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2008

Inside the Box - When Exercising Peremptory Challenges, Inside the Box - When Exercising Peremptory Challenges,

Attorneys Should Keep in Mind the Three-Step Framework of Attorneys Should Keep in Mind the Three-Step Framework of

Batson/Wheeler Batson/Wheeler

Angela J. Davis American University, Washington College of Law, angelad@wcl.american.edu

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Recommended Citation Recommended Citation Davis, Angela J., "Inside the Box - When Exercising Peremptory Challenges, Attorneys Should Keep in Mind the Three-Step Framework of Batson/Wheeler" (2008). Articles in Law Reviews & Other Academic Journals. 1542. https://digitalcommons.wcl.american.edu/facsch_lawrev/1542

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Elmnto ofI

MCLE ARTICLE AND SELF-ASSESSMENT TEST

By reading this article and answering the accompanying test questions, you can earn one MCLE elimination of bias credit.

To apply for credit, please follow the instructions on the test answer sheet on page 27.

BY GEORGE S. CARDONA and ANGELA J. DAVIS

INSIDE......i....B OXWhen exercising peremptory challenges, attorneys should

keep in mind the three-step framework of Batson/WheelerPEREMPTORY challenges are animportant tool at trial, enhancing confidencein the jury's fairness by permitting parties toremove jurors in whom they perceive bias orhostility even if that perception cannot beobjectively verified. But as case law increas-ingly demonstrates, peremptories must beused with caution, because they may drawobjections that call into question the integrityof the party seeking to exercise them.

Peremptory challenges are "used preciselywhen there is no identifiable basis on whichto challenge a particular juror for cause" and"may be wielded in a highly subjective and

seemingly arbitrary fashion, based upon mereimpressions and hunches."' The latitudeaccorded peremptories is essential to theircentral functions: "to enable a litigant to

remove a certain number of potential jurorswho are not challengeable for cause, but inwhom the litigant perceives bias or hostility,".to reassure litigants-particularly criminal

defendants-of the fairness of the jury thatwill decide their case," and to "enhance theright to challenge jurors for cause because theyallow litigants to strike prospective jurorswho may have become antagonized by prob-ing questions during voir dire." 2 With this lat-itude, however, comes the risk that peremptor-ies may be exercised based on impermissible

criteria such as race.The case law that has developed around

this risk has established a three-step frame-work for addressing challenges to the exerciseof peremptories based on claims of discrim-inatory intent. These challenges are known,

after the seminal cases, as Batson/Wheelerchallenges. 3 Within this framework, to effec-tively support (or oppose) such challenges,counsel must understand the method of juryselection used by the court and must be pre-pared to assist the court in developing the nec-essary record.

In 1965, in the midst of the civil rightsmovement, the U.S. Supreme Court in Swainv. Alabama first recognized that the exerciseof peremptories by prosecutors deliberately

George S. Cardona and Angela 1. Davis serve asassistant U.S. attorneys for the Central District ofCalifornia. The views expressed in this article aretheirs alone and do not necessarily represent thoseof the U.S. Attorney's Office or the U.S. Departmentof justice.

Los Angeles Lawyer October 200 8 25

to exclude potential jurors "on account ofrace" violated the equal protection clause.4

The Court, however, recognized a presump-tion that prosecutors properly exerciseperemptory challeges-and placed on defen-dants the burden of proving discriminatoryintent. Thus defendants *were required toshow that a prosecutor intentionally usedchallenges to deny African American poten-tial jurors "the same right and opportunityto participate in the administrationof justice enjoyed by the whitepopulation" for "reasons whollyunrelated to the outcome of theparticular case on trial." 5 Ap-plying these standards in Swain,the Court found no equal protec-tion violation despite the prose-cutor's striking of all six AfricanAmerican potential jurors anddespite evidence that no AfricanAmerican had served on a crimi-nal petit jury in Alabama since approximately1950. A number of lower courts interpretedSwain as requiring defendants to present"proof of repeated striking of blacks overa number of cases," a "crippling" burdenthat left prosecutors' peremptory challenges"largely immune from constitutionalscrutiny."

6

The California Supreme Court rejectedthis approach in 1978, holding in People v.Wheeler that under the California Con-stitution, the presumption that peremptoriesare properly exercised could be overcomewith a prima facie showing based solely onthe pattern of peremptories in a given case.Once this showing was made, the burdenwould shift to the other party to "show thatthe peremptory challenges in question werenot predicated on group bias alone. '

"7 In

1986, the U.S. Supreme Court followed suit,rejecting Swain's approach in Batson v.Kentucky. In Batson, the Court reiteratedthat while a defendant has no right to a jurycomposed in whole or in part by members ofhis or her own race, the defendant unequiv-ocally has the right "to be tried by a jurywhose members are selected pursuant tonondiscriminatory criteria. '8 The Court heldthat the required initial prima facie showingof discriminatory intent could be made based"solely on evidence concerning the prosecu-tor's exercise of peremptory challenges at thedefendant's trial." 9 Further, the Court adoptedwhat has developed into the now familiarthree-step process for challenging peremp-tory strikes:

[O]nce the opponent of a peremptorychallenge has made out a prima faciecase of racial discrimination (step one),the burden of production shifts to theproponent of the strike to come for-ward with a race-neutral explanation

(step two). If a race-neutral explanationis tendered, the trial court must thendecide (step three) whether the oppo-nent of the strike has proved pur-poseful racial discrimination.10

Although Batson involved an AfricanAmerican defendant objecting to the prose-cutor's systematic removal of AfricanAmerican jurors, the Court subsequently heldthat race-based exclusions could be chal-

lenged by any defendant, even ifthe excluded jurors were mem-bers of a race different from thedefendant's.'1 Also, Batson's equalprotection analysis has beenapplied to peremptories exercisedby defense attorneys.' 2 Sub-sequent decisions have extended

Batson to civil cases. 13

Though Batson limited its hold-ing to race, in J.E.B. v. Alabama exrel. TB., the Court has extended

Batson to peremptory challenges based ongender. 14 The Court, however, denied cer-tiorari in a case that would have resolvedthe applicability of Batson to peremptorychallenges based on religion.'5

The California Supreme Court's holdingin Wheeler was not limited to race, referringinstead to "group bias" and indicating thatthis meant "members of an identifiable groupdistinguished on racial, religious, ethnic, orsimilar grounds." 16 In accordance with thisapproach, California courts have held thatperemptory challenges based on religion andsexual orientation are impermissible.' 7 In2000, the California Legislature added astatute prohibiting the use of a "peremptorychallenge to remove a prospective juror on thebasis of an assumption that the prospectivejuror is biased merely because of his or herrace, color, religion, sex, national origin, sex-ual orientation, or similar grounds."' 18

Jury Selection Methods

In California, the exercise of peremptories isgoverned by statute, which provides that"peremptory challenges shall be taken orpassed by the sides alternately," that "eachparty shall be entitled to have the panel fullbefore exercising any peremptory challenge,"and that the "number of peremptory chal-lenges remaining with a side shall not bediminished by any passing of a peremptorychallenge." 19 In federal court, there is nosimilar governing statute and the only ruleaddressing peremptory challenges, FederalRule of Criminal Procedure 24(b), "does notprescribe any method for the exercise of thosechallenges. Rather, 'trial courts retain a broaddiscretion to determine the way peremptorychallenges will be exercised.'" 20 As a result,federal courts employ a range of differingjury selection methods.

26 Los Angeles Lawyer October 2008

California's statute, codified at Code ofCivil Procedure Section 231 (d), makes it mostlikely that a California court will use somevariant of the "jury box" method. Thisinvolves 12 prospective jurors being seated inthe jury box and subjected to voir dire. In thismethod's purest form, when a party exer-cises a challenge, whether for cause or aperemptory, a new juror is drawn at randomfrom the remaining venire to be seated, ques-tioned, and subject to challenge.21 The par-ties thus know the precise composition ofthe potential jury panel at the time they electwhether or not to exercise peremptory chal-lenges, but they do not know which jurorfrom the venire will replace a challengedjuror. The focus when exercising perempto-ties under this system, therefore, is primarilyon the individual juror in context with thosein the box at the time, as opposed to thepotential overall makeup of the jury panel,which cannot be known at the time an indi-vidual challenge is exercised.22

When exercising peremptories under thejury box method, parties must be sure tounderstand the effect of passing. The NinthCircuit has stated that a court may not treata pass as a waiver of the passed peremp-tory23 but may treat a pass as a waiver of thesubsequent ability to reach back and exercisea challenge against a juror who was in the jurybox at the time of the pass.24

A variant on the jury box method seatsand conducts voir dire on some additionalnumber of jurors (most commonly 6) outsidethe jury box at the same time 12 are seatedin the box. This typically saves time by per-mitting replacements for jurors challengedwithin the box to be drawn from a pool ofprospective jurors who have already beensubjected to voir dire.

The "struck jury" method is another com-mon form of jury selection. Under this system,voir dire is conducted on an entire venire.Thereafter:

[A]n initial panel is drawn by lot fromthose members of the array who havenot been challenged and excused forcause; the size of this initial panelequals the total of the number of petitjurors who will hear the case (twelvein a federal criminal case), plus thecombined number of peremproriesallowed to both sides (normally sixteenin federal felony trials, Fed. R. Crim.P. 24(b)). Counsel for each side thenexercise their peremptory challenges,usually on an alternating basis, againstthe initial panel until they exhausttheir alloted number and are left witha petit jury of twelve.25

A variant of the struck jury system is the"blind strike" method. Under this method,rather than alternating peremptories against

MCLE Test No. 174The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Contin-uing Legal Education elimination of bias credit by the State Bar of California in the amount of i hour.

MCLE Answer Sheet #174INSIDE THE BOX

Name

Law Firm/Organization

.A prosecutor's exercise of peremptory challenges withthe intent of excluding potential jurors on the basis ofrace violates the equal protection clause of the U.S.Constitution.

True.False.

2. A prima fade showing of discriminatory intent in theexercise of peremptory challenges may be made basedsolely on evidence concerning a prosecutor's exerciseof peremptories in a particular case.

True.False.

3. Only a defendant ofthe same race as the juror mayoppose a peremptory challenge directed at that juroron the grounds that it is premised on race.

True.False.

4. Exercises of peremptory challenges by criminaldefense attorneys are subject to challenge under theequal protection analysis set forth in Batson.

True.False.

S. Batson and Wheeler only apply to criminal cases.True.False.

6. In California state and federal courts, peremptorychallenges may not be exercised on the basis of gen-der.

True.False.

7. In California state courts, peremptory challengesmay not be exercised based on the sexual orientationof a potential juror.

True.False.

8. When using the "jury box" method of jury selection,a federal district court in the Ninth Circuit may treat thepass of a peremptory challenge as waiving the subse-quent ability to reach back and exercise a peremptorychallenge against a juror seated in the box at the timeof the pass.

True.False.

9. The "blind strike" method of jury selection is invalidin federal court because it permits one party to lose aperemptory challenge by exercising it against a jurorwho that party does not know has also been the sub-ject of a peremptory challenge by another party.

True.False.

io. In the Ninth Circuit, under a "struck jury" systemof jury selection, sequentially numbering potentialjurors so that the parties know who will be the next toenter the box may result in the pass of a peremptorychallenge being treated as the exercise of a peremptorychallenge subject to challenge under Botson.

True.False.

1i. Because jury selection is supposed to be colorblind, it is always improper to ask the court to note the

race of potential jurors for the record.True.False.

12. Once a party raises a Batson/Wheelerchallenge tothe exercise of a peremptory, the court has the soleresponsibility to ensure that the record is sufficient topreserve the point for review.

True.False.

13. In federal and state courts in California, "compar-ative juror analysis" is an important tool in assessingBotsoniWheeler challenges that should be used bythe appellate court even if it was not used by the trialcourt.

True.False.

14. Some California state courts have questionedwhether comparative juror analysis may be used inassessing whether a prima facie case of discriminatoryintent has been made at the first step of the Bat-son/Wheeler analysis.

True.False.

15. In California state courts, absent a subsequentrenewed objection, a trial court's ruling regarding aBatson/Wheeler challenge is reviewed based on therecord as it stands at the time the ruling is made.

True.False.

16. Demonstrating a prima facie case of discriminatoryintent is impossible if a party has used a peremptoryto strike only one member of a particular group.

True.False.

17. In assessing a Batson/Wheelerchallenge premisedon race, only the race of the jurors against whom theparty has exercised peremptories is relevant.

True.False.

18.At the second step ofthe Batson/Wheeler analysisof a claim of racial discrimination, the court may assessthe persuasiveness and plausibility ofa proffered ratio-nale that is facially race-neutral.

True.False.

i9. If a court skips directly to the third step of theBotson/Wheeler analysis, it moots the preliminaryissue of whether the party asserting the Botson/Wheelerchallenge has made a prima fade showing.

True.False.

20. Exercising peremptories to remove all membersof a particular race from a pool of potential jurors willalways demonstrate racial discrimination injury selec-

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Los Angeles Lawyer October 2008 27

the initial panel, each party exercises all theperemptories that party chooses to exercise,in writing, at the same time, and all the par-ties then present their lists of peremptorychallenges to the court. This means that con-tending parties may exercise a peremptorychallenge against the same juror. Courts haverejected claims that this results in the denialof a party's right to exercise a peremptory, andthey have repeatedly upheld use of the blindstrike method of jury selection.

26

In contrast to the jury box method, thestruck jury method "emphasizes the overall

excluded this juror. The defense sought tochallenge the waiver, but, after a "short recessto research case law on whether waiver of aperemptory strike could constitute a Batsonviolation," the district court concluded "thatthe failure to use a peremptory strike, with-out other evidence of discriminatory intent,cannot constitute a prima facie showing."

32

The Ninth Circuit reversed, holding thatbecause "under this particular method ofjury selection waivers of peremptory strikesresult in the removal of known jurors, we con-clude that such waivers are best viewed as

tified subset of jurors (those seated outside thejury box) who will be excluded if perempto-

ries are passed.

Making the Record

The California Supreme Court noted inWheeler that the ordinary record on appealdoes not contain facts necessary to assesschallenges to peremptories on the basis ofgroup bias. The court observed, "Not sur-prisingly, the record is unclear as to the exactnumber of blacks struck from the jury bythe prosecutor: veniremen are not required to

Voir dire questions and statements must be examined

for substance and consistency. Obviously, statements or

questions directly demonstrating group bias can establish

a prima facie case of discrimination and likely will go a

long way toward satisfying the burden of proving actual

discriminatory intent.complexion of the panel" in that, by exer-cising peremptories, parties "are able todetermine from the initial panel not onlywho will not serve but also who will serve asthe petit jury.' 2 7 Thus, the struck jury method"builds in a preference for the parties' exer-cising all their allotted challenges" as ameans of removing all the jurors the partyfinds comparatively less desirable than oth-

ers within the array from which the jurywill be drawn. 25 Nevertheless, if one or

more of the parties does not exercise all itsalloted peremptories, the court will be leftwith more than 12 jurors, and a method ofselecting the petit jury from the remainingmembers of the array must be chosen. Courtsgenerally apply one of two methods. First,the petit jury of 12 may be randomly drawnfrom the remaining array.2 9 Second, theentire array may be numbered from thestart, with the result that the petit jury of 12will consist of the 12 remaining jurors with

the lowest juror numbers.30

In United States v. Esparza-Garza, theNinth Circuit addressed the defense's effortto exercise a Batson/Wheeler challenge to aprosecutor's waiver of a peremptory under astruck jury approach in which the jurors inthe array were sequentially numbered. 3 1 Of

the 28 jurors in the array, only juror 28 hada Latino surname; by waiving its secondperemptory, the prosecution effectively

effective strikes against identifiable jurors,and therefore for purposes of establishing aprima facie case such waivers should betreated the same as the exercise of peremptorystrikes."

33

The court cited two primary justificationsfor its holding. First, while acknowledgingthat the struck jury method has been upheldas constitutionally valid, it noted that courtsand commentators had criticized this systemas "allowing the racial engineering ofjuries." 34 Second, it cited the Supreme Court'sdecison in Miller-El v. Dretke,35 which itread as holding "that jury selection proceduresmay give rise to an inference of discrimina-tory intent even though the prosecutor is notactively striking potential jurors." 36

To date, no other circuit has followedEsparza-Garza, and its holding is directlycontrary to that of two state courts. 37 In theNinth Circuit, however, its holding mandatesthat under a struck jury system in which thejurors are numbered for selection, a waiver ofa peremptory challenge must be treated as theexercise of a peremptory for the purposes ofBatson analysis. Indeed, given the court'sreasoning, its holding may extend to any juryselection method in which the parties knowthe identities of the jurors who will be seatedin the absence of the exercise of a peremptory.This would include the jury box variant thatprovides the parties with notice as to an iden-

announce their race, religion, or ethnic originwhen they enter the box, and these mattersare not ordinarily explored on voir dire. Thereason, of course, is that the courts ofCalifornia are-or should be-blind to allsuch distinctions among our citizens. "3 Thisblindness to distinctions ends, however, whena group bias challenge is asserted, at whichpoint "it is incumbent upon counsel, however

delicate the matter, to make a record sufficientto preserve the point for review." 39 The obli-gation to make a sufficient record to sup-port or defend against a claim of group biasapplies at all three steps of the Batson/Wheelerinquiry.

In determining whether a party has madea prima facie case of discrimination, theCourt in Batson provided two examples of"relevant circumstances" courts should con-sider: "a 'pattern' of strikes against blackjurors included in the particular venire," and"the prosecutor's questions and statements

during voir dire examination and in exercis-ing his challenges."

40

Voir dire questions and statements mustbe examined for substance and consistency.Obviously, statements or questions directlydemonstrating group bias can establish aprima facie case of discrimination and likelywill go a long way toward satisfying the bur-den of proving actual discriminatory intent.But even absent facially discriminatory state-

28 Los Angeles Lawyer October 2008

ments or questions, a court can engage in"comparative juror analysis" to identify dif-

ferences between the questions asked ofminority and nonminority jurors. A significantdifference may support the inference that the

variance reflects an attempt to generate apurportedly nonracial basis for dismissingjurors based on group bias.4 1

The Ninth Circuit has held that compar-ative juror analysis is appropriately used inassessing a prima facie case; that it is "animportant tool that courts should use on

appeal" even if it was not used by the trial

court; and that it requires examination of

the entire voir dire, prior to and after the

exercise of the challenged peremptory, to per-mit a meaningful comparison between whatwas asked of jurors belonging to varyinggroups. 42 Both in making and defendingBatson/Wheeler challenges, therefore, par-ties will need to make sure the record reflects

the group membership not only of struckjurors but also of any jurors to whom the

party wants to point for comparison of voir

dire questions and statements, whether thosequestions and statements occurred before orafter the challenged peremptory.

Demonstrating a prima facie case doesnot require a showing that a party struckmore than one member of a particulargroup.43 Nevertheless, a recent Third Circuitdecision suggests the crucial importance of

developing the record regarding two differentmeasures relating to the pattern of strikes: the"strike rate," which is "computed by com-

paring the number of peremptory strikes theprosecutor used to remove black potential

jurors with the prosecutor's total number ofperemptory strikes exercised," and the "exclu-sion rate," which is "calculated by compar-

ing the percentage of exercised challenges

used against black potential jurors with thepercentage of black potential jurors known to

be in the venire."44

The case, Abu-Jamal v. Horn, involved thehighly publicized death penalty convictionof a black man for the murder of a whitePhiladelphia policeman. The record revealed

the strike rate, which was 66.67 percent,resulting from the prosecution exercising 10out of 15 peremptories against black jurors.45

But the record contained no "factual finding

at any level of adjudication, nor evidencefrom which to determine the racial compo-sition or total number of the entire venire-

facts that would permit the computation ofthe exclusion rate and would provide impor-tant contextual markers to evaluate the strikerate." 46 The court found this failing fatal tothe defendant's effort to challenge the state

court's finding of no prima facie case underBatson: "Without this evidence, we are unableto determine whether there is a disparitybetween the percentage of peremptory strikes

exercised to remove black venirepersons andthe percentage of black jurors in the venire.",47

This holding emphasizes the importance ofdeveloping a record regarding not only the

group identity of the jurors against whom

peremptories were exercised but also thenumbers of group members in the venire as

a whole. This includes, under the jury boxmethod, not only those jurors against whomperemptories could have been but were not

exercised but also those members of the venirewho did not even make it to the jury box.

Once a prima facie case is established,the second Batson/Wheeler step requires theparty seeking to exercise the peremptory toprovide a race-neutral reason for exclusion.At this second stage, so long as the profferedrationale is facially race-neutral, a court can

evaluate neither its persuasiveness nor itsplausibility.4 8 But a court is not without the

ability to assess the facial credibility of the

proffered reason, and, in this regard, devel-opment of the record is crucial. Many prof-fered race-neutral reasons depend on physi-cal characteristics or physical actions thatwill not be apparent from the transcript ofvoir dire. Take for example the rationalesproffered for the striking of the two jurors atissue in Purkett v. Elem-namely, one juror'slong, curly hair, and both jurors' facial hair. 49

Whether challenging or supporting these

We "a speak0

rationales, a court finding whether or notthe jurors at issue actually displayed these fea-

tures would be critical to evaluating whethera credible, facially race-neutral rationale hadbeen proffered.

Similarly, one of the facially race-neutralrationales proffered for exercise of a peremp-

tory in the Supreme Court's recent decisionin Snyder v. Louisiana was the statement that

a juror "looked very nervous to me through-out the questioning." The record did not

contain any finding by the court regarding thejuror's demeanor, so the Court refused to"presume that the trial judge credited theprosecutor's assertion that [the juror] was

nervous" and declined to defer to the trial

judge's denial of the Batson challenge.5 0

The third step of the Batson/Wheeler

analysis is the determination whether theparty acted with actual discriminatory intent.

Courts occasionally skip directly to this thirdstep without making a finding whether aprima facie case has been established, either

granting or denying a Batson/Wheeler chal-lenge on a determination that a profferedrace-neutral reason either does or does notrepresent the actual reason the peremptory is

being exercised. The law is clear that whenthis happens, "the preliminary issue ofwhether the defendant had made a prima

facie showing becomes moot."5 1i Nevertheless,

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a party cannot neglect to develop the recordon points relevant to establishing a primafacie case. To the contrary, developing therecord regarding these points may provide the

best evidence for supporting or challenging thetrial court's determination. Particularly impor-tant is developing a record sufficient to sup-port a comparative juror analyis regardingselective questioning of jurors and selectivestriking of jurors on the basis of the profferedrace-neutral rationale. This may provide thebest means of demonstrating that a profferedrace-neutral rationale is not related to thefacts and issues of the case to be tried and restsinstead on misplaced assumptions that actu-ally demonstrate group bias.

For example, in United States v. Omoruyi,a federal prosecutor used peremptory chal-lenges to strike two single, unmarried, femaleprospective jurors.5 2 The defendant chal-lenged the second peremptory, a challengeagainst a black woman, asserting that it wasimproperly exercised on the basis of race.5 3

In his defense to this claim, the prosecutorasserted that he had removed both women notbecause of their race but because they weresingle and would be attracted to the defen-dant, who was, in the prosecutor's opinion,an attractive young man.5 4 The district courtallowed the removal of the two women jurors.The Ninth Circuit reversed, finding that theexercise of both peremptory challenges wasimproperly based on gender, relying in parton a record demonstrating that the prosecu-tor had not exercised similar challengesagainst single, unmarried, male prospectivejurors.

5 5

In like manner, a Massachusetts appel-late court found that in prosecuting a defen-dant for plying teenage girls with alcoholand drugs in order to molest them, defensecounsel was properly precluded from peremp-torily striking two women over 60 years ofage when the proffered rationale for strikingthem-that they were too old-"amounted tono more than a pretext and that defendant'sreal reason for the challenges was to get asmany women off the jury as he could." Thisfinding was based in part on the defendant'sinitial explanation for striking eight of the ninefemale jurors drawn from the venire (includ-ing the two over 60), which was that "womenwith young children would be dangerous tothe defendant in a case involving molestationof children."

5 6

Of course, not all comparative juror analy-sis will result in a finding that strikes areimproper, even when they result in theremoval of all members of a particular groupfrom the jury. For example, a 2001 SeventhCircuit decision addressed an employer'speremptory strikes of all three women in thejury pool in a sexual harassment trial. Theemployer cited as reasons for the strikes one

30 Los Angeles Lawyer October 2008

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woman's unemployment, another's partici-pation in a lawsuit, and another's employmentwith an insurance company and equivocalanswers about the level of her education.Also, the employer objected to all three on the

basis of their limited work experience. Theplaintiff argued that these reasons were pre-

texts and noted in support that several ofthe empaneled male jurors had less formaleducation than the three female jurors. The

court held this insufficient to demonstratediscrimination under a comparative juror

analysis, explaining that when "a party givesmultiple reasons for striking a juror, it is not

enough for the other side to assert that theempaneled juror shares one attribute withthe struck juror."

5 7

To avoid and defend against claims that

peremptories are being exercised on the basisof group bias, counsel should take pains toensure that their voir dire questions and theirexercises of peremptories are used consis-tently on the basis of valid rationales tied tothe facts and issues to be presented in the case

at hand. They should also be prepared toexplain these rationales and develop a recordthat will support them under challenge by thecourt. With this approach, peremptory chal-lenges can continue to serve their intended

purpose of ensuring the confidence of partiesand the public in the ability of the jury ulti-mately selected to serve as a fair and impar-

tial trier of fact. El

I United States v. Annigoni, 96 F. 3d 1132, 1144 (9thCir. 1996) (en bane).2 ld. at 1137.3 See Batson v. Kentucky, 476 U.S. 79 (1986); Peoplev. Wheeler, 22 Cal. 3d 258 (1978).4 Swain v. Alabama, 380 U.S. 202 (1965).5 Id. at 224.

6 Batson, 476 U.S. at 92.7 Wheeler, 22 Cal. 3d at 280-82, 283-87.8 Batson, 476 U.S. at 85.9 Id. at 96.10 Purkett v. Elem, 514 U.S. 765, 767 (1995) (percuriam); see also People v. Lenix, 44 Cal. 4th 602(2008).11 Powers v. Ohio, 499 U.S. 400 (1991).12 Georgia v. McCollum, 505 U.S. 42 (1992).13 Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614 (1991).14J.E.B.v. Alabama ex rel. T.B., 5 II U.S. 127 (1994).15

Davis v. Minnesota, 511 U.S. 1115 (1994).16 People v. Wheeler, 22 Cal. 3d 258, 276 (1978).17

See People v. Garcia, 77 Cal. App. 4th 1269 (2000)(sexual orientation); People v. Martin, 64 Cal. App. 4th378, 384 (1998) (religion).18 CODE Cry. PROC. S231.5, added by 2000 Cal. Star.ch. 43, S3 (A.B. 2418). Section 1 of the enacting statutestates that it reflects the intent of the legislature tocodify the result of People v. Garcia.19 CODE CWV. PROC. S231(d).20 United States v. Bermudez, 529 F. 3d 158. 164 (2dCir. 2008) (citations omitted).21 See United States v. Esparza-Gonzalez, 422 F. 3d 897,899 n.3 (9th Cir. 2005) (describing jury box method).22

See United States v. Blouin, 666 F. 2d 796, 798 (2dCit. 1981) ("The 'jury box' system tends to focus theparties' attention on one member of the venire at a time,

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as he or she is seated in the box, and prompts the par-ties to ask, 'Is this juror acceptable?'").23 United States v. Turner, 558 F. 2d 535, 538 (9th Cit.1977) ("[W]e believe that such a forced waiver is anundue restriction on the exercise of peremptory chal-lenges."); but see United States v. Pimentel, 654 F. 2d538, 540-41 (9th Cir. 1981) (characterizing discussionof forced waiver in Turner as dicta).24

Turner, 558 F. 2d at 538 ("Our holding does notprevent a district judge from forbidding a challengeto any juror who was a member of the panel at thetime the jury was accepted."); see also Snyder v.Louisiana, 128 S. Ct. 1203, 1207 (2008) (discussingLouisiana law under which parties were permitted toexercise "backstrikes" against jurors they had initiallyaccepted).25 Blouin, 666 F. 2d at 796-97; see also United Statesv. Ricks, 802 F. 2d 731, 733-37 (4th Cit. 1986) (dis-cussing methodology and history of struck jury system).26

See, e.g., United States v. Bermudez, 529 F. 3d 158,164-65 (2d Cir. 2008) (joining "all five circuits that haveconsidered siinilar challenges to the blind strikemethod" in upholding the method "as constitutionaland consistent with Rule 24(b)"); United States v.Warren, 25 F. 3d 890, 894 (9th Cir. 1994).27 Blouin, 666 F. 2d at 798.28 ld.

29 See id. at 798 n.3.30See United States v. Harper, 33 F. 3d 1143, 1145-

46 (9th Cir. 1994). The Fourth Circuit's holding inRicks suggests that this method of selecting jurorsfrom the remaining array may be required if the blindstrike method is used or if the initial array is sufficientlylarge that "more than twelve names will remain" evenif both sides exercise all their peremptory challenges.See Ricks, 802 F. 2d at 733-34, 736-37. But see UnitedStates v. Patterson, 915 F. Stipp. 11, 12-13 (N.D. Il1.1996) (rejecting defendant's claim that random shuf-fling of remaining jurors after exercise of peremptorieson oversized array was error when defendants wereadvised in advance that this would occur).31 United States v. Esparza-Garza, 422 F. 3d 897, 898-904 (9th Cit. 2005).32 Id. at 899-900.33 Id. at 902.

34 Id. at 902-03.31 Miller-El v. Drerke, 545 U.S. 231 (2005).36 Esparza-Garza, 422 F. 3d at 903. In Miller-El, theCourt considered the prosecutors' "resort during voirdire to a procedure known in Texas as the jury shuf-fle," under which either side had, at various times,the ability to have the court reshuffle the "cards bear-ing panel members' names, thus rearranging the orderin which members of a venire panel are seated andreached for questioning." 545 U.S. at 253. The pros-ecutors in that case had twice requested a shuffle whena number of potential black jurors were seated at thefront of the venire panel. 545 U.S. at 254. What wasat issue in Miller-El, however, was not the resort to thejury shuffle but rather the prosecutors' exercise ofperemptory challenges to excuse 10 of 11 black jurors.The Court looked to the prosecutors' use of the juryshuffle as evidence of discriminatory intent in exercis-ing these peremprories, not as a free-standing Batsonviolation.37

The Arizona Supreme Court had previously reachedthe contrary conclusion, reasoning that treating awaiver as equivalent to the exercise of a strike wouldcome too close to requiring a prosecutor to strike a jurorin order to avoid removing another juror solely becauseof the latter's race-a requirement that would itselfimplicate equal protection concerns. State v. Paleo,200 Ariz. 42, 22 P. 3d 35, 37 )2001). Subsequently, aMissouri appellate court explicitly rejected Esparza-Garza's holding, siding with the reasoning of theArizona Supreme Court in Paleo. See State v. Amerson,

32 Los Angeles Lawyer October 2oo8

_ S.W. 3d _ 2008 WL 1960215 (Mo. App. S.D.May 7, 2008).38 People v. Wheeler, 22 Cal. 3d 258, 263 (1978).39 id.; see also People v. Lenix, 44 Cal. 4th 602, 621(2008) ("Both court and counsel bear responsibility forcreating a record that allows for meaningful review.").10 Batson v. Kentucky, 476 U.S. 79, 97 (1986).41 See Boyd v. Newland, 467 F. 3d 1139, 1149-50(9th Cir. 2006).42 See id. at 1148-50. At the time Boyd was decided,California courts generally had held that "comparativejuror analysis can take place on appeal only when thetrial court engaged in such analysis in the first instance."Boyd, 467 F. 3d at 1148 (citing People v. Johnson, 30Cal. 4th 1302 (2003); People v. Cornwell, 37 Cal. 4th50 (2005)). This year, however, the California SupremeCourt rejected this approach, holding that, at leastduring the third Batson step, comparative juror analy-sis "must be performed on appeal even when such ananalysis was not conducted below." Lenix, 44 Cal. 4that 607. Boyd's approach continues to differ withCalifornia courts on two issues. First, as Boyd notes,"some California courts have questioned whether com-parative juror analysis is similarly appropriate at thefirst Batson step, where the prosecution has not voicedits rationales for the strikes, instead of at the thirdBatson step." Boyd, 467 F. 3d at 1149 (citing Peoplev. Gray, 37 Cal. 4th 168 (2005); People v. Guerra, 37Cal. 4th 1067 (2006)). Second, though Boyd does notlimit reliance on events occurring after the challengedperemptory, California courts take a different view,holding that "the trial court's finding is reviewed on therecord as it stands at the time the WbeelerlBatson rul-ing is made. If the defendant believes that subsequentevents should be considered by the trial court, a renewedobjection is required to permit appellate considera-tion of these subsequent developments." Lenix, 44Cal. 4th at 624.43 See United States v. Vasquez-Lopez, 22 F. 3d 900,902 (9th Cir. 1994) ("We have held that theConstitution forbids striking even a single prospec-tive juror for a discriminatory purpose."). It is equallyclear, however, that "just as one is not a magic num-ber which establishes the absence of discrimination, thefact that the juror was the one Black member of thevenire does not, in itself, raise an inference of dis-crimination. Using peremptory challenges to strikeBlacks does not end the inquiry; it is not per se uncon-stitutional, without more, to strike one or more Blacksfrom the jury. A district court must consider the rele-vant circumstances surrounding a peremptory chal-lenge." Id. (citations omitted).44 Abu-Jamal v. Horn, 520 F. 3d 272, 290 (3d Cir.2008).45 id. at 291.46 d. at 291-92.47

1 Id. at 292. The court noted that the defendant "hadnot pointed to any improper statements or questionsby the prosecution during voir dire" that could serveto make out a prima facie case despite the noted recordfailings regarding the makeup of the venire. Id. at 289.48 Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per

curiam).49 Id. at 766.50 Snyder v. Louisiana, 128 S. Ct. 1203, 1208-09

(2008).Si Hernandez v. New York, 500 U.S. 352,359 (1991).32 United States v. Omoruyi, 7 F. 3d 880 (9th Cir.1993).53 id.S4 1d.55

ld.

56 Commonwealth v. Odell, 34 Mass. App. Ct. 100,101-02, 607 N.E. 2d 423, 425 (1993).57 Alverio v. Sam's Warehouse Club, Inc., 253 F. 3d933, 940-41 (7th Cir. 2001).

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