Batson: Protecting Every Citizen’s Right to Participate in Jury Service

By Judge STeven kirkLanD, Judge LaToSha LewiS payne and Judge ravi k. SanDiLL

Batson: Protecting Every

Citizen’s Right to Participate in Jury Service

This article1 will provide a brief overview of the case law that brought us Batson v. Kentucky and its progeny.2 We will then give you a flavor for our experiences with Batson challenges, and we will discuss the possible reasons for the small number of Batson challenges we have seen. Finally, we will offer some recommendations for the Bar to help reduce the stigma of Batson challenges and to ensure that they are made when appropriate.

the rise of Batson and its Progeny The first time the United States Supreme Court invoked the Fourteenth Amendment as it relates to race in jury selection was in Strauder v. West Virginia in 1879.3 West Virginia had excluded anyone who was not a white man from serving on a jury.4 The Strauder Court made clear that excluding African-Americans from parThe Strauder Court did not address the issue of peremptory challenges.

However, that issue was front and center when the Court considered peremptory challenges in Swain v. Alabama in 1965. The Swain Court stated that the mere allegation of discrimination was not enough and that it must be proven.6 After discussing the origins of the peremptory challenge and its seemingly inviolate nature, the Court concluded that the exercise of peremptory strikes should not be regulated by the courts.7 The gist of the opinion is encapsulated in the following quote, “[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.”8

Twenty-one years later, in Batson v. Kentucky, the U.S. Supreme Court finally recognized that courts have a duty to make sure a person’s Fourteenth Amendment right to serve on a jury is not violated during the selection process and established a test to determine whether that right had been violated.9 Central to the Court’s decision was the belief that “selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”10

the Batson Challenge The Batson Court created a three-step burden-shifting paradigm to challenge the use of race-based peremptory strikes. In 1991, the U.S. Supreme Court, in two separate cases, expanded Batson into civil matters and ruled that the party exercising a Batson challenge does not need to be the same race as the excluded potential juror.11 The Court prohibited peremptory strikes based solely on gender in 1996.12 Texas has not expanded regulation of peremptory strikes beyond what the U.S. Supreme Court has done.

The current framework for a Batson

challenge is as follows:

1. Prima Facie Case of Discrimination

The movant must establish that the peremptory strike was used to remove a person from the jury based on their race or gender. The movant must show that under the circumstances the challenged strikes raise an inference of purposeful discrimination.13

2. Neutral Explanation

Once a prima facie case is made by the movant, the burden then shifts to the respondent to articulate a neutral reason for exercising the strike. The actual reason that the strike was exercised does not need to be articulated; all that is required is a race/gender neutral explanation related to the instant case.14

3. Trial Court Determination

Because the movant bears the ultimate burden of persuasion, the trial court should provide a reasonable opportunity for the movant to rebut the neutral explanations.15 The trial court then has the duty to adjudicate whether the movant has shown “purposeful discrimination.”16 The trial court must consider all the “relevant” and “surrounding” circumstances to determine whether the inference of discrimination exists, which may include statistical disparity and comparative juror analysis.17

the Judges’ Perspectives Judge Payne Of the 28 juries selected in the 55th District Court in 2019, Batson challenges were made in only two cases: a commercial contract case and an automobile personal injury case. They were legitimate challenges; I overruled one and sustained the other. I was surprised that neither of the cases involved employment discrimination, an area of the law in which discrimination is top of mind for trial lawyers.

In a few other cases, Batson challenges could have been made, but were not. My Court Judge and a Civil District Court personal experiences at trial prior to tak- Judge, I have presided over 900 voir diring the bench were similarly devoid of es and Batson issues seldom are raised. Batson challenges. In some of those cas- However, I am the only person in the es, a properly sustained challenge could courtroom who is required to protect the have made the difference in winning or prospective jurors’ right to participate in losing and in protecting the constitutional rights of citizens who answer the call to serve on a jury. Judge Kirkland When I was a Houston Mu‘‘ Batson requires a direct conversation between the the process. It’s an odd duty. If the litigant does not make the challenge, how do judges fulfill this duty? Judge sandill nicipal Court Judge, I had In nearly 12 years as one lawyer who always made judge, counsel, and the 127th District Court a Batson challenge at trial; I litigants about race Judge, I have only witknew he would make a Batson challenge. Invariably, the that likely has rarely nessed two Batson challenges. Both challenges lawyer would claim the pros- or never occurred in were made on the basis ecutor struck all the Blacks, the legal dispute or of race; I granted one and Hispanics, and women, and claim the strikes somehow in law practice.” denied the other. There have been a number of disadvantaged his client, other instances in which who often was not a member of those all members of a protected class were protected classes. To him, it was just a struck from the venire, and yet a Batson game. I knew this because he even de- challenge was not raised. manded to know the prosecutor’s reason for a strike when he himself struck the person. Rarely did the prosecutor fail to state a race-neutral reason, and the trial proceeded—only moderately slowed.

In contrast, as a Harris County Civil District Court Judge, I rarely see a Batson challenge. Frequently, I seem to be the only person who notices that all the members from the specific protected classes were struck. As both a Municipal

the lack of use of Batson in our Courts Our experience tells us that Batson challenges are rare. It has been more than 12 years since the Texas Supreme Court rendered a decision involving a Batson challenge. In that case, Davis v. Fisk Electric versed a trial court’s decision to overrule a challenge in a race discrimination case in which five of the six peremptory strikes were used against African-American jucomfortable with the burden shifting paradigm put in place by Batson. Because and judges are not knowledgeable enough about the procedure to appropriately raise or rule on challenges. The lawyers also do Company, the Texas Supreme Court renot know how to present sufficient evidence to carry their respective burdens. Hence, the lawyers opt not to raise the issues before the court. As a result, regardless of how long the judge has served, analyzing and ruling on Batson challeng-

all have a Batson component or at least

the judge may have very little practice in es. CLEs regarding jury selection should some time devoted to the public’s right to participate in juries. Also, law school

rors.18

We believe there are many reasons Bat- a component of their mock trial curricuson challenges are not made more often, lum. Preparing this generation of lawyers, but the three primary reasons are: (1) the but also the next, needs to be an integral procedure is complicated; (2) the burden to sustain the challenge is high; and finally, (3) our society is very uncomfortable talking about discrimination. As you can see from the jurisprudence, Batson challenges are not easy. ‘‘ This intersection is one of tension between the desires part of our profession’s mission. Second, law students, lawyers, and judges need to engage in more bias education. The issues raised in Batson challenges are complicated, hard to talk The shifting burden of proof of a judge to remain about, and can be stigis difficult to satisfy, especial- engaged in her matizing. Batson requires ly since most jurors are complex individuals who bring community and her a direct conversation between the judge, counsel, their own biases into the jury responsibility to be and litigants about race selection process irrespective and appear to be that likely has rarely or of their race or gender. In the never occurred in the rough and tumble of trial, it impartial.” legal dispute or in law is hard to keep track of who practice. No lawyer wants has what burden. And, perhaps most im- to accuse another lawyer of discriminaportantly, the challenge is almost always tion in jury selection. Because counsel is perceived as an accusation that the oppos- required to allege and defend against an ing lawyer is a racist or sexist. allegation of purposeful discrimination,

We live in one of, if not the most, di- the ability to speak on these issues in a verse city and county in the United States. cogent, calm, and reasonable way takes Our juries should reflect that diversity. practice. The only way to have a civil diaBatson challenges, when invoked appro- logue on these issues is to speak about priately, protect the right of each member them outside of the courtroom in a safe of our diverse community to serve on a environment. CLEs can help foster an atjury. To that end, more education is rec- mosphere in which lawyers become more ommended. The education should have comfortable speaking about issues that two goals. we have seen far too long as being outside

First, the trial Bar needs to be more the scope of our civil practice. Batson challenges are rare, many lawyers trial advocacy courses should make this and what about the judges? They would have to confirm the purposeful discrimination of the respondent by sustaining the challenge. No one in the courtroom is immune to the discomfort that these issues may raise; however, just because the issue isn’t comfortable doesn’t mean that we should not as a profession address it.

As members of the Bar, we all took an oath to support the Constitution. It is incumbent upon us to protect the public’s right to participate in jury service because:

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.19

The Hon. Steven Kirkland is the Judge of the 334th District Court, the former Judge of the 215th District Court, and served on the City of Houston Municipal Bench for over 10 years. The Hon. Latosha Lewis Payne is the Judge of the 55th District Court. The Hon. Ravi K. Sandill is the Judge of the 127th District Court

endnotes

1. The article speaks to the use of Batson challenges prior to the COVID-19 pandemic. A petit jury has not been picked in Harris County since the middle of March, 2020. 2. Batson v. Kentucky, 476 U.S. 79 (1986). 3. Strauder v. West Virginia, 100 U.S. 303 (1879). 4. Gina M. Chiappetta, A Battle of the Amendments: Why

Ending Discrimination in the Courtroom May Inhibit a Criminal Defendant’s Right to an Impartial Jury, 83

FORDHAM L. REV. 1997, 2007 (2015) (citing Strauder, 100 U.S. at 305). 5. Strauder, 100 U.S. at 310. 6. Swain v. Alabama, 380 U.S. 202, 205 (1965). 7. See id. at 220–22 (stating that “the essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”). 8. Id. at 221–22. 9. Batson, 476 U.S. at 95–97. 10. Id. at 87. 11. Powers v. Ohio, 499 U.S. 400, 402 (1991) (noting that

“that a criminal defendant may object to race-based exclusions of jurors... whether or not the defendant and the excluded juror share the same races.”); Edmonson v.

Leesville Concrete Co., 500 U.S. 614 (1991) (expanding

Batson to also apply to civil proceedings). 12. J.E.B. v. Alabama, 511 U.S. 127 (1996) (disallowing gender to be the sole basis for exercising a peremptory strike). 13. Batson, 476 U.S. at 96. 14. Id. at 97–98. 15. Davis v. Fisk Electric Company, 268 S.W.3d 508, 515 (Tex. 2008). 16. Batson, 476 U.S. at 98. 17. Id.; Davis, 268 S.W.3d at 516–17. 18. Davis, 268 S.W.3d at 526. As then-President of the Houston Lawyers Association, Judge Payne coordinated the filing of Amicus Curiae briefs in favor of reversal. 19. Batson, 476 U.S. at 87.