Batson Challenges in State and Federal Courts in Alabama: a Refresher and Recent Decisions

• Publication year: 2011
• Pages: 0047
• Citation: Vol. 72 No. 1 Pg. 0047

Batson Challenges in State and Federal Courts in Alabama: A Refresher and Recent Decisions
Vol. 72 No. 1 Pg. 47
The Alabama Lawyer
JANUARY, 2011 By Christopher L. Ekman

In the landmark decision of Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause forbids prosecutors from utilizing peremptory challenges to strike potential jurors solely on account of their race. Subsequently, the Supreme Court extended the Batson holding to apply to race-based peremptory strikes by criminal defendants and civil litigants, cases where the objecting party does not belong to a racial minority, and gender-based exercise of peremptory challenges. Despite these enlargements, the paradigmatic Batson scenario remains one in which a prosecutor is alleged to have exercised peremptory strikes to remove venire persons in a criminal case because they are African-American.

The three-pronged burden-shifting test developed by the Batson Court for evaluating those claims has been roundly criticized over the years as unwieldy and ineffective. For example, U.S. Supreme Court Justice Stephen Breyer has openly questioned the utility of the Batson test, noting in a published concurrence that it "asks judges to engage in the awkward, sometime hopeless, task of second-guessing a prosecutor's instinctive judgment-the underlying basis for which may be invisible even to the prosecutor exercising the challenge." Miller-El v. Dretke, 545 U.S. 231, 267-68 (2005) (Breyer, J., concurring). And commentators routinely heave broadside attacks at the Batson framework, with one decrying it as "infinitely cumbersome" and lamenting that only the "most overtly discriminatory or impolitic lawyer can be caught in Batson's toothless bite." Leonard L. Cavise, The Batson Doctrine: The Supreme Court's Utter Failure to Meet the Challenge of Discrimination in Jury Selection, Wis. L. Rev. 501 (1999); see also Mimi Samuel, Focus on Batson: Let the Cameras Roll, 74 Brook. L. Rev. 95, 105 (Fall 2008) ("Many courts are frustrated with their inability to second-guess the reasons behind a race-neutral reason. ... [M]any of these reasons are difficult, if not virtually impossible, to assess given that they rest on intangible factors such as a juror's tone of voice, demeanor, or eye contact with the attorney."). Notwithstanding these withering critiques, Batson remains omnipresent, an 800-lb. gorilla looming over jury selection proceedings in federal and state courtrooms throughout Alabama. This article reviews the major features of the Batson mechanism, examine recent federal and Alabama state court applications of that test, and offer practical tips for practitioners confronted with Batson issues.

Three-Step Procedure for Evaluating Batson Objections

When a Batson issue arises, whether in federal or Alabama state court, the trial court must employ a three-step process analogous to the McDonnell Douglas test used in the employment discrimination context. Each step must be considered separately. Indeed, "the failure to address each of Batsons steps creates the risk of serious constitutional error." United States v. Edouard, 485 F.3d 1324, 1343 (11^th Cir. 2007).

First, the trial court must determine whether the objecting party has made a prima facie showing of discrimination by demonstrating that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Judges and litigants are often tempted to skip over this step because of its amorphous character, and the case law is rife with examples where a prima facie case is assumed, not proved. Nonetheless, glossing over this step may needlessly complicate the analysis, hamper the efforts of a reviewing court, and potentially require a remand. Indeed, the Eleventh Circuit has stressed that "establishment of a prima facie case is an absolute precondition to further inquiry into the motivation behind the challenged strike." Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., 236 F.3d 629, 636 (11^th Cir. 2000); see also United States v. Walker, 490 F.3d 1282, 1291 (11^th Cir. 2007) ("We have held that a prima facie case must be established before there is any further inquiry into the motives for the challenged strikes."). This burden is not onerous, and does not require the objecting party to show that it is more likely than not that the peremptory challenge was motivated by purposeful discrimination. Rather, all that is necessary is for the objecting party to come forward with any of a wide variety of "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170 (2005).

That said, Alabama courts have established a bright-line rule that simply pointing out numerical disparities in the final composition of the jury is never enough to make a prima facie showing of discrimination. See, e.g., Ex parte Walker, 972 So.2d 737, 741 (Ala. 2007) ("An objection based on numbers alone, however, does not support the finding of a prima...