Raising a Successful Batson Challenge in Jury Selection

• Publication year: 2010
• Pages: 28

Utah Bar Journal Volume 23.

Vol. 23, No. 6, 28. Raising a Successful Batson Challenge in Jury Selection

Utah Bar Journal
Volume 23 No. 6
Nov/Dec 2010

Raising a Successful Batson Challenge in Jury Selection

by Michael A. Worel and David G. Wirtes, Jr

INTRODUCTION

Litigants are allowed to use peremptory strikes to control the composition of their juries, but the Equal Protection Clause of the Fourteenth Amendment prevents them from eliminating potential jurors based solely on race, and more recently gender. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); J.E.B. v. Alabama, 511 U.S. 127, 129 (1994) (holding that "gender, like race, is an unconstitutional proxy for juror competence and impartiality"). A party can raise a "Batson challenge" to contest a peremptory strike that it suspects is motivated solely on the basis of one of these characteristics. A Batson challenge is the product of the criminal context and was traditionally used by defendants to object to the prosecutor's mode of jury selection. See, e.g.. Powers v. Ohio, 499 U.S. 400 (1991). This changed in edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), when the Supreme Court explained that private litigants are prohibited from making racially discriminatory strikes as well. See id. at 630. While Utah courts have yet to review a civil case involving a Batson challenge, plaintiffs commonly use them in federal court, and a few state courts have addressed them as well. See, e.g., Davey v. Lockheed martin Corp., 301 F.3d 1204, 1215 (10th Cir. 2002); accord Felder v. Physiotherapy Assoc., 158 P.3d 877, 891 (Ariz. Ct. App. 2007); Donelson v. Fritz, 70 P.3d 539, 541 (Colo. Ct. App. 2002); Jacox v. Pegler, 665 N.W.2d 607, 612-13 (Neb. 2003); Zakourv. UTmed. Grp., 215 S.W.3d 763, 767 (Tenn. 2007). Batson challenges are an effective means for parties to prevent improper manipulation of their juries and thereby ensure a level playing field. While the focus here is on the plaintiff, the following principles are equally applicable to civil defendants. This article describes the steps required to raise a Batson challenge and highlights the factual circumstances under which they have been most successful, both in civil cases and in Utah criminal cases.

THE BATSON ANALYSIS

A Batson analysis involves three steps: first, the party opposing a peremptory strike must establish aprima facie case of discrimination ("step one"). See Purkett v. Elem, 514 U.S. 765, 767 (1995). Then, the proponent of the strike is required to provide a neutral explanation for the strike ("step two"). See id. Finally, the trial court evaluates whether the strike constituted purposeful discrimination ("step three"). See id. The ultimate burden of persuasion lies with the party opposing the peremptory strike. See id. at 768. Therefore, if the strike proponent offers a sufficiently neutral explanation at step two, then the party opposing the strike must convince the trial court at step three that the explanation is a pretext for purposeful discrimination. See id. As such, a party seeking to challenge discrimination in the jury selection process must be prepared to satisfy both step one and step three of the Batson analysis.

STEP ONE: ESTABLISH A PRIMA FACIE CASE

Proper Standard: Inference of Discrimination

To establish a prima facie case, the party opposing the strike must produce sufficient evidence to support an inference that discrimination has occurred. The Utah Supreme Court applied this standard for the first time in State v. Cantu, 750 P.2d 591, 595 (Utah 1988) ("Cantu I"). One year later, however, the court employed a different test requiring the defendant to establish a "strong likelihood" that the juror was struck because of her association with the group. See State v. Cantu, 778 P.2d 517, 518 (Utah 1989) (citing People v. Wheeler, 583 P.2d 748, 764 (Cal. 1978)) ("Cantu II).The court returned to the inference standard without explanation in State v. Colwell, 2000 UT 8, ¶ 18, 994 P.2d 177, and the Supreme Court verified the standard five years later in Johnson v. California, 545 U.S. 162, 170-72 (2005) (explaining that the challenger was not required to prove his case at step one, but simply raise an inference that discrimination "may have infected the jury selection process"). The inference standard applies to the civil context as well. See U.S. Xpress Enter., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 812-13 (8th Cir. 2003); Davis v. Baltimore Gas and Elec. Co., 160 F.3d 1023, 1026-27 (4th Cir. 1998); Donelson, 70...