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

Abstract

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To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that reviewed state or federal trial court rejections of a Batson challenge.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 Batson is easily avoided 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, this Article proposes an alteration to the Batson framework that we believe would enable trial courts to reduce the role of race in the jury selection process.

Keywords: Batson, voir dire, jury selection, equal protection, peremptory challenge, Commonwealth v. Cook