Is Sympathy Towards Minorities a Race-neutral Reason under Batson V.
Kentucky?, 17 Touro Law Review 679-693 , 687-693 (Spring, 2001)(Student
A. THE PEREMPTORY CHALLENGE IN RAMIREZ-SOBERANES
It was the challenge against the African-American juror, Ms. Hannah
Brown, that sparked the Batson claim in Ramirez-Soberanes. It is
important to identify the explanation given by the Government in
analyzing a Batson claim to discern whether a race-neutral reason has
been given. In the judge's chambers the prosecuting attorney gave the
following reasons for the strike:
MR. VINCENT: The reason is her place of employment; has nothing to do
with her ethnic background.
THE COURT: Where does she work?
MR. VINCENT: She works at McDonald's.
THE COURT: The reason - she works at McDonald's and you find that
significant is what?
MR. VINCENT: Nothing more than they have a tendency in fast- food
restaurants to deal with-in lot of areas minority groups, legals,
illegals. There may be some sympathies that are there one way or the
other. And just to eliminate any sense of prejudice one way or the
other, we felt that it was appropriate to strike her.
The prosecuting attorney, Mr. Vincent, went further to state:
Well, I'm not prejudiced against her for being black ... If she was
white, if she was Hispanic, if she was any other ethnicity, it is my
experience that people who work at McDonald's have a lot of dealings
with a large group of people, including aliens. And I don't know if
there's any sympathies one way or the other, but because there is a
propensity for her to have dealings with a large group of people, that
may or may not have prejudiced her. I don't know. I just feel that it's
In furtherance of his explanation to prove that the decision to
challenge Ms. Brown was race-neutral, Mr. Vincent offered the fact that
he had refrained from excluding two Hispanic members of the jury. The
district court subsequently accepted the reasons offered by the
prosecutor as race-neutral and denied any relief to the defendant. In
the instant case, the issue rests heavily on the interpretation of the
second prong of race-neutrality and the third prong of pretextual
analysis made by the trial court.
B. Step Two: Race-Neutral Under Batson Today?
The "race-neutral" issue coupled with the issue of
pretextuality has been the focal point of many debates since the Batson
decision. In Ramirez- Soberanes, Ms. Brown was struck from the jury
because she worked at McDonald's, which would potentially render her
sympathetic towards minorities.
Following Batson there were a number of cases in which jurors were
challenged for reasons analogous to the reasons set forth in Ramirez-
Soberanes. In United States v. Sneed, a juror was challenged because of
her profession and the place in which she lived, and the challenge was
upheld by the court. In a slightly more narrow decision, United States
v. Bishop, the Ninth Circuit followed United States Supreme Court
precedent by barring the prosecutor from making a challenge based on a
mere assumption. The Ramirez-Soberanes case differs from Bishop in that
the prosecutor's explanation in the instant case was not an assumption,
rather, as the prosecution explained, he was speaking through
experience. Furthermore, the challenge was made to eliminate a juror who
could possibly carry sympathies toward minorities and to eliminate the
possibility of any prejudice on the petit jury, rather than on mere
speculation. "Numerous factors may influence the decision of a
prosecutor and defense counsel, including current and past employment,
general appearance and demeanor, previous jury service, and the absence
or presence of apparent prejudice." In 1991, the Alvarado case
encountered the issues of employment and sympathy. Two jurors were
challenged and ultimately struck from the jury. The first juror struck
was a minority woman who was challenged because she had children that
were the same age as the defendant and the prosecution felt this would
make her sympathetic towards the defendant. The second juror was
challenged based on the woman's employment as a social worker. The trial
court found that both reasons were race-neutral and the Second Circuit
To further analyze this issue we must also consider the situation
where the prosecutor's explanation is not considered race-neutral, as in
United States v. Wilson. In Wilson, the defendant made a Batson claim
that the six challenges against black jurors violated his constitutional
rights. At the Batson hearing, the district court found the first step
of the Batson test to be satisfied and offered the prosecution an
opportunity to offer a race-neutral explanation. The following is an
excerpt from the race-neutral explanation given:
Q. Will you admit that because of the large number of blacks in the
Lexa area and because of Wilson's reputation it was necessary for you to
more closely scrutinize the black panel members than the white panel
members; yes or no?
A. With regard to the Lexa area, it was the connection with Mr.
Wilson, which was the problem; not so much the race.
Q. Well, did you not --
A. I mean, race is just a -- race sets it up like being a member of a
"[T]he prosecutor must give a 'clear and reasonably specific'
explanation of his 'legitimate reasons' for exercising the
challenges." "[A] finding of intentional discrimination is a
finding of fact entitled to appropriate deference by a reviewing
court." With these Batson concepts in mind, the court held that the
Government did not present a race-neutral explanation for the peremptory
challenge, rather, the prosecutor clearly indicated a stereotypical
racial reason for striking the potential black juror.
In spite of the fact that a conclusion based on the foregoing reasons
could be made in determining whether a race-neutral reason was given in
Ramirez- Soberanes, the 1995 case of Purkett v. Elem solidifies the
analysis of how a court should interpret the second prong of Batson.
C. The Impact of Purkett v. Elem on Step Two
The Purkett Court stated that "[t]he second prong of this
process does not demand an explanation that is persuasive, or even
plausible." This is best evidenced in the reasoning given by the
prosecution in the Purkett case for challenging two black males. His
I struck [juror] number twenty-two because of his long hair. He had
long curly hair. He had the longest hair of anybody on the panel by far.
He appeared to me to not be a good juror for that fact, the fact that he
had long hair hanging down shoulder length, curly, unkempt hair. Also,
he had a mustache and goatee type beard. And juror number twenty-four
also had a mustache and goatee type beard. Those are the only two people
on the jury ... with facial hair ... And I don't like the way they
looked, with the way the hair is cut, both of them. And the mustaches
and the beards look suspicious to me.
The Purkett Court went on to affirm the Missouri Court of Appeals'
finding that the reasoning was a "legitimate hunch," which did
not "raise the necessary inference of racial discrimination."
Purkett allows an explanation for a peremptory challenge that is merely
facially valid, even if "silly or superstitious," which places
an extremely heavy burden on the defendant who is making the Batson
claim. The Supreme Court explains that it is a mistake to merge the
second and third prongs of Batson and that the trial judge need not
terminate the inquiry simply because of the reason offered in the second
This decision obviously erupted much emotion in critics, beginning
with the dissent by Justice Stevens and Justice Breyer. "Today,
without argument, the Court replaces the Batson standard with the
surprising announcement that any neutral explanation, no matter how
implausible or fantastic, even if it is silly or superstitious, is
sufficient to rebut a prima facie case of discrimination." The
decision in Purkett frustrated many, and in the eyes of those who oppose
peremptory challenges, the Supreme Court gave attorneys the right to
make irrational decisions with "implausible and ridiculous
explanations." Today, in the wake of Purkett, Mr. Ramirez-Soberanes
is left with the burden of proving the prosecutor's state of mind, which
is a near impossibility without a clear admission of discrimination, as
was the case in Wilson.