Jury selection is art and science, part Dr. Phil, part Dr. Freud with some law thrown in for good measure. It’s an area law schools provide no practical instruction for, yet no lawyer can try a case without knowing how to select a jury.
What law students are taught is Batson vs. Kentucky. Batson purported to end the practice of striking jurors based on race or ethnicity. This rule was later swallowed by the exception, but for a shining moment, the right to serve on a jury regardless of your race was protected by the Batson challenge.
What is a Batson challenge?
Either the State and Defendant can raise a BC if it appears that jurors were struck for their race or ethnicity. Then the opposing party must put forth a racially neutral explanation for each strike.
This brings us to our case of the day. No. 05-08-00146-CR, Greer vs. State. Well, first let me offer a racially neutral explanation for my post title. It’s from Public Enemy’s 1991 record, moving on.
Greer vs. State
Greer was tried for possessing cocaine (the real kind, not the banned energy drink), found guilty and sentenced to forty years. Greer appealed his conviction alleging Batson error.
The State and the Defendant each had 6 peremptory strikes to deselect the jury panel. The State used all 6 of their strikes on African American veniremembers. (I hate the word veniremembers. I always call them jurors, even though technically they aren’t jurors until they are seated on the jury).
Greer’s lawyer objected and raised a Batson Challenge, the trial court overruled this objection.
What’s the law? From the decision
Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S. Ct. 92 (2008). If he carries this burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Id. If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Id. We skip the first step of the analysis if the trial court proceeded immediately to the second step by inquiring as to the striking party’s race-neutral reasons. Id.
Until recently courts had a high tolerance for even the most patently absurd “racially neutral” justifications (length of hair etc). Here is what I remember from Con Law and prosecutor school; the State will survive a Batson challenge if the prosecutor can cite any reason for striking a juror besides “she’s black”. Anything, no matter how absurd, would suffice. Batson was effectively powerless, the Wade Phillips of constitutional protections.
Fortunately, SCOTUS corrected this error in 2008 in Snyder vs. Louisiana, holding that they would no longer accept the inane BS justifications put forward by the State.
Back to Greer’s case. In Greer the State used all 6 of their strikes against African American jurors. What racially neutral reasons did they have?
I will admit these were better reasons than hair length. However, the defense lawyer did a great job pointing out that each reason given was not applied to a similarly situated white juror. Let’s see this chess game in action.
From the opinion-
The State asserted that it struck Juror No. 2, an African-American, because she had family members who had been through the criminal justice system and because of her own bad experiences with police officers in the past. The State also relied on the fact that Juror No. 2 opined that rehabilitation of those convicted is the most important objective of “criminal justice punishment.” Greer argues that these reasons were pretextual, as shown by comparative juror analysis. We consider each of the State’s reasons in turn.
First, the State explained that it struck Juror No. 2 (and Juror No. 31) because “each of these jurors had a family history-or history in their family of someone being through the criminal justice system either in jail or on probation or had-having been sent to the penitentiary.” This explanation was factually accurate; on her juror questionnaire, Juror No. 2 wrote that her brother-in-law had served jail time for burglary and that her husband had received probation for burglary. But as Greer points out, the State did not strike other non-African-American veniremembers who shared this characteristic. We focus in particular on Juror No. 7, a white woman who served on the jury. Juror No. 7 wrote on her questionnaire that her stepdaughter had served jail time for possession of a controlled substance. Yet, despite this similarity to Juror No. 2, the State did not strike Juror No. 7.
That’s some fancy lawyerin’. Kudos. The State had a reason for each strike, but when that same logic was applied to a similar white juror it fell apart. The Dallas court notes that comparative juror analysis is the new rule for Batson cases.
The most recent precedents from the United States Supreme Court place heightened emphasis on juror comparisons of this kind. In Miller-El, the Court relied in part on such disparate treatment. 545 U.S. at 248 (“The fact that [the State’s] reason also applied to other panel members, most of them white, none of them struck, is evidence of pretext.”)
Will this be appealed to the Court of Criminal Appeals? It seems ripe for PDR and my inner cynic fears a COCA reversal. Either way, it’s good to see the Dallas court of appeals protecting the right of all veniremembers to serve on a jury.