Purkett v. Elem (1995)

U.S. Supreme Court

Purkett v. Elem, 514 U.S. 765 (1995)



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).


The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ of habeas corpus. It 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 race neutral 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 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. …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 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.


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

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.


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; nor did the judge require the prosecutor to explain his challenges. The prosecutor nevertheless did volunteer an explanation, 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).

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.***


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.


….Whatever 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.”…

…The Court’s unnecessary tolerance of silly, fantastic, and implausible explanations, together with its assumption that there is 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.


Critics have argued that the decision in Purkett v. Elem may render the prohibition on discriminatory peremptory challenges largely symbolic if trial judges are permitted to accept any excuse for systematic exclusion of jurors by race or sex.  Indeed, it has been argued that this decision provides a roadmap instructing attorneys how to engage in discrimination:  eliminate jurors by race or sex but claim any fanciful reason other than race or sex for doing so.  In effect, this decision places largely in the hands of trial judges the duty to stop this form of discrimination during jury selection.  Trial judges who are willing to accept any old reason for exclusions risk permitting intentional discrimination.  Trial judges who are skeptical and ask the attorneys, “what does that reason have to do with the individual’s ability to be a good juror in this case?” are much more likely to guard against discrimination in jury selection. 


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