It’s been the law for over a century that the State denied a black criminal defendant the equal protection of the laws when it puts the black defendant on trial before a jury from which members of his race have been purposefully excluded.  While that’s easy to say, it was unworkable in practice.  That is until the 1986 case of Kentucky v. Batson, 476 U.S. 79, came along.

Let me first review briefly the jury selection process.  Jurors are first eliminated for cause.  Basically the court determines for some reason that a particular juror cannot be fair and impartial.  After all for cause challenges have been exhausted, the parties may exercise peremptory challenges – challenges for which the parties do not have to indicate a reason.

Where there is a black criminal defendant and where the State strikes a prospective black juror through a peremptory challenge, the defendant may exercise a Batson challenge.  The defendant must first show that the prosecutor used a peremptory challenge to remove a prospective juror because of the juror’s race.

The burden then shifts to the State to come forward with a race-neutral explanation for challenging the black juror.  That neutral explanation does not have to rise to the level of a challenge for cause.  Then the court must determine whether there has been purposeful discrimination.

OJMA Education 2017 - Batson Challenge

So Peremptory Challenges are Limited?

Yes.  The Supreme Court recognized that “the peremptory challenge has very old credentials” reaching back to early common law.  But, nonetheless, this common law practice has to yield in the face of potential racial discrimination.

What Sort of Racially Neutral Reasons Have the Courts Found Acceptable?

“Juror 10 appears to be a very shy reserved individual, more of a follower than a leader.  I just feel he’d be more of a follower and not be able to independently think through this case.”  State v. Henderson, 2d Dist. Montgomery No. 26018, 2014-Ohio-4601.  A prospective juror who had a tendency to interrupt the Q and A with other jurors was deemed to be a potential bully.  State v. Dixon, 7th Dist. 10 MA 185, 2013-Ohio-2951.  Jurors had relatives who had been in the same jail as defendant in harassment by an inmate case.  State v. Hammad, 2d Dist. Montgomery No. 26110, 2015-Ohio-622.  The juror “seems disinterested, falling asleep, as if he had something else he would rather be doing.”  State v. Murray, 8th Dist. Cuyahoga No. 102779, 2016-Ohio-107.  In a drug trafficking case, the juror “seemed to exhibit a ‘laissez-faire’ attitude toward drugs in general.”  State v. Parker, 5th Dist. Stark No. 2013CA00217, 2014-Ohio-3488.

What is a Batson Challenge?

What Change did Batson Make?

Was there a Recent Batson Case Before the United States Supreme Court?

Yes, this spring the United States Supreme Court decided the case of Foster v. Chatman, (2016), 136 S.Ct. 1737.  Timothy Foster was accused of murdering Queen Madge White in 1986.  He was tried and convicted in 1987.  After all “for cause” challenges to the jury panel had been exercised, there were 41 prospective jurors of whom 4 were black.  The State exercised peremptory challenges to remove all 4 black jurors.  The defendant invoked Batson challenges.  The State offered racially neutral explanations that the trial judge accepted. 

Many years later Foster used the Georgia Open Records Act to obtain the prosecutor’s trial notes.  On the list of prospective jurors, the blacks were highlighted in bright green and identified as being black.  One prosecutor noted, “If it comes down to having to pick one of the black jurors, this one might be ok.”  Another document was titled “definite NO’s”’ – at the top of the list were the black prospective jurors.

Foster sought habeas relief based upon a revival of his Batson challenge.  The Georgia Supreme Court denied his request.  Foster took his case to the U.S. Supreme Court.  The Supreme Court conducted an exhaustive examination of the jury selection process.  In addition to the highlighting of the black jurors in the jury rosters, the Court noted that many of the “racially neutral” reasons proffered for challenging black jurors were equally applicable to white jurors who were not challenged; i.e., the juror had a son the same age as the defendant.

Is Batson Only Applicable to Racially Motivated Bias in Jury Selection?

No.  In Ohio a Batson challenge may also be made in cases of gender discrimination during jury selection.  State v. Bostick 9th Dist. Summit No. 26880, 2013-Ohio-5784.  (Prosecutor allegedly sought to remove female jurors where male defendant was charged with domestic violence.)

There is also a 9th Circuit federal case where removal of a juror due to the juror’s sexual orientation was grounds for invoking the Batson process.  Smithkline Beecham v Abbott Laboratories