Time To Take The Next Step

• Jurisdiction: Connecticut,United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Ms Joette Katz
• Published date: 29 May 2023

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...