I don't get it. The prosecution in this case exercises its peremptory challenges to strike every single African-American in the jury venire. The defense notes this fact and objects under Wheeler/Batson. But Justice Boren holds that it doesn't establish even a prima facie case of discrimination that the prosecution has struck every single African-American on the panel.
What? How exactly is this consistent with Batson, which expressly held: "For example, a 'pattern' of strikes against black jurors in included in the particular venire might give rise to an inference of discrimination"? Or the express holding in Wheeler that a prima facie case can be established by "show[ing] that his opponent has struck most or all of the members of the identified group from the venire," and further noting that that the defendant "may also demonstrate that the jurors in question share only this one characteristic," which seems to clearly indicate that showing both such facts is not required?
These quotes are nowhere to be found in Justice Boren's opinion. Nor is there any explanation as to why it makes sense to hold that the striking of every single African-American juror is inadequate to demonstrate even a prima facie case. Under this theory, if there are 150 members of the venire, and the prosecution uses 138 peremptory challenges to strike each of the 138 African-Americans on the jury, leaving an all-white jury, and the defense points out this fact, that's not enough to establish a prima facie case either. Silly.
Justice Boren was in a Deputy Attorney General in the Criminal Law Division from the date of his graduation from law school in 1973 until he was appointed a judge in 1984. Maybe someone with this background would prefer that prosecutors not have to explain at least a little bit of their reasoning when they strike every single minority from the jury. But that shouldn't be the law. Nor, under Wheeler and Batson, do I think it is.
