excerpt from: Is Sympathy Towards Minorities a Race-neutral Reason under Batson V. Kentucky?, 17 Touro Law Review 679-693 , 687-693 (Spring, 2001)(Student Article)(110 Footnotes)
A. THE PEREMPTORY CHALLENGE IN RAMIREZ-SOBERANES
It was the challenge against the African-American juror, Ms. Hannah Brown, that sparked the Batson claim in Ramirez-Soberanes. It is important to identify the explanation given by the Government in analyzing a Batson claim to discern whether a race-neutral reason has been given. In the judge's chambers the prosecuting attorney gave the following reasons for the strike:
MR. VINCENT: The reason is her place of employment; has nothing to do with her ethnic background.
THE COURT: Where does she work?
MR. VINCENT: She works at McDonald's.
THE COURT: The reason - she works at McDonald's and you find that significant is what?
MR. VINCENT: Nothing more than they have a tendency in fast- food restaurants to deal with-in lot of areas minority groups, legals, illegals. There may be some sympathies that are there one way or the other. And just to eliminate any sense of prejudice one way or the other, we felt that it was appropriate to strike her.
The prosecuting attorney, Mr. Vincent, went further to state:
Well, I'm not prejudiced against her for being black ... If she was white, if she was Hispanic, if she was any other ethnicity, it is my experience that people who work at McDonald's have a lot of dealings with a large group of people, including aliens. And I don't know if there's any sympathies one way or the other, but because there is a propensity for her to have dealings with a large group of people, that may or may not have prejudiced her. I don't know. I just feel that it's sufficient.
In furtherance of his explanation to prove that the decision to challenge Ms. Brown was race-neutral, Mr. Vincent offered the fact that he had refrained from excluding two Hispanic members of the jury. The district court subsequently accepted the reasons offered by the prosecutor as race-neutral and denied any relief to the defendant. In the instant case, the issue rests heavily on the interpretation of the second prong of race-neutrality and the third prong of pretextual analysis made by the trial court.
B. Step Two: Race-Neutral Under Batson Today?
The "race-neutral" issue coupled with the issue of pretextuality has been the focal point of many debates since the Batson decision. In Ramirez- Soberanes, Ms. Brown was struck from the jury because she worked at McDonald's, which would potentially render her sympathetic towards minorities.
Following Batson there were a number of cases in which jurors were challenged for reasons analogous to the reasons set forth in Ramirez- Soberanes. In United States v. Sneed, a juror was challenged because of her profession and the place in which she lived, and the challenge was upheld by the court. In a slightly more narrow decision, United States v. Bishop, the Ninth Circuit followed United States Supreme Court precedent by barring the prosecutor from making a challenge based on a mere assumption. The Ramirez-Soberanes case differs from Bishop in that the prosecutor's explanation in the instant case was not an assumption, rather, as the prosecution explained, he was speaking through experience. Furthermore, the challenge was made to eliminate a juror who could possibly carry sympathies toward minorities and to eliminate the possibility of any prejudice on the petit jury, rather than on mere speculation. "Numerous factors may influence the decision of a prosecutor and defense counsel, including current and past employment, general appearance and demeanor, previous jury service, and the absence or presence of apparent prejudice." In 1991, the Alvarado case encountered the issues of employment and sympathy. Two jurors were challenged and ultimately struck from the jury. The first juror struck was a minority woman who was challenged because she had children that were the same age as the defendant and the prosecution felt this would make her sympathetic towards the defendant. The second juror was challenged based on the woman's employment as a social worker. The trial court found that both reasons were race-neutral and the Second Circuit affirmed.
To further analyze this issue we must also consider the situation where the prosecutor's explanation is not considered race-neutral, as in United States v. Wilson. In Wilson, the defendant made a Batson claim that the six challenges against black jurors violated his constitutional rights. At the Batson hearing, the district court found the first step of the Batson test to be satisfied and offered the prosecution an opportunity to offer a race-neutral explanation. The following is an excerpt from the race-neutral explanation given:
Q. Will you admit that because of the large number of blacks in the Lexa area and because of Wilson's reputation it was necessary for you to more closely scrutinize the black panel members than the white panel members; yes or no?
A. With regard to the Lexa area, it was the connection with Mr. Wilson, which was the problem; not so much the race.
Q. Well, did you not --
A. I mean, race is just a -- race sets it up like being a member of a lodge.
"[T]he prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." "[A] finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court." With these Batson concepts in mind, the court held that the Government did not present a race-neutral explanation for the peremptory challenge, rather, the prosecutor clearly indicated a stereotypical racial reason for striking the potential black juror.
In spite of the fact that a conclusion based on the foregoing reasons could be made in determining whether a race-neutral reason was given in Ramirez- Soberanes, the 1995 case of Purkett v. Elem solidifies the analysis of how a court should interpret the second prong of Batson.
C. The Impact of Purkett v. Elem on Step Two
The Purkett Court stated that "[t]he second prong of this process does not demand an explanation that is persuasive, or even plausible." This is best evidenced in the reasoning given by the prosecution in the Purkett case for challenging two black males. His explanation follows:
I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and goatee type beard. And juror number twenty-four also had a mustache and goatee type beard. Those are the only two people on the jury ... with facial hair ... And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.
The Purkett Court went on to affirm the Missouri Court of Appeals' finding that the reasoning was a "legitimate hunch," which did not "raise the necessary inference of racial discrimination." Purkett allows an explanation for a peremptory challenge that is merely facially valid, even if "silly or superstitious," which places an extremely heavy burden on the defendant who is making the Batson claim. The Supreme Court explains that it is a mistake to merge the second and third prongs of Batson and that the trial judge need not terminate the inquiry simply because of the reason offered in the second prong.
This decision obviously erupted much emotion in critics, beginning with the dissent by Justice Stevens and Justice Breyer. "Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how implausible or fantastic, even if it is silly or superstitious, is sufficient to rebut a prima facie case of discrimination." The decision in Purkett frustrated many, and in the eyes of those who oppose peremptory challenges, the Supreme Court gave attorneys the right to make irrational decisions with "implausible and ridiculous explanations." Today, in the wake of Purkett, Mr. Ramirez-Soberanes is left with the burden of proving the prosecutor's state of mind, which is a near impossibility without a clear admission of discrimination, as was the case in Wilson.