OCTOBER TERM, 1994
Syllabus
PURKETT, SUPERINTENDENT, FARMINGTON CORRECTIONAL CENTER
v. ELEM
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
No. 94-802. Decided May 15, 1995
Relying on
Batson v.
Kentucky, 476 U. S. 79, respondent
objected to a prosecutor's use of a peremptory challenge to strike,
inter alios, a black male juror from the jury at his robbery
trial. The Missouri trial court overruled the objection after the
prosecutor explained that he struck the juror because of the
juror's long, unkempt hair, his moustache, and his beard. The jury
was empaneled, and respondent was convicted. On direct appeal, the
State Court of Appeals affirmed the
Batson ruling,
concluding that the prosecution had not engaged in purposeful
discrimination. In denying respondent's subsequent petition for
habeas corpus, the Federal District Court concluded that the state
courts' purposeful discrimination determination was a factual
finding entitled to a presumption of correctness and that the
finding had support in the record. The Court of Appeals reversed,
holding that the prosecution's explanation for striking the juror
was pretextual and that the trial court had clearly erred in
finding no intentional discrimination.
Held: The Court of Appeals erred in its evaluation of
respondent's
Batson claim. Under
Batson, once the
opponent of a peremptory challenge has made out a prima facie
racial discrimination case (step one), the proponent of the strike
must come forward with a race-neutral explanation (step two). If
such an explanation is given, the trial court must decide (step
three) whether the opponent has proved purposeful racial
discrimination. Step two requires only that the prosecution provide
a raceneutral justification for the exclusion, not that the
prosecution show that the justification is plausible. The
prosecutor's explanation in this case satisfied step two, and the
state court found that the prosecutor was not motivated by
discriminatory intent. In federal habeas proceedings, a state
court's factual findings are presumed to be correct if they are
fairly supported by the record. The Court of Appeals erred by
combining the second and third steps. In doing so, the court did
not conclude or even attempt to conclude that the state court's
finding of no racial motive was not supported by the record, for
its whole focus was upon the motive's
reasonableness rather
than its
genuineness.
Certiorari granted;
25 F.3d
679, reversed and remanded.
766
Per Curiam
PER CURIAM.
Respondent was convicted of second-degree robbery in a Missouri
court. During jury selection, he objected to the prosecutor's use
of peremptory challenges to strike two black men from the jury
panel, an objection arguably based on
Batson v.
Kentucky, 476
U. S. 79 (1986). The prosecutor explained his strikes:
"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 a goatee type
beard. And juror number twenty-four also has a mustache and goatee
type beard. Those are the only two people on the jury ... with the
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." App. to Pet. for Cert. A-41.
The prosecutor further explained that he feared that juror
number 24, who had had a sawed-off shotgun pointed at him during a
supermarket robbery, would believe that "to have a robbery you have
to have a gun, and there is no gun in this case."
Ibid.
The state trial court, without explanation, overruled
respondent's objection and empaneled the jury. On direct appeal,
respondent renewed his
Batson claim. The Missouri Court of
Appeals affirmed, finding that the "state's explanation constituted
a legitimate 'hunch'" and that "[t]he circumstances fail[ed] to
raise the necessary inference of racial discrimination."
State v.
Elem, 747 S. W. 2d 772, 775 (Mo. App.
1988).
Respondent then filed a petition for habeas corpus under 28 U.
S. C. § 2254, asserting this and other claims. Adopting the
Magistrate Judge's report and recommendation, the Dis-
767
trict Court concluded that the Missouri courts' determination
that there had been no purposeful discrimination was a factual
finding entitled to a presumption of correctness under § 2254(d).
Since the finding had support in the record, the District Court
denied respondent's claim.
The Court of Appeals for the Eighth Circuit reversed and
remanded with instructions to grant the writ of habeas corpus. I t
said:
"[W]here the prosecution strikes a prospective juror who is a
member of the defendant's racial group, solely on the basis of
factors which are facially irrelevant to the question of whether
that person is qualified to serve as a juror in the particular
case, the prosecution must at least articulate some plausible
race-neutral reason for believing those factors will somehow affect
the person's ability to perform his or her duties as a juror. In
the present case, the prosecutor's comments, 'I don't like the way
[he] look[s], with the way the hair is cut .... And the mustach[e]
and the bear[d] look suspicious to me,' do not constitute such
legitimate race-neutral reasons for striking juror 22." 25 F.3d
679, 683 (1994).
It concluded that the "prosecution's explanation for striking
juror 22 ... was pretextual," and that the state trial court had
"clearly erred" in finding that striking juror number 22 had not
been intentional discrimination.
Id., at 684.
Under our
Batson jurisprudence, once the opponent of a
peremptory challenge has made out a prima facie case of racial
discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a raceneutral
explanation (step two). If a race-neutral explanation is tendered,
the trial court must then decide (step three) whether the opponent
of the strike has proved purposeful racial discrimination.
Hernandez v.
New York, 500 U. S. 352, 358-359
(1991) (plurality opinion);
id., at 375 (O'CONNOR, J.,
concurring in judgment);
Batson, supra, at 96-98. The
768
Per Curiam
second step of this process does not demand an explanation that
is persuasive, or even plausible. "At this [second] step of the
inquiry, the issue is the facial validity of the prosecutor's
explanation. Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race
neutral."
Hernandez, 500 U. S., at 360 (plurality opinion);
id., at 374 (O'CONNOR, J., concurring in judgment).
The Court of Appeals erred by combining
Batson's second
and third steps into one, requiring that the justification tendered
at the second step be not just neutral but also at least minimally
persuasive, i.
e., a "plausible" basis for believing that
"the person's ability to perform his or her duties as a juror" will
be affected. 25 F. 3d, at 683. It is not until the
third
step that the persuasiveness of the justification becomes
relevant-the step in which the trial court determines whether the
opponent of the strike has carried his burden of proving purposeful
discrimination.
Batson, supra, at 98;
Hernandez,
supra, at 359 (plurality opinion). At that stage, implausible
or fantastic justifications may (and probably will) be found to be
pretexts for purposeful discrimination. But to say that a trial
judge
may choose to disbelieve a silly or superstitious
reason at step three is quite different from saying that a trial
judge
must terminate the inquiry at step two when the
race-neutral reason is silly or superstitious. The latter violates
the principle that the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the opponent
of the strike. Cf.
St. Mary's Honor Center v.
Hicks,
509 U. S. 502,
511 (1993).
The Court of Appeals appears to have seized on our admonition in
Batson that to rebut a prima facie case, the proponent of a
strike "must give a 'clear and reasonably specific' explanation of
his 'legitimate reasons' for exercising the challenges,"
Batson,
supra, at 98, n. 20 (quoting
Texas Dept. of Community
Affairs v.
Burdine, 450 U. S. 248, 258
(1981)), and that the reason must be "related to the particular
case
769
to be tried," 476 U. S., at 98. See 25 F. 3d, at 682, 683. This
warning was meant to refute the notion that a prosecutor could
satisfy his burden of production by merely denying that he had a
discriminatory motive or by merely affirming his good faith. What
it means by a "legitimate reason" is not a reason that makes sense,
but a reason that does not deny equal protection. See
Hernandez,
supra, at 359; cf.
Burdine, supra, at 255 ("The
explanation provided must be legally sufficient to justify a
judgment for the defendant").
The prosecutor's proffered explanation in this case-that he
struck juror number 22 because he had long, unkempt hair, a
mustache, and a beard-is race neutral and satisfies the
prosecution's step two burden of articulating a nondiscriminatory
reason for the strike. "The wearing of beards is not a
characteristic that is peculiar to any race."
EEOC v.
Greyhound Lines, Inc., 635 F.2d
188, 190, n. 3 (CA3 1980). And neither is the growing of long,
unkempt hair. Thus, the inquiry properly proceeded to step three,
where the state court found that the prosecutor was not motivated
by discriminatory intent.
In habeas proceedings in federal courts, the factual findings of
state courts are presumed to be correct, and may be set aside,
absent procedural error, only if they are "not fairly supported by
the record." 28 U. S. C. § 2254(d)(8). See
Marshall v.
Lonberger, 459
U. S. 422, 432 (1983). Here the Court of Appeals did not
conclude or even attempt to conclude that the state court's finding
of no racial motive was not fairly supported by the record. For its
whole focus was upon the
reasonableness of the asserted
nonracial motive (which it thought required by step two) rather
than the
genuineness of the motive. It gave no proper basis
for overturning the state court's finding of no racial motive, a
finding which turned primarily on an assessment of credibility, see
Batson, 476 U. S., at 98, n. 21. Cf.
Marshall, supra,
at 434.
Accordingly, respondent's motion for leave to proceed
in
forma pauperis and the petition for a writ of certiorari are
770
granted. The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, dissenting.
In my opinion it is unwise for the Court to announce a
law-changing decision without first ordering full briefing and
argument on the merits of the case. The Court does this today when
it overrules a portion of our opinion in
Batson
In
Batson, the Court held that the Equal Protection
Clause of the Fourteenth Amendment forbids a prosecutor to use
peremptory challenges to exclude African-Americans from jury
service because of their race. The Court articulated a three-step
process for proving such violations. First, a pattern of peremptory
challenges of black jurors may establish a prima facie case of
discriminatory purpose. Second, the prosecutor may rebut that prima
face case by tendering a race-neutral explanation for the strikes.
Third, the court must decide whether that explanation is
pretextual.
Id., at 96-98. At the second step of this
inquiry, neither a mere denial of improper motive nor an incredible
explanation will suffice to rebut the prima facie showing of
discriminatory purpose. At a minimum, as the Court held in
Batson, the prosecutor "must articulate a neutral
explanation related to the particular case to be tried."
Id., at 98.2
1 This is the second time this Term that the Court has misused
its summary reversal authority in this way. See
Duncan v.
Henry, 513 U.
S. 364, 367 (1995) (STEVENS, J., dissenting).
2We explained: "Nor may the prosecutor rebut the defendant's
case merely by denying that he had a discriminatory motive or
'affirm[ing] [his] good faith in making individual selections.'
Alexander v.
Louisiana, 405 U. S., at 632. If these
general assertions were accepted as rebutting a defendant's prima
facie case, the Equal Protection Clause 'would be but a vain and
illusory requirement.'
Norris v.
Alabama, [
294 U. S. 587, 598
771
Today the Court holds that it did not mean what it said in
Batson. Moreover, the Court resolves a novel procedural
question without even recognizing its importance to the unusual
facts of this case.
I
In the Missouri trial court, the judge rejected the defendant's
Batson objection to the prosecutor's peremptory challenges
of two jurors, juror number 22 and juror number 24, on the ground
that the defendant had not made out a prima facie case of
discrimination. Accordingly, because the defendant had failed at
the first step of the
Batson inquiry, the judge saw no need
even to confirm the defendant's assertion that jurors 22 and 24
were black; 3 nor did the judge require the prosecutor to explain
his challenges. The prosecutor nevertheless did volunteer an
explanation,4 but the judge evaluated neither its credibility nor
its sufficiency.
(1935)]. The prosecutor therefore must articulate a neutral
explanation related to the particular case to be tried. The trial
court then will have the duty to determine if the defendant has
established purposeful discrimination."
Batson v.
Kentucky, 476 U. S., at 97-98 (footnotes omitted).
3 The following exchange took place between the defense attorney
and the trial judge:
"MR. GOULET: Mr. Larner stated that the reason he struck was
because offacial hair and long hair as prejudicial. Number
twenty-four, Mr. William Hunt, was a victim in a robbery and he
stated that he could give a fair and impartial hearing. To make
this a proper record if the Court would like to call up these two
individuals to ask them if they are black or will the Court take
judicial notice that they are black individuals?
"THE COURT: I am not going to do that, no, sir." App. to Pet.
for Cert. A-42.
4 The prosecutor stated:
"I struck 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 a goatee type beard. And
juror number twenty-four also has a mustache and a goatee type
beard. Those are the only two people on the jury, numbers
twenty-two and twenty-four with facial hair of any
772
The Missouri Court of Appeals affirmed, relying partly on the
ground that the use of one-third of the prosecutor's peremptories
to strike black veniremen did not require an explanation,
State v.
Elem, 747 S. W. 2d 772, 774 (1988), and
partly on the ground that if any rebuttal was necessary then the
volunteered "explanation constituted a legitimate 'hunch,'"
id., at 775. The court thus relied, alternatively, on steps
one and two of the
Batson analysis without reaching the
question whether the prosecutor's explanation might have been
pretextual under step three.
The Federal District Court accepted a Magistrate's
recommendation to deny petitioner's petition for habeas corpus
without conducting a hearing. The Magistrate had reasoned that
state-court findings on the issue of purposeful discrimination are
entitled to deference. App. to Pet. for Cert. A-27. Even though the
trial court had made no such findings, the Magistrate treated the
statement by the Missouri Court of Appeals that the prosecutor's
reasons "constituted a legitimate 'hunch'" as a finding of fact
that was supported by the record.5 When the case reached the United
States Court of Appeals for the Eighth Circuit, the parties
apparently assumed that petitioner had satisfied the first step of
the
Batson analysis.6 The disputed issue in the Court of
kind of all the men and, of course, the women, those are the
only two with the 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. And number
twenty-four had been in a robbery in a supermarket with a sawed-off
shotgun pointed at his face, and I didn't want him on the jury as
this case does not involve a shotgun, and maybe he would feel to
have a robbery you have to have a gun, and there is no gun in this
case."
Id., at A-41.
5 The Magistrate stated: "The Court of Appeals determined that
the prosecutor's reasons for striking the men constituted a
legitimate 'hunch' .... The record supports the Missouri Court of
Appeals' finding of no purposeful discrimination."
Id., at
A-27.
6 In this Court, at least, the State does not deny that the
prosecutor's pattern of challenges established a prima facie case
of discrimination.
773
Appeals was whether the trial judge's contrary finding was
academic because the prosecutor's volunteered statement satisfied
step two and had not been refuted in step three.
The Court of Appeals agreed with the State that excluding juror
24 was not error because the prosecutor's concern about that
juror's status as a former victim of a robbery was related to the
case at hand.
25 F.3d
679, 681, 682 (1994). The court did, however, find a
Batson violation with respect to juror 22. In rejecting the
prosecutor's "race-neutral" explanation for the strike, the Court
of Appeals faithfully applied the standard that we articulated in
Batson: The explanation was not"
'related to the
particular case to be tried.'" 25 F. 3d, at 683, quoting 476 U.
S., at 98 (emphasis in Court of Appeals opinion).
Before applying the
Batson test, the Court of Appeals
noted that its analysis was consistent with both the Missouri
Supreme Court's interpretation of
Batson in
State v.
Antwine, 743 S. W. 2d 51 (1987) (en bane), and this Court's
intervening opinion in
Hernandez v.
New York,
500 U. S. 352
(1991). 25 F. 3d, at 683. Referring to the second stage of the
three-step analysis, the
Antwine court had observed:
"We do not believe, however, that Batson is satisfied by
'neutral explanations' which are no more than facially legitimate,
reasonably specific and clear. Were facially neutral explanations
sufficient without more, Batson would be meaningless. It
would take little effort for prosecutors who are of such a mind to
adopt rote 'neutral explanations' which bear facial legitimacy but
conceal a discriminatory motive. We do not believe the Supreme
Court intended a charade when it announced Batson." 743 S.
W. 2d, at 65.
In
Hernandez, this Court rejected a
Batson claim
stemming from a prosecutor's strikes of two Spanish-speaking Latino
jurors. The prosecutor explained that he struck the jurors because
he feared that they might not accept an inter-
774
preter's English translation of trial testimony given in
Spanish. Because the prosecutor's explanation was directly related
to the particular case to be tried, it satisfied the second prong
of the
Batson standard. Moreover, as the Court of Appeals
noted, 25 F. 3d, at 683, the plurality opinion in
Hernandez
expressly observed that striking all venirepersons who speak a
given language, "without regard to the particular circumstances of
the trial," might constitute a pretext for racial discrimination.
500 U. S., at 371-372 (opinion of KENNEDY, J.).7 Based on our
precedent, the Court of Appeals was entirely correct to conclude
that the peremptory strike of juror 22 violated
Batson
because the reason given was unrelated to the circumstances of the
trial. 8
7 True, the plurality opinion in
Hernandez stated that
explanations unrelated to the particular circumstances of the trial
"may be found by the trial judge to be a pretext for racial
discrimination," 500 U. S., at 372, and thus it specifically
referred to the third step in the
Batson v.
Kentucky,
476 U. S. 79
(1986), analysis. Nevertheless, if this comment was intended to
modify the
Batson standard for determining the sufficiency
of the prosecutor's response to a prima facie case, it was
certainly an obtuse method of changing the law.
S In my opinion, it is disrespectful to the conscientious judges
on the Court of Appeals who faithfully applied an unambiguous
standard articulated in one of our opinions to say that they appear
"to have seized on our admonition in
Batson ... that the
reason must be 'related to the particular case to be tried,' 476 U.
S., at 98."
Ante, at 768-769. Of course, they "seized on"
that point because
we told them to. The Court of Appeals was
following
Batson's clear mandate. To criticize those judges
for doing their jobs is singularly inappropriate.
The Court of Appeals for the Eighth Circuit is not the only
court to have taken our admonition in
Batson seriously.
Numerous courts have acted on the assumption that we meant what we
said when we required the prosecutor's neutral explanation to be
"related to the particular case to be tried." See,
e. g.,
Jones v.
Ryan, 987 F.2d
960, 974
(CA3 1993);
Ex parte Bird, 594 So. 2d
676, 682-683 (Ala. 1991);
State v.
Henderson, 112
are. App. 451, 456, 829 P. 2d 1025, 1028 (1992);
Whitsey v.
State, 796 S. W. 2d 707, 713-716 (Tex. Crim. App. 1989);
Jackson v.
Commonwealth, 8 Va. App. 176, 186-187,380
S. E. 2d 1, 6-7 (1989);
State v.
Butler, 731 S. W.
2d
775
Today, without argument, the Court replaces the
Batson
standard with the surprising announcement that any neutral
explanation, no matter how "implausible or fantastic,"
ante,
at 768, even if it is "silly or superstitious,"
ibid., is
sufficient to rebut a prima facie case of discrimination. A trial
court must accept that neutral explanation unless a separate "step
three" inquiry leads to the conclusion that the peremptory
challenge was racially motivated. The Court does not attempt to
explain why a statement that "the juror had a beard," or "the
juror's last name began with the letter'S'" should satisfy step
two, though a statement that "I had a hunch" should not. See
ante, at 769;
Batson, 476 U. S., at 98. It is not too
much to ask that a prosecutor's explanation for his strikes be race
neutral, reasonably specific,
and trial related. Nothing
less will serve to rebut the inference of race-based discrimination
that arises when the defendant has made out a prima facie case. Cf.
Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248, 253
(1981). That, in any event, is what we decided in
Batson.
II
The Court's peremptory disposition of this case overlooks a
tricky procedural problem. Ordinarily, a federal appeals court
reviewing a claim of
Batson error in a habeas corpus
proceeding must evaluate, with appropriate deference, the factual
findings and legal conclusions of the state trial court. But in
this case, the only finding the trial judge made was that the
defendant had failed to establish a prima facie case. Everyone now
agrees that finding was incorrect. The state trial judge, holding
that the defendant had failed at step one,
265, 271 (Mo. App. 1987);
Slappy v.
State, 503 So.
2d 350, 355 (Fla. App.
1987); Walker v.
State, 611
So. 2d 1133, 1142 (Ala. Crim. App. 1992);
Huntley v.
State, 627 So. 2d 1011, 1012 (Ala. Crim. App. 1991). This
Court today calls into question the reasoning of all of these
decisions without even the courtesy of briefing and argument.
776
made no finding with respect to the sufficiency or credibility
of the prosecutor's explanation at step two. The question, then, is
whether the reviewing court should (1) go on to decide the second
step of the
Batson inquiry, (2) reverse and remand to the
District Court for further proceedings, or (3) grant the writ
conditioned on a proper step-two and (if necessary) step-three
hearing in the state trial court. This Court's opinion today
implicitly ratifies the Court of Appeals' decision to evaluate on
its own whether the prosecutor had satisfied step two. I think that
is the correct resolution of this procedural question, but it
deserves more consideration than the Court has provided.
In many cases, a state trial court or a federal district court
will be in a better position to evaluate the facts surrounding
peremptory strikes than a federal appeals court. But I would favor
a rule giving the appeals court discretion, based on the
sufficiency of the record, to evaluate a prosecutor's explanation
of his strikes. In this case, I think review is justified because
the prosecutor volunteered reasons for the challenges. The Court of
Appeals reasonably assumed that these were the same reasons the
prosecutor would have given had the trial court required him to
respond to the prima facie case. The Court of Appeals, in its
discretion, could thus evaluate the explanations for their
sufficiency. This presents a pure legal question, and nothing is
gained by remand if the appeals court can resolve that question on
the facts before it.
Assuming the Court of Appeals did not err in reaching step two,
a new problem arises when that court (or, as in today's case, this
Court) conducts the step-two inquiry and decides that the
prosecutor's explanation was sufficient. Who may evaluate whether
the prosecutor's explanation was pretextual under step three of
Batson? Again, I think the question whether the Court of
Appeals decides, or whether it refers the question to a trial
court, should depend on the state of the record before the Court of
Appeals. Whatever
777
procedure is contemplated, however, I think even this Court
would acknowledge that some implausible, fantastic, and silly
explanations could be found to be pretextual without any further
evidence. Indeed, in
Hernandez the Court explained that a
trial judge could find pretext based on nothing more than a
consistent policy of excluding all Spanishspeaking jurors if that
characteristic was entirely unrelated to the case to be tried. 500
U. S., at 371-372 (pluralityopinion of KENNEDY, J.). Parallel
reasoning would justify a finding of pretext based on a policy of
excusing jurors with beards if beards have nothing to do with the
pending case.
In some cases, conceivably the length and unkempt character of a
juror's hair and goatee type beard might give rise to a concern
that he is a nonconformist who might not be a good juror. In this
case, however, the prosecutor did not identify any such concern. He
merely said he did not" 'like the way [the juror] looked,'" that
the facial hair "'look[ed] suspicious.'"
Ante, at 766. I
think this explanation may well be pretextual as a matter of law;
it has nothing to do with the case at hand, and it is just as
evasive as "I had a hunch." Unless a reviewing court may evaluate
such explanations when a trial judge fails to find that a prima
facie case has been established, appellate or collateral review of
Batson claims will amount to nothing more than the
meaningless charade that the Missouri Supreme Court correctly
understood
Batson to disfavor.
Antwine, 743 S. W. 2d,
at 65.
In my opinion, preoccupation with the niceties of a threestep
analysis should not foreclose meaningful judicial review of
prosecutorial explanations that are entirely unrelated to the case
to be tried. I would adhere to the
Batson rule that such an
explanation does not satisfy step two. Alternatively, I would hold
that, in the absence of an explicit trial court finding on the
issue, a reviewing court may hold that such an explanation is
pretextual as a matter of law. The Court's unnecessary tolerance of
silly, fantastic, and implausible explanations, together with its
assumption that there is
778
a difference of constitutional magnitude between a statement
that "I had a hunch about this juror based on his appearance," and
"I challenged this juror because he had a mustache," demeans the
importance of the values vindicated by our decision in
Batson.
I respectfully dissent.
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