Is It Legal to Strike a Juror Based on Facial Hair ?

In Purkett v. Elem (514 US 765, 766), the prosecutor in State court peremptorily challenged two prospective black male jurors, because one had " 'long curly hair' " and another had a " 'mustache and goatee type beard,' " and the defense attorney's Batson claim was rejected in State court. Ultimately, the United States Supreme Court remitted the matter for further proceedings, with the following observations: "The Court of Appeals erred by combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive ... It is not until the third step that the persuasiveness of the justification becomes relevant ... At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two" (supra, at 768). The Court of Appeals in People v. Payne (at 183) stated: "At the third step, trial courts are authorized to act on outlandish or entirely evanescent assertions, even if they appear race neutral on their face. At this last step, 'the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination' ... although 'a trial judge may choose to disbelieve a silly or superstitious reason' put forth by the striking party, that Judge is not required to do so, and must in all cases make a step three pretext determination."