A Wrong Without a Remedy: Can the Erroneous Grant of a Batson Objection Ever Constitute Reversible Error?
Despite the oft-repeated promise that “a right implies a remedy,”1 in establishing a procedure to guard against unconstitutional discrimination in jury selection, the U.S. Supreme Court may have created a right without a remedy. In appellate parlance, the erroneous granting of a Batson objection may be an error that is never reversible.
In Batson v. United States, 476 U.S. 79 (1986), and its progeny, the U.S. Supreme Court has set forth a procedure that the federal courts are required to use in order to prevent racial and other forms of prohibited discrimination during jury selection. In appropriate cases, if the trial court fails to follow this procedure or fails in its application while denying a Batson objection, and, thus, allows a discriminatory use of a parties’ jury challenges, the appellate court will reverse the ensuing judgment and remand the matter for retrial before a properly selected jury.2 The harm from allowing discrimination against a protected class in jury selection is a violation of the U.S. Constitution’s Equal Protection Clause, and the error from wrongfully denying a Batson challenge is, thus, reversible.3 This error is remediable regardless of whether the discriminating party is a civil or criminal litigant,4 or whether it is the prosecution or the defense who attempts to exercise a discriminatory jury challenge.5 If, however, the trial court errs in its application of the Batson procedure by improperly granting a Batson objection, it is possible that such an error might never be reversible.
In Rivera v. Illinois, 556 U.S. 148 (2009), the Court held that “the mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here,” constitute either a constitutional violation or a structural error automatically requiring reversal.6 Because “Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury,” the U.S. Supreme Court affirmed the Illinois Supreme Court conclusions that “the improper seating of a competent and unbiased juror [did] not convert the jury into an ultra vires tribunal” and that any error in denying Rivera’s peremptory challenge was harmless.7
If a trial court erroneously grants a Batson objection and, thus, denies that party the ability to excuse a juror through a peremptory challenge, that error will never be responsible for seating a biased jury. Erroneously denying the party’s attempt to exercise a for-cause challenge to a juror can result in such a harm, but erroneously denying a party’s attempt to exercise a peremptory challenge cannot. While there may be sound policy reasons to ensure a party’s ability to help select the jury of his or her preference through the use of peremptory challenges, the record on appeal will never show an impairment of one’s constitutional right to an impartial jury resulting from the erroneous grant of the Batson objection denying the use of the peremptory strike. The trial court will have erred, but the error will always be harmless. The trial court will have committed a wrong without a remedy.
The Batson Process
In Batson, the U.S. Supreme Court reaffirmed the principle that “racial discrimination in jury selection offends the Equal Protection Clause.”8 That principle has since been expanded to prohibit discrimination in jury selection against certain additional protected classes, such as gender and ethnicity.9 The Court held that a “defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” explaining that class discrimination in the jury selection process “undermine[s] public confidence in the fairness of our system of justice.”10 Even the potential jurors, themselves, have a constitutional right not to be excluded from jury service on the basis of their race, gender, or ethnicity.11
To implement Batson’s holding, federal courts are required to engage in a three-part process when a party believes the other is attempting to exercise one or more peremptory strikes in a discriminatory manner. First, the party objecting to the use of one or more peremptory challenges on Batson grounds “must establish a prima facie case to raise the inference of discriminatory intent.”12 A party “satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”13 Once the objecting party establishes its prima facie case, the party seeking to exercise the peremptory challenge or challenges “may rebut the inference [of discriminatory intent] by articulating legitimate, [class]-neutral reasons for its exercise of its peremptory strikes.”14 After the party seeking to exercise its peremptory strikes proffers its nondiscriminatory reasons for its actions, “[t]he court must then evaluate the plausibility of the stated reasons ‘in light of all evidence with a bearing on [them].’”15 The objecting party “maintains at all times, however, the ultimate burden of proving intentional discrimination.”16 The trial court’s assessment of the striking party’s discriminatory intent is entitled to “great deference” and is reviewed only for clear error.17 If the trial court denied the Batson objection, but an appellate court found that the trial court clearly erred in not finding discriminatory intent, the judgment reached by the tainted jury would be vacated.18
Interestingly, the remedy a trial court should employ if it finds that a party is attempting to strike one or more jurors with discriminatory intent is not clear. In its Batson decision, the Supreme Court refrained from instructing the trial courts “whether it is more appropriate…for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case…or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.”19 The 11th Circuit has “decline[d] the invitation to craft any kind of bright-line rule,” but has held the reseating of the challenged juror to be within the trial court’s discretion.20
Although Florida state courts follow a similar procedure,21 “Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices,” premised on the Florida Constitution’s express guarantee of a right to an “impartial jury” in criminal cases.22 The Florida Supreme Court has explained:
[R]eviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a nondiscriminatory manner. Second, the trial court’s decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous. The right to an impartial jury guaranteed by article I, section 16, is best safeguarded not by an arcane maze of reversible error traps, but by reason and common sense.23
Like the federal courts, Florida has not settled on an “exclusive remedy” for the trial courts to employ after a successful Melbourne challenge, but seating the improperly challenged juror seems to be the preferred remedy over striking the panel and starting again.24 When a Florida appellate court holds that the trial court erred in allowing a discriminatory jury strike, the proper remedy is to reverse the trial court’s judgment and remand the case for a new trial.25
No Harm, No Foul
While a federal appellate court can vacate a verdict reached by a jury selected in a process tainted by the discriminatory exercise of peremptory challenges in violation of Batson, there seem to be no circumstances in which a federal appellate court should vacate a verdict reached by a jury selected after the erroneous sustaining of Batson objections to the use of peremptory challenges.
The harm recognized by the courts from a jury selected through a discriminatory process is broad.
Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings…. The community is harmed by the [s]tate’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.26
Thus, the complaining party does not need to establish that the outcome of the trial would have been different, but for the discriminatory striking of the juror or jurors, because “the harm from excluding a juror in violation of Batson is far greater than simply the effect upon the verdict.”27 That harm only arises, however, from the erroneous denial of a Batson objection. It cannot result from the erroneous grant of a Batson objection because no juror would have been wrongfully discriminated against.
In Rivera, the U.S. Supreme Court noted that it has “’long recognized’ that ‘peremptory challenges are not of federal constitutional dimension.’”28 Indeed, “[s]tates may withhold peremptory challenges ‘altogether without impairing the constitutional guarantee of an impartial and a fair trial.’”29 Because the right to exercise a peremptory challenge was not constitutionally required or “indispensable to a fair trial,” the Illinois Supreme Court held that the trial court’s flawed application of the Batson process was not structural error requiring automatic reversal.30 The Illinois court determined that the record did not support a conclusion that the challenged juror’s presence on the jury was prejudicial because “any rational trier of fact would have found [the] defendant guilty of murder on the evidence adduced at trial,” and, thus, the Batson error was harmless.31 After granting certiorari, the U.S. Supreme Court held that “[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern.”32
Previously, in Ross v. Oklahoma, 487 U.S. 81, 86-91 (1988), the Court held that a defendant who had been forced to use up one of his peremptory challenges following the trial court’s wrongful denial of a for-cause challenge had suffered no injury. In Rivera, the Supreme Court explained that, in Ross, though the trial court’s error may have resulted in the empaneling of a jury different from the one that would have been selected otherwise, “because no member of the jury as finally composed was removable for cause, we found no violation of Ross’s Sixth Amendment right to an impartial jury or his [14th] Amendment right to due process.”33
The Court rejected Rivera’s argument that “the deprivation of a state-provided peremptory challenge requires reversal,” even without a constitutional violation.34 The Rivera Court explained that its earlier statement in Swain v. Alabama, 380 U.S. 202, 219 (1965), that “[t]he denial or impairment of the right is reversible error without a showing of prejudice,” was mere dicta and predated the adoption of harmless-error review.35 The Court held that the denial of the peremptory strike itself did not constitute structural error because it did not necessarily render the trial “fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”36
Denying a particular peremptory strike does not deprive a litigant of his or her right to exercise the allotted number of strikes pursuant to rule or statute. Even in cases in which his or her allotment is used up by the wrongful denial of for-cause challenges, such a procedural error still does not necessarily establish that the error is harmful, requiring a new trial.37
On its face, Rivera only addresses the question of whether the wrongful denial of a peremptory strike is structural error, but its rationale effectively cuts off the possibility of reversible error being found under either a harmless error or plain error regime, too.38 The Ninth Circuit noted that Rivera’s prosecutors had successfully established that the erroneous denial of Rivera’s peremptory strike was harmless, but because Lindsey had not preserved his objection, the court examined whether the denial of Lindsey’s strike constituted plain error.39 The court held: “Though the district court committed an error that was plain, Lindsey has provided no evidence to establish that his substantial rights were affected….He does not claim that his jury was biased in any way.”40
The 11th Circuit recently conducted a harmless error analysis after acknowledging Rivera’s holding that Batson error is not automatically reversible. The court found the error to be harmless because the defendant “does not argue, and nothing in the record indicates, that [his] substantial rights were affected by [the unwanted juror’s] jury service.”41
Regardless of whether the error is examined under a harmless-error analysis or a plain-error analysis, no reversible harm is ever going to appear on the record. The burden-switch between a harmless-error review and a plain-error review will not matter.42 The record is always going to show that the striking party was not deprived of the proper number of peremptory strikes — only the opportunity to strike a particular juror or jurors, that no juror was discriminated against in violation of Batson, and that no biased jurors were seated as a result of the trial court’s refusal to allow the peremptory challenge. The erroneous application of the Batson process itself does not constitute a reversible injury.
In a pre- Rivera decision, the 11th Circuit held in Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., Inc., 236 F.3d 629, 638-39 (11th Cir. 2000), that “where…a district court allows a Batson challenge in the absence of a prima facie case, the error is not harmless, and the case must be remanded for a new trial.”43
The First Circuit recently recognized that such pre- Rivera decisions cannot withstand its rationale and asserted that the courts now review the wrongful grant of Batson objections under a harmless error analysis.44
This focus on whether wrongfully granted Batson objections should be considered structural error or analyzed under a harmless error framework obscures Rivera’s implications. Under the rationale of Rivera, as a matter of federal constitutional law, the wrongful grant of a Batson objection precluding a party’s exercise of a peremptory strike cannot constitute reversible error under any analysis.
Florida Courts Apply a Contrary Rationale, But Is It Justified?
The U.S. Supreme Court in Rivera recognized that “[s]tates retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal.”45 The Florida Supreme Court recently held that it did in Hayes v. State, 94 So. 3d 452 (Fla. 2012), a case in which the trial court failed to properly follow Florida’s three-part procedure guarding against discriminatory peremptory strikes.
Florida is not alone in holding the erroneous denial of a peremptory strike to be reversible error, even after Rivera.46 Other states have applied a harmless-error analysis.47 A Kansas court explained that “a peremptory challenge is simply a procedural vehicle for vindication of a defendant’s right to an impartial jury.”48 A Pennsylvania appellate court similarly concluded that the failure to properly follow court rules regarding peremptory strike procedure was not “ per se prejudicial,” refusing to order a new trial because the aggrieved party did not claim that “the jury, as seated, was unfair or unqualified.”49 A dissenting judge agreed that the error was not per se prejudicial, but argued that the court should have found “remediable harm,” lest the court’s ruling “render a right provided to criminal defendants by Pennsylvania law a ‘mere abstraction.’”50 In Hayes, the Florida Supreme Court reasoned:
Affording a criminal defendant the full use of his or her allotted peremptory challenges is an essential part of securing a fair and impartial jury under Florida’s constitution, and his or her use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude prospective jurors because of their race, ethnicity, or gender.51
The court repeatedly emphasized its view that the denial of a peremptory strike harms a party’s ability to select an impartial jury.52 The court’s rationale stands in contrast to Rivera ’ s holding that “[t]he trial judge’s refusal to excuse [the juror] did not deprive Rivera of his constitutional right to a fair trial before an impartial jury.”53
States undoubtedly have the right to erect trial safeguards beyond those required by the U.S. Constitution. “Indeed, the United States Supreme Court has repeatedly emphasized that it is for the states to formulate appropriate procedures for implementing [ Batson ] and its progeny.”54 The rationale offered by the Florida Supreme Court in Hayes for requiring a new trial, however, cannot be squared with the U.S. Supreme Court’s Rivera rationale.
The Florida court explained that “[p]eremptory and for-cause challenges constitute ‘distinct, but complementary, methods to aid those facing criminal charges in achieving the constitutional right of trial by an impartial jury.’”55 To be sure, any attorney exercising a peremptory strike is doing so because he or she believes, for whatever tangible or intangible reason, that the juror will be less amenable to his or her client’s interests. In earlier rulings, the U.S. Supreme Court stated that peremptory strikes occupy “an important position in our trial procedures. . . by enabling each side to exclude those jurors it believes will be most partial toward the other side.”56
Nevertheless, while “[p]eremptory challenges enable defendants to feel more comfortable with the jury that is to determine their fate…increasing litigants’ comfort level is only one goal among many, and reduced peace of mind is a bad reason to retry complex cases decided by impartial juries.”57 Finding the denial of a peremptory strike to be an infringement of a defendant’s right to an “impartial jury” elevates and equates comfort with impartiality.58
Before Rivera reached the U.S. Supreme Court, the Illinois Supreme Court reasoned that Batson’s recognition that peremptory challenges were “ one means of assuring the selection of a qualified and unbiased jury,”59 meant that “peremptory challenges [were not] the only means of assuring the selection of an impartial tribunal, nor, perhaps, a necessary means.”60 The U.S. Supreme Court ultimately explained that even if a “principal reason for peremptories…is to help secure the constitutional guarantee of trial by an impartial jury,” absent a showing that the empaneled jury was biased, a party deprived of a peremptory strike “received precisely what federal law provided.”61 Even the Florida Supreme Court previously acknowledged: “It is the right to an impartial jury, not the right to peremptory challenges, that is constitutionally protected.. . . Peremptory challenges merely are a ‘means of assuring the selection of a qualified and unbiased jury.’”62
In Hayes, the Florida Supreme Court distinguished challenges for cause, allowing removal of panel members for “lack of impartiality” from peremptory challenges available at a parties’ almost “unfettered discretion.”63 Justifying Florida’s more zealous protection of a litigant’s right to exercise peremptory strikes on Florida’s express constitutional guarantee of an “impartial jury” conflates the uses of for-cause challenges and peremptory strikes.64 If a litigant can establish that the denial of the peremptory strike results in the seating of a partial juror, then the litigant should have been able to support his or her for-cause challenge at the trial court or on appeal.
Rivera argued that a structural error designation was necessary because trial records could not show how a properly constituted jury — one without the challenged juror — would have ruled.65 The record problem illustrates that the real issue is the trial court’s handling of for-cause challenges. A party’s opportunity to establish a record regarding the partiality of a potential jury is through a for-cause challenge. One is not entitled to relief merely because some other unbiased, unchosen juror might have ruled differently. One is entitled to a decision reached by an unbiased jury selected in a process free from unconstitutional discrimination. That is what parties whose peremptory challenges were wrongfully denied still receive. At least, the record on appeal will never show otherwise.
The states are free to determine, as a matter of policy, that the right to exercise peremptory strikes during jury selection is important enough to warrant automatic reversal when that right is wrongfully deprived. Under the Supreme Court’s Rivera decision, however, the U.S. Constitution does not require the states to do so, and the harm from wrongfully denying peremptory challenges is not equated with the wrongful seating of a biased juror. Jury selection experts may offer persuasive reasons why the ability to strike a potential juror without a showing of bias is crucial to effective trial practice, but as a matter of appellate practice, when a peremptory strike is erroneously denied, the record on appeal will document no harm other than the denial of the strike itself.
1 The Federalist No. 43 274 ( Clinton Rossiter ed. 1961).
2 See, e.g., United States v. Kimbrel, 532 F.3d 461, 468-69 (6th Cir. 2008).
3 See Smithkline Beecham Corp. v. Abbott Labs, 740 F.3d 471, 487-88 (9th Cir. 2014); United States v. McAllister, 693 F.3d 572, 582 n.5 (6th Cir. 2012).
4 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 616 (1991).
5 Georgia v. McCollum, 505 U.S. 42, 59 (1992).
6 See Rivera, 556 U.S. at 158-61.
7 Id. at 162.
8 Batson, 476 U.S. at 85 (citing Strauder v. West Virginia, 100 U.S. 303, 305 (1880)).
9 See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994) (gender); Hernandez v. New York, 500 U.S. 352 (1991) (ethnic origin).
10 Batson, 476 U.S. at 85, 87.
11 See Powers v. Ohio, 499 U.S. 400, 407-09 (1991).
12 United States v. Houston, 456 F.3d 1328, 1335 (11th Cir. 2011).
13 Johnson v. California, 545 U.S. 162, 170 (2005).
14 Houston, 456 F.3d at 1335.
15 Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005)).
17 Houston, 456 F.3d at 1337-38 (citing Batson, 476 U.S. at 98 n.21).
18 See United States v. Williams, 610 F.3d 271, 280-84 (5th Cir. 2010); United States v. Taylor, 636 F.3d 901, 906 (7th Cir. 2011).
19 Batson, 476 U.S. at 99 n.24; see also generally Jason Mazzone, Batson Remedies, 97 Iowa L. Rev. 1613 (July 2012).
20 See United States v. Walker, 490 F.3d 1282, 1294-95 (11th Cir. 2007).
21 See Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996).
22 See State v. Whitby, 975 So. 2d 1124, 1125 (Fla. 2008) (Pariente, J., concurring in order discharging jurisdiction).
23 Melbourne, 679 So. 2d at 764-65 (footnotes omitted).
24 See Jefferson v. Florida, 595 So. 2d 38, 40-41 (Fla. 1992) (acknowledging that remedies must be “tailored. . . to the particular facts of [the] case”).
25 See Florida v. Alen, 616 So. 2d 452, 456 (Fla. 1993).
26 J.E.B., 511 U.S. at 140 (citation omitted).
27 Smithkline Beecham Corp. 740 F.3d at 487.
28 Rivera, 556 U.S. at 152 (citation omitted).
29 Id. (citation omitted).
30 People v. Rivera, 879 N.E.2d 876, 885-87 (Ill. 2007).
31 Id. at 890.
32 Rivera, 556 U.S. at 156-57.
33 Id. at 158.
34 Id. at 160.
35 Id.; see, e.g., United States v. Webster, 162 F.3d 308, 342 (5th Cir. 1998).
36 Rivera, 556 U.S. at 160 (citations omitted).
37 See United States v. Martinez-Salazar, 528 U.S. 304, 317 (2000).
38 See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011) (“The Supreme Court decided simply that the erroneous denial of a peremptory challenge is not a per se reversible error. We take that to mean that a court may apply the standard of review that is appropriate under the circumstances of the district court’s error.”).
39 Id. at 550-51.
40 Id. at 551.
41 United States v. Williams, 731 F.3d 1222, 1236-37 (11th Cir. 2013).
42 See United States v. Olano, 507 U.S. 725, 734 (1993).
43 See also United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998).
44 See United States v. Bowles, 751 F.3d 35, 38-39 (1st Cir. 2014).
45 Rivera, 556 U.S. at 161-62.
46 See Iowa v. Mootz, 808 N.E.2d 207, 225 (Iowa 2012); Vermont v. Yai Bol, 29 A.3d 1249, 1255 (Vt. 2011); Pellegrino v. AMPCO Sys. Parking, 785 N.W.2d 45, 47-48 (Mich. 2010) (The Supreme Court of Michigan held that a trial court’s erroneous denial of a peremptory strike violated the equal protection guarantees of both the federal and Michigan state constitutions and was, thus, reversible.).
47 See Kansas v. Carr, 2014 WL 3681049 (Kan. July 25, 2014) (surveying decisions analyzing Batson error under either structural or harmless error analysis and opting for harmless error analysis, post- Rivera ).
48 Id. at *95.
49 Pennsylvania v. Noel, 53 A.3d 848, 857 (Pa. Sup. Ct. 2012), appeal granted, 65 A.3d 385 (Pa. 2014) (As of the date of this submission, the Pennsylvania Supreme Court’s review of this issue is still pending.).
50 Id. at 864 (Wecht, J., dissenting) (citations omitted).
51 Hayes, 94 So. 3d at 460.
53 Rivera, 556 U.S. at 158.
54 Whitby, 975 So. 2d at 1125 (Pariente, J., concurring in an order discharging jurisdiction); see also Rivera, 556 U.S. at 152 (“Just as state law controls the existence and exercise of peremptory challenges [in state court], so state law determines the consequences of an erroneous denial of such a challenge.”).
55 Hayes, 94 So. 3d at 460 (quoting Busby v. State, 894 So. 2d 88, 99 (Fla. 2004)).
56 Holland v. Illinois, 493 U.S. 474, 484 (1990).
57 United States v. Graves, 418 F.3d 739, 743-44 (7th Cir. 2005).
58 Mootz, 808 N.W.2d at 225 (The Iowa Supreme Court held that wrongfully denying a peremptory challenge “forces the defendant to be judged by a jury that includes a juror that is objectionable to him.”).
59 Rivera, 879 N.E.2d at 885 (quoting Batson, 476 U.S. at 91).
61 Rivera, 556 U.S. at 159.
62 Jefferson, 595 So. 2d at 41 (citations omitted).
63 Hayes, 94 So. 3d at 460.
65 Rivera, 556 U.S. at 157.
Jonathan D. Colan is an assistant U.S. attorney in the appellate division of the U.S. Attorney’s Office for the Southern District of Florida and an adjunct professor of appellate law at the University of Miami School of Law. The opinions expressed herein do not represent the views of the U.S. Department of Justice, the U.S. Attorney’s Office, or the University of Miami School of Law.
This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.