in 1920, the issue of race

discrimination in jury selection has been a central concern of

the ACLU. For that reason , the ACLU participated as amicus

curiae in Batson v. Kentucky, and we have participated in most

of this Court's cases interpreting its core holding.

2a

The Lawyers’ Committee for Civil Rights Under Law

(““Lawyers’ Committee”) is anonprofit organization established

in 1963, at the request of President Kennedy, to involve private

attorneys in the effort to insure the civil rights of all Americans.

Over the past 40 -years, through its national office in

Washington, D.C., and its eight independent local affiliate

Lawyers’ Committees, the organization has enlisted the services

of thousands of members of the private bar in addressing the

legal problems of racial minorities and the poor in voting,

education, employment, housing, municipal services, the

administration of justice and law enforcement. The Lawyers’

Committee has long been concerned with the issue of race

discrimination in jury selection, and participated as amicus

curiae on this issue in both Batson v. Kentucky, 476 U.S. 79

(1986), and Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614 (1991).

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit corporation with more than 10,000

members nationwide and 28,000 affiliate members in 50 states,

including private criminal defense lawyers, public defenders

and law professors. The American Bar Association recognizes

NACDL as an affiliate organization and awards it full

representation in its House of Delegates. NACDL was founded

in 1958 to promote study and research in the field of criminal

law, to disseminate and advance knowledge of the law in the

area of criminal practice, and to encourage the integrity,

independence, and expertise of defense lawyers in criminal

cases. NACDL seeks to defend individual liberties guaranteed

by the Bill of Rights and has a keen interest in ensuring that

legal proceedings are handled in a proper and fair manner.

Among NACDL’s objectives is promotion of the proper

administration of justice.