Today’s Argument in Johnson v. California

This morning, the Court will hear argument in Johnson v. California. The case is the latest in a series of decisions interpreting Batson v. Kentucky, in which the Court held that the Equal Protection Clause prohibits the exercise of peremptory challenges based on a prospective juror’s race. Batson created a three-step procedure for identifying unconstitutional challenges. First, the objecting party must present a prima facie case of discrimination. Second, the party that exercised the challenge must provide a facially neutral reason for the challenge. Finally, the judge must determine whether that neutral reason is in fact a pretext for racial bias. The issue in Johnson is the appropriate standard of proof at the first, prima facie step.

There are two competing tests. California requires the objecting party to show it is “more likely than not” that the other party’s challenges were based on racial bias. Most other courts, including the lower federal courts, find a prima facie case when the objecting party raises an “inference of discrimination.”

Background

This case developed out of jury selection in the second-degree murder trial of Jay Shawn Johnson, who was charged in connection with the death of his girlfriend’s daughter. Mr. Johnson is African-American; his girlfriend is white. Under California law, after prospective jurors are questioned, either party may request that the court excuse an unlimited number of jurors for cause. Each party may then exercise a limited number of peremptory challenges, for which no reason need be given.

In this case, forty-three prospective jurors survived challenges for cause. The prosecution then exercised twelve peremptory challenges and the defense exercised sixteen. The prosecution used three of its peremptory challenges to exclude the only three African-American members of the panel, and the resulting jury was all-white. The defense objected on Batson grounds after both the second and third African-American jurors were challenged, but in both cases the trial court declined to find a prima facie case of discrimination and the prosecutor was therefore not required to put forth a race-neutral reason for the challenges. In making its ruling, the court articulated the standard for a prima facie case as a showing of a “strong likelihood” of discrimination.

Mr. Johnson was convicted and appealed the verdict on various grounds, including that the trial court’s ruling on his Batson challenge was erroneous. The California Court of Appeal agreed, finding that the trial court had applied the wrong standard for a prima facie case. However, the California Supreme Court reversed this decision, holding that the correct standard of proof was a showing that the challenge was “more likely than not” that the peremptory challenges in question had been based on race.

Mr. Johnson appealed to the U.S. Supreme Court, which granted certiorari and heard oral argument during the October 2003 term. However, the Court dismissed the case on the grounds that there was no final state court judgment. The California Court of Appeal then resolved the remaining issues in the case and affirmed the conviction. The Supreme Court granted certiorari again after the state supreme court denied review.

Petitioner’s Argument

Johnson argues that the Supreme Court should hold that a prima facie case under Batson requires only enough evidence to permit an inference of discrimination. He advances several reasons why this standard is more appropriate than California’s “more likely than not” standard.

First, Johnson notes that Batson itself described a party’s burden at the first step as to “raise an inference” of discrimination.

Second, he argues that “more likely than not” is equivalent to “by a preponderance of the evidence,” which is the standard of proof at the third step, when the court must decide a Batson claim on the merits. Johnson argues that requiring such proof on the merits at the prima facie stage is inappropriate because the purpose of a prima facie case in a burden-shifting framework like the one created by Batson is to allow the inquiry to move forward based on a lesser, preliminary showing of discrimination.

Third, Johnson notes that it is inappropriate to require that a challenger meet the “more likely than not” standard without knowledge of the other party’s race-neutral explanations for the challenges. In support of this claim, he notes that a high percentage of federal cases finding a Batson violation do so after analyzing the proffered race-neutral reasons–for example, a court might find that the proffered reasons are not in fact neutral, or that they were pretextual because the party did not challenge white jurors who were otherwise similar.

Johnson argues that the “inference” of discrimination required by Batson should be interpreted as a “permissive inference”–that is, that a court should find a prima facie case whenever a party puts forward evidence that would permit an inference of discrimination. Specifically, he argues that a prima facie case is established whenever, as in his case, a party challenges two or more members of a protected group and thereby challenges either a majority of all of the members of that group on the panel.

Respondent’s Argument

California does not argue that its “more likely than not” standard is required by the Constitution–instead, the state claims only that its standard is one of several permissible interpretations of Batson’s burden-shifting framework.

Specifically, California first argues that under Batson, an objecting party who has made out a prima facie case is entitled to relief if the other party cannot produce a race-neutral reason for the challenge in question. Therefore, requiring that the moving party establish that a violation is more likely than not is entirely consistent with the rule that “a party seeking relief has the burden of proving the facts entitling the party to relief.”

The state also argues that its standard is consistent with the meaning of “inference” as used by the Batson Court. Specifically, it claims that the Court adapted the Batson framework from its Title VII cases and that “prima facie case” in the Title VII context means “more likely than not.” It also notes that the Batson Court cited Wheeler–a California case banning the discriminatory use of peremptory challenges based on the state constitution–with approval, and that Wheeler defined a prima facie case as a showing that there is a “strong likelihood” of discrimination. Finally, California argues that Johnson’s proposed standard would threaten the fundamental nature of peremptory challenges (and intrude unreasonably on the attorney-client privilege), because even trivial claims of racial discrimination would be enough to establish a prima facie case and require the challenging party to provide a race neutral reason for the challenge.

Arguing Counsel

For Petitioner, Stephen B. Bedrick of Oakland, Cal.
For respondent, Seth K. Schalit, Supervising Deputy Attorney General, San Francisco, Cal.

Briefs

The Petitioner’s brief is available here.
The Respondent’s brief is available here.