Academic journal article The Review of Litigation

Texas Independence: The Lone Star State Serves as an Example to Other Jurisdictions as It Rejects Mixed-Motive Defenses to Batson Challenges

Academic journal article The Review of Litigation

Texas Independence: The Lone Star State Serves as an Example to Other Jurisdictions as It Rejects Mixed-Motive Defenses to Batson Challenges

Article excerpt

I. Introduction

Trouncing upon the Constitution is a relatively easy task these days, particularly when it comes to jury selection. Despite the United States Supreme Court's clear refusal to countenance racial profiling during voir dire, a lawyer with an ounce of resolve and a modicum of planning can easily ensure that no minorities will appear in a jury if she believes it strategically advantageous. The advocate can simply use peremptory strikes to remove all of the blacks and Hispanics from the jury. Her peremptory challenges are constrained by only one trifling limitation: she must make sure to find something unrelated to race that could conceivably explain the strike. It does not take much: lack of eye contact,1 misspellings on a juror information card,2 long hair,3 a "suspicious looking" beard,4 or the ability to speak another language.5 Even if the other side can prove that race did factor into her decision, the peremptory strikes should be upheld with no problem. Judges in the state of Texas, however, have been bold mavericks in this area of the law, regularly striking down peremptory strikes based even partially on race.

In the 1986 Batson v. Kentucky6 decision, the United States Supreme Court held that a prosecutor could not exercise peremptory strikes against jurors because of their race.7 In subsequent decisions, the Court also forbade racial strikes on the part of criminal defendants and civil litigants.8 Despite the clear intent of the Batson line of cases to completely eliminate racial considerations in jury selection, federal courts and several states have allowed a "mixed-- motive defense" to vitiate the doctrine.

The mixed-motive defense permits the proponents of a peremptory strike to justify their consideration of race by showing that some race-neutral reason would have resulted in the same strike. In other words, to prove an equal protection violation, a party invoking Batson protection must show that the racial discrimination not only existed but was the but for cause of the peremptory challenge. The principle itself is not unique; the Supreme Court specifically endorsed it in the context of facially neutral legislative and administrative acts in Mt. Healthy City School District Board of Education9 and Village of Arlington Heights v. Metropolitan Housing Development Corp.10

In sharp opposition to the lower federal courts, Texas courts have forcefully rebuked the concept of mixed-motive defenses as applied to Batson challenges. The Texas decisions, while consistent in their treatment of the issue, are surprisingly succinct and lack extensive discussion of the matter. The courts treat mixed-motive defenses as so clearly incompatible with Batson that the issue does not warrant the spilling of much judicial ink. This Comment argues that Texas has recognized correctly that Batson and the mixed-- motive defense are fundamentally inconsistent and that federal courts and the courts of other states should follow suit. At least three other states (South Carolina, Georgia, and Arizona) have cited extensively to Texas decisions in rejecting the mixed-motive defense. This Comment seeks to provide the unspoken underlying substantive

arguments justifying Texas's summary dismissal of mixed-motive defenses to Batson challenges. These arguments show that Texas has not merely made a discretionary choice in its jurisprudence. Rather, the departure from Mt. Healthy and Arlington Heights can be justified in a principled manner that other jurisdictions can and should emulate.

Across all jurisdictions, few cases have dealt with the mixed-- motive problem. One might respond to the arguments of this Comment, therefore, with a shrug, reasoning that not much hangs in the balance. After all, how often will a litigant actually admit that race played a part in his jury strikes? Moreover, given the willingness of courts to accept almost any explanation as raceneutral, judges will rarely face situations in which they need to engage in mixed-motive analysis. …

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