Document Type


Publication Date

Fall 2007


Racial bias, Jurors, Batson v. Kentucky, Miller-El Remands, Peremptory challenges, Juror selection, Voir dire


Civil Rights and Discrimination | Courts | Criminal Law | Criminal Procedure


In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus far considered, those courts have obstinately refused to follow the directives of Miller-El. This article demonstrates that both of those cases, Hightower v. Terry and Snyder v. Louisiana, reflect race-based resistance to the Supreme Court, considers possible sources of that resistance, as well as steps likely to eradicate or at least ameliorate such resistance.

Publication Citation

Published in: Ohio State Journal of Criminal Law, vol. 5, no. 1 (Fall 2007).