Note: Felkner v. Jackson (2011)

In Swain v. Alabama (1965), the Supreme Court held that “a State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” The Court reasoned,

[a]lthough a prosecutor is ordinarily entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried, United States v. Robinson (1976), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

To prove a prima facie case of peremptory challenge racial discrimination, a black defendant could show that the prosecutor “in case after case… is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.”

Subsequently, in Batson v. Kentucky (1986), the Supreme Court rejected readings of Swain that said “proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause.” The Court described this interpretation as placing “on defendants a crippling burden of proof” which essentially immunized prosecutor’s peremptory challenges.

Instead, the Court articulated a new formulation that did not require a pattern of racially motivated peremptory challenges.

The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida (1977), and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Avery v. Georgia (1953). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

In Felkner v. Jackson (2011), Steven Jackson was convicted of sexual offenses stemming from his attack upon an elderly woman. Jackson raised Batson claims regarding the prosecution’s exercise of peremptory challenges on two prospective black jurors. The prosecutor offered race-neutral explanations for both peremptory strikes. One juror was struck because he believed he had been stopped by the police multiple times because of his race. The second juror was struck because she was a social worker. “After listening to each side’s arguments, the trial court denied Jackson’s motion.” The California Court of Appeal affirmed Jackson’s conviction and upheld the denial of the Batson claim.

Jackson then sought federal habeas relief, a review governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The standard of review is that “federal habeas relief may not be granted unless the state court adjudication ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.’ ” At the district court level, Jackson’s petition was denied. The district court found that the California Court of Appeal’s findings were not unreasonable.

However, the Ninth Circuit Court reversed this decision in a three-paragraph, unpublished opinion. It did so although it “did not discuss any specific facts or mention the reasoning of the three other courts that had rejected Jackson’s claim.” The Ninth Circuit only offered one explanatory sentence: “The prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors.”

The Supreme Court granted certiorari and in a per curium opinion decided that

On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett (2010). Here the trial court credited the prosecutor’s race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings. The state appellate court’s decision was plainly not unreasonable. There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner.

Thus, the Court reversed the California Court of Appeals decision and remanded the case for further proceedings.