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Joshua C. Polster

Excerpted from: Joshua C. Polster, From Proving Pretext to Proving Discrimination: The Real Lesson of Miller-el and Snyder, 8 Mississippi Law Journal 491-548 (2012) (329 Footnotes)


Dyed-red hair, too passive, too vocal, too old, too young, employed as an engineer, employed as a Sunday school teacher; these are all recent explanations given to deny minorities a place on juries. When prosecutors presented these reasons, courts did not reject them as laughable, but accepted them as part of parties' legitimate discretion over who to seat on their juries.

Prosecutors offered these reasons as explanations for peremptory challenges, which parties exercise during jury selection to eliminate prospective jurors from a venire unilaterally. Federal and state courts provide peremptory challenges to all parties, in civil and criminal cases, so that attorneys can strike venire members who they believe will be unfavorable to their case.

Historically, prosecutors used challenges to eliminate African American venire members, who they theorized were unfit for service and would be sympathetic to black defendants. The Supreme Court tried to put an end to this shameful practice in Batson v. Kentucky, holding that the Equal Protection Clause prohibits parties from challenging jurors on the basis of race, guiding lower courts in detecting discrimination, and dictating that appellate courts reverse convictions found by juries from which venire members had been struck discriminatorily. But as the explanations above may suggest, and as much scholarship has argued, peremptory challenges are still used by some prosecutors as vehicles for discrimination.

The Court has held that the Equal Protection Clause also prohibits discrimination based on gender and discrimination by defense attorneys and attorneys for civil litigants. Accordingly, the arguments in this Article can also be applied to such situations. Because of the history of --and likely still-occurring--prosecutorial discrimination, however, this Article will focus on prosecutors using peremptory challenges to eliminate African Americans. This focus corresponds to courtroom practices: The vast majority of Batson objections are made by criminal defendants to prosecutorial challenges of African American venire members.

Much of the inability of courts to detect discrimination can be attributed to the inherent difficulty of distinguishing when a challenge is based on a prediction that a prospective juror will be unfavorable and when a challenge is based on race. But this Article argues that the inability of courts to detect prosecutorial discrimination is also due to judicial application of the framework implemented by the Supreme Court for that purpose.

In Batson, the Court adopted the McDonnell Douglas framework, which it had previously applied in cases of employment discrimination. The three-part framework requires, on a finding of a prima facie case, that the alleged discriminator articulate a nondiscriminatory reason for its action. The alleged victim then has the burden of proving that the proffered reason is a pretext for discrimination. As traditionally applied, the framework therefore hinges on the ability of defendants to prove pretext.

In two recent cases--Miller-El v. Dretke and Snyder v. Louisiana --the Supreme Court used this framework to find that prosecutors had discriminated. Lower courts have interpreted these decisions as enumerating factors that they should consider in determining whether nondiscriminatory reasons are pretextual. This Article argues that this interpretation--and, more generally, this focus on pretext--is not suited to detecting discrimination in peremptory challenges.

To illustrate the problem, this Article compares courts' application of the framework in employment cases--for which the Supreme Court initially applied the framework--and Batson challenges. Employers generally present business-related reasons, substantiated by business records. Employees can prove that the reasons are pretextual by showing that the records are inaccurate, that the reasons do not plausibly explain employers' personnel decisions, or that the reasons apply to nonminority employees against whom the employers did not take similar actions.

Prosecutors, however, explain their challenges with strategic reasons, which they base on venire members' background, demeanor, and statements during voir dire. Because the reasons are often just assertions about venire member characteristics, defendants generally cannot show that they are inaccurate; because prosecutors and courts can theorize numerous reasons why a venire member might be sympathetic to a defendant, defendants generally cannot show a reason is implausible; because so many reasons are available to prosecutors, defendants often cannot compare between venire members about whom the prosecution has applied the same reason. Judicial focus on defendants' ability to prove that reasons are pretextual thereby effectively prevents most defendants from proving discrimination.

The Supreme Court's recent cases, Miller-El and Snyder, suggest that courts should no longer focus on pretext. The Court presaged such a shift in its post-McDonnell Douglas employment cases, which held that at the third step of the framework, courts must determine whether an employer has discriminated, not whether an employer's reason is pretextual. The Court has been less explicit in the peremptory challenge context, but in Miller-El and Snyder, rather than considering defendants' ability to show the falsity of individual proffered reasons to be dispositive, the Court evaluated all of the prosecutors' actions that suggested a discriminatory intent.

Part I of this Article provides an overview of peremptory challenges and the adoption of the McDonnell Douglas framework, discussing how the framework naturally gave rise to a focus on pretext. Part II argues that the focus on pretext effectively prevents defendants from proving intentional discrimination. In illustrating this argument, Part II uses two recent cases, one employment discrimination claim and one Batson challenge, as lenses through which to understand the broader case law. The cases show that judicial conceptions of prosecutors' jury-selection decisions--in contrast with judicial conceptions of employers' personnel decisions--render prosecutors' proffered nondiscriminatory reasons nearly impossible to disprove.

Part III proposes that Miller-El and Snyder prescribe that courts move away from a narrow focus on pretext. Instead of looking at each challenged venire member and determining if the defendant has proven the prosecution's reasons for that challenge to be false, courts should frame their analyses around the prosecution's pattern of strikes, determining if this pattern, given the totality of the prosecution's actions, is more likely explained by the proffered reasons or by discrimination.