Appendix VII Plaintiff's Memorandum in Support of Oral Batson Motion

LibraryMastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)
APPENDIX VII Plaintiff's Memorandum in Support of Oral Batson Motion
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA Charlottesville Division

EARL WASHINGTON, JR., Plaintiff,

v.

CURTIS TODD WILMORE, in his capacity as personal representative of the Estate of CURTIS REESE WILMORE, Defendant.

Civil Action No. 3:02:CV106

(Hon. Norman K. Moon)

PLAINTIFF'S MEMORANDUM IN SUPPORT OF ORAL BATSON MOTION

By attempting to use a peremptory challenge to strike the last remaining person of color on the jury, University of Virginia Police employee Mrs. Renata Alexander, defense counsel prompted an objection based on Batson v. Kentucky, 476 U.S. 79 (1986). As set forth below, the Court's initial decision to grant the motion was correct; the basis for the decision could simply be clarified for the record. Nonetheless, without waiving the Batson issue, if the Court is inclined to take action, Mr. Washington would be incurably prejudiced if the Court granted a mistrial now, after the defense has seen the entire plaintiff's case, and also if the Court struck Mrs. Alexander without allowing Mr. Washington a fifth strike, in the interests of parity and fundamental fairness.

I. Applicable Legal Standard

In Batson, the Supreme Court held that it was unconstitutional for the prosecution to exercise peremptory challenges on the basis of race during voir dire, observing that the "harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson v. Kentucky, 476 U.S. 79, 87 (1986); see also Smith v. Texas, 311 U.S. 128, 130 (1940) ("For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but it is at war with our basic concepts of a democratic society and a representative government" (footnote omitted)). This rule, first derived in the criminal context, now applies equally in this 42 U.S.C. § 1983 civil rights action. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); Davis v. Baltimore Gas and Electric Company, 160 F.3d 1023, 1026 (4th Cir. 1998).1

A Batson challenge involves three steps: first, the opponent of the strike must make out a prima facie case that the strike was exercised on the basis of race. Next, if the Court finds a prima facie case has been made out, the proponent of the strike has the opportunity to offer race-neutral reasons for challenging the juror. Finally, the Court must weigh, in the totality of the circumstances, whether those reasons are merely a pretext for a race-based challenge. Id., 160 F.3d at 1026. The party challenging the strike bears the burden of persuasion. Id.

"A finding by the district court concerning whether a peremptory challenge was exercised for a racially discriminatory reason is given great deference and is thus reviewed only for clear error." United States v. Blanding, 250 F.3d 858, 860 (4th Cir. 2001) (internal quotations omitted); see also Hernandez v. New York, 500 U.S. 352, 364-365 (1991); Davis, 160 F.3d at 1026; Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995). To find "clear error," the evidence must be "such that a 'reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed.' " Hernandez, 500 U.S. at 369 (citation omitted). There is no such error here, since, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).

II. The Court Correctly Decided the Batson Challenge

A. The Prima Facie Case

The party alleging a race-based challenge "satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 125 S. Ct. 2410, 2416 (2003). A prima facie case is made out when the movant shows "that (1) opposing counsel has exercised peremptory strikes to remove members of a cognizable racial group from the venire; and (2) the facts and any other relevant circumstances raise an inference that counsel used the strikes to exclude the venire persons from the jury on account of their race." Davis, 160 F.3d at 1026-27 (footnote omitted).

As plaintiff's counsel argued, defense counsel's attempt to strike the only remaining person of color on the venire raised a prima facie case of purposeful discrimination.2 "Racial identity between the [criminal] defendant and the excused person ... may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred." Powers v. Ohio, 499 U.S. 400, 416 (1991).3 The irony in striking this juror, given her employment at the UVA police department and her family's extensive ties to law enforcement and corrections, is manifest; but for her race, these facts would typically be a reason for defendant Wilmore to fight to keep her on the jury.

"[W]hile it is best for the district court to first make a factual determination on the prima facie issue before seeking an explanation for the strike, its failure to do so does not constitute reversible error." U.S. v. Smalls, 19 F.3d 1431, 1994 WL...

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