The Ups And Downs (And Up Again?) Of A Batson Challenge

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In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prevents prosecutors in criminal cases from exercising peremptory challenges to excuse prospective jurors solely on account of their race.  As illustrated by State v. Campbell COA18-998-2, filed 21 July 2020, application of that 1986 decision is not easy.

Campbell was charged with first-degree murder but apparently his trial was not tried capitally (recordation of jury selection is not required in non-capital cases).  Defense counsel filed a pretrial motion for complete recordation of all proceedings but advised the court that the motion did not include jury selection.  The motion was allowed.

During the selection of alternate jurors (which usually happens after a panel of twelve has been through voir dire and approved by both sides), defense counsel raised a Batson objection to peremptory challenges that the State had already exercised.  At that point, the State had exercised four such challenges, three of which were against African-Americans.

A Batson analysis is a three-step burden-shifting process.  First, the defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race.  If this step is satisfied, the prosecutor then has the burden of offering a race-neutral explanation to rebut the prima facie case.  Third, the court must determine whether the defendant has proven purposeful discrimination.

The court initially denied defendant’s Batson motion.  However, the court shortly thereafter advised the parties that while it did not believe a prima facie case of discrimination had been established, the court in its discretion was ordering the State to provide a race-neutral basis for each of the African-American prospective jurors it had excused peremptorily.  After hearing the State’s rationale for each, the court observed that it still found no prima facie showing of a Batson violation by the prosecutor.  The trial proceeded and the jury convicted Campbell of first-degree murder but acquitted him of other related offenses.

On appeal, the Court of Appeals first denied the State’s motion to dismiss, which was premised on the fact that jury selection had not been recorded, finding that the record was “minimally sufficient” to allow appellate review.  The Court then turned to the merits of defendant’s Batson argument.

The majority noted that, because the trial court had found that defendant had not established a prima facie Batson claim and thus had not satisfied the first prong of a Batson challenge, the reasons later offered by the State were immaterial.  State v. Campbell, __ N.C. App. __, 838 S.E.2d 660 (2020).

The majority then undertook a substantive analysis of the trial court’s order that found the defendant failed to establish a prima facie claim.  The majority observed that the sparse record revealed that the defendant was African-American but left unknown the race of the victim, of key witnesses, and of jurors who were not challenged.  In the absence of this and other key information, the majority gave deference to the trial court’s orders concerning jury selection and found no error, citing State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997).

Judge Hampson dissented.  While noting the deficiencies in the record, the dissent cited State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), for the proposition that a numerical analysis of the race of both the challenged and seated jurors is useful for determining whether a prima facie showing has been made.  The dissent would have remanded the matter to the trial court for findings of fact and, if necessary, evidentiary proceedings to supplement the record sufficiently to allow meaningful appellate review.

The Supreme Court of North Carolina allowed certiorari.  On 5 June 2020, that Court remanded the matter to the Court of Appeals for reconsideration in light of State v. Hobbs, __ N.C. __, 841 S.E.2d 492 (2020) and State v. Bennett, __ N.C.__, 843 S.E.2d 222 (2020), both of which applied BatsonState v. Campbell, __ N.C. __, 842 S.E.2d 601 (2020).

In Hobbs, the Supremes held that if the State provides reasons for its challenges and the trial court rules on those reasons, the question of whether the defendant initially established a prima facie case of discrimination becomes moot.  The Supremes recited a non-exclusive list of factors a defendant may present to support a Batson claim and noted that the trial court should compare responses given by different prospective jurors and should consider historical evidence of discrimination.

In Bennett, the Supremes noted that the racial identity of a juror is determined by questioning the juror or by “other proper evidence,” including stipulation of the parties.  The Court reminded attorneys that a single impermissibly race-based peremptory challenge is sufficient to establish a Batson violation (Bennett, fn. 8, citing Flowers v. Mississippi, __ U.S. __, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019)), but a numerical analysis of multiple jurors can provide useful information.  Barden, 356 N.C at 344, 572 S.E.2d at 127.

On remand, the majority again found no error.  State v. Campbell, __ N.C. App. __, __ S.E.2d __, COA18-998-2 (21 July 2020).   The unanimous panel once more determined that the record was sufficient to allow review.  The majority then turned to the merits of the defendant’s Batson claim.  In following the instructions of the Supreme Court, it compared Hobbs with the case of State v. Hoffman, 348 N.C. 548, 500 S.E.2d 718 (1998).  In Hobbs, the trial court first determined that the defendant had not made out a prima facie case, then asked the State to explain its reasons and gave the defendant a chance to rebut those reasons.  Following this hearing, the court made findings of fact in support of a ruling (as an alternate to the original finding of no prima facie showing) that the State’s reasons for its challenges were not pretextual.  On review, the Supremes determined that the alternate findings mooted the trial court’s original finding of no prima facie showing.

In Hoffman, however, the trial court made a finding of no prima facie showing but then required the State to provide its reasons, as opposed to the court’s mere request in Hobbs.  In contrast to Hobbs, the Hoffman trial court then made no subsequent findings.  As a result, the Supreme Court found that the Hoffman trial court had not conducted a “hearing” and had not progressed beyond the first Batson prong.  Consequently the trial court’s finding that no prima facie showing had been made was not moot.

Here, the Court of Appeals majority found that the facts matched Hoffman more closely than Hobbs.  The trial court did not allow defense counsel to argue that the State’s reasons were pretextual, did not make findings, and indicated at all points that its ruling was based on the defendant’s failure to establish a prima facie case, not the merits of the State’s proffered rationales.  As a result, the majority concluded that the trial court’s finding that the defendant had not made a prima facie showing had not been rendered moot.  Thus, the reviewing court could not consider the reasons given by the State for its exercise of peremptory challenges, but it could review the trial court’s conclusion that the defendant had not established a prima facie case of discrimination.

After determining that the trial court’s order was not facially deficient under Batson, the majority then subjected that order to substantive analysis, noting again the deficiencies in the record as to the races of the victim or key witnesses, the State’s acceptance rate of African-American jurors, and the final racial composition of the jury.  The majority was unwilling to assume error on the part of the trial court and upheld the trial court’s ruling.

Turning next to Bennett in accordance with the Supreme Court’s instructions, the majority observed that the record in Bennett revealed that all of the State’s peremptory challenges in that case had been exercised against African-American prospective jurors and none of those prospective jurors had given answers during voir dire that indicated they could not be fair and impartial.  In contrast, here, though three of four peremptories exercised by the State were against African-American prospective jurors, that ratio was not sufficient, standing alone, to establish a Batson violation.  Accordingly, the majority again found no error.

Judge Hampson dissented again.  The dissent noted that potential Batson issues usually only surface once juror voir dire is under way, causing defense counsel practical difficulties when deciding beforehand whether to ask for recordation of the selection process.  The dissent then cited Barden’s employment of a numerical analysis and argued that while the rate at which peremptories had been exercised here, standing alone, did not guarantee a successful Batson challenge, the rate nevertheless required a remand for further findings of fact.

In light of the dissent, it’s a lead pipe cinch that the Supremes will see this case again.  When Batson was first issued in 1986, many thought it heralded the end of peremptory challenges.  While those predictions were off, or at least wildly premature, principled application of Batson has been a struggle for the courts and for practitioners.  Litigators naturally want a hand in jury selection but unexplained peremptory challenges are an open door for abuse.  Batson is a step along a road that we as a society are still walking.

Campbell is emblematic of many of the problems litigators, trial courts, and reviewing courts face.  While the Supremes accurately pointed out in Bennett that a single peremptory challenge, if motivated by improper racial reasons, constitutes an equal protection violation, establishing that motivation in a single incident is beyond difficult.  As a result, courts have often turned to comparative numbers, as was done in Barden.  While such a process sits uncomfortably with the teachings of Bennett and Flowers, a numerical analysis at least yields results that, being quantifiable, are less subjective.

Incidentally, Barden’s history may shed light on how similar Batson cases have been handled in North Carolina.  While there are numerous cases in which the Supreme Court found no Batson violation, when the Court has had questions, it has tended to remand the matter to the trial court instead of finding a violation on its own.  The opinions cited above discuss Barden’s first appearance before the Supremes, where the unanimous court remanded it for a Batson hearing.  On remand, the trial court again found no Batson violation.  The case was again appealed and again a unanimous Supreme Court found the jury selection problematic and remanded again for a new hearing before the trial court.  Batson, 362 N.C. 277, 658 S.E.2d 654 (2008).  The case then disappears from the record, suggesting that the matter was resolved by a negotiated plea.  This process of remanding for a hearing instead of finding by appellate fiat that a Batson violation occurred is consistent with our reviewing courts’ deference to the trial judges who could see the process and assess first-hand what was going on during the trial.

Batson presents issues that are as alive today as they have ever been.  What are your thoughts?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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