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What IS as Batson Challenge, Anyway?

By Craig Platt

Ahmaud Arbery’s alleged killers are on trial right now in Georgia.  Mr. Arbery, a young black gentleman, was reportedly chased down and killed in cold blood by three white men. The three are now facing a jury of twelve of their peers.  That jury is almost entirely white in a community which is not.  (11 out of 12)

Wednesday the prosecution argued that the Defense attorneys were racially motivated with the way they asked to remove certain prospective jurors from the panel, people of color, in order to select a jury that would be racially biased in favor of the white defendants. When a lawyer asks to remove a juror for reasons that are racially biased the other side can challenge it under the U.S. Supreme court case, Batson v Kentucky.  Normally Batson challenges are made by the defense attorneys against prosecutors who appear to be stacking juries with white people; they are not usually made by prosecutors.  I have done tons of trials and have never seen it happen, although I have made plenty of Batson challenges over the years on behalf of my clients.  But that does not mean it never happens, and it happened here.

The Batson analysis involves a very complex, extensive and inconsistent body of law, cases that have inconsistent rulings based on incompatible reasons.  If you are truly interested (or bored) you might enjoy this Yale Law Journal article.

This author, from Yale Law School, explains how complicated this area of the law is and how difficult the legal issues presented are for courts to grapple with.  They know what they are talking about.

Nevertheless, the pundits are at it again, driving me around the bend.  The so called “experts” on TV reduce the most complex legal analytical problems to cartoonish simplicity, their opinions totally ignoring any legal concepts that have more substance than a silly soundbite can handle.

Right now, the pundits are all talking about Jury Selection, as if they know something about it.  In particular, they are talking about these Batson challenges to jurors.  Spoiler alert:  The case they are talking about involves what actual experts like me call a REVERSE Batson Challenge.  (I can say I know what I am talking about since I have taught Jury Selection for both WSBA and WDA to other attorneys.  It is my thing.)

A Batson challenge, named for the case that started it all, happens when the Prosecution excuses jurors of a particular race, and they appear to be doing so for discriminatory purposes.  The normal situation occurs when the Defendant is black and all (or most) black jurors are excused by the Prosecution.

Under the Batson rule there is a three-step analysis the court must follow.  In Step One, the defendant must show: (1) that they are a member of a cognizable racial group; (2) that peremptory challenges have been used to remove members of the defendant’s race from the jury; and (3) that the facts and other relevant circumstances raise an inference that the prosecutor used peremptory challenges in a racially discriminatory manner.   [This language is right out of the Supreme Court opinion.]

Step Two requires the prosecutor to present a race-neutral explanation for why they struck the disputed juror.   In the case of Purkett v.Elem, an important opinion applying Batson, the Supreme Court held that a race-neutral explanation did not need to be persuasive, with no requirement that it was even a plausible explanation, before moving on to Step Three in the Batson test.  Basically, if the prosecutor gives any reason other than racism for asking to remove a juror, the Court moves on to Step Three. They don’t even have to believe the reason; it only has to be non-discriminatory.

The Court then determines whether the Defendant carried the burden of proving purposeful discrimination.   To do this they look at the prosecutor’s demeanor, how reasonable their explanation for the challenge is, and at whether the reason given has some basis in “accepted trial strategy.”

The Batson opinion does not provide a way to fix Batson violations.  Often the Court simply puts an improperly stricken juror back on the jury.

Georgia v. McCollum was the first Supreme Court case to review peremptory strikes by criminal Defendants, which is what we have in the murder trial in Georgia.   In McCollum, three white defendants were charged with assaulting two African-Americans.  The prosecution brought a Batson challenge because they were afraid that the defense would challenge black jurors (we defense attorney types call a challenge a “bump”, by the way). After bit of tortured analysis, the McCollum Court ruled that the rights of a criminal defendant do not outweigh the interests stated in Batson, i.e. “a fair trial” does not include “the right to discriminate against a group of citizens based upon their race.”‘

In other words, if a defense attorney bumps a black juror because of their race, that bump can be challenged and the juror seated anyway.  Can you imagine, if there was a conviction, that a defense attorney might decide to argue that issue on appeal, that their client was forced to be tried by a juror they did not want and was thus deprived of their Constitutional Right to a (Fair) Jury Trial?  I sure would.

This is why the judge is being so careful.  He could be reversed if he granted the request for insufficient reasons.  Maybe.  Nobody is able to say definitely no matter where they went to law school.  It is certainly not a simple analysis.

So, when I see some pundit aghast, talking about how the judge has compounded inherent institutional racism with his Batson ruling I am not impressed.  I totally agree that there are millions of examples of racism in our criminal justice system.  Just not here.  Not that easy.

If the judge in this case had granted the prosecution’s request to find a Batson violation against the Defense it would be an automatic giant issue on appeal.  And if the Defense gives any kind of reason, since the opinions explained here do not require that they be especially great reasons, then the bar is high to show that their reason is racist to the point that it becomes OK to override their Constitutional Right to the Jury of the peers they wanted, and instead make them accept jurors that they have already stated on the record should not be on the jury for some reason other than race.  The only way it might be easy would be if the defense attorney flat out says racism is their reason for bumping the jurors they did.

But guess what? There are more cases about Batson, lots, cases about whether a Defendant who is convicted by a jury where their own defense attorney made racist challenges to jurors of color is entitled to have their conviction reversed, cases about whether a Writ of Habeus Corpus can be brought on Batson violations under federal law, or whether preemptory challenges fall under state law, thus making them immune from the federal legal analysis and thus not appropriate for federal Habeus.  I know, “Huh??”  Am I right?  It’s confusing.  (It is also what the Yale article is all about.)

It’s complicated.  Like almost all legal concepts.  The fact that the pundits parade around making silly claims about institutional racism, when the judge here was clearly simply trying to avoid being reversed on appeal, is dangerous.  “Educating” the public by giving them simplistic and bogus explanations that ignore important legal principals is simply irresponsible.

It is something I hope I will never be accused of.