Wednesday, March 19, 2008
Beyond the interesting fact that both the Chief Justice and Justice Alito were in the majority -- the latter authoring the opinion -- I think this case is very significant for a couple of reasons:
First, the case seems to shift the burden of an ambiguous record from the opponent of the strike to the proponent of the strike. That is, where the trial court does not specifically say why it is not convinced that the strike is motivated by discriminatory animus, it seems that the proponent of the strike must now prod the court to do so. If the trial court does not do so, the proponent bears the risk that a reviewing court will independently view the strike as discriminatory based on the cold record without giving any deference to the trial court's ability to judge the demeanor of the prospective juror. This seems to be a change in the law, or at least how I understood the law to be.
Second, in a critical passage, the decision all but invites litigants to now raise the "mixed-motives" issue:
In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, theburden shifts to the party defending the action to show that this factor was not determinative. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. And in light of the circumstances here . . . the record does not show that the prosecution would have pre-emptively challenged [the prospective juror] based on his nervousness alone.
The mixed-motives issue has heretofore been largely ignored. But see Russell D. Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 MD. L. REV. 279 (2007). I think this issue is going to be the next Batson battleground. This issue can arise in at least two ways. The more obvious way is the one represented by Snyder: the proponent of the strike offers one explanation that is found to be discriminatory and one or more that are found to be non-discriminatory. The second way is where the proponent of the strike is found to have engaged in prohibited discrimination with respect to one but not all struck jurors. Typically, the jurors who have been the victims of discriminatory animus will be seated on the jury, remedying the Batson violation. But this should also shift the burden of proof as to the other struck jurors -- the proponent of the strikes should have to explain why his or her discriminatory animus with respect to some jurors did not infect the decision to strike the other jurors. [Portions of this post were posted by me yesterday in a comment on the Volokh Conspiracy blog] [Mike Mannheimer]