Johnson v. California Brief Amici Curiae in Support of Petitioner

    No. 04-6964

IN THE
Supreme Court of tfio Hnttoii S ta tes

Jay Shawn Johnson,
Petitioner,

v.
State of California,

Respondent.

On Writ Of Certiorari To The Supreme Court of California

BRIEF OF THE NAACP LEG AL D E FE N SE  AND  
EDUCATIONAL FUND, I N C ., THE A M E R IC A N  

CIVIL LIBERTIES UNION, TH E A M E R IC A N  CIVIL  
LIBERTIES UNION OF NO RTH ERN C A LIFO R N IA , 

TH E LAW YERS’ COM M ITTEE FO R  C IV IL RIG H TS  
UNDER LAW , AND THE NATIO NA L A SSO C IA T IO N  

OF CRIM INAL DEFENSE LA W Y E R S AS  
AMICI CURIAE IN SUPPORT O F PE T IT IO N E R

Theodore M. Shaw 
Director-Counsel

*Norman J. Chachkin 
Miriam Gohara 
Christina A. Swarns 
NAACP Legal Defense 

and Educational Fund , Lnc. 
99 H udson Street, 16th F loor 
New York, N Y  10013 
(212) 965-2200

*Counsel o f  Record

[Additional Counsel listed inside fro n t cover]



[Listing o f Counsel continued from cover]

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
N ew  Y ork, N Y  10025 
(212) 549-2500

Alan L. Schlosser 
American Civil Liberties 

Union Foundation of 
Northern California 

1663 M ission  Street 
San Francisco, CA 94103 
(415) 621-2493

Pamela Harris 
Co-Chair, N A CD L Amicus 

Committee 
1625 Eye Street, N.W. 
W ashington, D C 20006 
(202) 383-5386

Barbara R. Arnwine 
M ichael L. Foreman 
Audrey Wiggins 
Sarah Crawford 
Lawyers’ Committee for 

Civil Rights Under 
Law

1401 New York Ave., N.W . 
Suite 400

W ashington, D.C. 20005 
(202) 662-8600

Barry Sullivan 
Margaret J. Simpson 
Duane Pozza 
Jenner& Block LLP 
One IBM Plaza, Suite 4300 
Chicago, Illinois 60611 
(312) 222-9350

Counsel fo r  A m ici Curiae



1

Introductory Statement

This case w as initially heard in the O ctober, 2003 Term. 
However, on M ay 3, 2004, this Court dism issed for want of 
jurisdiction inasm uch as the petitioner had raised  additional, 
potentially d ispositive state law claims that had  been  reached 
neither by the interm ediate Court o f  A ppeal nor by the 
California Suprem e Court, whose judgm ent w as the subject of 
the writ o f  certiorari that had issued. Johnson v. California, 
___ U .S .____, 124 S. Ct. 1833 (2004) (per curiam).

On rem and follow ing that dismissal, the C alifornia Court 
o f  Appeal rejected petitioner’s state law argum ents and the 
California Suprem e Court denied discretionary review. 
Petitioner again asked this Court to review  the California 
Supreme C ourt’s “Wheeler!Batson” ruling, w hich  had merged 
into the new, now -final state court judgm ent. This Court 
granted the writ. Johnson v. California, 73 U .S .L .W . 3396 
(U.S. Jan. 7, 2005).

W hen the m atter was heard in the last Term , present amici 
submitted a b rie f  in support o f  Petitioner. In the intervening 
period, there have been no decisions o f  the C alifornia Supreme 
Court that m aterially  affect the issues presented b y  that Court’s 
2003 decision in this case, People v. Johnson, 30 Cal. 4th 1302 
(2003). Accordingly, amici reprint, in the fo llow ing pages, the 
b rie f they previously subm itted in the October, 2003 Term.



T A B L E  O F CONTENTS

Introductory Statem ent ..................................... ......................... I

Table o f  A u th o ritie s ....................................................................  iv

Interest o f  A m ic i ................................................................................ 1

Sum mary o f  A rgum ent .........................................   l

ARGUM ENT —

Page

The California Suprem e Court’s Decision and the 
Procedure that C ourt has Established for Trial 
Court C onsideration o f Objections to Peremptory  
Challenges as D iscrim inatory Departs from  this 
Court’s R uling in Batson and is Inadequate to 
Safeguard the C onstitutional Rights Batson was 
Intended to P r o t e c t ............................................................ 3

A. The Batson D ecision

1. Strauder and Swain: The Onerous Burden
o f  P r o o f ....................................................................3

2. The Batson  H o ld in g ............................ .. 6

3. The Federal Courts Consistently Interpret
Batson as Requiring, at Stage 1, no m ore 
than a Show ing o f  Facts from which a 
Court m ight Infer Discriminatory Use o f  
Perem ptory Challenges by the Prosecutor 
in order to Trigger the Prosecutor’s 
O bligation to Give Reasons for Strikes ......... 8



Ill

TABLE OF CONTENTS (continued)

Page

B. The California Suprem e Court Ruling 
Departs from  Batson and Rests on Flawed 
I n t e r p r e t a t i o n s  o f  t h i s  C o u r t ’ s 
Jurisprudence .......................... ........................... 12

1. The California C ourt’s Tortured Reading 
o f  Wheeler and Batson Produces a 
Standard Closer to Swain’s than Batson's

2. Experience under the California Rule
Demonstrates the G u lf betw een the 
California Supreme Court Formulation 
and the Requirements for Showing a 
Prima Facie Case under B a tso n .....................17

3. T he C alifo rn ia  S u p rem e  Court
M isunderstood this C ourt’s Reference to 
Title VII in Batson and Relied Upon a 
W holly M istaken Interpretation o f Title 
V II’s Requirements for M aking Out a 
Prima Facie C a s e ...............................................18

C. The Approach of the California Supreme Court 
is Inadequate to Fulfill the Guarantees o f the
Fourteenth Amendment ..........................................21

1. Petitioner has Established a Prima Facie
Case o f  Discrimination  ......................... 21



IV

TABLE OF CONTENTS (continued)

Page

2. The California Supreme C ourt’s Prima 
Facie Case Requirement Shields, Rather 
t h a n  R e v e a l s  a n d  C o r r e c t s ,  
Discrim inatory Use o f  Perem ptory
Challenges by Prosecutors ................................24

C o n c lu s io n .................................................................................... 30

TABLE OF AUTH O RITIES

Cases'.

A very v. Georgia,
345 U.S. 559 ( 1 9 5 3 ) ....................   6

Ballard v. United States,
329 U.S. 1 8 7 (1 9 4 6 ) ...........................................................  30

Balzac v. Porto Rico,
258 U.S. 298 ( 1 9 2 2 ) ...........................................................  5n

B am es v. Anderson,
202 F.3d 150 (2d Cir. 1999) .............................................  9n

Batson v. Kentucky,
476 U.S. 79 ( 1 9 8 6 ) ...................................................... passim

Birdine v. Hubbard,
No. C-99-037-M JJ, 2000 WL 1229112
(N.D. Cal. Aug. 21, 2 0 0 0 ).......................... ....................  15n



V

Cases (continued):

Brown v. Kinney Shoe Corp.,
257 F.3d 556 (5th Cir. 2 0 0 1 ) ........................................... lOn

Bryant v. State,
565 So. 2d 1298 (Fla. 1 9 9 0 ) .......................... ................  16n

Bui v. Haley,
321 F.3d 1304 (11th Cir. 2 0 0 3 ) ......................................  27n

Byrd v. Roadway Express,
687 F.2d 85 (5th Cir. 1 9 8 2 ) .............................................  19n

Cooperwood v. Cambra,
245 F.3d 1042 (9th Cir. 2 0 0 1 ) ........................................  15n

Fumco Constr. Co. v. Waters,
438 U.S. 5 6 7 ( 1 9 7 8 ) ...........................................................  21

Halsell v. Kim berly Clark Corp.,
683 F.2d 285 (8th Cir. 1 9 8 2 ) ...........................................  19n

Hardcastle v. Horn,
No. 98-CV-3028, 2001 W L 722781
(E.D. Pa. June 27, 2001), vacated and rem anded,
368 F.3d 246 (3d Cir. 2004) ......................................... 27n

Harris v. Kuhlman,
346 F.3d 330 (2d Cir. 2003)

TABLE OF AUTHORITIES (continued)

Page

22n



VI

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

H eno v. Sprint/United M gmt. Co.,
208 F.3d 847 (10th Cir. 2 0 0 0 ) ........................................ l l n

H ernandez v. N ew  York,
500 U.S. 352 (1991) ......................................  2 3 ,2 5 ,2 8 ,2 9

H ernandez v. Texas,
347 U.S. 475 ( 1 9 5 4 ) ........................................................  22

H orton v. Zant,
941 F.2d 1449 (11th Cir. 1 9 9 1 ) ........................................ 4n

Johnson v. California,
73 U.S.L.W . 3396 (U.S. Jan. 7, 2005) ........................ .. I

Johnson v. California,
___ U .S .____, 124 S. Ct. 1833 (2 0 0 4 ) ............................... I

Johnson v. Love,
40 F.3d 658 (3d Cir. 1994) ........................ .. lOn

Jones v. Davis,
835 F.2d 835 (11th Cir. 1 9 9 8 ) ................... .......................  4n

Jones v. Ryan,
987 F.2d 960 (3d Cir. 1993) .................................  1 In , 24n



vii

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

King v. Moore,
196 F.3d 1 3 2 7 (1 1th Cir. 1999) ..........................  8n, 15, 16

M ahaffey v. Page,
162 F.3d 481 (7th Cir. 1 9 9 8 ) .............. lOn. 22n, 24n, 26n

M cCain v. Gramley,
96 F.3d 288 (7th Cir. 1996), cert.
denied, 520 U.S. 1147 (1 9 9 7 ) ......................................... 22n

M cCray v. New York,
461 U.S. 961 ( 1 9 8 3 ) ...........................................................  30

M iller v. Lockhart,
65 F.3d 676 (8th Cir. 1 9 9 5 ) ................................................ 4n

M iller-El v. Cockrell,
537 U.S. 3 2 2 ( 2 0 0 3 ) ....................................................  28 , 29

Neil v. State,
457 So. 2d 481 (Fla. 1 9 8 4 ) ................................................ 15

Overton v. Newton,
295 F.3d 270 (2d Cir. 2002) .............................................  9n

Overton v. Newton,
146 F. Supp. 2d 267 (E.D.N.Y. 2001), 
rev’d, 295 F.3d 270 (2d Cir. 2002) . . . 14



Page

viii

TABLE OF AUTHORITIES (continued)

Cases (continued):

People v. Arias,
13 Cal. 4 th 92 (1996) ......................................................  16n

People v. Bernard,
27 Cal. App. 4th 458 (Ct. App. 1994) . . 14-15, 16, 17n 

People v. Bittaker,
48 Cal. 3d 1 0 4 6 (1 9 8 9 ) ...................................................  16n

People v. Box,
23 Cal. 4 th  1153 (2000) ....................................................  17

People v. Buckley,
53 Cal. App. 4th 658 (Ct. App. 1997) ..........................  13

People v. Crittenden,
9 Cal. 4th 83 (1994) .................................................  16n, 18

People v. Davenport,
11 Cal. 4th 1171 (1995) ..................... ............................ 16n

People v. Fuentes,
54 Cal. 3d 707 (1 9 9 1 ) ......................................................  16n

People v. Fuller,
136 Cal. App. 3d 403 (Ct. App. 1 9 8 2 ) ................. 16, 17n

People v. Garceau,
6 Cal. 4 th 140(1993) ......................................................  16n



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

People v. Howard,
1 Cal. 4th 1132 (1992) .....................................................  18

People v. Johnson,
30 Cal. 4th 1302 (2003) . . . . . . .  I, 12, 13, 23n, 25, 26n

People v. Mayfield,
14 Cal. 4th 668 (1997) . . . . .............................. .. 16n

People v. Montiel,
5 Cal. 4th 877 (1993) ......... .......................................... 16n

People v. Sanders,
51 Cal. 3d 471 (1 9 9 0 ) ........... ..................................... 17, 18

People v. Turner,
8 Cal. 4th 137 (1994) ........... ........... ..............................16n

People v. W elch,
20 Cal. 4th 701 ( 1 9 9 9 ) ........... .............................. .. 16n

People v. W heeler,
22 Cal. 3d 258 (1 9 7 9 ) ........... ............................ 12, 16, 17

People v. W illiams,
16 Cal. 4th 635 (1997) .........

Pow ers v. Ohio,
499 U.S. 400 ( 1 9 9 1 ) ..............

........................................16n

................................... 5n, 6n5n, 6n



X

Purkett v. Elem,
514 U.S. 765 ( 1 9 9 5 ) ..............................................  7 , 2 6 , 2 7

R am seur v. Beyer,
983 F.2d 1215 (3d Cir. 1 9 9 2 ) ........................................... 5n

R iley v. Taylor,
277 F.3d 261 (3d Cir. 1 9 9 9 ) ........................................... 27n

St. M ary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1 9 9 3 ) .............................. 2, 19, 20n

State v. Slappy,
522 So. 2d 18 (Fla. 1 9 8 8 ) ...............................................  15n

Strauder v. W est Virginia,
100 U.S. 303 ( 1 8 7 9 ) ......................................................  3 , 30

Sim m ons v. Luebbers,
299 F.3d 929 (8th Cir. 2002), cert, denied 
sub nom. Roper v. Simmons, 123 S. Ct.
1582 (2 0 0 3 ) ........................................................................... l l n

Sw ain v. Alabama,
380 U.S. 2 0 2 ( 1 9 6 5 ) .....................................  1, 3, 5, 12, 28

T ankleffv . Senkowski,
135 F.3d 235 (2d Cir. 1 9 9 8 ) ................................   l l n

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):



XI

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Taylor v. Louisiana,
419 U.S. 522 ( 1 9 7 5 ) ...........................    30

Texas Dept, o f  Cmty. Affairs v. Burdine,
450 U.S. 248 (1 9 8 1 ) ............................................  1 9 , 2 0 , 2 1

Thiel v. S. Pac. Co.,
328 U.S. 2 1 7 ( 1 9 4 6 ) ..........................................................  30

Turner v. M arshall,
121 F.3d 1248 (9th Cir. 1 9 9 7 ) ........................................  27n

United States v. Allen-Brown,
243 F.3d 1293 (11th Cir. 2 0 0 1 ) ........................................  9n

United States v. Bergodere,
40 F.3d 512 (1st Cir. 1 9 9 4 ) ............................................... 9n

U nited States v. Cooper,
19 F.3d 1154 (7th Cir. 1 9 9 4 ) .......................................... lOn

United States v. Diaz,
176 F.3d 52 (2d Cir. 1999) ...............................................  9n

U nited States v. Escobar-de Jesus,
187 F.3d 148 (1st Cir. 1999) ............................................. 9n

U nited States v. Grimmond,
137 F.3d 823 (4th Cir. 1 9 9 8 ) .......................................... lOn



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

United States v. Joe,
8 F.3d 1488 (10th Cir. 1 9 9 3 ) .......................................... l l n

United States v. Johnson,
873 F.2d 1137 (8th Cir. 1 9 8 9 ) ........................................  12n

United States v. M ahan,
190 F.3d 416 (6th Cir. 1 9 9 9 ) .......................... .. . . 1 In, 27n

United States v. Sowa,
34 F.3d 447 (7th Cir. 1994), cert.
denied, 513 U.S. 1117 (1 9 9 5 ) .......................... 12n, 22n

United States v. W illiam s,
272 F.3d 845 (7th Cir. 2 0 0 1 ) ..........................................  12n

United States v. W illiam s,
264 F.3d 561 (5th Cir. 2 0 0 1 ) ..........................................  27n

United States v. W olk,
337 F.3d 997 (8th Cir. 2 0 0 3 ) ..........................................l l n

United States ex rel. Pruitt v. Page,
No. 97C -2115, 1999 W L 652035
(N.D. 111. Aug. 20, 1 9 9 9 ) ................................. ................ 27n

United States Postal Serv. v. Aikens,
460 U.S. 711 ( 1 9 8 3 ) ..........................................................  21



Cases (continued):

W ade v. Terhune,
202 F .3d 1190 (9th Cir. 2 0 0 0 ) ........................ 8, 14, 15, 17

W ashington v. Davis,
426 U .S . 229 ( 1 9 7 6 ) ...........................................................  28

W illiam s v. Chrans,
945 F .2d 926 (7th Cir. 1991),
cert, denied, 505 U.S. 1208 (1 9 9 2 ) ............................... 24n

W illiam s v. W oodford,
306 F .3d 665 (9th Cir. 2002), amended opinion,
384 F .3d 567 (9th Cir. 2004), rehearing and
rehearing en banc denied, 2005 W L 237646
(9th Cir. Feb. 2, 2005) ......................................................  23n

Statutes:

Cal. Evid. Code § 600 ............................................... ............... 13

Other Authorities'.

Jeffrey A braham son,
W e The Jury: The Jury System and
the Ideal o f  Dem ocracy ( 1 9 9 4 ) ................ ....................... 4n

B lack’s Law Dictionary (6th ed. 1 9 9 0 ) ...................................  13

xiii

TABLE OF AUTHORITIES (continued)

Page



XIV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

1 Barbara Lindem ann & Paul Grossman, 
Em ploym ent D iscrim ination Law
(3d ed. 1 9 7 6 ) ............................ .........................................19n

W igm ore on Evidence (3d ed. 1940) ........................ 18, 20, 21



1

Interest o f  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 discrim ination in any 
contacts w ith the criminal justice  system. M ore detailed 
descriptions o f  the amici and their interest in this m atter are 
contained infra at Appendix A.

Sum m ary o f Argum ent

This C ourt’s decision in Batson v. Kentucky, 476 U.S. 79 
(1986) w as intended to create a w orkable m echanism  to prevent 
racial discrim ination through perem ptory strikes from infecting 
criminal trials. Batson replaced the “crippling burden o f  p ro o f  ’ 
necessary to show discrim ination in the use o f  perem ptory 
challenges that had been erected by the ruling in Swain v. 
Alabama, 380 U.S. 202 (1965), w ith the now -fam iliar three- 
part procedure: First, the defendant m ust establish a prima  
facie  case by showing facts and circum stances that “raise an 
inference” o f  discrimination; second, once the prim a fac ie  case 
has been established, the prosecutor m ust offer a facially 
nondiscrim inatory reason for the challenged strike; and third, 
after the prosecutor articulates such a reason, the defendant m ay 
offer additional evidence, either to dem onstrate that the 
proffered justification is pretextual or to m eet in  any other w ay 
his burden o f  persuading the trier o f  fact that the strike was 
m otivated by discrim inatory purpose. The trial court 
determines w hether discrim ination occurred by  considering all 
relevant evidence offered by  any party at any stage.

This m atter involves w hat showing m ust be m ade to 
establish a prim a 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 this 
brief in whole or in part, and no person or entity, other than amici, 
made any monetary contribution to its preparation.



9

revisited since Batson. Lower federal courts consistently 
interpret the prima fac ie  burden to require that a defendant 
prove only facts that support an inference o f  discrim ination.

H istorically 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 p roo f sufficient for an 
inference o f  discrim ination “is not conclusive,” and no prim a  
fac ie  case exists unless the defendant proves more, i.e., a 
“strong likelihood” o f  discrimination.

The Supreme Court o f  California sought to ju stify  its 
prima facie  case standard by misreading this Court’s Title VII 
cases. But Title VII, like Batson , imposes only a “m in im al” 
burden on plaintiffs at the prima facie  stage. St. M ary’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 A m endm ent 
rights, as the facts o f  this case demonstrate. Petitioner clearly 
presented sufficient p ro o f to support an inference that the 
prosecution’s strikes were discriminatory: Petitioner is an 
African American; the prosecutor used perem ptory challenges 
to rem ove all A frican Americans from  the jury; a 
disproportionate num ber o f  the prosecutor’s perem ptory 
ch a llen g es  w ere  lodged  against A frican -A m erican  
venirepersons; the prosecution asked no questions o f  the 
African Am ericans on the venire before seeking to strike them ; 
and the circum stances o f  the offense had racial overtones (the 
victim  was the child o f  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 o f  racial discrimination that w as the 
purpose o f  Batson.



3

ARGUM ENT

The California Suprem e Court’s Decision and the 
Procedure that C ourt has Established for Trial 
Court C onsideration of Objections to Peremptory 
Challenges as Discrim inatory Departs from this 
Court’s Ruling in Batson and is Inadequate to 
Safeguard the Constitutional Rights Batson was 

Intended to Protect

A. The ito sw z 1 Decision

1. Strauder and Swain: The Onerous Burden o f P roof

Although this Court announced nearly 125 years ago that 
excluding individuals o f  a criminal defendant’s race from 
serving on his ju ry  violates his right to equal protection under 
the Fourteenth Am endm ent, Strauder v. West Virginia, 100 
U.S. 303 (1879), the exclusion o f  African-American 
prospective jurors rem ained a notorious feature o f  crim inal 
trials throughout m ost o f  the 20* Century. This was in part 
because Strauder’s general rule lacked any specific m echanism  
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 o f  
perem ptory challenges for the purposeful exclusion o f  A frican 
Am ericans violated the Fourteenth Amendment. But Swain’s 
requirem ent o f  system ic proof created a virtually insuperable 
barrier for defendants alleging discrimination in the 
prosecutor’s use o f  perem ptory challenges and failed to 
ameliorate the very problem  it was meant to solve. Swain 
dem anded that the defendant show that the prosecution, 
“whatever the circumstances, whatever the crime and whoever 
the defendant or victim  m ay be, is responsible for the removal 
o f  Negroes . . . w ith  the result that no Negroes ever serve on

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



4

petit juries . . . Swain, 380 U.S. at 223. As the Court later pu t 
it, the “crippling burden o f  p ro o f ’2 established in 
Swain represented a stum bling block in  this C ourt’s “unceasing 
efforts to eradicate racial discrim ination.”3

Tw enty years after Swain was decided, racial 
discrimination in jury  selection rem ained a fixture in  m any 
American courtrooms.4 In fact, in the two decades im m ediately 
following Swain, not a single federal court m ade a finding that 
any perem ptory challenges had been exercised in a 
discriminatory m anner.5 The reality, o f  course, w as that 
African Americans were v irtually  openly excluded from  
participation in a system o f  justice  purporting to prom ise 
equality and fairness. The g u lf  betw een constitutional prom ise 
and everyday practice bred cynicism  and distrust in the crim inal 
justice system.

Against this backdrop, the Court abandoned Swain in 
Batson, largely because it concluded that the form idable Swain

2 Batson, 476 U.S. at 92.
3 Id. at 85.

4 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(11th 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 (8th 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 The Jury: The Jury System 
and the Ideal of Democracy 134 (1994).



5

standard was insulating discrim inatory conduct from  judicial 
remedy.6 The Batson Court recognized that the exclusion o f 
even a single African Am erican from  a ju iy  because o f  race 
violated the Fourteenth Am endment. It established a 
framework intended to lower Swain ’ s virtually insurm ountable 
proof requirements to m ake it possible to dem onstrate that 
discrimination had occurred in a single trial, or w ith  respect to 
a single perem ptory strike.7 This reform  o f  the Swain standard 
was intended by the Court also to restore public faith in the 
criminal justice system among crim inal defendants, prospective 
jurors, and the public generally.8

6 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 
U.S. at 101.

7 “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).

8 “‘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 (3dC ir.\992)-, s ee Bats on, A16U.S,. a t8 6 (“The 
petit jury has occupied a central position in our system o f justice by 
safeguarding a person accused of crime against the arbitraiy 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).



6

2. The Batson H olding

In Batson, this Court set forth the now -fam iliar three-part 
procedure for establishing discrim inatory use of perem ptory 
challenges that has been applied in thousands of crim inal cases:

At the first stage, the defendant m ust establish a prima 
facie  case by showing that: (a) he is a m em ber of a cognizable 
racial group, (b) the prosecution has exercised perem ptory 
challenges to strike venirem em bers 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 venirem en from  the petit 
ju ry  on account o f their race.” Batson, 476 U.S. at 96 
(emphasis added).9

As the Batson Court recognized, one relevant circumstance 
is that perem ptory challenges “permit[] ‘those to discrim inate 
who are of a m ind to discrim inate.’” Batson, 476 U.S at 96 
(quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)).10 This 
Court also offered a non-exhaustive list o f other potentially 
pertinent circum stances, including a pattern of strikes against 
jurors of a cognizable group, and questions and statements 
during voir dire by the proponent of the perem ptory challenge. 
Id. at 97.

At the second stage, the burden shifts to the prosecution to 
offer a race-neutral reason for its contested strikes. Id. The

9 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).

10 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 o f the venire, raises the necessary inference 
of purposeful discrimination.” 476 U.S. at 96 (emphasis added).



7

proponent of the strike may not rely on the “assumption —  or 
[an] intuitive judgm ent —  that the [excluded venire members] 
w ould be partial to the defendant because of their shared race.” 
Id. N either may the proponent rebut a prima facie case by 
sim ply denying a discriminatory m otive or “affirming [its] 
good faith in making individual selections.” Id. at 98 (citations 
om itted). Rather, the strike’s proponent m ust articulate a race- 
neutral reason related to the particular case being tried. Id.

However, under Batson, the proponent’s explanation “need 
not rise to the level justify ing exercise of a challenge for 
cause.” Id. 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.” Id. 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 m ost rulings on the existence of 
discrim ination in peremptory strikes are made at the third stage.

A t the third stage, Batson requires courts to decide whether 
the defendant has indeed established that the prosecution 
purposely used its perem ptory strikes in a racially 
discrim inatory 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 Show ing o f  
Facts from  w hich  a C ou rt m igh t In fer  
Discrim inatory Use o f Perem ptory C hallenges by  
the Prosecutor in order to Trigger the Prosecutor’s 
Obligation to Give Reasons for Strikes

The State o f  California supported a grant o f  review  in this 
case because the N inth Circuit, which hears appeals from  
California federal District Court habeas corpus decisions, has 
rejected the California Supreme C ourt’s requirem ents for 
establishing a prima facie  case at Stage 1 o f  the Batson 
procedure. The N inth Circuit holds that the state court’s 
form ulation does not afford criminal defendants the protection 
to which they are entitled under the Fourteenth Am endm ent. 
See infra pp. 14-15 & n.23 (discussing Wade v. Terhune, 202 
F.3d 1190 (9th Cir. 2000), and similar cases). The N inth  Circuit 
does not stand alone in its view o f the prima fa c ie  case burden. 
Rather, the California Supreme Court’s in terpretation o f  the 
prim a facie  case under Batson is inconsistent w ith the 
understanding o f  each o f  the federal circuits to have addressed 
the issue.11

W hile the courts o f  appeals’ precise im plem entation o f  the 
prima facie  case has necessarily depended on  the facts and 
circumstances o f  individual cases, none o f  the federal circuits 
has described the initial burden in a Batson challenge to be as 
onerous as the formulation o f  the California Suprem e Court.

The Eleventh Circuit, like the Ninth C ircuit, has expressly 
rejected the California view, holding that the “strong 
likelihood” formulation imposes a burden on the objecting 
party that is impermissibly “higher than B atson 's.”12 The

11 The D.C. Circuit has not had occasion to address the quantum 
of proof necessary to establish a prima facie case under Batson.

12 King v. Moore, 196 F.3d 1327, 1334 (11th Cir. 1999) 
(rejecting a pr e-Batson state standard for a prima facie  showing that



9

E leventh Circuit has held that a trial court should proceed to the 
second stage o f  the three-part Batson procedure whenever it has 
a “reasonable suspicion” o f  discrim ination.13

The other courts o f  appeals have adopted similar 
form ulations o f  the modest requirem ents for aprima facie  case 
under Batson. Thus, the First Circuit has stated that the prima 
fac ie  burden  is “not onerous,” and that the objector need only 
show  “circum stances sufficient . . .  to raise an inference” o f  
discrim ination.14 The Second Circuit has held that the 
objecting party has the “m inim al burden” to show that the 
“circum stances surrounding the perem ptory challenges raise an 
inference o f  discrim ination.” 15 The Third Circuit has said that 
th  e prim a fac ie  case requires “circum stantial evidence tending 
to support such an inference [o f discrim ination]” and reasoned 
that the “evidence . . . [need] not m andate a conclusion that 
d iscrim ination occurred, b u t . . .  [need only provide] sufficient 
reason to believe that discrim ination m ay 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)).

13 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.”).

14 United States v. Escobar-de Jesus, 187 F.3d 148, 164-65 (1st 
Cir. 1999) (quoting United States v. Bergodere, 40 F.3d 512, 516 
(1st Cir. 1994)).

15 Overton v. Newton, 295 F.3d 270, 277, 279 n.10 (2d Cir.
2002) ; see also Barnes v. Anderson, 202 F.3d 150, 155-56 (2d 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 (2d Cir. 1999) (emphasis added)).



10

here to require the state to come forw ard w ith  an explanation o f  
its actions.” 16

The Fourth Circuit, while not directly deciding the 
question because the Batson claim  was rejected by the trial 
court at the third stage o f  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.”17 Similarly, the F ifth  C ircuit has held that 
“a party is required to show that the circum stances surrounding 
the perem ptory challenges raise an inference o f  purposeful 
discrim ination.” 18

The Seventh Circuit has explained that “To establish a 
prima fac ie  case for purposeful discrim ination under Batson, 
[the defendant] must . . . point to facts and circum stances 
raising an inference that the potential ju ro rs  were excluded 
because o f  race.”19 The Eighth Circuit m ost recently phrased 
the standard as requiring a “showing [of] circum stances that

16 Johnson v. Love, 40 F.3d 658, 665-66 (3d Cir. 1994) 
(alternative holding).

17 United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998).
18 Brown v. Kinney Shoe Corp., 237 F.3d 556, 561 (5* Cir. 

2001). In that case, the Fifth Circuit refused to disturb the trial 
court’s rejection of the Batson objection at the prima facie stage 
where the obj ector 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.

19 United States v. Cooper, 19 F.3d 1154, 1159 (7th Cir. 1994). 
See also Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir. 1998) 
(“Batson requires us to look to all the relevant facts and 
circumstances in assessing whether an inference of discrimination 
should arise.”).



11

give rise to a reasonable inference o f  racial discrim ination.”20

The Sixth and Tenth Circuits have applied the Batson 
“inference” standard in a m anner obviously contrary to the 
approach o f  the court below by finding a prima facie  case to be 
established in circumstances where the only m em ber o f  a 
particular group in the venire was struck.21

20 United States v. Walk, 337 F.3d 997, 1007 (8th Cir. 2003) 
(quoting Simmons v. Luebbers, 299 F.3d 929, 941 (8th 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).

21 United States v. Mahan, 190 F.3d 416,424-25 (6*Cir. 1999) 
(holding that the government had “more than sufficiently]” 
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 
Mgmt. Co., 208 F.3d 847, 854 (10th 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 (10th 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 (2d 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 (3d Cir.
1993) (prima facie case established where prosecutor exercised three



12

B. The C alifornia Suprem e Court R u ling Departs from  
Batson and Rests on Flawed Interpretations o f this 
C ourt’s Jurisprudence

1. The C alifornia C ourt’s Tortured R eading of 
Wheeler and Batson Produces a Standard C loser to 
Swain"1 s than Batson’s

The California Suprem e Court’s application o f  Batson and 
People v. Wlteeler, 22 Cal. 3d 258 (1979), in the ruling below  
m ore closely approaches the discarded Swain burden o f  p roof 
than it does the Batson standard for establishing a prim afacie  
case. The decision below  rests on the prem ise that 
“reasonable inference” and “strong likelihood” (both phrases 
w ere used in Wheeler), are synonymous w ith each other and 
w ith 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 fac ie  case . . .  is, and always has been, 
com patible w ith Batson. It m erely m eans that to state a prima  
fac ie  case, the objector m ust show that it is more likely than not

of four peremptory challenges to strike black jurors, allowing only 
one black on otherwise all-white jury); United States v. Williams, 
272 F.3d 845, 862 (7th Cir. 2001) (“Because the government 
excluded all four African-American members o f 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 (7th 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 (S^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

the other party ’s perem ptory challenges [were racially 
discrim inatory.]”) (em phasis added). The California Suprem e 
Court s attem pt to equate B atson 's  “inference o f  
discrim ination” w ith a showing that “it is more likely than not” 
that discrim ination occurred simply cannot be squared w ith the 
w ell-established m eaning o f  the words that it is using.

In California evidentiary law, an “inference” is “a 
deauction o f  a fact that m ay logically and reasonably be draw n 
from  another fact or group o f  facts found or otherw ise 
established in the action.” (Cal. Evid. Code § 600; see also 
Black’s Law Dictionary 778 (6th ed. 1990) (defining 
inference as “[a] logical and reasonable conclusion o f  a fact not 
presented by direct evidence but which, by process o f  logic and 
reason, a trier o f  fact m ay conclude exists from the established 
facts”)). There is no suggestion in the statute or the definition 
that any specific quantum  o f  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 m ajority affirm ed the trial court’s refusal to find that the 
defendant had made out a prima facie  case o f  discrim inatory 
perem ptory challenges]) (emphasis added).

Yet, in the present case, the California Supreme Court 
equates “inference” w ith “strong likelihood” in a clearly 
incorrect reading o f  Batson: “Batson perm its a court to require 
the objector to present, not m erely ‘some evidence’ perm itting 
the inference, but ‘strong evidence’ that m akes discriminatory- 
intent m ore likely than not i f  the challenges are not explained.” 
Johnson, 30 Cal. 4th at 1315,1316. This interpretation sim ply



14

flies in the face o f  Batson. No federal court interpreting Batson 
has ever asserted that the opponent o f  the perem ptory strike 
m ust do anything m ore than establish an “inference o f  
discrim ination” at theprima facie  stage.22 As one federal court 
explained, B atson 's requirem ent that the opponent show  an 
“inference o f  discrim ination” 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 v a lue : an 
inference o f  racial discrimination satisfies a prim a facie 
case. A lthough inferences o f racial discrim ination defy 
standardization or quantification, as im plicitly recognized 
by Batson, they are nonetheless self-evident and the 
subject o f  good comm on sense. See Furnco Constr. Corp. 
v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 
957 (1978) (com m enting in the context o f  a T itle VII 
action that inferences o f racial discrim ination are to be 
drawn in “light o f  common experience”); see also 4 
Leonard B. Sand, et al., M odem  Federal Jury Instructions 
f  75.01 (1998) (jurors are charged that “ [i]n draw ing 
inferences, [they] should exercise [their] com m on sense” 
and “are perm itted to draw . . .  such reasonable inferences 
as w ould be  justified  in light o f their experience”).

Overton v. Newton, 146 F. Supp. 2d 267,278 (E.D.N.Y. 2001), 
re v ’d on other grounds, 295 F.3d 270 (2d Cir. 2002).

Two Courts o f  Appeals —  the Ninth and Eleventh C ircuits 
—  have expressly rejected the “strong likelihood” standard on 
the ground that it imposes a higher burden than B atson 's 
“inference” requirem ent. In Wade v. Terhune, the N inth 
Circuit held that the “strong likelihood” standard, as interpreted 
by  California courts following People v. Bernard, 27 Cal. App.

22 See supra § A.3. Moreover, this interpretation o f the 
“inference” standard goes against well-settled Title VII law, as 
discussed infra, in § B.3.



15

4th 458 (Ct. App. 1994), “does not satisfy the constitutional 
requirem ent laid down in Batson” and applies “a lower 
standard o f  scrutiny to peremptory strikes than the federal 
Constitution perm its.” 202 F. 3d at 1192.23 In King  v. M oore, 
196 F.3d 1327, 1334 (11th Cir. 1999), the E leventh C ircuit 
rej ected the standard applied by the trial court, which had found 
no prim a facie  showing o f  discrim ination in the exercise o f  
perem ptory challenges by applying the test in Neil v. State, 457 
So. 2d 481 (Fla. 1984), a decision that, like Wheeler, required 
a showing o f  a “strong likelihood” o f  discrim ination at the 
prima fac ie  stage.24 (The Eleventh Circuit ultim ately ruled in

23 Accord, e.g., Cooperwood v. Cambra, 245 F.3d 1042, 1046- 
47 (9th Cir. 2001); Birdinev. 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).

24 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.” Id. at 1334. On the basis of this reasoning, the 
Eleventh Circuit re-examined the state court determination under 
“the more relaxed standard of Batson.” Id.

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 fa c ie  case.)

The “strong likelihood” language o f  Wheeler caused 
confusion am ong interm ediate appellate courts about the 
appropriate standard w hen prosecutors’ use o f  perem ptory 
strikes was challenged, both before and after Batson}5 In 
People v. Fuller, 136 Cal. App. 3d 403 (Ct. App. 1982) the 
court recognized that Wheeler included bo th  “inference” and 
“strong likelihood” language but held that a defendant need  
only show “a reasonable inference o f  group b ias” to establish  
the prima fac ie  case. Id. at 423. Tw elve years later, post- 
Batson, another California appellate court reached the opposite 
conclusion from  Fuller. See People v. Bernard, 27 Cal. App. 
4th at 465 (rej ecting “a reduction o f  the prim a fac ie  standard to 
a ‘reasonable inference’ test”).

In a series o f  decisions spanning the decade preceding M r. 
Johnson’s trial, the California Suprem e Court repeatedly 
applied the w ords “strong likelihood” as the standard for 
establishing a prim a fa c ie  case, while om itting  any reference to 
the “reasonable inference” standard.* 25 26 Finally, after the N inth

Slappy, 522 So. 2d at 22; see also Bryant v. State, 565 So. 2d 1298. 
1300 (Fla. 1990).

25Unlike 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.

26 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);Peoplev. Crittenden, 9 C a l.4 th 8 3 ,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, 1 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 o f  the compatibility o f  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).

U ntil Box, no opinion o f 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 h igher o f  the two standards, at least as they were 
understood, pro-Box, to be distinct.

2. Experience under the California Rule Dem onstrates 
the G ulf between the California Supreme Court 
Form ulation and the Requirements for Showing a 
Prima Facie Case under Batson

The California courts’ tortured interpretation o f  the prima 
facie  standard o f  Wheeler has not only led to inconsistent 
applications o f  California cases. It has also produced results 
that are irreconcilable with Batson. In numerous p re-Box cases, 
both before and after Bernard was decided, the California 
Supreme Court applied a rule that evidence sufficient to “raise 
an inference” o f  discrimination was insufficient to establish a 
prima fa c ie  case. See People v. Sanders, 51 Cal. 3d 471, 500- 
01 (1990) (concluding that even though the prosecution’s 
“removal o f  all members o f a certain group may give rise to an 
inference o f  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 o f a “reasonable inference” of discrimination was 
insufficient to establish a prima facie case under Wheeler.



18

dem onstrate a strong likelihood” o f  discrim ination and 
therefore no prima facie  case had been established); see also 
People v. Howard, 1 Cal. 4th 1132, 1154, 1156 (1992) (trial 
court did not err in  finding no prima fac ie  case; defendant m ust 
show “from  all the circumstances in the case . . .  a strong 
likelihood” o f  discrim ination, and “although the rem oval o f  all 
m em bers o f  a certain group may give rise to an inference o f 
impropriety, especially w hen the defendant belongs to the same 
group, the inference is not conclusive”) (citing Sanders, 51 Cal. 
3d at 500) (em phasis in original); see also People v. Crittenden, 
9 Cal. 4th 83, 119 (1994) (citing People v. Howard, 1 Cal. 4th 
at 1156; People v. Sanders, 51 Cal. 3d at 500).

In short, in  several cases prior to M r. Johnson’s trial in 
1998, the California Supreme Court had indicated that a 
dem onstration o f  an “inference o f  im propriety” was not 
“dispositive” o f  a prima facie  case. This approach is patently 
inconsistent w ith Batson, which requires only that the opponent 
o f  the perem ptory strike demonstrate that an “inference” o f 
discrim ination arises from a consideration o f  all o f  the relevant 
circum stances in order to shift the burden to the proponent to 
articulate a nondiscrim inatory reason for the strike.

3. The California Supreme Court M isunderstood this 
C ourt’s Reference to Title VII in Batson and Relied  
U pon a W holly M istaken Interpretation o f Title 
V IP s R equirem ents for M aking O ut a Prima Facie 
Case

The California Supreme Court interprets Batson’s 
discussion o f  a num ber o f  this C ourt’s Title VII decisions, 
along w ith  W igmore on Evidence, as authority for its 
conclusion that “Batson perm its a court to require the objector 
to present, not m erely ‘some evidence’ perm itting the 
inference, bu t ‘strong evidence’ that m akes discrim inatory 
intent m ore likely than not i f  the challenges are not explained.” 
Johnson, 30 Cal. 4th at 1316. Neither supports this conclusion.



19

This C ourt’s Title VII jurisprudence is quite to the 
contrary. N ow here in any o f  this Court’s discussion o f  the 
standards for a prima fac ie  case is there any endorsem ent o f  a 
“strong evidence” test. R ather, this Court’s Title VII decisions 
universally recognize, like Batson, that w hat is required to 
make out & prima fac ie  case is evidence showing circumstances 
that give rise to an inference o f  discrim ination. E.g., Texas 
Dept, o f  Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) 
(“The p lain tiff m ust prove by  a preponderance o f  the evidence 
that she applied for an available position for which she was 
qualified, but was rejected under circumstances which give rise 
to an inference o f  unlawful discrimination.”) (emphasis 
added).27 The Court has described the necessary showing as 
“not onerous,” id., and as “m inim al,” St. M ary’s Honor Ctr. v. 
Hicks, 509 U.S. 502, 506 (1993).

N or do this C ourt’s Title VII cases support the California 
Supreme C ourt’s view  that evidence sufficient to draw an 
inference o f  discrim ination, as compared to that needed to 
create a presum ption, is the “ lower o f  the two burdens.”28

27 See also 1 Barbara Lindemann & Paul Grossman, 
Employment Discrimination Law 16 and n.46 (3d 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 (5th 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.



2 0

N either Burdine, 450 U.S. at 254 n.7, (upon w hich the 
California Court specifically relies), nor any o f  this Court’s 
other Title VII cases, requires a higher evidentiary burden for 
creation o f  a presum ption than the quantum o f  evidence 
necessary to perm it an inference o f  discrimination. Footnote 7 
in  Burdine is a description o f  the varying historical uses o f  the 
term  “prima fac ie  case” to refer to two different situations, one 
involving a presum ption and one not. It is not an interpretation 
o f  Title VII law. Title VII creates no dichotomy between 
evidence sufficient to perm it an inference o f  discrim ination and 
evidence sufficient for a presum ption. Rather, evidence 
sufficient to perm it the drawing o f  an inference is all that is 
required for the creation o f  the presum ption, and Burdine, 450 
U.S. at 254 n.8, states expressly that “the word ‘presum ption’ 
properly  used refers only to a device for allocating the 
production burden” (citations om itted).29

The California Court uses the term  “presum ption” to 
indicate m uch 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 o f  fact on the 
ultim ate issue o f  discrim ination —  a burden much higher than 
this C ourt’s Title VII jurisprudence requires.30

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.

30 See supra pp. 18-20 & nn.27, 29.



2 1

support the California Supreme C ourt’s “strong evidence” 
requirem ent. In the section o f  WlGMORE relied upon by the 
California Supreme Court (9 WlGMORE ON EVIDENCE, § 2494 
(3d ed. 1940)), W igmore sim ply notes that historically, one o f 
the uses o f  the term  “prima fa c ie” has been to describe the 
situation where a party w ith the burden o f  proof, because o f  
either a presum ption or by  a general m ass o f  “strong evidence,” 
is entitled to judgm ent i f  his opponent produces no evidence. 
N ow here does W igm ore state that “strong evidence” is a 
prerequisite to the creation o f  the presum ption. N or does this 
Court, in its citation to WlGMORE in Burdine, impose such an 
evidentiary burden.

This C ourt’s m inim al burden for showing a prim a facie 
case in Title VII cases is entirely appropriate in light o f  the 
realities o f  litigating claims o f  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 o f 
com m on experience as it bears on the critical question o f 
discrim ination,” [quoting Furnco, 438 U.S. at 577 (1978)] and 
only after the three-stage process outlined in McDonnell- 
Douglas does the trier o f  fact “ha[ve] before it all the evidence 
it needs to decide w hether ‘the defendant intentionally 
discrim inated against the p la in tif f” [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 o f  fact 
evidence that is critical to assess the issue o f discrimination. 
See discussion infra § C.2.

C. The Approach of the C alifornia Supreme Court is
Inadequate to Fulfill the G uarantees of the Fourteenth
Am endm ent

1. Petitioner has Established a Prima Facie Case of 
Discrim ination



2 2

In this case, Petitioner has clearly presented  sufficient 
evidence from which to infer that the sta te ’s perem ptory 
challenges, i f  unexplained, w ere based on race. The record 
demonstrates that after the challenges for cause, three African- 
American potential jurors —  Clodette Turner, Sara Edw ards 
and Ruby Lanere —  rem ained available for service on 
Petitioner’s jury. The state, however, used its perem ptory  
challenges to exclude all three o f  these potential jurors. The 
circumstances surrounding the state’s exercise o f  these 
perem ptory challenges suggest that the strikes w ere racially  
motivated.

First, the state used its perem ptory challenges to exclude 
all African-American potential jurors from  service on 
Petitioner’s jury. As this Court has noted, “ [p jroo f o f  
systematic exclusion from the venire raises an inference o f  
purposeful discrimination because the ‘result bespeaks 
discrim ination.’” Batson, 476 U.S. at 94-95 (quoting 
Hernandez v. Texas, 347 U.S. 475, 482 (1954)). Furtherm ore, 
in several federal Circuits, this fact alone is sufficient to 
establish a prim a facie case o f  discrim ination.31

31 See, e.g., Harris v. Kuhlmann, 346 F.3d 330, 346 (2d 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 (7th 
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 o f the jury 
venire”); McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996) 
(inference of discrimination may be drawn “where there are only a 
few members o f 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”).



23

Second, the prosecutor used a disproportionate num ber o f  
his peremptory challenges to exclude A frican-A m erican 
potential jurors. Specifically, the prosecutor used 25 percent o f  
his challenges (3 o f  12) to exclude A frican-A m erican jurors 
even though such jurors represented less than 7.5 percent (3 o f  
40) o f  the qualified jurors passed for cause. This fact also 
suggests that the prosecutor’s strikes were racially m otivated. 
See Hernandez v. New York, 500 U.S. 352, 362 (1991),32

Third, although it had the opportunity to do so, the state 
elected not to ask questions o f  any o f  the African-.American 
potential jurors before exercising its perem ptory challenges. 
See JA  at 20, 23-24, 31. This pattern o f  non-inquiry also 
supports an inference o f  discrim ination, see Batson, 476 U.S. 
at 97, because it suggests an apparent lack o f  interest on the part 
o f  the prosecutor in any characteristic o f  the struck jurors other 
than their race. This failure was particularly significant in the 
case o f  Ms. Turner, who was excused without inquiry o f  any 
kind despite the fact that during voir dire by  the trial court, she 
offered answers that indicated she m ight be inclined to favor 
the prosecution over the defense.33

32 See also Williams v. Woodford, 306 F.3d 665, 682 (9th Cir. 
2002), amended opinion, 384 F.3d 567, 584 (9th Cir. 2004) 
(“Statistical facts like ahigh proportion o f African-Americans struck 
and a disproportionate rate o f strikes against African- Americans can 
establish a pattern of exclusion on the basis of race that gives rise 
to a prima facie Batson violation.”), rehearing and rehearing en 
banc denied, 2005 WL 237646 (9th Cir. Feb. 2, 2005).

33 See JA at 19 (Ms. Turner had been the victim o f 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

Finally, the offense at issue involved a black defendant and 
a victim  w ho w as the child o f a w hite w om an. The likelihood 
that perem ptory  challenges will be  exercised in a racially 
discrim inatory m anner is significantly increased when the crime 
is o f  an interracial nature. This, too, is a circum stance 
recognized by  the federal courts as supporting an inference o f 
discrim ination sufficient to establish a prim a facie case under 
Batson.34

Together, these factors constitute am ple evidence from 
w hich to infer that the state’s perem ptory challenges w ere based 
on race. Petitioner, therefore, more than  adequately set forth a 
prima fac ie  case o f  discrimination under Batson.

2. The C alifornia Supreme C ou rt’s Prima Facie Case 
R equirem ent Shields, R ather than Reveals and 
C orrects, Discrim inatory U se o f Perem ptory  
C hallenges by Prosecutors

A lthough it characterized m any o f  the facts set forth in  the

34 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 phase.”); Jones v. Ryan, 987 F.2d 960, 971 (3d 
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 (7th 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

preceding subsection as “highly relevant,” Johnson, 30 Cal. 4th 
at 1326, “troubling,” id., and “warrant[ing of] careful scrutiny,” 
id., the California Supreme Court nonetheless concluded that 
Petitioner had failed to present sufficient evidence to establish 
a prima facie  case o f discrimination, id. at 1328. Thus, the trial 
prosecutor was never required to proffer race-neutral reasons 
for his perem ptory 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 discrim inatory. B y  conflating 
the prima facie  case with the ultim ate burden o f  proof, the 
California standard substantially underm ines w hat Batson was 
designed to achieve, an efficient and reliable system  for 
determining whether perem ptory challenges are tainted by 
racial discrimination. See Hernandez v. New York, 500 U.S. at 
358-59. Instead o f facilitating the discovery o f  unlaw ful racial 
discrimination, the California standard im properly leaves 
“prosecutors’ peremptory challenges . . .  largely im m une from 
constitutional scrutiny.” Batson, 476 U.S. at 92-93.35 It does 
so in at least three ways:

First, the California rule places the defendant at a 
substantial evidentiary disadvantage. As this Court has m ade 
clear (and the reported cases outside o f  California confirm), the 
decision whether discrimination has occurred is norm ally m ade 
at the third stage o f the Batson analysis, and not before.36 It is 
at that stage that a court exam ines the to tality  o f  the

35 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 an unconstitutionally constituted jury.

36See supra pp. 6-7.



26

circum stances to determ ine the plausibility o f  whatever 
explanation has been offered for the disputed perem ptory 
challenges. Purkett v. Elem. Under C alifornia’s approach, by 
contrast, the defendant m ust prove discrim ination before 
anyone knows the purported basis on w hich the perem ptory 
challenges have been m ade. Instead o f  becom ing a basis for 
further inquiry, theprima fac ie  case serves both  as the effective 
point o f  decision and as a barrier to further probative evidence 
on the question.

Even worse, the defendant is required not only to m ount 
the initial hurdle o f  offering “strong evidence” o f 
discrim ination, 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 perem ptory challenges and then to rely on 
those hypotheses in evaluating whether a prim a facie  case has 
been established.37 This testing o f  the defendant’s evidence 
against hypothetical bases for a strike m akes clear that the 
determ ination o f  discrim ination occurs before the prosecutor is 
required to reveal a basis for the challenge. It also im poses a 
m uch m ore demanding standard for a prim a facie  case than 
Batson requires for the Stage 3 determ ination whether 
discrim ination occurred. Under Batson, the court m ust 
determine w hether the evidence demonstrates that the reason 
for the strike was discrim ination —  not w hether there is any 
theoretically neutral basis on which a challenge m ight have 
been m ade.38 A  record o f  proceedings to em panel a ju ry  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



27

alm ost always contain hypothetical race-neutral reasons for 
perem ptory challenges o f  African Am ericans, or members o f 
any cognizable group. As this Court held in Purkett, such 
reasons need be only facially non-discrim inatory, and virtually 
every single potential ju ro r likely possesses some characteristic 
that could justify  a perem ptory challenge under this standard.39

U.S. at 98 n.20. The lower federal courts have held similarly. See 
Mahaffey, 162 F.3d at 483-84 n.l (because apparent reasons do not 
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 (3d 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 (11th 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 (9th Cir. 1997); Hardcastlev. 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.”), vacated 
and remanded to permit State to introduce circumstantial evidence 
o f reasons for strikes, 368 F.3d 246 (3d Cir. 2004); United States ex 
rel. Pruitt v. Page, No. 97C-2115, 1999 WL 652035 at *1, (N.D. hi. 
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).

39 Under Purkett, an enormous variety of traits or observations 
has been held sufficient to meet the prosecutor’s burden of 
production at Stage 2 o f a Batson inquiry. See, e.g., U.S. v. 
Williams, 264 F.3d 561, 571 (5th Cir. 2001) (prosecutor’s statement 
that venireperson smiled at defendant satisfied Stage 2 of the Batson 
analysis); U.Sv. Mahan, 190F.3dat425 (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

M oreover, the fact that a trial judge can hypothesize a 
race-neutral explanation for a perem ptory challenge says 
nothing about whether the prosecutor engaged in intentional 
discrim ination. Under Washington v. D avis , 426 U.S. 229 
(1976), w hich the Court repeatedly cited in  Batson, it is the 
prosecutor’s subjective intent that is critical, not the trial 
ju d g e ’s. Like Swain, the California rule thus significantly 
increases the likelihood that racial discrim ination will go 
undiscovered, both because it impedes the developm ent o f  a 
full trial record and because it asks the w rong question at the 
w rong stage o f  the proceeding.

Second, the absence o f a full trial record has obvious 
consequences for appellate review. On the one hand, it m akes 
appellate review more difficult. In M iller-El v. Cockrell, 537 
U.S. 322 (2003), the Court engaged in a probing review  o f  the 
prosecutor’s stated reasons for his perem ptory challenges, even 
in the context o f a preliminary inquiry Into w hether the 
defendant was entitled to a certificate o f  appealability that 
would enable him to pursue his Batson claim  in  further habeas 
proceedings. When a court is actually review ing a Batson 
claim  on the merits, a fully developed record is m ore essential 
and its absence more severely com prom ises the appellate 
process.

The absence o f a fully developed record also m akes 
reversal m ore 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 assum ption that the trial court’s critical findings “largely 
will turn on . . . credibility,” Batson, 416 U .S. at 98 n.21, and 
that “evaluation o f the prosecutor’s state o f  m ind based on 
dem eanor and credibility lies peculiarly w ith in  a trial judge's 
province.” Hernandez, 500 U.S. at 365 (internal quotations and 
citations omitted). Because the C alifornia courts have 
front-loaded so much o f  Batson into a threshold  determination



29

regarding theprima facie  case, it will often be the case (as here) 
that no judgm ent will have been made about the p rosecu tor’s 
credibility. A n appellate court’s review will be m ore vigorous 
in such circumstances, with a diminished deference to the trier 
o f  fact’s determinations that is likely to produce m ore frequent 
reversals.

Third, even reversal is m uch less likely to lead to a fair 
and ju st result i f  the prosecutor has not been required to provide 
a  contem poraneous explanation for his perem ptory challenges 
because o f  an inflated standard for assessing the defendant's 
prim a facie  case. Indeed, this Court identified precisely that 
problem  in less extreme circumstances in M iller-El, 537 U.S. 
at 342-43:

As we have noted, the trial court held its Batson  hearing 
two years after the voir dire. W hile the prosecutors had 
proffered contemporaneous race-neutral justifications for 
m any o f  their peremptory strikes, the state trial court had 
no occasion to judge the credibility o f  those explanations 
at that tim e 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 o f im precision and distortion 
from the passage o f time.

In short, California’s interpretation o f  Batson increases the 
chances o f  w rong results initially, increases the chances o f  
appeal and reversal, and increases the chances that racial 
discrim ination w ill never be uncovered because o f  delay. If  
Batson was designed to perm it “prompt m lings on objections 
to perem ptory challenges w ithout substantial disruption o f  the 
ju ry  selection process,” Hernandez, 500 U.S. at 358, the 
approach adopted by the California courts is far m ore likely to 
achieve the opposite result.



30

C O N C L U SIO N

For all o f  these reasons, the California Supreme C ourt’s 
ruling in  this case m akes it harder to em panel a ju ry  w ith the 
‘“ diffused im partiality ,” ’ Taylor v. Louisiana, 419 U.S. 522, 
530 (1975) (quoting Thiel v. 5. Pac. Co., 328 U.S. 217, 227 
(1946) (Frankfurter, J., dissenting)), necessary to protect a 
crim inal d e fe n d a n ts ]  ‘“ life and liberty against race or color 
prejudice,’” Strauder v. West Virginia, 100 U.S. at 309; allows 
A frican-A m erican jurors to be excluded because o f  their race in 
California crim inal trials; thereby creates the im proper 
im pression that the State believes African Am ericans 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 o f  our system  o f  ju stice ,” 
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) (M arshall, J., dissenting)). The judgm ent 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

Pamela Harris 
Co-Chair, NACDL Amicus 

Committee 
1625 Eye Street, N.W. 
Washington, DC 20006 
(202) 383-5386

Theodore M. Shaw
Director-Counsel

*Norman J. Chachkin 
Miriam Gohara 
Christina A. Swarns 
NAACP Legal Defense 

and Educational Fund, 
Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

Barbara R. Arnwine 
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 
Duane Pozza 
Jenner & Block LLP 
One IBM Plaza, Suite 4300 
Chicago, Illinois 60611 
(312) 222-9350

* Counsel o f  Record

Counsel fo r  Amici Curiae



A P P E N D I X  A



Interest o f Amici Curiae
l a

The N A A C P Legal Defense and Educational Fund, Inc, 
(LDF) is a non-profit corporation formed to assist African- 
Am ericans in  securing their rights by the prosecution o f 
lawsuits. LDF has a long-standing concern w ith the influence 
o f racial discrim ination on the criminal ju stice  system in 
general, and on ju ry  selection in particular. LDF represented 
the defendants in, inter alia, Swain v. Alabama, 380 U.S. 202 
(1965), Alexanderv. Louisiana, 405 U.S. 625 (1972) m dH am  
v. South Carolina, 409 U.S. 524 (1973); pioneered in the 
affirmative use o f  civil actions to end ju ry  discrim ination, 
Carter v. Jury Commission, 396 U.S. 320 (1970), Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae 
in M iller-El v. Cockrell, 537 U.S. 322 (2003), Batson v. 
Kentucky,476U .S . 79 (1986),Edmonson v. Leesville Concrete 
Co., Inc., 500 U.S. 614 (1991), and Georgia v. McCollum, 505 
U.S. 42 (1992).

The A m erican Civil Liberties U nion (ACLU) is a 
nationwide, nonprofit, nonpartisan organization w ith more than 
400,000 m em bers dedicated to the principles o f  liberty and 
equality em bodied in the Constitution and this nation's civil 
rights laws. The A C LU  o f  Northern California is one o f  its 
regional affiliates. Since its founding in 1920, the issue o f  race 
discrim ination in ju ry  selection has been a central concern o f 
the ACLU. For that reason , the ACLU participated as amicus 
curiae in Batson v. Kentucky, and we have participated in m ost 
o f this Court's cases interpreting its core holding.



2a

The Lawyers’ Com m ittee for Civil Rights U nder Law 
(“Law yers’ Com m ittee”) is a nonprofit organization established 
in  1963, at the request o f  President Kennedy, to involve private 
attorneys in the effort to insure the civil rights o f all Americans. 
O ver the past 40 years, through its national office in 
W ashington, D.C., and its eight independent local affiliate 
Lawyers ’ Committees, the organization has enlisted the services 
o f  thousands o f m em bers o f  the private bar in addressing the 
legal problems o f  racial m inorities and the poor in  voting, 
education, employment, housing, municipal services, the 
adm inistration o f  justice  and law enforcement. The Law yers’ 
Com m ittee has long been concerned w ith the issue o f  race 
discrim ination in ju ry  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 A ssociation o f  Criminal Defense Lawyers 
(NACDL) is a non-profit corporation with more than 10,000 
m em bers nationwide and 28,000 affiliate members in 50 states, 
including private crim inal defense lawyers, public defenders 
and law professors. The Am erican Bar Association recognizes 
N A C D L as an affiliate organization and awards it full 
representation in its H ouse o f  Delegates. NACDL was founded 
in  1958 to promote study and research in the field o f  criminal 
law , to disseminate and advance knowledge o f the law  in the 
area o f  criminal practice, and to encourage the integrity, 
independence, and expertise o f  defense lawyers in criminal 
cases. NACDL seeks to defend individual liberties guaranteed 
by  the Bill o f  Rights and has a keen interest in ensuring that 
legal proceedings are handled in a proper and fair manner. 
A m ong NACDL’s objectives is promotion o f the proper 
adm inistration o f justice.