Jury Selection - Batson v. Kentucky

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

Rice v. Collins, 546 U.S. 333 (2006)

The state prosecutor’s exercise of a peremptory strike was upheld by the state trial court, the state appellate court and the federal habeas trial court. The Ninth Circuit disagreed, but simply found different facts. The Supreme Court reversed the Ninth Circuit decision, holding that it violated the AEDPA in its methodology. Justices Breyer and Souter concurred, but again decried the entire Batson enterprise.

Johnson v. California, 545 U.S. 162 (2005)

The United States Supreme Court considers the standard to be applied in deciding whether a prima facie Batson showing had been made. The appropriate standard requires the movant to: “Produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” It is not proper to hold that the movant must make a showing by a preponderance of the evidence.

Miller-El v. Cockrell, 537 U.S. 322 (2003)

The Court identified factors that should inform the trial court’s assessment of whether the proffered explanations rebutted the prima facie case. In this death penalty case, the manner in which the prosecutor questioned prospective jurors showed a discriminatory motive. When “death-qualifying” the jurors, for example, different questions were asked of white jurors than black jurors. In addition to disparate questioning, the Court focused on the percentage of strikes used against blacks versus whites, noting that “happenstance is unlikely to produce this disparity.” Other factors included a policy of the prosecutor’s office to strike minority potential jurors and proof that the reasons proffered for striking black jurors in this case applied to white jurors who were not struck. The Supreme Court reviewed the conviction again, after the Fifth Circuit re-considered the case, and this time the Supreme Court held that the defendant made a sufficient Batson showing and the conviction was set aside. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317 (2005).

Snyder v. Louisiana, 552 U.S. 472 (2008)

The Court held that a prosecutor failed to provide adequate race-neutral reasons for exercising a disproportionate number of peremptory strikes against black jurors. The Court wrote,

In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative . . . We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.

Purkett v. Elem, 514 U.S. 765 (1995)

When a party has been challenged under Batson to provide a race-neutral explanation for a peremptory strike, the reason offered need not be persuasive, or even plausible. Whatever the reason offered, the burden then shifts to the challenger to establish that the party who exercised the strike was purposefully exercising the strike in a discriminatory manner. In this case, the prosecutor struck two jurors because they had facial hair. The trial court may

not terminate the inquiry at that point, simply holding that the explanation was frivolous. The trial court must then proceed to the next step and determine whether, considering the prima facie case and the explanation offered by the party who exercised the strike, the opponent of the strike carried his burden of establishing purposeful discrimination.

J.E.B. v. Alabama, 511 U.S. 127 (1994)

Batson applies to peremptory strikes exercised on the basis of gender.

Georgia v. McCollum, 505 U.S. 42 (1992)

Batson applies to defense strikes, as well. The defendant’s exercise of peremptory strikes amounts to state action and the exercise of those strikes against jurors based on their race violates those jurors’ constitutional rights.

Hernandez v. New York, 500 U.S. 352 (1991)

The prosecutor excused two Hispanics and explained that he excused them because they were bilingual and was fearful that they would not listen to the interpreter who would be translating witnesses who spoke Spanish. This was not a violation of Batson. The three-step inquiry under Batson requires (1) the defendant make a prima facie showing that the prosecutor exercised his strikes in a discriminatory manner; (2) the prosecutor must then articulate a race-neutral reason for the exercise of his peremptory strikes; (3) the trial court must then decide whether the defendant has carried his burden of proving purposeful discrimination. Though excusing jurors in a case solely on the basis of their language may in some cases serve as only a surrogate for race discrimination, in this case, the explanation was acceptable.

Powers v. Ohio, 499 U.S. 400 (1991)

In order to assert a Batson claim based on equal protection grounds, the defendant need not share the racial identity of the excluded minority. That is, a white defendant may complain that the prosecutor improperly exercised peremptory strikes against black prospective jurors. The rights being protected are the rights of the excluded jurors to be selected as jurors. Holland held that this rule did not apply when considered in the context of the defendant’s Sixth Amendment rights, as opposed to the jurors’ Fourteenth Amendment rights.

Ford v. Georgia, 498 U.S. 411 (1991)

A state procedural bar to raising a Batson claim could not be constitutionally applied because Batson did not even exist at the time of the prosecution in this case and the defense took all reasonable steps to protect the issue.

Holland v. Illinois, 493 U.S. 474 (1990)

The Sixth Amendment’s guarantee of an impartial jury does not protect a defendant against a prosecutor’s racially motivated exercise of peremptory jury challenges. Therefore, a white defendant from whose jury blacks were struck, has no Sixth Amendment objection. The Court indicated, however, that a white defendant may have an equal protection argument under such circumstances.

Castellanos v. Small, 766 F.3d 1137 (9th Cir. 2014)

The Batson hearing conducted in the state court revealed that the prosecutor explained the basis for certain strikes on demonstrably false grounds (i.e., the prosecutor struck one juror based on the juror having no children, when, in fact, the transcript revealed that the juror had two children). Thus, under AEDPA review, the state court findings were based on an unreasonable determination of the facts.

United States v. Tomlinson, 764 F.3d 535 (6th Cir. 2014)

The defendant raised his Batson challenge prior to the time the jury was sworn, but after the prosecution had exercised several of its strikes and jurors had left the courtroom. The challenge was timely, nevertheless, because a Batson challenge cannot be effectively raised after each strike because the existence of a pattern (the prima facie) cannot be ascertained in the midst of the striking process.

Sanchez v. Roden, 753 F.3d 279 (1st Cir. 2014)

The petitioner established that he had established a prima facie Batson violation in his state court prosecution and the prosecutor should have been required to articulate his race-neutral reason for striking a juror. A remand to further develop the record was necessary.

SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)

Striking a potential juror on the basis of his sexual orientation (a homosexual male) violated Batson.

Adkins v. Warden, Holman CF, 710 F.3d 1241 (11th Cir. 2013)

The Eleventh Circuit granted a writ of habeas corpus, concluding that the state trial court failed to undertake the type of inquiry that is necessary to determine whether facially neutral explanations were mere pretexts. Among the circumstances that the trial court failed to consider were (1) the strength of the prima facie case; (2) the fact that the prosecution explicitly noted the race of every black veniremember (and only black veniremembers) on the jury list the state prepared during jury selection; (3) the fact that specific proffered reasons provided by the prosecutor were incorrect and/or contradicted by the record; (4) the fact that the trial court relied upon facts not part of the record, such as the trial court’s personal experience with the prosecutor in unrelated matters. After deciding that the state court’s decision was not entitled to AEDPA deference, the court undertook a de novo review of the record and concluded that the state prosecutor did intentionally excuse jurors on the basis of their race.

Ayala v. Wong, 693 F.3d 945 (9th Cir. 2012)

It is not proper to permit the prosecutor to present the race-neutral reasons for the exercise of strikes in an ex parte proceeding. The defense has the right to be present and to argue that the reasons are pretextual. See also 756 F.3d 656. The Supreme Court reversed: Davis v. Ayala, 135 S. Ct. 2187 (2015).

United States v. McAllister, 693 F.3d 572 (6th Cir. 2012)

The district court merged the stage-two and stage-three determinations. In essence, the court simply listened to the government’s explanations for the strikes and made no additional finding whether the strikes were pretextual. The district court must do more than simply perfunctorily listen to the government’s explanations and then declare those explanations to be race-neutral. Remand for further proceedings was necessary to enable the district court to make the proper findings.

Harris v. Hardy, 680 F.3d 942 (7th Cir. 2012)

Habeas petitioner established that the prosecution exercised its strikes in its death penalty murder case in a discriminatory manner. Comparing the reasons that strikes were exercised with the failure to strike other jurors, and the statistical evidence was sufficient to prove intentional discrimination.

Madison v. Commissioner, Ala. Dept. of Corrections, 677 F.3d 1333 (11th Cir. 2012)

The defendant offered sufficient evidence to establish a prima facie Batson violation and the trial court erred in denying the defendant’s motion for a Batson hearing. In addition to the statistics (the prosecutor used six of his eighteen peremptory strikes to remove black jurors; there were 13 black jurors on the venire), the prosecutor asked no questions at all of three of the black jurors, the case was “racially charged” (black defendant, white victim); and the prosecutor’s office had a history of racially discriminatory practices.

Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011)

The Federal Magistrate concluded that the state prosecutor had violated Batson. The district court judge rejected the Magistrate’s finding without conducting a new hearing. This was error. The Magistrate conducted a comparative analysis of the struck juror with other jurors who were not struck and determined that the state prosecutor had struck the juror on the basis of race and not the reasons offered at the habeas hearing.

Rice v. White, 660 F.3d 242 (6th Cir. 2011)

The state trial court found that the prosecutor’s race-neutral reasons for striking two jurors were not supported by the record. One of the jurors, however, had already left the courthouse. The trial judge decided that if a racially balanced jury was selected, the error would be cured. This was erroneous and the federal court properly granted a writ.

United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011)

The trial judge afforded the AUSA the opportunity to offer race neutral reasons for exercising certain strikes, but failed to make any finding of fact after listening to the reasons. A remand was required for the trial court to make findings. It is not sufficient for the judge to simply state that the AUSA “offered a race neutral reason;” the judge must also decide whether the prosecutor was credible in explaining the basis for the strike, given the facts offered by the opposing party, as well as the prima facie evidence. Also, the AUSA’s statement that she is an African American was not a proper factor to consider, because minorities are equally capable of discriminating against other minorities.

United States v. Taylor, 636 F.3d 901 (7th Cir. 2011)

The defendant raised a Batson challenge that was denied in the trial court. The appellate court remanded for an evidentiary hearing on the Batson claim, specifically, to analyze credibility of the prosecutor’s reason for exercising the strikes. On remand, the trial court allowed the prosecutor to offer any additional reasons for exercising the strikes. The Seventh Circuit reversed: the remand only permitted the trial court to analyze the strikes for the reasons initially offered by the prosecutor, not to afford the prosecutor an opportunity to advance additional reasons.

Coombs v. Diguglielmo, 616 F.3d 255 (3rd Cir. 2010)

In the habeas petitioner’s state trial, he raised a Batson claim. The prosecutor provided race neutral reasons, but the defendant was not provided an opportunity to rebut those race-netural reasons to show that those reasons were pretextual. Batson requires that the court engage in the three-step process (1. prima facie case; 2. race-neutral reasons; 3. opportunity to rebut the validity of the race-neutral reasons). The prosecutor’s explanations included statements such as, “I just didn’t like” that juror; and “that juror gave me badk looks.” These types of explanations are particularly susceptible to rebuttal.

Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009)

The prosecutor exercised two of his peremptory strikes to eliminate the only two African American jurors on the panel. The reasons for striking one of the jurors applied equally to white jurors who were not struck, thus establishing that the prosecutor was offering pretextual reasons for exercising the strike. The Ninth Circuit engaged in an exhaustive review of each of the “pretextual” reasons offered by the prosecutor and demonstrated that the reasons were either non-sensical (not “case related”), applied equally to white jurors, or were not supported factually by the voir dire. Writ granted.

Price v. Cain, 560 F.3d 284 (5th Cir. 2009)

The defense satisfactorily established a prima facie case by showing that the prosecutor struck six black veniremen and the resulting jury was all white. A prima vacie case is “simple and without frills.” The facts in this case gave rise to an inference of race-based peremptory strikes.

McGahee v. Alabama Dept. of Corrections, 560 F.3d 1252 (11th Cir. 2009)

In this case that was tried several months after Batson was decided in 1986, the state moved to excuse eight jurors for cause, all of whom were African-Americans. The state removed all African-Americans from the jury with its exercise of 16 peremptory strikes against African-Americans (there were 24 on the venire) and the jury was all white. In response to the Batson challenge, the prosecutor assured the court that his strikes were not race-based. The Eleventh Circuit granted the writ.

Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009)

During a “reconstruction” Batson hearing – that is, a hearing that is conducted years after the initial trial, following a remand, or habeas hearing – the trial judge must review the entire transcript of the voir dire to determine whether the defendant’s “comparative analysis” was meritorious. In this case, the trial judge simply looked at the struck jurors and the prosecutor’s statement about why that juror would have been struck. The comparative analysis, however, would have shown that the same reasons applied equally to jurors who were not in the cognizable group. The court noted that the strongest case on the importance of the comparative analysis is Miller-El v. Dretke, cited above. The Fifth Circuit, conducting the comparative analysis, concluded that a Batson violation was established.

Jones v. West, 555 F.3d 90 (2d Cir. 2009)

The lower courts failed to properly evaluate the defendant’s claim that a prima facieBatson claim had been satisfied. The Second Circuit considers different ways in which a prima facie case is made, including the “challenge rate” method (comparing the number of strikes against a cognizable racial group, versus strikes of others) and the “exclusion rate” (which focuses on the number of minority jurors who end up left on the jury, regardless of the ratio of strikes that are used. Thus, in the exclusion method, one strike of the only black juror, may establish a prima facie case. In this case, the defendant established a prima facie case. His argument was added by the trial judge’s conclusion, at one point during voir dire, that the prosecutor was, in fact, offering pretextual reasons.

Dolphy v. Mantello, 552 F.3d 236 (2d Cir. 2009)

The state trial court’s Batson findings were insufficient. The court simply accepted at face value all the prosecutor’s “race neutral” explanations for his strikes, without making any findings that the prosecutor actually relied on those reasons, as opposed to simply offering pretexts. Among the explanations offered by the prosecutor was that he struck all “overweight” people, because in his experience, overweight people are more sympathetic to defendants. When the defense attorney pointed out that the prosecutor had allowed overweight jurors to sit in other cases, the judge responded, “that’s neither here nor there; I’m satisfied that is a race neutral explanation.”

United States v. Collins, 551 F.3d 914 (9th Cir. 2009)

Only one African-American juror remained in the venire and the prosecutor exercised a strike against her. From one point of view, the prosecutor excused “100% of the African-Americans in the venire” but only exercised 25% of their strikes against African-Americans (the government only used four strikes). The Ninth Circuit concluded that considering various factors (including a comparison of that juror’s answers to voir dire questions with other jurors’ answers, the evidence was sufficient to establish a prima facie case and the trial court erred in not requiring the government to set forth a race neutral reason for exercising the strike. The appellate court explains in some detail the law governing the existence of a prima facie case.

Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008)

The state court prosecutor used five out of six peremptory strikes to remove African-American venire members. The defense attorney objected. The trial judge looked at his notes and said that statistically “it looks bad” but based on his review of the voir dire, he could understand each of the strikes. The prosecutor was never asked to explain her strikes. The first time the case reached the federal appellate court, the case was sent back to the district court so that the prosecutor could explain her strikes. She said she had no memory of any aspect of jury selection. However, she gave “hypothetical” explanations, based on her review of the voir dire transcript, though she said she did not remember her actual reasons. The Ninth Circuit set aside the conviction. “It does not matter that the prosecutor might have had good reasons . . . what matters is the real reason the jurors were stricken.” Johnson v. California, 545 U.S. 162, 172 (2005).

United States v. Williamson, 533 F.3d 269 (5th Cir. 2008)

The trial court clearly erred in rejecting defense counsel’s Batson challenge to the government exercise of peremptory strikes. The government struck both black venire members. The government’s explanation (the jurors had friends and relatives with drug convictions), applied equally to numerous white jurors who were not struck.

Green v. Lamarque, 532 F.3d 1028 (9th Cir. 2008)

The state defendant established that the prosecutor’s exercise of peremptory strikes was motivated by race and the state courts’ determination otherwise was an unreasonable determination of the facts. The prosecutor’s race-neutral explanations applied equally to white jurors who were not struck. Habeas relief granted.

United States v. Kimbrell, 532 F.3d 461 (6th Cir. 2008)

The trial court granted the government’s Batson challenge to the defendant’s use of a peremptory strike against a white juror. However, the trial court placed the burden of proof on the defendant to prove a non-discriminatory basis for the strike. In “step three” of the Batson procedure, the burden is on the party challenging the strike to prove a discriminatory motive (after the party exercising the strike has offered a race-neutral reason during step two). The Sixth Circuit reversed defendant’s conviction. See also United States v. McFerron, 163 F.3d 952 (6th Cir. 1995).

United States v. Odeneal, 517 F.3d 406 (6th Cir. 2008)

The prosecutor failed to offer a sufficiently convincing race neutral reason for excusing the African-American jurors that he struck. The juror indicated that she was going through a divorce, but this was information contained on a questionnaire that was over a year old. Also, the juror indicated that she had previously served on a jury that acquitted a defendant. But a white prospective juror served on that same jury, and was not struck by the prosecutor.

Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006)

The Ninth Circuit concluded that none of the facially neutral explanations offered by the prosecutor for striking Native American jurors was sincere and held that the defendant’s Batson challenge should have been granted.

Willliams v. Runnels, 432 F.3d 1102 (9th Cir. 2006)

The Ninth Circuit concluded that the habeas petitioner was entitled to a full Batson hearing. The petitioner established the existence of a prima facie Batson violation and the state did not sufficiently rebut that inference – in large measure because the state trial judge wasn’t interested in hearing the explanation and summarily rejected the petitioner’s Batson claim during the course of jury selection.

Wilson v. Beard, 426 F.3d 653 (3rd Cir. 2005)

Based on the prosecutor’s training tape that the defendant unearthed years later, the defendant was able to show that the prosecutor regularly and intentionally removed African Americans from his juries.

United States v. Esparza-Gonzalez, 422 F.3d 897 (9th Cir. 2005)

Even the failure to exercise a strike may constitute a Batson violation. In this case, the government did not exercise all of its strikes, thus eliminating the possibility that the jurors on the bottom of the list could be chosen. This effectively eliminated the only Hispanic in the jury venire. Coupled with other evidence, this failure to strike could be considered as part of the prima facie case. The trial court also erred in failing to make a determination whether the government’s stated reason for not exercising a strike established that there was no discriminatory motive.

United States v. Stephens, 421 F.3d 503 (7th Cir. 2005)

If a statistical prima facie showing of discriminatory use of peremptories is made, the trial court may not reject the showing on the basis of apparent non-discriminatory reasons for exercising the strikes. That is, during phase one of the Batson challenge, the trial court may not abort the process by summarily finding that there were race-neutral reasons for exercising the strikes. This type of analysis is appropriate during phase three of the Batson challenge. The court also noted that the prosecution struck African-Americans, Hispanics and an Asian juror, and the trial court properly “combined” these strikes to find a pattern of removing non-white jurors. The Seventh Circuit later affirmed the conviction, holding that the evidence developed on remand was sufficient to establish that there was no Batson violation. 514 F.3d 703 (7th Cir. 2008).

Walker v. Girdich, 410 F.3d 120 (2d Cir. 2005)

In explaining why she exercised one of her peremptory strikes against a potential black juror, the prosecutor stated, “because he was a black man with no family . . .” The state argued that the prosecutor was simply describing the juror, as opposed to explaining the basis for the strike. The Second Circuit disagreed, holding that the “reason” offered by the prosecutor was that he was a black man with no family, and this is not a racial neutral explanation.

Brinson v. Vaughn, 398 F.3d 225 (3rd Cir. 2005)

A prima facie case of a Batson violation may be made out even if the party being challenged does not use all of its strikes and some members of the targeted class are seated on the jury. In other words (as in this case), if the prosecutor strikes a disproportionate number of black jurors, but does not exhaust all of the strikes available and some blacks are seated, the prima facie case may still exist. The state trial court in this case erred in failing to require the state to offer explanations for its disproportionate use of strikes against black jurors. The trial court also erred in holding that “where the victim, the defendant, and the witnesses are all black, there is no Batson violation.”

Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004)

The defendant voiced a Batson challenge and the trial judge then reviewed his notes and stated that he could see reasons for each of the strikes – but never made the prosecutor announce her reasons for exercising the strikes that she did. The trial court’s procedure was not in compliance with the procedures required by Batson.

Hardcastle v. Horn, 368 F.3d 246 (3rd Cir. 2004)

The initial state trial was conducted pre-Batson. Nevertheless, the trial lawyer preserved a Batson objection (relying on Swain). The state habeas court failed to properly evaluate whether the state’s proffered explanations supported its claim that its strikes were not motivated by race. A remand for an additional hearing in the district court is the appropriate remedy.

Holloway v. Horn, 355 F.3d 707 (3rd Cir. 2004)

The prosecutor violated Batson. Though many of his race neutral reasons were suspect, one particular explanation, “black male, same age as defendant” was clearly a pretext, given that three white jurors were also the same age as the defendant. The court noted that other reasons that a review of the record might reveal are irrelevant when the prosecutor, in court, specifically states what the reasons were that prompted the strike.

United States v. Brown, 352 F.3d 654 (2d Cir. 2003)

Excluding jurors based on their religion would violate Batson. In this case, it was the juror’s participation in religious activities, not his religion that was the basis for the prosecutor’s strike and this was permissible.

Harris v. Kuhlmann, 346 F.3d 330 (2d Cir. 2003)

The prosecutor used five peremptory strikes to excuse every potential black juror. The prosecutor initially accepted a black juror, but that juror was later struck, still during the jury selection process, when he revealed that he actually had a misdemeanor conviction. “The fact that the prosecutor was initially willing to accept one black juror is not sufficient to exempt from scrutiny the prosecutor’s later decisions to strike all four of the remaining black potential jurors.” These facts establish a prima facie case and remand was necessary to assess whether there were race-neutral reasons supporting the state’s exercise of peremptory strikes. (The state murder trial was held in 1985).

Aki-Khuam v. Davis, 339 F.3d 521 (7th Cir. 2003)

The trial court deviated from the standard Batson procedure by requiring the parties to explain the purpose of each peremptory strike as the jury selection process went along. Five of the defendant’s peremptory challenges were rejected by the trial judge, despite the fact that there were no objections by the state. This procedure violated the defendant’s right to due process and equal protection and required that his conviction and death sentence be set aside. The fact that the trial judge found the explanations offered by the defendant to be “terrible” is not the same as finding that the strikes were racially motivated. Moreover, requiring the lawyers to explain the basis for each strike, without an objection from the opponent is not consistent with the requirements of Batson.

United States v. Alanis, 335 F.3d 965 (9th Cir. 2003)

The trial court denied the defendant’s Batson challenge, but failed to complete the “step-three” analysis by reviewing the persuasiveness of the prosecutor’s gender-neutral explanations. Instead, the court simply stated that gender-neutral explanations were offered and that was the end of the inquiry. Conducting its own inquiry, the Ninth Circuit concluded that the explanations offered by the prosecutor were pretextual and that the strikes were actually used in a gender-based manner.

Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2001)

At trial, defense counsel raised a Batson claim. The prosecutor responded that the ratio of blacks on the jury mirrored the ratio in the venire, thus there could be no Batson claim. The judge agreed with this argument, but commented at the conclusion of the Batson hearing, ``I think both of you were doing what you could to get the different races off.'' Appellate counsel was ineffective in failing to raise what was a blatant error of law committed by the trial court in denying the Batson claim on an improper basis (comparing the venire with the jury), especially in light of the judge's comment that demonstrated that the Batson claim was meritorious.

United States v. Nelson, 277 F.3d 164 (2d Cir. 2002) This case involved the notorious prosecution of two African Americans for the killing of an orthodox Jew in Brooklyn during a riot. The District Court judge stressed the need to have a jury that was diverse. To achieve this result, the judge denied a Batson challenge, made decisions regarding excusals for cause, and shifted the order of jurors. The Second Circuit holds that a jury that is selected intentionally to achieve racial and religious objectives is not a valid jury, particularly where an unqualified juror (i.e., a biased juror) is allowed to sit in order to achieve this goal.

Riley v. Taylor, 277 F.3d 261 (3rd Cir. 2001)

The prosecutor struck all three black potential jurors. The habeas petitioner offered evidence demonstrating a pattern of discriminatory use of peremptory strikes by the prosecutor’s office in death penalty trials. The state’s explanation of its use of peremptory strikes (at the habeas hearing years later) was not supported by the record of the voir dire. The death penalty was set aside.

United States v. McFerron, 163 F.3d 952 (6th Cir. 1998)

The trial court improperly placed the burden on the defendant to articulate a race-neutral basis for exercising peremptory strikes against certain jurors. When one party challenges the exercise of strikes by the adversary, the party voicing the objection has the burden of proving that the strikes were racially-motivated. This amounted to structural error that is not subject to harmless error analysis.

Tankleff v. Senkowski, 135 F.3d 235 (2d Cir. 1998)

A defendant may raise a Batson challenge, regardless of whether he is the same race as the jurors who, he claims, were improperly excused. Moreover, there is no harmless error analysis when evaluating a Batson challenge. In this case, the prosecutor attempted to strike the three blacks on the panel; this establishes a prima facie case and the trial court should have conducted a full Batson inquiry.

Mahaffey v. Page, 162 F.3d 481 (7th Cir. 1998)

The state exercised strikes against all seven African-American members of the jury venire. This evidence was sufficient to establish a prima facie Batson claim.

United States v. Serino, 163 F.3d 91 (1st Cir. 1998)

The trial court initiated a Batson challenge and re-seated a juror struck by the defense. The First Circuit reversed: the defendant offered a race-neutral reason for striking the only Asian-American juror – she was a social worker and her husband was a financial analyst. The defendant’s proffered explanation was not inherently unbelievable and there was no basis for the judge’s factual finding that the explanation was not believable.

United States v. Blotcher, 142 F.3d 728 (4th Cir. 1998)

The defendant provided a race-neutral reason for striking a white juror (he appeared to be very conservative based on the way he was dressed) and the trial court’s decision to re-seat that juror required that the conviction be reversed.

United States v. Hill, 146 F.3d 337 (6th Cir. 1998)

There was one black potential juror. She was struck by the prosecutor. When asked why he struck that juror, the prosecutor was unable to provide a reason, but reassured the court that it was not based on the juror’s race. The Sixth Circuit remanded. The trial court made insufficient findings to deny the Batson challenge.

Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998)

Nine of the ten strikes exercised by the prosecutor were against black potential jurors. Though the prosecutor did not use all of his peremptory strikes and there were three black jurors and two black alternates ultimately on the jury, the state failed to rebut the prima facie case. The state trial court failed to consider the totality of the circumstances and never evaluated the differential manner in which the state handled – or rather failed to handle – nonminority jurors who were similarly situated to the African-Americans the prosecution struck.

United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991)

The government exercised 57% of its peremptory strikes against minorities. Although the record did not establish what the percentage of minorities was on the venire, the court would accept as a surrogate, the percentage of minorities in the entire district. Because the minority population in the district was 29% and the government exercised strikes against 57%, a prima facie case was established.

Harrison v. Ryan, 909 F.2d 84 (3rd Cir. 1990)

A prosecutor’s race-conscious exclusion of even one juror is sufficient grounds to require a new trial under Batson. During the trial, six blacks were excluded by the State. The prosecutor was later able to identify reasons for only five of these strikes. Because of the failure to identify a reason for the sixth juror, a new trial was required.

Virgin Islands v. Forte, 865 F.2d 59 (3rd Cir. 1989)

The Third Circuit holds that Batson applies to the intentional removal of white jurors as well as black jurors. Thus, a white defendant has the right to complain about a prosecutor’s discrimination-based exercise of strikes against white veniremen.

United States v. Clemons, 843 F.2d 741 (3rd Cir. 1988)

The Third Circuit holds that it is inappropriate to search for a particular percentages in evaluating a Batson claim. Rather, a fact-specific determination must be made by the trial judge in determining whether the prosecutor has exercised his peremptory strikes in a discriminatory manner.

United States v. Garrison, 849 F.2d 103 (4th Cir. 1988)

The Fourth Circuit holds that an adversary hearing is the proper means of conducting a Batson inquiry. Unless the government makes an extraordinary showing why an ex parte proceeding is required (as, for example, if a current investigation involves a prospective juror) the proceedings should be fully adversarial.

United States v. Huey, 76 F.3d 638 (5th Cir. 1996)

One defendant can raise a Batson challenge to a co-defendant’s racially motivated peremptory strikes. Here, the court found that the co-defendant did exercise his strikes in a racially discriminatory manner and then reversed the conviction not only of the complaining defendant, but also of the co-defendant (i.e., the party whose attorney violated the constitutional rights of the prospective jurors).

United States v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989)

The prosecutor exercised six peremptory challenges to strike Mexican-Americans from the jury. A remand was required to make findings on the Batson issue since the record contained no findings by the district court on the issue. Following remand and finding by the trial judge that there was no discriminatory intent, the Fifth Circuit affirmed the conviction. 889 F.2d 559. During the hearing on remand, the prosecutor stated that he always struck jurors whose occupations began with the letter “p.” He explained that he at first thought such a rule was irrational, until he suffered two mistrials, one of which he attributed to a holdout who was a pharmacist and the other to a juror who was a postal worker. The trial court, however, rejected this particular explanation for the prosecutor’s exercise of his strikes because he did not strike Anglos who were employed as a payroll clerk, a part-time secretary, and an area production supervisor. Nevertheless, non-discriminatory reasons were given for the exercise of each of the prosecutor’s strikes against Mexican Americans.

Splunge v. Clark, 960 F.2d 705 (7th Cir. 1992)

The prosecutor struck both black veniremen. One knew the defendant, but the prosecutor’s only explanation for the other strike was that “he had a feeling” about that juror; and he felt she did not understood the concept of reasonable doubt. The prosecutor’s attitude was exemplified by his asking the black jurors if they knew anybody who had been charged with murder, or robbery; and asking the white jurors if they knew anybody who was a victim of either robbery or murder. The writ was properly granted by the district court.

Ford v. Norris, 67 F.3d 162 (8th Cir. 1995)

The defendant established that the prosecutor violated the defendant’s rights under the Swain v. Alabama standard. This violation of the defendant’s rights in the jury selection process amounts to structural error in the trial and is not subject to harmless error analysis in a habeas proceeding.

Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995)

The petitioner established that the prosecutor used all of his peremptory strikes against blacks, and had systematically excluded blacks over a period of time. This evidence was sufficient to make out a Swain violation.

Devose v. Norris, 53 F.3d 201 (8th Cir. 1995)

A state prosecutor claimed to have exercised peremptories on certain black jurors because they had previously served on juries and might have been suffering from juror burnout. White jurors who had previous jury service, however, were not struck (the prosecutor claimed that this experience would give them a clearer understanding of the issues). This led the court to conclude that the state’s explanations were pretextual and because of this Batson violation, the conviction was set aside.

Walton v. Caspari, 916 F.2d 1352 (8th Cir. 1990)

The Eighth Circuit holds that there is no presumption that prosecutors act lawfully in connection with their exercise of peremptory strikes. The prosecutor in this case excluded fourteen out of fifteen black venire persons in the defendant’s state trial. The district court did not abuse its discretion in finding that this constituted the discriminatory use of peremptory strikes and required vacating the conviction.

United States v. Johnson, 873 F.2d 1137 (8th Cir. 1989)

Although two blacks did serve on the jury which convicted the defendant of escaping from lawful custody, this did not excuse the prosecutor from exercising his other peremptory challenges against blacks. The prosecutor exercised his peremptory strikes against blacks who did not respond during voir dire but did not strike any whites who also did not respond.

United States v. Wilson, 884 F.2d 1121 (8th Cir. 1989)

The prosecutor’s use of all six of its strikes against six black people from the jury violated Batson. On rehearing en banc, the court finds that the prosecutor failed to assert race neutral grounds for the exercise of peremptory strikes against the black veniremen. Though the prosecutor gave acceptable race neutral explanations for five of his six strikes against blacks, the failure to offer a race neutral explanation for the sixth strike against a black requires that the conviction be reversed.

United States v. Hughes, 864 F.2d 78 (8th Cir. 1988)

The prosecutor struck three of the five jurors who were on the jury venire. This constitutes a prima facie Batson violation requiring the prosecutor to offer reasons other than race, for striking those jurors. The Court of Appeals took judicial notice of the number of times that prosecutors in the Eastern District of Missouri were charged with exercising peremptory strikes in a discriminatory manner.

United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988)

The prosecutor exercised ten of twelve peremptory challenges to remove black jurors. White defendants had standing to join the black defendants’ challenge because if the peremptory challenges were improperly used, the white defendants were treated differently because they were tried together with black defendants.

United States v. Battle, 836 F.2d 1084 (8th Cir. 1987)

The prosecutor’s use of five out of six peremptory challenges to strike five of seven blacks from the jury panel established the prima facie evidence of purposeful discrimination. Remand was required to afford the government the opportunity to set forth racially neutral reasons for its use of peremptory challenges.

Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987)

The State violated Batson by the exercise of its preemptory challenges in a way that excluded all black jurors from the petit jury panel. The prosecutor’s stated reasons for excluding all black prospective jurors, that they lacked background, education and knowledge to understand the scientific evidence, was clearly a pretext for rank racial discrimination.

Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997)

Although the prosecutor did not utilize all of the state’s peremptory challenges and there were African-Americans left on the jury, the prosecutor failed to articulate race-neutral reasons for striking one of the African-American prospective jurors. The reason articulated for striking the juror (a hesitancy about looking at gruesome crime scene photographs) would have supported striking white jurors who were not struck. Though other African-American jurors were not struck, this did not defeat the Batson claim: “Where the prosecutor’s explanation for striking a minority juror is unsupported by the record, empanelling other minority jurors will not salvage her discredited justification.”

United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996)

In this en banc decision, the court concludes that automatic reversal of a conviction is the proper remedy where a trial court erroneously deprives a criminal defendant of the right of exercising a peremptory challenge. In this case, the trial court concluded, incorrectly, that one of the defendant’s peremptory strikes was racially motivated. The defendant, therefore, was denied the right to exercise that strike. This error, the Ninth Circuit holds, is automatically grounds for reversal. This holding did not survive the decision in Rivera v. Illinois, 556 U.S. 148 (2009), which held that denying a defendant a peremptory strike is not grounds for automatic reversal.

United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995)

In a jury trial, jeopardy attaches when the jury is impaneled and sworn. In this case, after the jury was impaneled and sworn, the prosecutor voiced a Batson challenge and the trial court thereafter granted a mistrial. There was no manifest necessity for doing so, because the prosecutor should have made the Batson challenge before the jury was impaneled and sworn. Therefore, the double jeopardy clause barred trying the defendant after this first aborted attempt.

United States v. Omoruyi, 7 F.3d 880 (9th Cir. 1993)

The prosecutor explained that he struck two women jurors because they were single females who may have been attracted to the defendant. The exercise of peremptory strikes on the basis of gender is impermissible. Even though half of the seated jurors were women, the prosecutor’s concession that he struck the two jurors because they were women necessitated a reversal of the conviction.

United States v. Bishop, 959 F.2d 820 (9th Cir. 1992)

The prosecutor excused one black juror because she lived in a predominantly black neighborhood and probably thought the police picked on people. This was not a “race-neutral” explanation and the conviction was reversed. This explanation was a surrogate for impermissible racial biases. Also, the fact that the jury ended up being “representative” is not determinative. Though this may be probative of the prosecutor’s intent, the exclusion of even one juror on the basis of race violates Batson no matter how many black jurors ultimately serve.

United States v. Chinchilla, 874 F.2d 695 (9th Cir. 1989)

The Hispanic defendants were denied due process when the prosecutor exercised his peremptory challenges to remove the only Hispanic juror and the only Hispanic alternate juror.

United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)

In order to fulfill its Batson duty, the trial court conducted an in camera ex parte conference with the prosecutor. This is error and is not harmless. The defense has a right to be present during the prosecutor’s explanation of the use of his peremptory instructions and may make comments during this conference.

Hollingsworth v. Burton, 30 F.3d 109 (11th Cir. 1994)

Though the prosecutor satisfactorily explained his basis for striking potential black jurors, the court holds that the proper way to analyze a Batson claim is to compare the characteristics of the excluded jurors with jurors who were not struck by the government. Thus, if a seated juror had the same characteristic as a juror who was struck, and that characteristic was the asserted basis for striking the juror, then the explanation offered by the prosecutor will not be sufficient to overcome the prima facieBatson claim.

Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991)

The state defendant was able to establish in this habeas action that all blacks had been excluded from grand and petit juries in this jurisdiction in Alabama in 1959. That was all that was required to vacate this thirty-one year old conviction. Furthermore, his attorney’s failure to challenge the composition of the grand and petit juries excused any procedural default in this habeas action.

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991)

Under the Swain standard, the prosecutor failed to rebut the prima facie case that he had exercised his peremptory strikes in a discriminatory manner. Among the evidence relied upon by the defendant was evidence that the DA had engaged in other types of discriminatory actions in the past in addition to his practice of excusing prospective black jurors.

United States v. Rodriguez, 935 F.2d 194 (11th Cir. 1991)

Following the Supreme Court’s decision in Powers v. Ohio, the court holds that an Hispanic defendant may raise a Batson challenge if the prosecutor exercises strikes against black jurors on the basis of their race.

Love v. Jones, 923 F.2d 816 (11th Cir. 1991)

The defendant’s conviction was tainted as a result of the prosecutor’s discriminatory exercise of peremptory strikes to eliminate all the blacks from the jury. This case was tried prior to the decision in Batson, but the prosecutor’s conduct was outlawed by Swain v. Alabama. That is, the prosecutor’s actions were shown to be part of a systematic exclusion of blacks from petit juries in that county.

United States v. Horsley, 864 F.2d 1543 (11th Cir. 1989)

The prosecutor exercised one of his peremptory strikes against the only black venireman. When asked why he exercised his strike against the black juror, the prosecutor responded, “I just got a feeling about him.” Despite the fact that only one peremptory strike was used against a potential black juror, the Court of Appeals holds that the prosecutor must offer an explanation better than “I got a feeling about him.” The defendant is not required to show a pattern of peremptory strikes against a certain number of veniremen in order to establish a prima facie case of purposeful discrimination.

Jones v. Davis, 835 F.2d 835 (11th Cir. 1988)

The defendant in this case attempted to apply Batson to a conviction which was final long before the Batson decision was issued by the U.S. Supreme Court. The Eleventh Circuit holds that the exercise of peremptory strikes by the prosecutor was so blatantly discriminatory in this case, and part of a pattern and practice of discriminatory use of peremptory strikes, that the defendant could rely on Swain v. Alabama in vacating his conviction.