Gender Contender

United States v. Paris, No. 08-5071-cr (2d Cir. September 17, 2010) (Jacobs, Wesley, Chin, CJJ)

This interesting Batson decision deals with gender-based peremptory challenges, a subject that the circuit has not previously discussed.

Background

For about five years, Dennis Paris ran a multi-state prostitution ring centered in the Hartford, Connecticut, area and recruited teenage girls to work for him. He was charged with criminal sex trafficking and conspiracy offenses, and took the case to trial.

Before jury selection, his attorney notified the district court that Paris would exercise peremptory challenges primarily against women, because he believed that male jurors would be “fairer to Mr. Paris than female jurors will be.” Sure enough, after the challenges for cause were resolved, Paris used his first four peremptory challenges against women. When the government registered a Batson objection, defense counsel conceded that gender was “absolutely” one of the reasons for the strikes.

The court held that gender-based strikes violated Batson, but when counsel provided gender-neutral reasons, the court allowed the strikes to stand. Defense counsel persisted, striking two more women, and asking the court to reconsider its ruling. When the court refused, counsel struck one woman and one man on the second-to-last round, and did the same on the last round. For each, however, he indicated that he would have only struck women if the court had permitted him to consider gender.

At the same time, the government used its first four peremptories to strike men, causing the defense to make its own Batson objection. The government offered to give gender-neutral reasons for its challenges, but the district court held that, particularly since the government had not announced any intention to strike men, the defense had not made out a prima facie case of discrimination.

A jury consisting of eight women and four men convicted Paris of all counts. After being sentenced to thirty years’ imprisonment, Paris appealed.

The Appeal

On appeal, Paris argued both that he should have been able to strike prospective jurors based on their gender and that the district court erred in finding that there was no prima facie Batson violation in the government’s using its first four peremptories against men. The circuit affirmed.

1. Defendant’s Gender-Based Strikes

Neither the Supreme Court nor the Second Circuit has decided a case in which a criminal defendant sought to make gender-based peremptory challenges. Here, Paris argued that gender is different from race, relying on language in an O’Connor concurrence that the only the government should be forbidden from gender-based peremptories. He also pointed out that courts scrutinize gender classifications less closely than racial classifications.

The court disagreed, holding that, under the Supreme Court’s Batson cases, “the Constitution bars a defendant in a criminal case from exercising peremptory challenges based on gender.” First, discriminatory jury selection harms both the parties to the case and the prospective jurors. It also affects the entire community by undermining public confidence in the justice system. These principles are true whether the case is civil or criminal and whether the discriminatory strike is exercised by the government or the defendant.

Moreover, the Supreme Court rejected any distinction between race and gender under Batson when it held that gender-based strikes are unconstitutional. As with race-based strikes, the rationale for gender-based strikes is grounded in the very stereotype that the that “the law condemns.”

Finally, the court noted that three other circuits – and the Supreme Court, albeit in dictum – are already in agreement on this point.

2. The Government’s Strikes

With respect to Paris’ claim that the district court erred in not finding a prima facie case of discrimination against the government – “step one” of a trial court’s Batson inquiry – the court first had to settle on a standard of review. There is a split on the question – The First and Ninth Circuits review the issue for clear error, while the Seventh Circuit treats it as a mixed question and reviews it de novo.

Here, the circuit went its own way, holding that “a district court’s determination whether a party has established a prima facie case under Batson” is a “mixed question of law and fact,” but should be reviewed for abuse of discretion. The trial court is “entitled to some deference, as there clearly is an element of fact-finding to the determination,” but it is “not entirely factual, as the question of whether an inference of discrimination can be drawn … is often more a question of law than fact.” But the court rejected two-step review – clear error for the factual part and de novo for the legal – out of concern that the “inquiries often are not clearly delineated.” The “better course is to apply an abuse of discretion standard of review.”

Applying that standard here, the court found no abuse of discretion. The mere fact that the government’s first four challenges were against men, even though clearly a pattern, was not enough. At the start of jury selection, more than half of the prospective jurors were men, and Paris used seven of his first eight strikes against women. This “increased the percentage of men in the jury pool and the statistical likelihood that the Government would use its peremptory challenges against men.” Moreover, unlike Paris, the government did not announce in advance that it would strike men. Thus, given the district court’s “broad latitude to consider the totality of the circumstances when determining whether a party has raised an inference of discrimination,” there was no abuse of discretion.