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Batson’s Grand Jury DNA

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Batson v. Kentucky was a landmark decision imposing constitutional restrictions on peremptory challenges in the petit jury selection process. Batson was a culmination of a long line of cases addressing racial discrimination in jury selection. However, the role of anti-discrimination doctrine in grand jury selection is often overlooked when the story of Batson is considered. Many of the key equal protection cases underpinning the Batson decision were grand jury cases. Furthermore, the evidentiary framework applied to challenges to race-based peremptory strikes in Batson was forged in a century’s worth of grand jury discrimination doctrine. This Essay, prepared for the “Batson at Twenty-Five: Perspectives on the Landmark, Reflections on Its Legacy” Symposium at the University of Iowa College of Law, highlights this significant jurisprudence—Batson’s grand jury DNA—and explores the import of its legacy.

Part I of this Essay sets the stage with the story of one defendant’s extraordinary 1933 challenge—orchestrated by his brilliant lawyer, Charles Hamilton Houston—to the exclusion of blacks from the Loudoun County, Virginia grand jury that indicted him for murder. This Part suggests that, despite the significantly different contextual backdrop of the nonadversarial grand jury process (most notably, the absence of peremptory challenges in grand jury selection), there is sufficient reason to investigate the grand jury’s role in the story of Batson. Part II chronicles how many of the significant equal protection gains in the jury selection arena were won and solidified in the context of challenges to discrimination in the selection of grand jurors. Indeed, the Supreme Court’s equal protection jurisprudence in grand jury discrimination cases would lay the foundation for Batson. Part III explains how Batson’s articulation of the quantum of proof necessary for
demonstrating a violation of the Equal Protection Clause in the exercise of a peremptory challenge can be attributed to the grand jury discrimination cases of the previous century. This Essay concludes by contemplating whether the lessons we have drawn from the quarter-century experience under Batson might have some relevance for how we select and utilize grand juries in contemporary criminal justice.



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