Hollis v. Magnusson ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1160
MALIK BREYON HOLLIS,
Petitioner, Appellant,
v.
MATTHEW MAGNUSSON, Warden, Maine State Prison,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
James P. Howaniec for petitioner.
Donald W. Macomber, Assistant Attorney General, with whom
Aaron M. Frey, Attorney General, was on brief, for respondent.
April 19, 2022
LIPEZ, Circuit Judge. Petitioner Malik Hollis, a Black
man, was convicted in the Maine Superior Court on weapons charges
stemming from his actions in a racially charged confrontation with
four white men. He now appeals from the district court's denial
of his petition for a writ of habeas corpus, filed pursuant to 28
U.S.C. § 2254, in which he contends that the prosecution violated
Batson v. Kentucky, 476 U.S. 79 (1986), when it peremptorily struck
the sole person of color from the jury pool. Reviewing Hollis's
claim pursuant to the demanding standards that govern this
collateral attack on his state court conviction, we are constrained
to affirm the district court's denial of his habeas petition.
I.
We begin with an explanation of the relevant legal
background regarding jury selection. The Supreme Court held in
Batson that the Equal Protection Clause precludes the prosecution
from using its peremptory challenges to strike "potential jurors
solely on account of their race." 476 U.S. at 89.1 The Court has
explained that "racial discrimination in jury selection" not only
1 In subsequent cases, Batson has been extended to cover,
inter alia, peremptory strikes by defendants and peremptory
strikes by parties in civil cases, as well as to prohibit
peremptory strikes based on sex. See Flowers v. Mississippi, 139
S. Ct. 2228, 2243 (2019). The Supreme Court has also recognized
that individual jurors have an equal protection right not to be
excluded from a jury based on race. See Powers v. Ohio, 499 U.S.
400, 409 (1991). These applications are not at issue in this
appeal.
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"compromises the right of trial by impartial jury" but also
"establish[es] 'state-sponsored group stereotypes rooted in, and
reflective of, historical prejudice.'" Miller-El v. Dretke
("Miller-El II"), 545 U.S. 231, 237-38 (2005) (quoting J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 128 (1994)). Given the gravity
of the harm, the "Constitution forbids striking even a single
prospective juror for a discriminatory purpose." Foster v.
Chatman, 578 U.S. 488, 499 (2016) (quoting Snyder v. Louisiana,
552 U.S. 472, 478 (2008)). To raise a Batson claim,
the defendant must make out a prima facie case by
showing that the totality of the relevant facts
gives rise to an inference of discriminatory
purpose. 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 strike. Third, if a race-neutral
explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has
proved purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168 (2005) (internal quotation
marks omitted) (footnote omitted) (citations omitted) (alterations
omitted). The defendant "ultimately carries the 'burden of
persuasion' to 'prove the existence of purposeful
discrimination.'" Id. at 170-71 (quoting Batson, 476 U.S. at 93).
Generally, "the trial court's decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal." Hernandez v. New York, 500
U.S. 352, 364 (1991) (plurality opinion).
- 3 -
II.
In May 2016, Hollis was involved in an altercation with
four white men outside an apartment building in Lewiston, Maine.2
State v. Hollis, 189 A.3d 244, 245 (Me. 2018). Although the
precise nature of the altercation is disputed, "[o]ne of the men
involved in the incident . . . acknowledged that he hit Hollis with
a metal handlebar"; "that he 'called [Hollis] the N word and told
him [he] was going to fucking kill him'"; and that "one of the
other men on his side had an aluminum baseball bat and another had
a baton." Id. at 245 n.2. It is also undisputed that, at some
point, Hollis ran around the corner to his apartment, returned
with a gun, and fired it into a nearby dirt pile. Id. at 245.
Hollis was arrested and charged with reckless conduct with a
dangerous weapon (Class C), Me. Stat. tit. 17-A, §§ 211(1),
1254(4) (2017), and criminal threatening with a dangerous weapon
(Class C), Me. Stat. tit. 17-A, §§ 209(1), 1254(4) (2017). Id.
At jury selection for Hollis's trial, Juror 71 was the
sole person of color in the venire of thirty-two randomly selected
prospective jurors.3 Id. at 245-46. Prospective juror information
2 We recite the facts as set forth by the Maine Supreme
Judicial Court, sitting as the Law Court ("Law Court"), in its
decision on direct appeal. See Hardy v. Maloney, 909 F.3d 494,
497 (1st Cir. 2018) (citing 28 U.S.C. § 2254(e)(1)).
3 The parties and the courts that have previously considered
this matter consistently refer to Juror 71 as a "person of color."
The juror's race is not otherwise definitively identified in the
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provided to the parties established that Juror 71 had an eleventh-
grade education, the lowest education level of any of the thirty-
two prospective jurors. Id. at 246. After neither side challenged
Juror 71 for cause, the prosecutor used a peremptory challenge to
strike the juror. Id.; see Me. R. Unified Crim. P. 24(c). The
following exchange then occurred at sidebar:
Defense Counsel: I just -- I guess I'll put on the
record that I object. . . . It's the only person of
color on the jury, just for the record.
The Court: You're objecting because [] number 71
is a man of color and you're --
Defense Counsel: As it's --
The Court: Hasn't been systemic.
Defense Counsel: Yeah.
The Court: I can't make any findings.
Defense Counsel: No, I know. I understand. We're
trying to explore here in Androscoggin County why
we're not seeing more people of color on our juries
and not seeing people of Muslim faith. We have a
large Somali population. We have one person of
color in the entire jury pool. I just wanted to
put that on the record.
record. Neither party makes anything of this imprecise descriptor,
nor do they otherwise suggest that it should impact our analysis.
This is for good reason, as "[t]he proper focus of a Batson inquiry
. . . is not whether the defendant or excluded juror is part of a
[particular racial group], but rather whether 'a peremptory
challenge was based on race.'" Sanchez v. Roden, 753 F.3d 279,
292 (1st Cir. 2014) (quoting Snyder, 552 U.S. at 476); see also
Powers, 499 U.S. at 402 ("[A] criminal defendant may object to
race-based exclusions of jurors effected through peremptory
challenges whether or not the defendant and the excluded juror
share the same races.").
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Prosecutor: Would the Court like any response from
me --
The Court: You may.
Prosecutor: -- or is that necessary?
The Court: If you want to respond.
Prosecutor: I just would put that his ethnicity
had no bearing in regards to why I struck him. I
was looking for his level of education and other
various factors that were provided in the list from
the court.
The Court: I mean, I guess the only observation I
would make is that we're looking at a -- sort of a
systemic -- where the State was systematically
excluding someone because of either race or gender
or I don't know whether it's -- I'm not sure whether
the State was talking about that but I can't make
that -- I can't certainly make that finding based
upon --
Defense Counsel: Totally understand.
The Court: One, because there could be other
legitimate factors, as [the prosecutor] points out,
as to why this particular juror would be struck by
the State.
The parties then moved on to complete the selection of the other
jurors.
After a two-day trial, at which the defense strategy was
to argue self-defense and the jury was given a self-defense
instruction, the jury convicted Hollis on both counts. Hollis,
189 A.3d at 246. He was sentenced to three years' incarceration
on each count, to be served concurrently.
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Two weeks later, Hollis filed a motion for acquittal, or
in the alternative a new trial, contending that the prosecutor's
strike of Juror 71 violated Batson. Id. In response to Hollis's
motion and at a subsequent hearing -- held more than two months
after jury selection -- the prosecutor again contended that she
struck Juror 71 based on his level of education.4
In its subsequent written order, the Superior Court
recognized that it had erred at the time of jury selection by
suggesting that it needed to see evidence of "systemic"
discrimination and neglecting to perform the proper analysis
prescribed by the Supreme Court in Batson. Now undertaking that
analysis, the court determined that "the prosecutor's strike of
Juror 71 was not exercised with a discriminatory intent or purpose.
Rather, the court finds that the prosecutor's stated, race-neutral
reason was the actual reason for the striking of this juror."
4 In its response to Hollis's motion for acquittal, and at
the hearing, the prosecution elaborated on its education-based
rationale for the strike -- that the self-defense affirmative
defense "is a somewhat complicated concept for jurors to deal with"
-- and also proffered an additional reason for striking Juror 71
-- that Juror 71's demeanor and responses at voir dire in an
unrelated domestic violence case had led the prosecutor to conclude
that Juror 71 "had a fairly nonchalant attitude towards violence."
Ultimately, the Superior Court and the Law Court did not rely on
the "nonchalant attitude" reason or the prosecution's further
elaboration of the education-level rationale, based on precedent
counseling that a prosecutor must stand or fall on the reasons for
the peremptory strike provided at the time the objection to the
strike is made. See, e.g., Miller-El II, 545 U.S. at 246-52.
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Regarding this race-neutral reason -- Juror 71's
education level -- the court opined:
[I]t was the prosecutor herself without prompting
from the court, who explain[ed] that her reason for
striking Juror 71 was based on his level of
education. At the time, the court found nothing
about the prosecutor's explanation that was not
credible and believable. Moreover, an examination
of all of the State's peremptory strikes and the
composition of the jury that was ultimately seated,
confirms that the State's overall strategy in
exercising its peremptory challenges was focused on
having jurors with high education levels. While
some (3) of the State's nine strikes were exercised
against potential jurors with some post-secondary
school education, the prosecutor explained at the
[post-trial] hearing that as to the juror with a
college degree, the juror's record was the reason
for that strike.[5] The jury that was seated had
six with at least a college education.
In response to the fact that half of the seated jurors
only had a twelfth-grade education,6 the court stated, "peremptory
strikes are not unlimited, and it is inevitable that although the
strategy is to have more highly educated jurors, that goal cannot
be met in its entirety."7
5 The juror information before the court indicated that the
State's first five peremptory strikes immediately before the
strike of Juror 71 were exercised against potential jurors with a
12th-grade education or higher, but who also had criminal records,
records of driving violations, or both.
6 It is not entirely clear from the record if the jurors who
were marked as having a twelfth-grade education were high school
graduates or merely had some schooling at the twelfth-grade level.
7The Superior Court additionally noted that it was "satisfied
by its first-hand observation of the prosecutor at sidebar when
Juror 71 was struck, that her volunteered explanation was genuine
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Hollis timely appealed to the Maine Law Court. In its
decision, the Law Court reviewed for clear error the Superior
Court's determination "that Hollis had not shown purposeful
discrimination." Hollis, 189 A.3d at 247. Noting that Hollis
bore the burden of demonstrating that the prosecution acted on the
basis of purposeful discrimination, the court concluded that he
had "not established that the record compelled the [trial] court
to find that the prosecutor's explanation [for striking Juror 71]
was a pretext for discrimination." Id. at 248. Despite the
court's skepticism "of a proffered explanation for striking a juror
based on low education level without individual voir dire on
intelligence or education," it ultimately determined that the
record supported the proposition that "the State's jury selection
strategy favored jurors with more education" and that striking
Juror 71 merely reflected this strategy. Id. The court further
commented that "[d]ue to the complexity of the law of self-defense
. . . this proffered strategy was not unreasonable." Id. at 248
n.4 (citing Me. Stat. tit. 17-A, § 108 (2017) and Donald G.
Alexander, 1 Maine Jury Instruction Manual § 6-58 (2017-2018 ed.)).
Hollis subsequently filed a petition for habeas corpus
in the District of Maine. The district court, in a thoughtful
and not a pretext for racial animosity towards the juror." Because
the Law Court did not mention this finding in its decision, we
also do not comment on it further.
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order affirming the thorough report and recommendation of the
magistrate judge, denied the petition and a certificate of
appealability. Hollis then appealed to this court and requested
a certificate of appealability, which we allowed.
III.
A federal court's consideration of a collateral attack
on a state court conviction is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The statute provides
that habeas relief
shall not be granted with respect to any claim that
was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). It is well established that "[a] state court
decision is 'contrary to' clearly established federal law 'if the
state court applies a rule that contradicts the governing law set
forth by the Supreme Court or confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from [its]
precedent.'" Linton v. Saba, 812 F.3d 112, 122 (1st Cir. 2016)
(quoting Hensley v. Roden, 755 F.3d 724, 731 (1st Cir. 2014)).
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On the other hand, "a state court adjudication constitutes an
unreasonable application [of clearly established federal law] if
the state court identifies the correct governing legal principle
from the Supreme Court's then-current decisions but unreasonably
applies that principle to the facts of the . . . case." Id.(quoting Hensley, 755 F.3d at 731).
Importantly, "an unreasonable application of federal law
is different from an incorrect application of federal law." Scott
v. Gelb, 810 F.3d 94, 101 (1st Cir. 2016) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)). If "'fairminded jurists could
disagree' on the correctness of the state court's decision," there
was no "unreasonable" application of federal law. Id. (quoting
Harrington, 562 U.S. at 101). An "unreasonable determination of
the facts" under § 2254(d)(2) is one that is "objectively
unreasonable in light of the evidence presented in the state-court
proceeding" and which has been "rebutted by clear and convincing
evidence to the contrary." Miller-El v. Cockrell ("Miller-El I"),
537 U.S. 322, 340, 341 (2003). All told, "[w]hen a habeas claim
has been adjudicated on its merits in state court, [AEDPA] mandates
highly deferential federal court review of state court holdings."
Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir. 2009).
IV.
Bound by this framework, we review the district court's
decision to deny Hollis's habeas petition de novo, "determin[ing]
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whether the habeas petition should have been granted in the first
instance." Sanchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014).
There is no dispute that Hollis established a prima facie case
before the Superior Court that the peremptory strike of Juror 71
violated Batson, and that the prosecution offered a race-neutral
explanation for the strike. The Law Court's decision turned on
whether the Superior Court clearly erred in determining that there
was no discriminatory purpose behind the strike. In our position
as a federal court reviewing a state court conviction under AEDPA,
the precise question before us is whether the Law Court's decision
affirming the Superior Court was based on an unreasonable
determination of the facts.
The Law Court concluded that the Superior Court did not
clearly err when it determined that the prosecution's race-neutral
explanation for striking Juror 71 -- his eleventh-grade education
-- was not pretextual and thus that there was no purposeful
discrimination. This conclusion is supported by the record, which
demonstrates that every member of the empaneled jury (twelve
jurors, plus two alternates) had at least a twelfth-grade
education, with eight jurors having attained a higher education
level. In other words, no member of the empaneled jury had the
same lower education level as Juror 71. Moreover, as the Law
Court noted, Hollis, 189 A.3d at 247-48, a trial court's
determination on the issue of discriminatory intent is ordinarily
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afforded considerable deference. See Miller-El I, 537 U.S. at 340("In the context of direct review . . . we have noted that 'the
trial court's decision on the ultimate question of discriminatory
intent represents a finding of fact of the sort accorded great
deference on appeal' and will not be overturned unless clearly
erroneous." (quoting Hernandez, 500 U.S. at 364)). Thus we have
deference on top of deference -- the Law Court's deference to the
decision of the Superior Court and our deference to the decision
of the Law Court.
The cases Hollis cites only serve to emphasize the
elements of a successful Batson claim that are lacking here. See,
e.g., United States v. Young, 753 F.3d 757, 781 (8th Cir. 2014)
(suggesting that striking an African-American juror based on
unemployment could be seen as pretextual "because other similarly
situated white jurors were also unemployed"); Jimenez v. City of
Chicago, 732 F.3d 710, 714 (7th Cir. 2013) (noting that the failure
to strike a similarly situated white juror undermined the
credibility of the stated reason for striking an African-American
juror); McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1265 (11th
Cir. 2009) (noting that the prosecution's strike of multiple jurors
for "low intelligence" "was unsupported by any evidence in the
record"); see also Flowers v. Mississippi, 139 S. Ct. 2228, 2235
(2019) (noting that "the State . . . struck at least one black
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prospective juror . . . who was similarly situated to white
prospective jurors who were not struck by the State").
Here, it is undisputed that Juror 71 had an eleventh-
grade education and that all members of the seated jury had
attained a higher education level. Hollis has not developed any
argument that the prosecution failed to strike similarly situated
white jurors. He has not developed an argument about the
similarity or dissimilarity of jurors with eleventh-grade versus
twelfth-grade educations for the purposes of the Batson analysis.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It
is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work . . . .").
Nor has Hollis developed any argument concerning the State's
previous use of peremptory strikes or evidence of racially
disparate education levels in Androscoggin County. See Flowers,
139 S. Ct. at 2235 (noting that a Batson claim can be supported
by, inter alia, "relevant history of the State's peremptory strikes
in past cases" or "other relevant circumstances that bear upon the
issue of racial discrimination").
Hollis's contention that no evidence was ever "produced
that this prosecutorial district has ever struck jurors because of
high school levels of education in Androscoggin County" does not
help him. It was ultimately Hollis's burden to prove a Batson
violation, and the prosecution therefore had no obligation to
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produce such evidence. For these reasons, then, we simply cannot
conclude that the Law Court's decision was based on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
All of this said, we acknowledge that the facts of this
appeal are concerning. In a case with explicit racial overtones,
the trial court initially failed to properly apply Batson when the
prosecution struck the sole juror of color for a seemingly trivial
reason. But, bound by the AEDPA framework, we must affirm the
district court's denial of Hollis's habeas petition.
So ordered.
-Concurring Opinion Follows-
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LIPEZ, Circuit Judge, concurring. For the reasons
provided in the panel opinion, we must affirm the district's court
dismissal of Hollis's habeas petition. Yet the outcome required
by the law does not address aspects of this case that "raise the
judicial antennae." Sanchez v. Roden, 808 F.3d 85, 97 (1st Cir.
2015) (Thompson, J., concurring). Indeed, every court that has
considered this case, including the Superior Court itself, has
expressed concerns about what transpired at jury selection.8
As described in the panel opinion, a highly experienced
and able Superior Court judge misapplied long-standing Supreme
Court precedent -- although, to the judge's credit, he recognized
and addressed this error post-trial. What is more, the reason
proffered by the prosecutor and accepted by the court for striking
8 At oral argument on Hollis's motion for acquittal or a new
trial, the Superior Court noted to the prosecutor its concern "that
you're sort of opening yourself up to a challenge when you have a
black defendant and you [strike the sole] black member of the jury
pool." The prosecutor replied: "I guess I wasn't really thinking
far ahead to that." As noted, the Law Court expressed skepticism
about the prosecutor's proffered reason for striking Juror 71.
State v. Hollis, 189 A.3d 244, 245 (Me. 2018). The district court
added its own cogent observation:
When using a peremptory challenge to strike the only
African-American from a jury pool in a case where the
defendant is African-American, the state prosecutor
should have been cognizant of Batson and, before
exercising the peremptory challenge, should have
considered whether the explanation, namely that Juror
#71 had a one-year difference in education from other
prospective jurors, would satisfy the Batson requirement
of a facially[] neutral explanation when challenged.
Hollis v. Magnusson, 2020 WL 110748, No. 1:19-cv-00322-JAW, at *3
n.4 (D. Me. Jan. 9, 2020) (citations omitted).
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Juror 71 -- level of education -- is troubling. The First Circuit
has previously noted that peremptory strikes based on education
level are permissible, but such strikes have generally been
accepted in especially complex cases. See Caldwell v. Maloney,
159 F.3d 639, 654-55 (1st Cir. 1998). Other than the Law Court's
observation that the law of self-defense in Maine is complex, there
is simply no indication in the record that this was an especially
complex case. And strikes based on a juror's level of education
in the absence of a clear connection to the case's complexity may
come perilously close to resembling strikes based on amorphous
concepts of "intelligence" that have been rejected by courts, and
that perpetuate deplorable and wholly unjustified racist
stereotypes about Black mental acuity. See McGahee v. Ala. Dep't
of Corr., 560 F.3d 1252, 1267 (11th Cir. 2009); see also Jeffrey
Bellin & Junichi P. Semitsu, Widening Batson's Net to Ensnare More
than the Unapologetically Bigoted or Painfully Unimaginative
Attorney, 96 Cornell L. Rev. 1075, 1098 & n.136 (2011).
Like the Law Court, I am skeptical "of a proffered
explanation for striking a juror based on low education level
without individual voir dire on intelligence or education." State
v. Hollis, 189 A.3d 244, 245 (Me. 2018). More specifically, I
question whether Juror 71's eleventh-grade education level was a
credible basis for striking him. Arguably, the distinction between
an eleventh-grade and a twelfth-grade education is so minimal for
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purposes of understanding the legal concepts at issue in Hollis's
trial, and so worthless as a proxy for mental ability, that Juror
71 was indeed treated differently than his similarly situated white
peers in the jury pool.
Further, the reason later provided by the prosecutor to
bolster the strike of Juror 71 -- that the juror exhibited a
"nonchalant attitude towards violence" in jury selection for an
unrelated domestic violence case -- only raises more questions.
Although we cannot reconstruct the juror's demeanor on the cold
record, the transcript from that jury selection does not in any
way demonstrate the purported nonchalance.9 Nor did the prosecutor
9 The entire on-the-record exchange with Juror No. 71 during
jury selection for the domestic violence case reads as follows:
Court: Because you answered that first question that you have a
close friend or relative who is the victim of domestic violence,
[we] wanted to get more information about that.
Juror No. 71: It was my grandmother.
Court: It was your grandmother who was the victim?
Juror No. 71: Yeah.
Court: At the hands of your grandfather?
Juror No. 71: No, boyfriend.
Court: A boyfriend. Okay. And you were a child at the time?
Juror No. 71: Yeah.
Court: How many -- how many years ago would that have been?
Juror No. 71: I'm 28 now so 7 or 8 maybe.
Court: You remember it? Did you actually witness it?
Juror No. 71: Yeah. I was in the middle of it.
Court: Do you still feel that [] -- you could be fair and
impartial in a case that involves allegations of domestic
violence?
Juror No. 71: Would that bother me?
Court: Would you be fair and impartial?
Juror No. 71: Oh, yeah, yeah, of course.
Court [to the prosecutor]: [D]o you have any questions you want
to follow up?
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in that case raise an objection to the juror based on his attitude
or pursue further questioning. If this reason had been provided
at the time of the initial objection under Batson v. Kentucky, 476
U.S. 79 (1986), and considered by the Superior Court, its utter
flimsiness may well have cast doubt on the education-level
rationale and the strike in general.
Beyond the specific troubling aspects of this case,
there are the problematic limitations of the Batson framework more
generally. As Justice Marshall noted in his concurring opinion in
Batson, the Batson inquiry can only go so far in rooting out
peremptory strikes based on race because "trial courts are ill-
equipped to second-guess th[e] reasons" for a strike asserted by
the prosecutor, and "unconscious racism" may result in the proffer
and acceptance of a "racially neutral" reason for a strike that is
in fact rooted in racial bias. Batson, 476 U.S. at 106 (Marshall,
J., concurring).10
Prosecutor: I don't
Defense Counsel: You saying -- does that mean you were in the
household?
Juror No. 71: I was in the house but I witnessed it. I
witnessed everything.
After the juror was excused from sidebar, the court and defense
counsel noted his "[g]ood qualities." The prosecutor did not
comment.
10 In Justice Marshall's view, "end[ing] the racial
discrimination that peremptories inject into the jury-selection
process . . . can be accomplished only by eliminating peremptory
challenges entirely." Batson, 476 U.S. at 102-03 (Marshall, J.,
concurring). However, Justice Marshall also acknowledged the
"long and widely held belief that peremptory challenge is a
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Since Justice Marshall's prescient concurrence, jurists
and commentators have extensively analyzed how the Batson
framework has serious limitations both when used to ferret out
purposefully discriminatory strikes and to address "implicit
bias." See, e.g., Miller–El v. Dretke ("Miller-El II"), 545 U.S.
231, 268 (2005) (Breyer, J., concurring) ("Given the inevitably
clumsy fit between any objectively measurable standard and the
subjective decisionmaking at issue, I am not surprised to find
studies and anecdotal reports suggesting that, despite Batson, the
discriminatory use of peremptory challenges remains a problem.");
United States v. Young, 6 F.4th 804, 811 (8th Cir. 2021) (Kelly,
J., concurring) (discussing, in the context of Batson, how "social
psychologists . . . have found that individuals may harbor implicit
biases even though they consciously decry comparable, explicit
prejudices"); Shirley v. Yates, 807 F.3d 1090, 1110 n.26 (9th Cir.
2015), as amended (Mar. 21, 2016) (providing as an example of how
implicit bias can underlie a facially race-neutral reason that
"[p]rosecutors might well conceive of 'life experience' in ways
that have a profoundly disparate impact on members of different
racial groups"); Christine Jolls & Cass Sunstein, The Law
of Implicit Bias, 94 Cal. L. Rev. 969, 978 n.45 (2006) (collecting
necessary part of trial by jury." Id. at 108 (quoting Swain v.
Alabama, 380 U.S. 202, 219 (1965), overruled on other grounds by
Batson, 476 U.S. at 92).
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sources on the law's "general failure to address the problem of
implicit bias," including in the Batson context); Antony
Page, Batson's Blind-Spot: Unconscious Stereotyping and the
Peremptory Challenge, 85 B.U. L. Rev. 155, 156-61, 178 n.102
(2005).
In particular, the Batson inquiry is often reliant on a
court's consideration of the demeanor of the party exercising the
challenged peremptory strike. See Snyder v. Louisiana, 552 U.S.
472, 477 (2008) ("[T]he best evidence [of discriminatory intent]
often will be the demeanor of the attorney who exercises the
challenge." (internal quotation marks omitted)). But demeanor can
itself be a problematic basis for believing a proffered racially
neutral reason for the strike where unconscious bias is at work
and the party exercising the strike may even be "l[ying] to himself
in an effort to convince himself that his motives are legal."
Batson, 476 U.S. at 106 (Marshall, J., concurring) (quoting King
v. Nassau Cnty., 581 F. Supp. 493, 502 (E.D.N.Y. 1984)).11
Still, even with its limitations, Batson retains its
importance in addressing the problem of racially based peremptory
11 Beyond "implicit bias," parties are finding increasingly
sophisticated ways of cloaking racially based strikes in facially
neutral rationales. See Miller-El II, 545 U.S. at 270 (Breyer,
J., concurring) (citing Post, A Loaded Box of Stereotypes: Despite
"Batson," Race, Gender Play Big Roles in Jury Selection, Nat. L.
J, Apr. 25, 2005, at 1, 18, and noting that "the use of race- and
gender-based stereotypes in the jury-selection process seems
better organized and more systematized than ever before").
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strikes. Indeed, because of these limitations, courts and parties
must be particularly conscious of the vexing issue of bias and
carefully apply Batson when faced with a suspect strike. In this
case, the trial court judge and the prosecutor, as they have
acknowledged, were unprepared, when the issue first arose, to
properly address the striking of the sole prospective juror of
color in a case with unmistakable racial overtones. Hopefully, in
the future, with this case as a cautionary tale, any Batson issue
will be addressed properly during jury selection.
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