The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_7645/89_7645.d2

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Subject: 89-7645 -- DISSENT, HERNANDEZ v. NEW YORK





SUPREME COURT OF THE UNITED STATES


No. 89-7645



DIONISIO HERNANDEZ, PETITIONER v. NEW YORK

on writ of certiorari to the court of appeals of new york

[May 28, 1991]




    Justice Stevens, with whom Justice Marshall joins,

dissenting.

    A violation of the Equal Protection Clause requires what our cases
characterize as proof of "discriminatory purpose."  By definition, however,
a prima facie case is one that is established by the requisite proof of
invidious intent.  Unless the prosecutor comes forward with an explanation
for his peremptories that is sufficient to rebut that prima facie case, no
additional evidence of racial animus is required to establish an equal
protection violation.  In my opinion, the Court therefore errs when it
concludes that a defendant's Batson challenge fails whenever the prosecutor
advances a nonpre textual justification that is not facially
discriminatory.

I


    In Batson v. Kentucky, 476 U. S. 79 (1986), we held that "a `pattern'
of strikes against black jurors included in the particular venire might
give rise to an inference of discrimination" sufficient to satisfy the
defendant's burden of proving an equal protection violation.  Id., at 97.
"Once the defendant makes a prima facie showing, the burden shifts to the
State to come forward with a neutral explanation."  Ibid.  If the
prosecutor offers no explanation, the defendant has succeeded in
establishing an equal protection violation based on the evidence of
invidious intent that gave rise to the prima facie case.  If the prosecutor
seeks to dispel the inference of discriminatory intent, in order to succeed
his explanation "need not rise to the level justifying exercise of a
challenge for cause."  Ibid.  However, the prosecutor's justification must
identify " `legitimate reasons' " that are "related to the particular case
to be tried" and sufficiently persuasive to "rebu[t] a defendant's prima
facie case."  Batson, 476 U. S., at 98, and n. 20.

    An avowed justification that has a significant disproportionate impact
will rarely qualify as a legitimate, race-neutral reason sufficient to
rebut the prima facie case because disparate impact is itself evidence of
discriminatory purpose.  See Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252, 265-266 (1977); Washington v. Davis, 426
U. S. 229, 242 (1976).  An explanation based on a concern that can easily
be accommodated by means less drastic than excluding the challenged
venireperson from the petit jury will also generally not qualify as a
legitimate reason because it is not in fact "related to the particular case
to be tried."  Batson, 476 U. S., at 98; see Albermarle Paper Co. v. Moody,
422 U. S. 405, 425 (1975) (availability of nondiscriminatory alternative is
evidence of discriminatory motive).  Cf. also Richmond v. J. A. Croson Co.,
488 U. S. 469, 507 (1989) (State cannot make race-based distinctions if
there are equally effective nondiscriminatory alternatives).  And, as in
any other equal protection challenge to a government classification, a
justification that is frivolous or illegitimate should not suffice to rebut
the prima facie case.  See, e. g., Cleburne v. Cleburne Living Center,
Inc., 473 U. S. 432 (1985); id., at 452 (Stevens, J., concurring); Western
& Southern Life Insurance Co. v. State Board of Equalization of California,
451 U. S. 648, 677 (1981) (Stevens, J., dissenting).

    If any explanation, no matter how insubstantial and no matter how great
its disparate impact, could rebut a prima facie inference of discrimination
provided only that the explanation itself was not facially discriminatory,
"the Equal Protection Clause `would be but a vain and illusory
requirement.' "  Batson, 476 U. S., at 98 (quoting Norris v. Alabama, 294
U. S. 587, 598 (1935)).  The Court mistakenly believes that it is compelled
to reach this result because an equal protection violation requires
discriminatory purpose.  See ante, at 6-7, 10.  The Court overlooks,
however, the fact that the "discriminatory purpose" which characterizes
violations of the Equal Protection Clause can sometimes be established by
objective evidence that is consistent with a decisionmaker's honest belief
that his motive was entirely benign.  "Frequently the most probative
evidence of intent will be objective evidence of what actually happened,"
Washington v. Davis, 426 U. S., at 253 (Stevens, J., concurring), including
evidence of disparate impact.  See, e. g., Yick Wo v. Hopkins, 118 U. S.
356 (1886); Gomillion v. Lightfoot, 364 U. S. 339 (1960); Sims v. Georgia,
389 U. S. 404, 407 (1967); Turner v. Fouche, 396 U. S. 346, 359 (1970).
The line between discriminatory purpose and discriminatory impact is
neither as bright nor as critical as the Court appears to believe. {1}

    The Court therefore errs in focusing the entire inquiry on the
subjective state of mind of the prosecutor.  In jury selection challenges,
the requisite invidious intent is established once the defendant makes out
a prima facie case.  No additional evidence of this intent is necessary
unless the explanation provided by the prosecutor is sufficiently powerful
to rebut the prima facie proof of discriminatory purpose.  By requiring
that the prosecutor's explanation itself provide additional, direct
evidence of discriminatory motive, the Court has imposed on the defendant
the added requirement that he generate evidence of the prosecutor's actual
subjective intent to discriminate.  Neither Batson nor our other equal
protection holdings demand such a heightened quantum of proof.

II


    Applying the principles outlined above to the facts of this case, I
would reject the prosecutor's explanation without reaching the question
whether the explanation was pretextual.  Neither the Court nor respondent
disputes that petitioner made out a prima facie case.  See ante, at 5.
Even assuming the prosecutor's explanation in rebuttal was advanced in good
faith, the justification proffered was insufficient to dispel the existing
inference of racial animus.

    The prosecutor's explanation was insufficient for three reasons.
First, the justification would inevitably result in a disproportionate
disqualification of Spanish-speaking venireper sons.  An explanation that
is "race-neutral" on its face is nonetheless unacceptable if it is merely a
proxy for a discriminatory practice.  Second, the prosecutor's concern
could easily have been accommodated by less drastic means.  As is the
practice in many jurisdictions, the jury could have been instructed that
the official translation alone is evidence; bilingual jurors could have
been instructed to bring to the attention of the judge any disagreements
they might have with the translation so that any disputes could be resolved
by the court.  See, e. g., United States v. Perez, 658 F. 2d 654, 662-663
(CA9 1981). {2}  Third, if the prosecutor's concern was valid and
substantiated by the record, it would have supported a challenge for cause.
The fact that the prosecutor did not make any such challenge, see App. 9,
should disqualify him from advancing the concern as a justification for a
peremptory challenge.

    Each of these reasons considered alone might not render insufficient
the prosecutor's facially neutral explanation.  In combination, however,
they persuade me that his explanation should have been rejected as a matter
of law.  Accordingly, I respectfully dissent.







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1
    In Washington v. Davis, 426 U. S. 229 (1976) (concurring opinion), I
noted that the term "purposeful discrimination" has been used in many
different contexts.


"Although it may be proper to use the same language to describe the
constitutional claim in each of these contexts, the burden of proving a
prima facie case may well involve differing evidentiary considerations.
The extent of deference that one pays to the trial court's determination of
the factual issue, and indeed, the extent to which one characterizes the
intent issue as a question of fact or a question of law, will vary in
different contexts.

    "Frequently the most probative evidence of intent will be objective
evidence of what actually happened rather than evidence describing the
subjective state of mind of the actor. . . .

    "My point in making this observation is to suggest that the line
between discriminatory purpose and discriminatory impact is not nearly as
bright, and perhaps not quite as critical, as the reader of the Court's
opinion might assume.  I agree, of course, that a constitutional issue does
not arise every time some disproportionate impact is shown.  On the other
hand, when the disproportion is as dramatic as in Gomillion v. Lightfoot,
364 U. S. 339, or Yick Wo v. Hopkins, 118 U. S. 356, it really does not
matter whether the standard is phrased in terms of purpose or effect."
Id., at 253-254.

2
    An even more effective solution would be to employ a translator, who is
the only person who hears the witness' words and who simultaneously
translates them into English, thus permitting the jury to hear only the
official translation.