Two Wrongs Don’t Make it Right: Court of Appeals of Mississippi Drags Feet on Recognizing Combined Race-Gender Groups as Groups Deserving Discrete Protection Under Batson

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In Batson v. Kentucky, 476 U.S.79 (1986), the Supreme Court declared that racial discrimination through the use of peremptory challenges is prohibited. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Court found that gender discrimination through the use of peremptory challenges is also impermissible. So, after this latter opinion, you would think that all courts would have recognized the existence of combined race-gender groups as discrete groups deserving of protections similar to those extended to discrete groups defined exclusively by race or gender, right? Well, most courts have, but as the recent opinion of the Court of Appeals of Mississippi in Ross v. State, 2009 WL 2436714 (Miss.App. 2009), makes clear, some courts are still dragging their feet. My argument, though, is that these courts are simply clinging to or unwilling to give up pre-J.E.B. precedent and have no reason not to join the majority.

In Ross, Shirley Ross, an African-American woman, stood trial for aggravated assault after throwing grease and scalding water on her husband. Ross claimed that she committed these acts because her husband verbally and physically abused her, and the couple’s adult children testified at trial that their father had been physically violent with them. The jury, however, apparently believed evidence that Ross’ husband was physical with Ross only once before, four years before the charged incident, and found her guilty of aggravated assault.

Without knowing all of the details of the trial, I cannot say whether the jury selected the correct conclusion, but it seems to me that Ross had a solid argument that the jury itself was  selected improperly. After Ross was convicted, she appealed claiming, inter alia, that her trial counsel was ineffective by failing to object to the State’s purposeful use of peremptory challenges to strike African-American women.

In addressing this issue, the Court of Appeals of Mississippi first noted that it found “no prima facie showing of race or gender discrimination in the composition of the jury.” It then quickly noted, however, that Ross was not making this claim and was instead claiming that “the State purposefully discriminated against a specific race/gender combination based on the fact that Ross is an African American female.” According to the court,

It is when the record is reviewed looking at the combination of both the race and gender of the jurors that a pattern begins to emerge….During jury selection, the State used four peremptory challenges to remove three black females from the venire, along with a white male. The State tendered six black males, one white male, and five white females to the defense, which utilized its challenges to remove three of the black males, and the white male. The State then challenged another black female, and accepted a white male, a black male, and a white female. The defense used its two remaining peremptory challenges to remove two males, one white and one black. The State used its final challenge to remove a white female.

In addressing this issue, the Court of Appeals of Mississippi noted that “[s]ome state courts have ‘recognized the existence of combined race-gender groups as discrete groups deserving of protections similar to those extended to discrete groups defined exclusively by race or gender,'” citing cases from Massachusetts, Hawaii, Utah, New York, and California.

At the same time, the court noted that the Supreme Court of Illinois in People v. Rivera, 852 N.E.2d 771, 779-80 (Ill. 2006), recently declined to “expand the Batson rule to embrace the simultaneous consideration of different racial or ethnic groups.” The court then found that this was an issue of first impression for Mississippi courts and held that “in order for Ross to prevail on her claim, she would have to establish that Mississippi should expand Batson to combined race-gender groups, and also establish that trial counsel’s failure to raise this issue of first impression constitutes ineffective assistance of counsel.”

The court then found that counsel could not be deemed ineffective for failing to raise a Batson challenge to the exclusion of African-American females, but did not resolve the issue of whether Batson applies to combined race-gender groups, meaning that a party like Ross would face the same problem as her in a future appeal. The state courts in Illinois and Mississippi are not the only ones to drag their feet. For instance, in United States v. Walker, 490 F.3d 1282, 1291 n.10 (2007), the Eleventh Circuit noted that in its 1986 opinion in United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986), it declined to treat “black males” as a cognizable group for Batson purposes. The Eleventh Circuit then found, however, that like similar opinions by the Seventh and Ninth Circuits (as well as the opinion that formed the basis for Rivera), this opinion came before J.E.B., making the question of whether Batson applies to combined race-gender groups a question that merits determination at some point, but one that it did not have to address in its opinion.

My response: Just resolve the issue already! Really, could any issue be clearer? Sure, before the Court found in J.E.B. that gender discrimination through the use of peremptory challenges is impermissible, it made (some) sense for courts to find that Batson did not apply to combined race-gender groups. Because there was no (recognized) problem with gender discrimination during jury selection at that point, it made sense for an African-American woman to have to claim that the State was engaging in racial discrimination by striking African-American women and not race-gender discrimination.

But once the Court decided J.E.B., what possible ground could there be for finding that  Batson does not apply to combined race-gender groups? Indeed, it seems to me that there is a stronger reason for finding that Batson applies to combined race-gender groups than there is for finding that it applies to race or gender groups because, as the District of Columbia Court of Appeals found in Robinson v. United States, 878 A.2d 1273, 1284 (D.C. 2005),

When racial bias and gender bias unite to motivate discrimination against black female jurors, it makes no difference for Batson purposes that neither type of bias alone accounts for the strikes. If it is impermissible to exclude jurors because of their race  or their gender, it is impermissible to exclude jurors because of their race  and their gender. Two bad partial reasons for a peremptory strike do not add up to a good reason; they simply equate to a reason that is doubly bad. To prove a Batson violation, a defendant need not show that a prosecutor’s strikes were motivated solely by racial or gender bias, to the exclusion of all other considerations. Such a requirement would render Batson a virtual nullity and divorce it from the real world of jury selection, for the motivations behind peremptory strikes are seldom so crystallized and singular.

-Colin Miller

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