TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS
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TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS
DARYL L. RICE 0 1
C. COOPER YOUELL 0 1
Enforcement 0 1
Corrections Commons 0 1
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1 DARYL L. RICE and C. COOPER YOUELL, IV, TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS , 9 Cap. DEF J. 44 (1997). Available at:
Part of the Criminal Procedure Commons; Fourteenth Amendment Commons; and the Law
nothing in the rule implies that a variation in the argument urged in
support of a claim should result in default. Still, that was the
interpretation embraced by the Supreme Court of Virginia in Goins and Clagett.
Together, these two cases add yet another default trap to Virginia's
procedural minefield. Now, defense counsel must take certain steps to
preserve the record which were unnecessary only a year ago. Apparently,
attorneys must now take the time, when objecting, to advance every
conceivable argument. Also, counsel should renew objections and
motions during trial to proffer new grounds whenever necessary. Naturally,
proceeding with such painstaking caution will result in some delay at
trial. Hence, counsel may want to inform the court that the delay is
necessary in light of the Goins and Clagettrulings.
The question of whether it is error to deny a defendant experts or
other resources has recently been deflected by language pointing out that
the defense made no showing of prejudice. For example, in Barnebei v.
Commonwealth,95 the Supreme Court of Virginia held that the trial court
did not err in denying the defendant's motion for an expert. 96 In
Barnabei, the trial court ruled that the defendant failed to make the
particularized showing necessary to entitle him to the appointment of a
forensic pathologist.97 The Supreme Court of Virginia, hearing the case
on direct appeal, held there was no error because the record did not show
that the defendant was prejudiced by the denial. 98 Apparently, the
95 252 Va. 161, 477 S.E.2d 270 (1996).
961d. at 170-71,477 S.E.2d at 275-76. Before trial, defense counsel
filed a motion for a court-appointed forensic pathologist based upon Ake
v. Oklahoma, 470 U.S. 68 (1985), which held that the Constitution
requires appointment of a competent, independent psychiatrist to assist
the defense. The Ake rationale has been extended to require provision of
Supreme Court of Virginia now wants the trial record to reflect why the
defendant was harmed by the lack of expert assistance.
When a pre-trial motion for expert assistance is denied, defense
counsel should make it clear on the record that prejudice has resulted
from denial of the motion. As a practical matter, this course of action
creates difficulty because counsel has no way to forecast, before an
expert is appointed, how a trial might be different with expert assistance.
Counsel may, however, make a post-verdict proffer. Once the trial has
concluded, counsel may point to particular incidents during the trial
where the defendant was prejudiced because he had no expert. For
example, counsel may have been unable to cross-examine the
Commonwealth's expert on particular subjects due to a lack of technical
expertise. When making the post-verdict proffer, counsel should be as
specific as possible, detailing particular testimony and evidence to argue
that prejudice resulted from the court's denial of expert assistance.
To defend a capital case and simultaneously preserve the record for
appeal is a Herculean task-particularly when the Supreme Court of
Virginia continues to change the rules of the game. But the legal
battlefield is littered with the actual bodies of those who did not get
through the procedural minefield. That fact alone means that every effort
must be made to achieve some sort of meaningful appellate review.
defense experts in a variety of specialties, particularly where the
Commonwealth's evidence involves important expert testimony.
TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS
BY: DARYL L. RICE & C. COOPER YOUELL, IV
of England,353 (15th ed. 1809).
3 "[T]he practice of peremptorily eliminating blacks from petit
juries in cases with black defendants [is] widespread." Batson v.
Kentucky, 476 U.S. 79, 101 (1985) (White, J., concurring).
blacks and other "undesirables" from the petit jury. 3 Finally, in 1986,
these twin traditions, that of not requiring a reason for exercising the
peremptory strike and that of exercising it to exclude black jurors,
collided with the Equal Protection Clause of the Fourteenth Amendment.
The result of the collision was Batson v. Kentucky.4 Batsondid not
outlaw peremptory strikes, however. It simply required that parties not
apply them in a racially discriminatory fashion.5 Ever since Batson, the
United States Supreme Court, as well as the lower federal and state
courts, has been struggling to reconcile equal protection with the
peremptory strike. The source of the struggle is rooted in the differing
theoretical justifications for the two competing doctrines. The
peremptory challenge has traditionally been based on the common law's respect
for irrationality: a party could strike a juror for irrational reasons, no
reason, orjust based on a "hunch. ' 6 The Equal Protection clause, on the
other hand, demands rationality.7 The result of this uneasy coexistence
has been a sometimes confused jurisprudence and the inconsistent
application of the doctrine across jurisdictions.
The complexity of the jurisprudence, however, should not
discourage Virginia practitioners. The actual mechanics of making a Batson
claim at the trial level are very simple. A comparison of VirginiaBatson
litigation with that of other "death belt" states suggests that Virginia
practitioners could perhaps be more aggressive and creative in pursuing
Batson claims. Although the holding in Batson has now been applied in
other contexts, 8 this article will primarily discuss the implications of
Batson to racial discrimination. 9 This limited scope is due to the fact that
Batson claims in Virginia are more likely to involve race than any other
factor. Thus, all examples are race-based. The intent of this article is to
inform Virginia defense counsel of the basics of Batson procedure and
substantive law (Section II); to survey the current state of Virginia
Batsonjurisprudencee,specially in the Court of Appeals of Virginia and
Supreme Court of Virginia (Section I); and, finally, to examine some
cases from other jurisdictions which may hold valuable lessons for
Virginia Batson practice (Section IV).
BASIC BATSON FRAMEWORK: THE RULES OF
In Swain v.Alabama,10 the United States Supreme Court addressed
the issue of purposeful discrimination in the use of peremptory
challenges. I t The "essential nature" of the longstanding policy allowing
unrestricted peremptory challenges, said the Court, was to protect
against jury impartiality, therefore the challenge could be exercised
"without a reason stated" and "without being subject to the court's
control." 12 Furthermore, due to the limited amount of information the
defendant and prosecution can gather regarding potential jurors, the
Court noted that peremptory strikes have long been allowed on "grounds
normally thought irrelevant to legal proceedings," including the "race,
religion [and] nationality" of the potential jurors. 13
Although the importance of the inherently irrational nature of the
unrestricted peremptory challenge was noted in Swain, the Court
nevertheless held that any "purposeful or deliberate denial to Negroes on
account of race of participation as jurors in the administration of justice
6 "Our belief that experienced lawyers will often correctly intuit
whichjurors are likely tobe the least sympathetic, andourunderstanding
that the lawiyerwill often be unableto explain the intuition, are the very
reason we cherish the peremptory challenge." J.E.B v. Alabama, 114 S.
Ct. 1419, 1431 (1994) (O'Connor, J., concurring) (emphasis added).
7CityofCleburnev. CleburneLiving Center,473 U.S. 432 (1985).
8Ile Supreme Court ruled in J.E.B. v. Alabama, 114 S. Ct. 1419,
1430 (1994), that peremptory challenges could not be exercised on the
basis of gender. Additionally, state and lower federal courts have found
other "cognizable groups." See infra note 36.
9 This limit should not be construed as a denial ofthe importance or
seriousness of discrimination on bases other than race. Many of the
arguments and techniques discussed in this article apply equally well in
the context of other types of discrimination.
10380 U.S. 202 (1965).
12Id. at 220.
13 Id.at 220-21.
14 Id. at 203-04.
[would] violate the Equal Protection Clause." 14 The Court presumed,
however, that prosecutors used their peremptory challenges "to obtain a
fair and impartial jury to try the case before the court." 15 Consequently,
in order to show purposeful discrimination, the defendant had to
demonstrate that the prosecutor's use of peremptory challenges was for
"reasons wholly unrelated to the outcome" of the case and simply for the
purpose of denying blacks their constitutional right to serve on the
juries. 16 Thus, only ifthe defendant was able to show that the prosecutor
had repeatedly engaged in systematic exclusions of blacks could he
demonstrate that the prosecutor had violated the Constitution. 17 As
shown by cases in the years following Swain, this burden was nearly
impossible to meet. 18
Because the Swain test had basically immunized prosecutors from
the courts' scrutiny, the United States Supreme Court, in Batson v.
Kentucky, 19 revisited the issue. The Batson Court held that because a
"single invidiously discriminatory governmental act" violates the
safeguards found in the Equal Protection Clause of the Fourteenth
Amendment, "a consistent pattern of facial discrimination" is not a prerequisite
to concluding that a defendant's constitutional rights were abridged. 20
Hence, by allowing a defendant to establish purposeful discrimination in
an individual case"Batsonwent further than easing Swain's evidentiary
burden; it undercut Swain's substantive holding by barring race-based
peremptories even when exercised for trial-related matters." 21
The Batson prima facie test states:
[T]he defendant must first show that he is a member of a
cognizable racial group and that the prosecutor has exercised
peremptory challenges to remove from the venire members of
the defendant's race. Second, the defendant is entitled to rely
on the fact... that peremptory challenges ... permit "those
to discriminate who are of a mind to discriminate." Finally, the
defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on
account of their race.22
Ifthe defendant makes the requisite showing, a presumption that the
prosecutor acted with discriminatory intent is created. To rebut this
presumption, the prosecutor must produce nondiscriminatory reasons
for his challenges. 23The Court emphasized that the proffered reasons did
not have to "rise to the level ofjustifying exercise of challenge for cause,"
but the prosecutor could not merely state that "he challenged jurors of the
15 Id. at 221-22.
16 Id. at 223-24.
defendant's race on the assumption-or his intuitive judgment-that
they would be partial to the defendant because of their shared race." 24
Likewise, the prosecutor cannot simply deny that he exercised his
peremptory strikes for a nondiscriminatory reason; he must "articulate a
neutral explanation related to the particular case to be tried."' 25 If the
prosecutor proffers a reason the trial court determines is legitimate, i.e.
one that did not "deny equal protection," the discriminatory presumption
is rebutted and no constitutional violation exists. 26
Although the Batson Court noted the importance of the peremptory
challenge in the administration ofjustice, it rejected the state's argument
that this decision would "eviscerate the fair trial values" of such
challenges. 27 Because peremptory challenges have been used to exclude
individuals solely on the basis of their race, the Court stated that its
holding would enforce "the mandate ofequal protection and further[ Ithe
ends ofjustice."28 The Court declined to adopt specific procedures to be
followed by the trial court when a defendant has made a timely objection
to a prosecutor's use of a peremptory challenge, but it emphasized that
no black citizen should be disqualified simply on the basis of the color
of his skin.29
Although the Batson decision specifically addressed the issue of a
prosecutor's discriminatory use of peremptory challenges against black
jurors, the Court has since revisited, and expanded, that holding. In
Powersv. Ohio,30 the Court, holding that an "individual juror does not
have a right to sit on any particular jury, but he or she does possess the
right to not be excluded from one on account ofrace," recognized that the
discriminatory use of peremptory strikes violates the equal protection
rights of the stricken juror, not just those of the defendant. 31 In Georgia
v. McCollum,32 the Court concluded that the peremptory strike restraints
apply to the criminal defendant, as well as to the prosecution.33 The final
expansion, to date, came inJ.E.B. v. Alabama.34 InJ.E.B., the Courtheld
that gender-based peremptory challenges also violated the protections
found in the Constitution.35 Although some lower courts have expanded
the Batson protections further,36 the United States Supreme Court has
yet to follow suit. Nevertheless, Batson and its progeny make it clear that
25Id. at 98. The Court emphasized that the prosecutor was required
to "give a 'clear and reasonably specific' explanation of his 'legitimate
reason' for exercising the challenges." Id. at 98 n.20b (quoting Texas
Dept.of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)).
26 Purkettv. Elem, 115 S. Ct. 1769, 1771 (1995).
27 Batson, 476 U.S. at 98.
28 Id. at 99.
30499 U.S. 400 (1991).
31 Id. at 409. Like Batson,the holding in Powersapplies to gender
as well as race. See discussion of Georgiav. McCollum, supra.
32 505 U.S. 42 (1992).
33 Id. at 56.
34 114 S. Ct. 1419 (1994).
35 Id. at 1422.
36 See, e.g., UnitedStates v. Ruiz, 894 F.2d 501,506 (2d Cir. 1990)
(holding that Hispanics are cognizable group under Batson);
Commonwealth v. Rico, 662 A.2d 1076, 1079 (Pa. Super. Ct. 1995) (holding that
Italian-Americans are cognizable group under Batson); Cerrone v.
People,900 P.2d 45, 55 (Colo. 1995) (holding that exclusion of "hourly
wage earners, as a group" from grand jury service was "inherently
37 Barksdale v. Commonwealth, 17 Va. App. 456,462,438 S.E.2d
761, 765 (1993) (Benton, J., dissenting).
any discriminatory use of peremptory strikes based on thejuror's race or
gender will not be excused.
III. VIRGINIA BATSON: UNPLOWED GROUND A. Race-Neutral Reasons
Judge Benton wrote in dissent in 1993 that the Court ofAppeals of
Virginia "sends the message that in Virginia any reason will suffice to
remove African-Americans from juries so long as the prosecutor does not
admit on the record race as the reason and the trial judge blindly accepts
the prosecutor's assertion thatrace was not the reason." 37 Unfortunately,
an unscientific survey of Virginia Batson cases lends empirical support
to his statement. In twenty-seven Court of Appeals and Supreme Court
of Virginia cases, the courts found that a proffered reason for a strike was
either notrace-neutral or was pretextual in only five cases. At first glance,
five "successful" cases out of twenty-seven may seem significant for this
type of claim, but of those five cases, one was based on gender, not race,
discrimination; 38 two were civil, not criminal, cases;39 and one was a
ruling that a black defendant had violated Batson.40 Thus in only one
case out of the twenty-seven was a criminal defendant granted relief
because the prosecutor's proffered race-neutral reason was
unsatisfactory. 4 1 (As discussed below, however, some defendants were granted
relief based upon procedural defects in the trial court's handling of their
One of the primary reasons for the limited success ofBatson claims
has been the great deference shown to trial courtjudges on appeal. A trial
court's decision on discriminatory intent is accorded great deference and
will not be overturned unless clearly erroneous.42 Likewise, Virginia
trial judges seem to give Commonwealth attorneys wide latitude in
offering race-neutral reasons for their strikes. Strikes of blackjurors have
been upheld because the prosecuter asserted that the jurors were too
young, 43 too old,44 unemployed, 45 underemployed,46 had a limited
education, 47 were from a high-crime neighborhood 4 8did not have
children, 49 were related to persons convicted of crimes,50 were not
attentive enough, 5t were employed in jobs which made them inherently
"sympathetic," ' 52 wore a crucifix, 5 3 looked tired, 54 and had a
twentyseven yearold traffic conviction. 55 Onejuror was even struck because he
"looked familiar" to a police officer on the case. 56
While many, or even all, of these explanations for peremptory
strikes may indeed be race-neutral, the problem has been the court's
reluctance to look beyond them to see if the proffered reason is just
pretextual. 57 This circumstance is especially true when the proffered
reason has a suspiciously disproportionate impact on blacks, such as
when ajuror is struck because he is from a high-crime neighborhood. As
Judge Benton pointed out, too often such tactics "will be shielded if the
prosecutor is astute enough to identify some inane, subjective
characteristics that can be attributable only to the African-American venire
members and use that as a surrogate for the strike."' 58 He will be
especially shielded because trial judges are not required to "seek out and
evaluate information or evidence... in the absence of... counsel's
identification ofafalse orpretextual reason forthe peremptory strikes. 59
This means that even if the prosecutor's proffered reason is obviously
flimsy or implausible, defense counsel still bears the burden of showing
that it is pretextual.60
Of course, if a prosecutor can offer no reason at all for his strikes,
the defendant's prima facie case stands unrebutted and the defendant's
objection to the strike must thenbe sustained. Reasons that are conclusory
orvague may be treated by the courts as no reason at all. Thus, in the civil
context, an attorney's explanation that he struck a juror based upon "just
intuitive reasons, the way people look" was found unconvincing, 61 as
was another attorney's explanation that his reasons were "strategic,
tactical and instinctive." 62 Neither may aprosecutor"refute an allegation
of discriminatory strikes simply by denying a discriminatory purpose or
affirming his good faith in making individual selections. ' 63
One of the best ways to show that an explanation is pretextual is to
apply it to the entire venire and see if the proffered reason has in fact been
applied only to black venire members. For instance, if the prosecutor's
proffered reason is that the black juror is too young, check to see if the
prosecutor has failed to strike young white jurors as well. If not, the
reason isobviously pretextual. This practice is precisely what occurred
inBroady v. Commonwealth.64 The Commonwealth struck three young
black men from the venire, and when challenged, claimed that it was
because of their age. The defendant objected that the prosecutor had not
52 James v. Commonwealth, 247 Va. 459, 442 S.E.2d 3
54 Branch v. Commonwealth, 1995 WL 3284
(Va. App. Jan. 3,
56 Langhornev. Commonwealth, 13 Va. App. 97, 409 S.E.2d 476
57Batson seems to require that the prosecutor's proffered reason be
related to the facts of the case, but it is not entirely clear from the opinion
whether this requirement was dicta or a part of the holding. The Court
stated that if "general assertions were accepted as rebutting a defendant's
prima facie case, the Equal Protection Clause 'would be but a vain and
illusory requirement.' The prosecutor therefore must articulate a neutral
explanation related to the particular case to be tried." 476 U. S. at 98
(citations omitted). Additionally, in a footnote, the Court stated that "the
prosecutormust give a"clear and reasonably specific" explanation of his
"legitimate reasons" for exercising the challenges. Id. at 98 n.20 (citing
Texas Dept. of Community Affairs v. Burdine,450 U.S. 258 (1981)).
Other courts have picked up on the language and frequently cite it as a
requirement of Batson.See UnitedStatesv. Canoy, 38 F.3d 893,898 (7th
Cir. 1994). However, neither the Fourth Circuit nor the Supreme Court
ofVirginia has everheld definitively whether or not a reasonable relation
exercised strikes against the young white men on the jury. The trial court
overruled the objection and the defendant was convicted. On appeal, the
Court of Appeals held that "after the Commonwealth has asserted a
facially race-neutral reason to strike, but has only struck jurors of one
race and the reason asserted for the strike is equally applicable to other
members of the venire of a different race, the reason asserted is not a
satisfactory race-neutral explanation for the Commonwealth's strikes. ' 65
Consequently, the defendant's prima facie case stood unrebutted and the
conviction was reversed and remanded for new trial. 66
Of course, in the heat of voir dire,67 it is difficult to keep an accurate
running record of the characteristics shared by those jurors struck
peremptorily and those retained. This difficulty is especially so if the
characteristics are not "visible" characteristics, such as when a
prosecutor strikes a juror because of a familial relationship with a person
convicted of a crime or because he lives in a high-crime neighborhood.
One method over-burdened defense attorneys might use for gathering
Batson evidence is to have a paralegal or volunteer take down the
characteristics of all voir dire members when they are being questioned
in court (or earlier, if possible). Another method mightbe to try to include
demographic and background information on a jury questionnaire. In
either case, such evidence can be vital when later evaluating how the
prosecutor treated similarly situated, but racially dissimilar, jurors. In
addition to an uneven pattern of striking suchjurors, the nature and extent
of voir dire examination may also be an indication of pretext. For
instance, if the prosecutor asked only the black jurors where they lived,
or asked only the black jurors if they had relatives who had been
convicted of crimes, this uneven questioning is evidence that the
proffered reason was pretextual. Counsel should incorporate such evidence
into their objections for the record, or their arguments may be
When confronted with an explanation from the prosecutor that
seems pretextual, defense counsel may be tempted to argue simply that
the prosecutor's strikes had a disproportionate impact on blacks. Without
more, such arguments are given short shrift by Virginia courts.69 This is
because the burden is on the party objecting to prove discriminatory
intent on the part of the party exercising the strike. The "discriminatory
impact" argument is not completely toothless, however. It simply needs
some evidence to buttress it. A prosecutor should not be allowed to use
Va. 292, 297, 455 S.E.2d 206, 208 (1995).
63 Winfield v. Commonwealth, 14 Va. App. 1049, 1055,421 S.E.2d
468, 471-72 (1992) (Benton, J., Barrow, J., Koontz, C.J., dissenting)
64 16 Va. App. 281,429 S.E.2d 468
(Va. App. 1993)
65 Id.at 285, 429 S.E.2d at 471.
67 Counsel should note thatBatsonmotions mustbe made before the
jury is sworn, otherwise they may be made only by leave of the court. Va.
Code § 8.01-352.
68 See Robertson v. Commonwealth, 18 Va. App. 635, 445 S.E.2d
stereotypes (such as people from high-crime neighborhoods are more
tolerant of crime) to eliminate black jurors. Later, this article will discuss
how defense counsel in other jurisdictions have successfully made such
arguments. The point to remember is that there must be some evidence
that the disproportionate impact is the direct result of discriminatory
In addressing the substance of Batson claims, Virginia courts are
bound, of course, to the basic federal framework described in Section II
of this article. There are some individual procedural differences,
however, that should be kept in mind.
When the Batson Motion May be Made
In Virginia felony trials, the jury is chosen from a panel of twenty
by having the Commonwealth and the defendant "alternately strike off
one name from the panel until the number remaining" is reduced to
twelve.70 Generally, Batson motions must be made before the jury is
sworn; however, such motions may be made after the jury has been
empaneled with the leave of the court.7 1 In one case, the trial court was
held to have implicitly granted such leave when it ruled on defense
counsel's oral Batson motion made after the jury was sworn. 72 A court
may also choose to defer its ruling on a Batson motion and order that the
venire be restruck. 73
Establishing the Prima Facie Case
Although Virginia courts have exhibited occasional confusion over
what constitutes a prima facie case, it is most often articulated simply as
a "showing that the prosecution has exercised peremptory strikes on the
basis of race." 74 Virginia courts have shown a considerable willingness,
however, to waive the requirement of proving a prima facie case
whenever the prosecutor attempts to explain the reasons for his strikes
before the trial judge has ruled that a prima facie case has been made.75
Rebuttal of Prima Facie Case and Pretextual
Once a prima facie case of Batson discrimination has been
established, the trial court is obligated to question the prosecutor as to his
motives. If the court refuses to do so, the defendant's case remains
unrebutted, and the court's refusal is reversible error.76 Likewise, once
70 Va. Code Ann. § 19.2-262 (2)-(3).
71 Hill v. Berry,247 Va. 271,273,441 S.E.2d 6,7 (1994)
(interpreting Va. Code § 801-352).
a race-neutral explanation is offered, the trial court must make a ruling.
Failure to do so is error requiring remand.77 However, in one case, the
Supreme Court of Virginia avoided the consequences of this rule by
finding that the trial court had "implicitly" ruled that the proffered
explanations were not pretextual when it found that they were facially
neutral. 8 Thus, the court combined the second and third steps of the
Batson analysis into one finding. The lesson for Virginia counsel is to
always get a ruling for the record whenever evidence is offered that the
proffered reasons are pretextual.
Appeals and Remedies
As with all aspects of Virginia litigation, counsel must be careful
when making Batson claims to avoid default and preserve the record. 79
In Buck v. Commonwealth,80 the prosecution struck one black juror
because he supposedly was from ahigh-crime neighborhood and another
because she had no children. At trial, the defendant objected on the
ground that these explanations were pretextual because of their
disproportionate impact. On appeal to the Court of Appeals of Virginia, his
conviction was reversed. 81 On rehearing en banc, the conviction was
reinstated. 82 Both rulings were on the merits. On further appeal to the
Supreme Court of Virginia, the Commonwealth alleged for the first
time that the defendant was procedurally barred because the arguments
he made on appeal were different than the "disproportionate impact"
argument made at trial. The Supreme Court of Virginia agreed and
refused to hear the defendant's "new" arguments.83 Thus counsel must
always attempt to include every conceivable argument at the trial level
or face the procedural bar at the appellate level.
The remedy for a Batson violation in most cases is remand for a new
trial. However, Batson claims are susceptible to harmless error analysis.
Thus,if ajuror is struck based on two different grounds, only one of which
is later found to violate Batson, the remaining ground may be sufficient
to uphold the conviction. 84
IV. A BROADER BATSON AGENDA
If defense counsel believes that the prosecution has used a
peremptory challenge in an unconstitutional manner, a Batsonmotion should be
made. Although it may not be required, the best approach is to make the
motion in writing. In most instances, the Batson motion must be made
before the jury is sworn; consequently, counsel should address the court
as soon as the selection of the petit jury is revealed.
If the court grants the defendant's motion (establishing aprima facie
case), counsel may then press for an evidentiary hearing in which the
prosecutor, and possibly other witnesses, will be examined. As is
generally true in motions practice, evidence is better than argument
alone. Although Batson does not require an evidentiary hearing of this
type, 86 counsel may argue that, based on the facts in the particular case,
such a hearing is warranted. Likewise, even though the courts have held
that an ex parte consideration of the prosecutor's explanation is
necessary in some instances, the court, in United States v. Garrison8, 7
emphasized that "the important rights guaranteed by Batson deserve the
full protection of the adversarial process except where compelling
reasons requiring secrecy are shown." 88 Hence, counsel should urge the
court to require the Commonwealth to "make a substantial showing of
necessity to justify excluding the defendant from this important stage of
the prosecution. ' 89
If the Batson motion is denied, defense counsel must still take the
necessary steps needed to introduce adequate evidence into the record.
For example, counsel might actively seek to introduce demographic data
and information regarding the composition of the venire, the stricken
venirepersons, the resulting jury, the parties and their attorneys. If
possible, this information should be presented to the trial court in the
form of exhibits to ensure its inclusion in the record. Additionally,
counsel should request that the prosecutor produce any notes regarding
the venire for the court's inspection.
Regardless of the trial court's ruling on evidentiary hearing
requests, ex parte consultation of prosecutor responses, or other rulings,
counsel should focus on preserving the record. By creating as detailed a
record as possible, counsel will likely force: (1) the trial court to consider
86 Batson, 476 U.S. at 98.
87 849 F.2d 103 (4th Cir. 1998).
88 Id. at 106 (citing UnitedStates v. Thompson, 827 F.2d 1254,
1258-59 (9th Cir. 1987)).
90 Creating an adequate record will preserve an individual
prosecutor's reasons for using his peremptory challenges. Additionally,
because the holding in Swain, discussed supra,is still good law, creating
a detailed record may enable a defendant to demonstrate that the
prosecutor violated the Constitution by repeatedly excluding previous
jurors based solely on their race or gender. Although the burden on the
defendant to prove aSwain-type violation is difficult to overcome, it may
nonetheless help keep a prosecutor "honest."
91 Batson, 476 U.S. at 97. For example, the Court held that "a
'pattern' of strikes against black jurors" or the "prosecutor's questions
and statements during voir dire examination" may meet the requisite
showing necessary to establish a prima facie case. Id.
93 UnitedStatesv. Johnson,54 F.3d 1150 (4th Cir. 1995) (striking
last two African Americans from jury venire established prima facie
case); State v. Austin, 432 S.E.2d 881
(N.C. Ct. App. 1993)
only African American juror on otherwise all-white jury establishes
prima facie case); State v. Bass,432 S.E.2d 86
(W. Va. 1993)
only African American from venire established prima facie case); Linsey
v. Commonwealth, 435 S.E.2d 153
(Va. Ct. App. 1993)
African American from venire established prima facie case); Lemon v.
all of the relevant circumstances before concluding that the prosecutor's
proffered reason is not pretextual; (2) the appellate court to consider more
closely whether the trial court's decision was "clearly erroneous"; and
(3) the prosecutor to be more careful in his discriminatory use of his
peremptory strikes. Although creating a detailed record in no way
assures that the courts will find more Batson violations, at the very least,
it ensures that the prosecutor's and trial judge's actions are recorded. 90
Making the Prima Facie Case
Although the Batson Court gave two examples of circumstances
that could support an inference of discrimination, 9 1 it held that the trial
court must, looking at "all relevant circumstances" in each individual
case, determine if the defendant had established the requisite showing
necessary to make out a prima facie case.92 Since Batson, the courts have
elaborated on the types of circumstances in which the evidence may
establish the necessary inference of discrimination needed for a prima
facie case. These circumstances include, but are in no means limited to:
striking every African American from the venire; 93 excluding a
significant percentage of African American veniremembers; 94 the type and
duration of the non-movant attorney's questions and statements during
voir dire;95 repeated history of discrimination by county DA's office; 96
and, disparate treatment of members of the venire with same
Although it "is a violation of the equal protection clause to strike
even one black juror if the strike was made for racial reasons,"'9 8 it is
important to note that the number ofperemptory challenges used against
members of a particular race may not, in itself, be enough to establish a
prima facie case.99 Because the number of strikes "takes on meaning
only in the context of other information such as the racial composition of
the venire, the race of others struck by the prosecution, or the voir dire
answers of those who were struck compared to the answers of those who
were not struck,"100 it is imperative that counsel create an adequate
record. Likewise, because the courts have not addressed all of the
scenarios in which a prima facie case will be established, defense counsel
must continue to be creative and assert as many bases for the Batson
violation as possible.
Along with creating an adequate record, defense counsel should
aggressively attack any reason the Commonwealth produces that
counsel suspects is pretextual. In this area, other states' courts have been more
willing than Virginia's to question the prosecutor's offered motive.
Although citing the opinions of other states' courts will never be as
convincing to Virginia trial judges as citation to Virginia opinions, as we
have seen, there are few Virginia opinions which go beyond a cursory
examination of whether the prosecutor's reasons are facially
raceneutral. Virginia counsel might want to gently remind the court that
Batson is a federal constitutional issue, not a state issue, and so the
interpretations of othercourts ofBatson issues are relevant. Likewise, the
criminal defense community may sometimes need to remind itself that
most Virginia trial judges are fair-minded individuals who will consider
the proffered reasoning of other courts if it is persuasive. Because of the
wide discretion given trial judges on jury issues, Batson claims are not
just a staredecisisgame. With that in mind, we now examine how other
jurisdictions have evaluated facially race-neutral reasons to find that they
are in fact pretextual.
Although Virginia courts have repeatedly held that age is a
raceneutral reason to strike a juror, 10 1 other jurisdictions have been more
suspicious than the Virginia courts of the prosecutor's motives when
such reasons are proffered. No court, however, has held that age is a
suspect classification or that it is always an irrelevant factor in striking
a juror. Other courts have just been more willing to question whether
"age" is being used as a substitute for "race." They have required that
prosecutors make some connection between the case being tried and the
juror's age, 102 and ofcourse, that the age criteria is being equally applied
to white venirepersons as well as to black ones. 103
Prosecutors frequently use a person's occupation or lack of
employment as their race-neutral reason for striking a juror. Although no court
has ruled that occupation is a suspect class or that it is per se pretextual,
defense counsel should make trial judges closely examine such reasons
101 See Riley v. Commonwealth, 21 Va. App. 330,464 S.E.2d 508
(1995); Barksdalev. Commonwealth, 17 Va. App. 456,438 S.E.2d 761
102Floyd v. State, 590 So.2d 357
(Ala. Crim. App. 1988)
that while age could be relevant in case, it was doubtful on the facts since
the prosecutor did not inquire into age-based bias); State v. Butler,731
S.W.2d 265 (Mo. Ct. App. 1987) (finding that proffered link between old
age and predisposition to intimidation was not shown); Chivers v. State,
796 S.W.2d 539 (Tex. Crim. App. 1990) (rejecting reason that
35-yearold juror was too young, without explanation as to why, reason was
103 Freeman v. State, 651 So.2d 576 (Ala. Crim. App. 1994)
(finding age suspect as reason where white woman one year younger than
black veniremember not struck); State v. Grate, 423 S.E.2d 119
(rejecting reason that prosecutor struckblackjuror due to age when
he did not ask white jurors their age). Virginia courts have found that
unequal application of any race-neutral reason is pretextual. See Riley v.
Commonwealth, 21 Va. App. 330,464 S.E.2d 508 (1996).
to ensure they are not pretextual. Prosecutors should not be allowed to
simply state that they struck a juror because of his occupation; they
should be required to state some plausible connection between thejuror's
occupation and the case being tried. 104 The prosecution should offer
some reason that the occupation is relevant, such as that it suggests bias
on the part of the juror. Further, if the prosecution's explanation of the
connection between the occupation and the presumed bias is irrational,
or based on stereotypes, defense counsel should object on the record that
the proffered reason is pretextual.
For example, in an Alabama case, the prosecutor claimed that he had
struck a black juror because he was a teacher and teachers are more
forgiving than other people. In Powell v. State,105the Alabama Court of
Criminal Appeals rejected that argument because the prosecutor had
failed to show that the particular juror was more forgiving or was biased
in any other way. Likewise, in a California case, the court could find no
connection between a juror's job as a hospital administrator and a
supposed bias against the prosecution. 106 In the same case, the
prosecution struck another juror because his job as a truck driver showed a lack
of intelligence. The court rejected this argument as well,pointing out that
the juror handled the voir dire questions as well as any other juror.107
Thus, even though occupation is generally a race-neutral reason, defense
counsel should always force the prosecution to state on the record why
the juror's job is relevant to the case at hand. If the connection is
irrelevant or based on stereotypes, or if there is an insufficient factual
basis for it, counsel should move that the trial judge find the reason
Marital Status, Parental Status, and Relationship to
Persons Charged with Crime
If a juror is struck from the panel because he or she is unmarried or
childless, again the best course of conduct is to force the prosecution to
state the connection between the juror's family status and the case to be
tried. For instance in Givens v. State,108 the Florida Court of Appeals
found that the prosecution had failed to draw an adequate connection
between the facts of the case and the fact that the juror was single and a
non-homeowner. 109 And as with all race-neutral reasons, defense
counsel should make certain that the prosecution has applied the exclusionary
criteria in an even-handed fashion.1 10
When the prosecutor strikes ajuror because he is related to or knows
someone who has been charged with a crime, again the defense counsel's
primary weapon of attack should be relevancy. The prosecutor should
first have to establish that the juror is in fact related, or friends with, a
person charged with a crime. Mere allegations should notbe accepted. 1 1
104 Commonwealth v. Burnett, 626 N.E.2d 900 (Mass. App. Ct.
allegedly struck blacks on basis ofmarital status but same characteristics
present in white jurors).
1I1 See Andrews v. State, 624 So.2d 1095
(Ala. Crim. App. 1993)
(finding reason insufficient where prosecutor was not sure whether
prospective juror's husband was father of man he had prosecuted);
Jackson v. State, 594 So.2d 1289 (Ala. Crim. App. 1991) (rejecting
reason where prosecutor struck black juror because she worked at
company where several people had been prosecuted butprosecutor never
asked juror if she knew those people). See also UnitedStates v. Diaz, 16
Once a relationship has been established, the prosecutor should be forced
to show whether it will bias the juror in the particular case. 112
Because blacks in this country often live in de facto segregated
neighborhoods, when jurors are struck based on where they live, courts
should be extremely suspicious. Such reasons fairly scream "pretextual."
Despite this truth, exclusions based on neighborhood are routinely
allowed. Defense counsel should object and force prosecutors to
articulate race-neutral reasons for such strikes. Often the reason will turn out
to be nothing more than a rationalization of a racial stereotype. An often
heard rationale is simply that the juror lives in a high-crime
neighborhood. The prosecutor should be forced to explain exactly why that fact
is relevant. One explanation is that people in such neighborhoods do not
like police, but absent a showing that the particular juror is one of those
people who do no like police, such reasons should be rejected.113
Another explanation is that people in high-crime neighborhoods are
inured to violence. The Ninth Circuit rejected that argument in United
States v. Bishop,114 finding that it led to using residence as a "surrogate
for racial stereotypes." 1 15 The court might also be reminded that those
who live in "high crime" neighborhoods are by definition more likely to
be victims of crime, hardly a rational basis for a challenge by the
D. IBasic Tactics for Revealing a Batson Violation
By way of review, there are four basic tactics for combating a
suspected Batsonviolation at the trial level. First, make sure a complete
record is created, not only for purposes of appeal, but to force the
prosecution and the trial judge to articulate constitutional reasons for the
F.3d 1533 (11th Cir. 1994). This issue is also a factual allegation, raising
the possibility that evidence should be taken at a hearing.
112Statev. Payton,747 S.W.2d 290 (Mo. Ct. App. 1988) (rejecting
explanation that juror was struck because she had a relative who had been
arrested when she stated that she had no bad feelings about the incident).
113 Madison v. State, 545 So.2d 94 (Ala. Crim. App. 1987).
114 959 F.2d 820 (9th Cir. 1992).
116 As noted, consistent defense insistence on a record may have a
deterrent effect on prosecutors and judges and may at least assist other
counsel inthe future by providing support for Swain claims.
117 But see supranote 57.
118 Johnson v. Vasquez, 3 F.3d 1327 (9th Cir. 1993) (finding no
support in record for prosecutor's claims that juror was uneducated,
worked for a defense attorney, or of a certain age); Yarboroughv. State,
868 S.W.2d 913 (Tex. Ct. App. 1994) (finding prosecutor's own
commentary on juror's demeanor (that his "body language" indicated
"unhappiness") did not provide adequate record to rebut prima facie case).
prosecutor's strikes.t 16 Second, question the relevance oftheprosecutor's
"race-neutral reason" to the case to be tried. There must be some
connection between the proffered reason and potential bias. 117 Third,
look for disparate treatment between the jurors who were stuck and the
jurors who were not struck. If black jurors were struck because of their
neighborhood, but white jurors from comparable neighborhoods were
not stuck, that is strong evidence of pretext. Finally, look for a lack of
support in the record for the prosecutor's proffered reason. 1t 8 This most
often will occur when the prosecutor strikes a juror for a reason about
which he did not even question the juror in voir dire. 119 (This strategy
may also provide an opportunity to request an evidentiary hearing). Such
a lack of support in the record leaves the defendant's case unrebutted and
therefore exposes a Batson violation.
The current state of Batsonjurisprudence in Virginia is not
particularly encouraging to defense attorneys. However, these circumstances
may be due in part to lack of aggressiveness and creativity in pursuing
such claims. It should be remembered that Batson is more than a trial
tactic or gimmick; it is an important safeguard of a defendant's civil
liberties and of the civil liberties of us all. As Stephen Bright has written,
"[w]hen a prosecutor uses the overwhelming majority of his jury strikes
against a racial minority, that minority is prohibited from participating in
the process. Ajury does not represent 'the conscience of the community
on the ultimate question of life or death' when [a large proportion] ofthe
community is not represented on it." 120 It is not a pleasant thing to litigate
aggressively a claim that one's adversary is intentionally attempting to
deny citizens the right to serve on a jury because of their race. But it is
often necessary to do so, because, in fact, it happens more often than we
would like to admit. 121
1l9 ExparteBranch,526 So.2d 609 (Ala. 1987) (holding that lack
of meaningful questions is evidence of intent to discriminate); Garrettv.
Morris,815 F.2d 509 (8th Cir. 1987) (rejecting prosecutor's proffer that
he struck black jurors due to their limited education or ability to follow
scientific evidence where record showed prosecutor's questions did not
focus on such issues).
120 Stephen S. Bright, Discrimination,Death and Denial: The
ToleranceofRacialDiscriminationin Infliction ofthe DeathPenalty,35
Santa Clara L. R. 433,457 (1995) (quoting Witherspoon v. Illinois,391
U.S. 510, 519 (1968)).
121 See Id., noting that the death penalty is disproportionately
applied to blacks, especially those that murder whites, and discussing
capital cases in which attorneys, judges or jurors referred to black
defendants as "niggers," but no reversible error was found. Id.at 445-47,
citingDobbsv.Zant,720F. Supp. 1566 (N.D. Ga. 1989); Peekv. Florida,
488 So. 2d 52 (Fla. 1986).
4476 U.S. 79 ( 1986 ).
5Although Batson itself only applied to racial discrimination by the state against criminal defendants, the holding of Batson has been extended to prohibit discrimination by the defendant as well . Georgiav. McCollum , 505 U.S. 42 ( 1992 ). Likewise, Batson now applies in civil trials . Edmonson v. Leesville Concrete Co., 500 U.S. 614 ( 1991 ).
18 In fact, from 1966 to 1976 , no state or federal court found that a prosecutor had exercised race-based peremptory strikes in violation of the Equal Protection Clause. See James 0 . Pearson , Jr., Annotation , Use ofPeremptoryChallengeto Exclude FromJury PersonsBelonging to a Class or Race, 79 A.L.R. 3d 14 , 24 , 56 - 73 ( 1979 ).
19476 U.S. 79 ( 1986 ).
20 Id. at 95. (citing Arlington Heights i . Metropolitan Housing Development Corp. , 429 U.S. 252 , 266 n. 14 ( 1977 )).
21 Stephen R. Diprima , Selecting aJuryin FederalCriminalTrials After Batson andMcCollum, 95 Colum. L. Rev. 888 , 902 ( 1995 ).
22 Batson,476 U.S. at 96 ( citations omitted). Based on the holding in J .E.B. v. Alabama, discussed supra, it is important to note that the Batson framework applies to gender as well as race .
23 Id. at 97.
38Rileyv. Commonwealth, 21 Va. App. 330 ,464S.E.2d508 ( 1995 ).
39 Commonwealth Transp . Comm'r of Va. v. Thompson , 249 Va. 292 , 455 S.E.2d 206 ( 1995 ); Hill v . Berry , 247 Va. 271 , 441 S.E.2d 6 ( 1994 ).
40 Hill v. Commonwealth , 1995 WL 421423 ( Va . App. Jul. 18 , 1995 ).
41 Broady v. Commonwealth , 16 Va. App. 281 , 429 S.E.2d 468 ( 1993 ).
42 Goodson v. Commonwealth , 22 Va. App. 61 , 81 ,467 S.E.2d 848 , 858 ( 1996 ).
43 Id.at 61 ,467 S.E.2d at 848.
44 Stockton v. Commonwealth , 241 Va. 192 ,402 S.E.2d 196 ( 1991 ).
45 Goodson, 22 Va. at 61 ,467 S.E.2d at 848.
47 Id.See also Johnson v. Commonwealth , 1995 WL 452367 (Va. App. Aug. 1 , 1995 ).
48 Barksdale v. Commonwealth , 17 Va. App. 456 ,438 S.E.2d 761 ( 1993 ).
49 Buck v. Commonwealth , 247 Va. 449 , 443 S.E.2d 414 ( 1994 ).
50 Chandler v. Commonwealth , 249 Va. 270 , 455 S.E.2d 219 ( 1995 ).
73 Greaser v. Commonwealth , 1995 WL 710555 (Va. App. Dec. 5 , 1995 ).
74 Chichesterv. Commonwealth, 248 Va. 311 , 323 ,448 S.E.2d 638 , 646 ( 1994 ) (citations omitted).
75Linsey v. Commonwealth , 17 Va. App. 47 , 50 - 51 ,435 S.E.2d 153 , 155 ( 1993 ).
77 UnitedStates v . Joe , 928 F.2d 99 , 103 ( 4th Cir . 1991 ).
78 Jamesv. Commonwealth, 247 Va. 459 , 462 ,442 S.E.2d 396 , 398 ( 1994 ).
79 See Tinsley v. Commonwealth , 1993 WL 41187 ( Va . App. Jan. 19 , 1993 ) (holding that failure to provide the court with a transcript prevents appellate court from considering Batson claim ).
80 247 Va. 449 , 443 S.E.2d 414 ( 1994 ).
81Buckv. Commonwealth ,14Va. App . 10 , 14 ,415 S.E.2d 229 , 232 - 33 ( 1992 ).
82 Buck v. Commonwealth , 16 Va. App. 551 , 554 ,432 S.E.2d 180 , 182 ( 1993 ).
83 Buck v. Commonwealth , 247 Va. 449 , 453 ,443 S.E.2d 414 , 416 ( 1994 ). However, the court did conclude that even though it would not consider Buck's new arguments, it could review the trial court's determination of a racially neutral explanation under a "clearly erroneous" standard. It found no error . Id.
84 Carter v. Commonwealth , 16 Va. App. 118 , 428 S.E.2d 34 ( 1993 ).
85 The structure and material contained in this section was taken directly from William C. Slusser , David Hricik and Matthew P. Eastus , Batson, J.E.B. andPurkett:A Step-by-Step Guide to Making and Challenging PeremptotyChallenges in FederalCourt , 37 S. Tex . L. Rev. 127 , 136 - 140 ( 1995 ). State, 837 S.W.2d 163 (Tex . Ct. App. 1992 ) (dismissing only African American in jury pool created prima facie case of discrimination).
94 Dinkins v. State , 1995 WL 527801 (Ala. Crim. App. Sept. 8 , 1995 ) (concluding prima facie case established where State struck six out of eight potential African American jurors); State v . Easterling , 457 S.E. 2d 913 (N.C. Ct . App. 1995 ) (finding prima facie case established where prosecutor used three of six peremptory challenges to exclude three of five African Americans); Staples v . State , 434 S.E. 2d 757 (Ga . Ct. App. 1993 ) (holding prima facie case made where prosecutor used half of peremptory strikes against African Americans who made up nineteen percent of venire).
95 Batson,476 U.S. at 97; State v. Green,655 So.2d 272 (La . 1995 ) (holding that statements of prosecutor relevant factors for determining prima facie case ); Ex ParteBird,594 So.2d 676 (Ala . 1991 ) (holding that lack of meaningful questions to challenged jurors or disparate questioning of African American and white jurors indicative of intent to discriminate).
96 Freeman v. State , 651 So. 2d 576 (Ala . Crim. App. 1994 ).
97 UnitedStatesv. Scott, 26 F.3d 1458 , 1466 (8th Cir.) (holding that the "government may not justify peremptory challenges to venire members of one race unless venire members of another race with comparable or similar characteristics are also challenged" ).
98 UnitedStates v . Matha , 915 F.2d 1220 , 1221 ( 8th Cir . 1990 ).
99 UnitedStates v . Esparsen , 930 F.2d 1461 , 1467 ( 10th Cir . 1991 ) (holding that "the number of challenges used against members of a particular race is 'not sufficient to establish ornegate a prima facie case' ").
100 Id. at 1467 (citations omitted) . 1994 ).
105 548 So.2d 590 (Ala. Crim. App . 1988 ).
106 Peoplev. Turner,726 P. 2d 102 ( Cal . 1986 ).
108 619 So.2d 500 (Fla. Dist. Ct. App . 1993 ).
11OState v. Hope , 589 S.E.2d 503 ( Ill . 1992 ) (reversing where state 4 .