Joette Katz Authors Connecticut Law Tribune Article Entitled "Time to Take the Next Step"

In State v. Holmes, 334 Conn. 202 (2019), the Supreme Court expressly acknowledged the failure of Batson v. Kentucky to address the effects of implicit bias and the disparate impact that certain race neutral explanations for peremptory challenges have on minority jurors. As a consequence, the Court announced that it would convene a Jury Selection Task Force to study racial discrimination in the selection of juries; to consider measures intended to promote the selection of diverse jury panels; and to propose necessary changes to the jury selection process in Connecticut, to be implemented by court rule or legislation. Subcommittees were established, including one entitled Implicit Bias in the Jury Selection Process and Batson Challenges. That Committee was chaired by Judges Gold and Lavine, and together we studied the extensive body of work relating to implicit bias and its impact on the jury selection process. Recognizing that peremptory challenges would not be eliminated, this subcommittee studied all standards under Batson and whether in actual practice, Batson served to contribute to the implicit bias and discrimination it was intended to overcome. One question asked was whether Batson in fact encouraged the voir dire process to ignore the very issues of race, stereotype and discrimination it was designed to guard against? We expressly considered whether, Batson was in effect a placebo that "purports to solve the problem of discrimination by juries but really focuses only on purported discrimination against jurors. Not only does it fail to address the real issues, it also actively distracts from them." We did as instructed, and made recommendations for sweeping and systemic changes to the jury selection process, which ultimately were adopted. See P. B. sec. 5-12.

As expressly stated in this new rule, the purpose is to eliminate the unfair exclusion of potential jurors based upon race or ethnicity. That was the problem we were tasked with addressing and so we consciously chose not to address problems associated with gender-based peremptory challenges. It's now time.

Nearly 30 years ago, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994), in extending Batson to gender, the United States Supreme Court concluded that "equal protection jurisprudence" required "an exceedingly persuasive justification" for gender-based classification to survive constitutional scrutiny. "Equal opportunity to participate in the fair administration of justice . . . furthers the goals of the jury system [and] it reaffirms the promise of equality under the law—that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy." Accordingly, the Court held that "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man." The Court then concluded that "[a]s with race, the core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' [gender]."

I cannot improve upon the eloquence with which Justice Blackmun spoke: "When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized." Since J.E.B., the Supreme Court has not considered whether Batson should apply to sexual orientation or gender identity. In 2014, the Ninth Circuit made history by extending Batson to sexual orientation; Smith Kline Beecham Corp. v. Abbott Lab'ys, 740 F.3d 471, 489 (9th Cir. 2014); and there is much debate about whether Batson should similarly be extended to people who are transgender and gender nonconforming. I suspect that there are many of us who would gladly serve on a committee to study Batson's application beyond gender, but for now, perhaps we can first look at whether J.E.B. v. Alabama is the toothless tiger we labelled Batson. As the concurrence in Holmes acknowledged, "the problem extends beyond race and into discrimination on the basis of ethnicity, gender, and religious affiliation, which also are entitled to protection under the Batson framework. . . The Batson framework, however, is equally ineffective in addressing discrimination on these bases as well."

Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune, reprinted by permission.

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