Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney

Jeffrey Bellin & Junichi Semitsu

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In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes.  Yet, the Court left in place the talismanic protection available to those who might misuse the peremptory challenge—the unbounded collection of justifications that courts, including the Supreme Court, accept as “race-neutral.”

To evaluate the Court’s continuing faith in Batson, 1 we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that reviewed state or federal trial court rejections of a Batson challenge.  In light of this study, and studies that have come before, we conclude that attorneys continue to easily avoid Batson through the articulation of a purportedly race-neutral explanation for juror strikes.  As a result, there is no reason to believe that Batson is, as the Court suggests, achieving its goal of eliminating race-based jury exclusion, and little hope that it will ever do so.  In light of our conclusion, we propose an alteration to the Batson framework that we believe would enable trial courts to reduce the role of race in the jury selection process.

Commonwealth v. Cook and the Salience of Rationalized Race-Based Discrimination

It would be difficult to hypothesize a fictional case that could better demonstrate the failings of Batson than the 2008 Pennsylvania case of Commonwealth v. Cook.2  The facts underlying the case began two decades earlier, in 1987, when Assistant District Attorney Jack McMahon prepared a training video for new prosecutors.  In the video, McMahon unabashedly advocates striking blacks and women from jury venires.  Acknowledging that such race-based strikes run afoul of Batson, which the Supreme Court decided a year earlier, McMahon noted ways to conceal race-based strikes.  He further warned rookie prosecutors, “you’re there to win” and, consequently, failing to heed his advice could result in the loss of their jobs.

After receiving a copy of the video from the District Attorney’s Office almost a decade after his trial, Robert Cook filed a post-conviction petition for relief, arguing that when Cook was convicted of murder in 1988, McMahon practiced what he preached.  During voir dire, McMahon had used 14 of his 19 peremptory challenges to strike black potential jurors from Cook’s jury.  The resulting jury sentenced Cook to death.  Despite the strong evidence of discriminatory jury selection—which included both the training video and McMahon’s difficulty, during a hearing on Cook’s motion, in articulating nondiscriminatory reasons for the strikes—the Pennsylvania courts rejected the Batson claim.

Admittedly, Commonwealth v. Cook is an unusual case because it involved direct evidence of a prosecutor’s race-conscious strategy of juror selection.  Moreover, prosecution offices no longer officially sanction practices like those advocated in the training video.  However, the case unequivocally highlights Batson’s impotence.  Even in a case where the defendant produces a veritable cornucopia of evidence of racial motivation, Batson permitted the strikes to stand.  Justice Marshall’s critique that Batson, as currently interpreted, permits denial of relief even in the face of “smoking guns” rings true in Commonwealth v. Cook.

While Commonwealth v. Cook illustrates the need for Batson reform, it also demonstrates the enormity of the task of eradicating race-based jury selection.  The difficulty stems, in part, from the fact that an attorney’s animus towards members of any race or an institutional racism that pervades the legal community will not explain most race-based strikes.  Rather, the explanation is usually a function of the continued relevance of race in the larger society and the fact that, in an adversary system, the attorneys “are there to win.”

The Continued Impotence of Batson in Application: A Review of Challenges in Federal Court from 2000–2009

To determine whether Cook is representative of modern practice, we examined all opinions and orders issued between January 1, 2000, and December 31, 2009, in which a federal court ruled on a race-based Batson challenge in either a civil or criminal case.  Our interest was as much in the proceedings in the trial court as in those on review.  Indeed, given the inherent limits of our survey, we could not hope to determine anything conclusive about the likelihood of success of initial Batson challenges.  What we sought to explore and what our survey in fact reveals is that Commonwealth v. Cook is not an aberration but rather a symptom of a continuing and systemic problem.  The last decade of federal court opinions reflects that prosecutors regularly respond to a defendant’s prima facie case of racially motivated jury selection with tepid, almost laughable, “race-neutral” reasons, as well as purportedly “race-neutral” reasons that strongly correlate with race.  More significantly, courts accepted those reasons as sufficient to establish the absence of a racial motivation under Batson, and, almost without exception, those reasons survived subsequent scrutiny in the federal courts.

Reforming Batson by Expanding its Scope and Narrowing the Remedy

Attempting to make sense of the survey results, we perceived two primary obstacles to a more robust judicial effort to eradicate the use of race and gender in jury selection: (i) confusion regarding the proper remedy for a Batson violation in the trial court; and (ii) the stark implication of attorney misconduct that now lies at the core of any trial-court finding of a Batson violation.  Unless these obstacles are addressed, Batson cannot be expected to have anything but the most superficial success in rooting out unconstitutional race- or gender-based peremptory challenges.

A.     The Need for an Efficient Remedy for Batson Violations

While an appellate court’s finding of Batson error leads to automatic reversal, the case law is less clear with respect to the proper remedy in the trial court for a Batson violation.  We believe, in combination with the reform to the Batson framework outlined below, the courts should settle on the remedy of reseating improperly stricken jurors.  By essentially guaranteeing the improperly stricken juror’s right to serve on the jury, the reseating remedy fits neatly within the themes of existing Batson doctrine, which emphasize the Equal Protection rights of the stricken juror.  The remedy of reseating the juror is also practically appealing.  This remedy will be attractive from a judicial perspective because, unlike many remedial suggestions forwarded by academic commentators, it is specifically mentioned in Batson and has been repeatedly referenced in state and federal appellate decisions as one of the potential remedies for a Batson violation.  Reseating an improperly stricken juror is also desirable from the standpoint of administrative efficiency.  The remedy, when accompanied by appropriate procedural safeguards that respond to common criticisms, is easily implemented and minimally disruptive to the jury selection process.

B.     Successful Batson Challenges Require Drastic Findings of Attorney Misconduct

While providing a practical remedy for Batson violations is necessary, it will not alone achieve the stated goal of eliminating race and gender bias in jury selection.  The primary obstacle to successful Batson challenges is not the absence of a remedy but, rather, the drastic finding required before the exercise of a peremptory strike can be deemed unconstitutional.

Under current doctrine, before a trial court can determine that any Batson violation occurred, the trial court must make a finding of attorney misconduct that has at least two facets, either of which would give any reasonable trial judge pause.  First, the judge must make a factual finding that the race- or gender-neutral explanation proffered by the striking attorney at Batson’s second step is not, in fact, the reason for the strike but is, instead, “pretextual.”  In other words, the court must find the attorney misrepresented a material fact to the court—a serious breach of the attorney’s ethical duty of candor.  Second, and relatedly, the judge must find that the attorney exercised a peremptory challenge based on race or gender, violating the juror’s constitutional right to equal protection under the law.  Indeed, considered together, a trial court ruling in favor of a Batson movant constitutes a judicial determination that an attorney, in open court, misrepresented a material fact to obscure a violation of the law—an action that, in other contexts, could warrant criminal prosecution.

Given the implications of the findings required to establish a Batson violation, it is understandable that, in all but the most extreme cases, trial courts will err on the side of crediting the reason proffered for a strike.  A judge who might have few qualms about ruling against the prosecution or defense, may be hesitant to make the findings of personal misconduct against a prosecutor or defense attorney (who are more often than not repeat players in the judge’s courtroom) called for under Batson.  Consequently, a trial court is likely to acquiesce in Batson violations that it might prevent if a less drastic mechanism were available.

C.     Trial Courts Have Little Information From Which to Determine Attorney Intent

A trial judge’s natural reluctance to make findings that, if taken seriously, will forever mar the professional reputation of the subject attorney dovetails with the difficulty inherent in resolving whether such findings are truly warranted.  Even if a trial court is inclined to make the severe findings required under Batson, the court will have little information upon which to ground those findings.  In particular, the trial court has almost no evidence from which to discern a striking attorney’s intent, the dispositive question under Batson.

The trial court will have before it some rough numbers as to the racial makeup of the venire, its observations of the strikes to the point of the challenge, and the race- or gender-neutral reasons offered for the disputed challenges.  This information will likely fail to provide any definitive answer to the Batson inquiry and, accordingly, the ultimate decision will turn, and is intended to turn, on the trial court’s assessment of the credibility of the striking party, something that the trial court must divine largely from the attorney’s demeanor.  In essence, the entire Batson inquiry comes down to the judge’s gut feelings as to attorney credibility.  It is unrealistic in this context to expect trial courts to “guess” in favor of a Batson movant.  Indeed, it would generally be legally improper to do so, as the Supreme Court has emphasized that any difficulty in establishing discriminatory intent will be held against the Batson movant who has the ultimate burden of persuasion regarding racial motivation.  Yet, that is precisely what the Supreme Court has required of trial courts before they are permitted to find a Batson violation.

In sum, given the difficulty of determining the true reason for a strike and the paucity of information available, a trial court with mere human powers of cognition and any measure of humility will be hesitant to make the stark findings of attorney misconduct necessary to declare a Batson violation.  Thus, if existing doctrine remains unchanged, Batson, unsurprisingly (as suggested by our survey), will continue to fail to weed out reliance on race and gender in jury selection.

D.      Revising the Step Three Finding

As long as Batson and its progeny do not empower trial courts to take remedial action absent a finding of pretext, those courts will be understandably reluctant to uncover Batson violations.  Consequently, many strikes that appear unsavory will survive a Batson objection because the alternative—rejecting the strike—is even more unpalatable.  The solution to this dilemma is to decouple Batson violations from any finding regarding the striking attorney’s subjective intent.  By instead basing Batson findings on the alternate grounds discussed below, and narrowing the Batson remedy to the mere reseating of a juror, a robust implementation of Batson can be realized, carving out the necessary breathing space for the equal protection rights at issue to thrive.

To create this breathing space, we propose a third alternative to add to the trial court’s menu of options at step three of the Batson process.  First, as always, the trial court can conclude that the attorney’s justification is credible and race- or gender-neutral and (subject to the third option discussed below) permit the strike.  Second, the trial court can, as under current doctrine, deem the proffered justification a pretext for discrimination and reject the strike, exposing the striking attorney to, inter alia, potential ethics charges.  Third, as a new addition to the doctrinal menu, the trial court could disallow the peremptory challenge based on a finding that falls somewhere between these first two options.  More specifically, a trial court would invalidate a peremptory challenge whenever the attorney’s proffered justification, even if credited, is insufficient to rebut the prima facie case of discrimination established at Batson’s first step.  Thus, contrary to current doctrine, at step two of the Batson inquiry, a burden would shift to the striking party—the party who knows the most about the motivations for the challenged strike—not just to articulate a race-neutral reason, but to actually rebut in some meaningful way the allegation that the challenged strike was motivated by race (or gender).  Failure to dispel the appearance of discrimination would result in the disallowance of the strike.

Our proposal instills step one of the Batson process with the gravity it is due.  Recall that, for a Batson objection to survive the first step of the Batson process, the trial court must find “a prima facie case of purposeful discrimination,” such that there is “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”  Thus, a step one finding of a prima facie case represents a common sense judgment that race or gender appears to motivate a party’s strike.  Such a circumstance is cause for great concern.  Because of this concern, the Supreme Court, after years of equivocation, allowed the courts to disturb the peremptory nature of the “peremptory” challenge by demanding an explanation for the strike.  This inquiry—step two of the existing Batson rubric—is intended to dispel the appearance of discriminatory intent by opening a window into the otherwise hidden thought process of the striking attorney, which may reveal a valid, non-racial reason for the strike.  If this window instead reveals a non-racial reason that is trivial or unsupported by the record or a “race neutral” reason that strongly correlates with race, it does not accomplish its purpose of dispelling the inference of race discrimination.  Even if striking attorneys subjectively believed those reasons, race-correlated, nonsensical, or unsupported rationales for an apparent pattern of discriminatory strikes will do little to dispel the appearance of discriminatory intent established at step one of the Batson process.  In short, the fact that a reason offered is non-pretextual fails to resolve the constitutional inquiry—even if the reason is credited.  The real question is whether the allegation of discriminatory jury selection has been met with an adequate response.  Our proposal allows that question to be answered, while current Batson doctrine obscures the answer behind an amorphous and unrealistic credibility determination.

It is likely, and indeed intended, that this proposal will result in a greater number of findings of Batson violations.  The short term increase in findings of Batson violations will be made somewhat more palatable to attorneys by the fact that the specter of attorney misconduct is largely absent from such findings, and the remedy imposed (the rejection of a strike) is minor.  A juror subject to a peremptory challenge is qualified to serve on the jury, and, thus, there is no constitutional basis for peremptory challenges.  All that is lost when the trial court disallows a peremptory challenge is a speculative tactical advantage, and similar constraints placed on one’s opponent will largely cancel out this advantage.  Most significantly, the proposal outlined above will remediate numerous instances of race- and gender-influenced selection that the Batson regime currently overlooks.


In our adversary system, the arbitrary nature of peremptory challenges and the salience of race in modern society combine to create a formidable obstacle to the eradication of race-based jury selection.  Yet, the elimination of racial juror-exclusion is necessary to defendants’ constitutional right to a jury of one’s peers, the equal protection rights of the jurors themselves, and the integrity of the jury as a representative symbol of American society.  When citizens are dismissed from juries based on race or when they see their fellow citizens dismissed based on race, the criminal justice system suffers a body blow, regardless of the outcome of the trial to follow.

Unfortunately, there is little evidence that the primary guarantor of race-neutrality in jury selection, the three-part test set forth in Batson v. Kentucky, is equal to its critically important task.  Our proposal seeks to alter the status quo by making trial court findings of Batson violations more prevalent and less significant for the parties involved.  By removing any finding of attorney misconduct and ensuring the availability of a simple remedy (juror reseating), our proposal should prove more palatable to those who vigorously object to more transformative reforms, such as abolishing peremptories, applying racial quotas in the jury box, or increasing sanctions for Batson violations.  Our proposal will also provide trial courts with a workable tool with which to push back as zealous attorneys strategically attempt to shape the racial composition of juries.


This editorial is based off Bellin and Semitu’s Article, Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL L. REV. 1076 (2011).

Jeffrey Bellin is a professor at Southern Methodist University, Dedman School of Law. Junichi P. Semitsu is a professor in residence at University of San Diego School of Law.

Copyright © 2011 Cornell Law Review.

  1. Batson v. Kentucky, 476 U.S. 79 (1986).
  2. Commonwealth v. Cook, 952 A.2d 594 (Pa. 2008).

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