TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS

Capital Defense Journal, Dec 1997

DARYL L. RICE, C. COOPER IV YOUELL

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TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS

Page 44 - CapitalDefense Journal 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 0 Thi s Article is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Capital Defense Journal by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 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. XI. Conclusion 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. 97 Id. 981d. 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). II. BASIC BATSON FRAMEWORK: THE RULES OF ENGAGEMENT 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). 11 Id. 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. 171Id. 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 24 Id. 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. 291Id. 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 discriminatory"). 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 Batson objections). 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 96 (1994 ). 53Id. 54 Branch v. Commonwealth, 1995 WL 3284 (Va. App. Jan. 3, 1995) . 55 Id. 56 Langhornev. Commonwealth, 13 Va. App. 97, 409 S.E.2d 476 (1991). 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 defaulted.68 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) (citations omitted). 64 16 Va. App. 281,429 S.E.2d 468 (Va. App. 1993) . 65 Id.at 285, 429 S.E.2d at 471. 661Id. 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 713 (1994). 69 Id. 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 intent. B. Procedure 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 Rulings 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). 72 1d. 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. 4. 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)). 89 1d. 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. 92 1d. 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) (excluding only African American juror on otherwise all-white jury establishes prima facie case); State v. Bass,432 S.E.2d 86 (W. Va. 1993) (striking only African American from venire established prima facie case); Linsey v. Commonwealth, 435 S.E.2d 153 (Va. Ct. App. 1993) (excluding sole 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 B. 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 characteristics.97 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. Age 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 Employment/ Occupation 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 (1993). 102Floyd v. State, 590 So.2d 357 (Ala. Crim. App. 1988) (finding 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 insufficiently specific). 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 (S.C. 1992) (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 pretextual. 3. 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 Neighborhood 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 prosecution. 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). 1151d. 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. V. CONCLUSION 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. 46 Id. 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 ). 51 Id. 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 ). 76 1d. 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 ). 107 Id. 108 619 So.2d 500 (Fla. Dist. Ct. App . 1993 ). 109 Id. 11OState v. Hope , 589 S.E.2d 503 ( Ill . 1992 ) (reversing where state 4 .


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DARYL L. RICE, C. COOPER IV YOUELL. TOWARD A MORE EFFECTIVE USE OF BATSON IN VIRGINIA CAPITAL TRIALS, Capital Defense Journal, 1997,