In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause forbids use of peremptory challenges to discriminate against prospective jurors on the basis of their race. The rule is more easily stated than applied. Among other problems, exactly who is a member of a racial minority, and whose perception of that status matters?
In United States v. Guerrero, No. 09-30066, decided today by the Ninth Circuit, the prosecution challenged juror D.T. Defense counsel made a Batson challenge, saying, "She looked like she may have some native American or Hispanic background." The prosecutor didn't think she was a minority at all. Neither did the judge. All three were wrong. In the identification section of the questionnaire, which had been removed from the version provided to counsel, she had "identified herself as 'Native Hawaiian/Pacific Islander.' " As greater acceptance and prevalence of interracial marriage produces more people of mixed race, we are going to get more people not easily categorized.
Is it possible for a prosecutor to commit a Batson violation if he genuinely believes the juror is "white," assuming he is not trying to challenge whites off the jury? The panel majority in this case (Judges Tallman and Beezer) thought not. "The problem here is that there is no evidence that race played any role in the decision to strike the prospective juror because neither the prosecutor nor the judge recognized her as a minority." Judge Gould dissented.
In United States v. Guerrero, No. 09-30066, decided today by the Ninth Circuit, the prosecution challenged juror D.T. Defense counsel made a Batson challenge, saying, "She looked like she may have some native American or Hispanic background." The prosecutor didn't think she was a minority at all. Neither did the judge. All three were wrong. In the identification section of the questionnaire, which had been removed from the version provided to counsel, she had "identified herself as 'Native Hawaiian/Pacific Islander.' " As greater acceptance and prevalence of interracial marriage produces more people of mixed race, we are going to get more people not easily categorized.
Is it possible for a prosecutor to commit a Batson violation if he genuinely believes the juror is "white," assuming he is not trying to challenge whites off the jury? The panel majority in this case (Judges Tallman and Beezer) thought not. "The problem here is that there is no evidence that race played any role in the decision to strike the prospective juror because neither the prosecutor nor the judge recognized her as a minority." Judge Gould dissented.
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