Retroactivity
Griffith v. Kentucky, 479 US 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that Batson applies retroactively on direct review).
See also Allen v. Hardy, 92 L.Ed.2d 199 (1986) (holding that Batson, would not be applied retroactively on collateral review of convictions that became final before that decision was announced).
See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L.Ed.2d 660 (1991) (holding viable Batson challenge in civil trial). A Batson objection is timely made if made after the completion of selection of the jury, before the venire was dismissed, and prior to commencement of trial.
US v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989) (stating Hispanic defendant challenged the exclusion of Mexican American).
But see Jones v. Butler, 864 F.2d 348 (5th Cir. 1988), cert. denied,
490 U.S. 1075 (1989) (noting that without this contemporaneous objection Batson will not apply retroactively).
Both the Fifth Circuit and the Texas Court of Criminal Appeals were quick to declare that the rule espoused in Batson would not have retroactive effect. But that position was squarely delegitimized by the Supreme Court in Griffith v. Kentucky, 479 U.S. 314 (1987) (“We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”).
Several courts have held that the “discriminatory” use of a prosecutor’s peremptory challenges (i.e. “group bias” directed at an identifiable group rather than “specific bias” which is the acknowledged purpose of peremptory challenges) violates a criminal defendant’s Constitutional right to be tried by a jury of his peers drawn from a cross section of his community.
People v. Wheeler, 583 P.2d 748 (Cal. 1978) (noting that “[t]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a cross-section of the community” according to the California Constitution).
Specifying groups “defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic conditions, place of residence and political affiliation”.
But see Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988) (stating at least one court has held that young adults are not cognizable class for purposes of jury selection);
Contra Swain v. Alabama, 380 US 202, 85 S.Ct. 824, 13 L.Ed.2d 759
(1965);
Doepel v. US, 434 A.2d 449 (D.C. App. 1981).
See, e.g., Rija v. State, 721 S.W.2d 504 (Tex.App. 1986) (holding state’s removal of only remaining black venire man did not raise an inference of purposeful discrimination);
US v. Clemons, 843 F.2d 741 (3d Cir. 1988) (stating that use of a threshold percentage for Batson challenges would short- circuit the fact-specific determination expressly reserved for trial judges);
State v. Neil, 457 So.2d 481 (Fla. 1984) (stating initial burden on defendant to show that there is a strong likelihood that peremptory challenges are being made in a racially discriminatory manner. If a court determines that such is the case, it shall call upon the prosecutor to show that the questioned challenges were otherwise motivated);
People v. Mutton, 217 Cal.Rptr. 416 (1985) (noting that the California Supreme Court held that black women are a “cognizable group” for purposes of California’s rule against the discriminatory use of peremptory jury challenges);
People v. James, 518 N.Y.S.2d 266 (N.Y.A.D. 1987) (stating a prosecutor need not strike all black panel members for a prima facie case of discrimination to exist. Where 5 of the 6 black venire persons were challenged, and 50% of the prosecutor’s peremptory challenges were to black persons, discrimination was found);
State v. Jones, 358 S.E.2d 701 (S.C. 1987) (noting where the prosecutor uses peremptory challenges to remove members of the defendant’s race, a Batson hearing should be held at the request of the defendant).
Reasons considered legitimate for the exclusion of venire men once a presumption of discrimination has arisen run the gambit.
Ex Parte Branch, 526 So.2d 609 (Ala. 1987) (holding six black jurors were either too educated, bewildered, too close in age and appearance to the defendant, grumpy or unkempt, if seven jurors had been excluded perhaps we would have new names for Snow White’s little friends);
Chambers v. State, 724 S.W.2d 440 (Tex.App.–1987) (using body language);
Rogers v. State, 725 S.W.2d 477 (Tex.App. 1987) (noting distrust);
People v. Cartangena, 513 N.Y.2d 497 (1987) (striking due to education);
US v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987) (striking due to divorced and appeared to have low paying job);
US v. Forbes, 816 F.2d 1006 (5th Cir. 1987) (noting hostility shown by posture and demeanor);
US v. Woods, 812 F.2d 1483 (4th Cir. 1987) (striking because not familiar with venire man’s fraternity);
Smith v. State, 1989 WL 21856 (Tex.App. B Houston [1st Dist.] 1989) (striking because wore jewelry and slouched) (unpublished decision).
