Grappling with Juror Discrimination, 35 Years After Batson v. Kentucky

Published for NC Criminal Law on November 23, 2021.

Note from John Rubin: I regret to report that Emily Coward is leaving the School of Government. In her nine years at the School as part of our Public Defense Education group, Emily co-authored our defender manual, Raising Issues of Race in North Carolina Criminal Cases; directed the North Carolina Racial Equity Network, a program providing a series of trainings for interested North Carolina defenders; and became a national expert in, among other areas, efforts to address racial disparities and bias in jury formation and selection. The good news is that Emily is launching the Inclusive Juries Project (IJP), which will partner with lawyers, scholars, students, court actors, and community members on initiatives aimed at ensuring fair and inclusive juries in North Carolina and nationally. Through research, scholarship, consulting, and educational initiatives, IJP will contribute to jury reform efforts, develop tools and strategies to address juror discrimination, and work to ensure the constitutional promise of the American jury system. We are grateful for Emily’s many contributions while at the School of Government and wish her all the best in her new endeavors.

A Glynn County, Georgia jury will soon determine the fate of Gregory McMichael, Travis McMichael, and William Bryan for their roles in the killing of Ahmaud Arbery in Brunswick, Georgia last year. You may have read that the defense attorneys struck eight of the nine, or 88%, of all eligible black jurors. If you haven’t followed the case, the defendants are white, and the victim, Mr. Arbery, was black. Mr. Arbery was out jogging when he was pursued, cut off, and killed by the defendants in their trucks. The jury hearing the case is comprised of 11 white jurors and one black juror; all four alternates are white. Black jurors are underrepresented on this jury in relation to their representation in the county, as 26.6% of Glynn County residents are black.

The composition of a jury has significant real-world consequences. Researchers have concluded that diverse juries perform better: they make fewer errors, consider more of the evidence, are more likely to discuss sensitive subjects like race and bias, and consider themselves more legitimate than more homogenous juries. Jury composition can also affect how lawyers present their case. Observers have speculated that, in this case, the prosecution may have avoided framing this story as one of racial violence because the jury is overwhelmingly white.

Because I study juries and jury selection, I received several mystified messages from friends following news reports that the presiding judge in this case “found that there appears to be intentional discrimination in jury selection,” but that because there were “legitimate, nondiscriminatory, clear, reasonably specific and related reason[s]” for striking those eight black jurors, the trial could move forward without any adjustments to the jury. My friends wondered, “What kind of a legal standard is that?” Fair question. If I didn’t get a chance to text you back, consider this my response.

For those of you who are new to this legal labyrinth, here’s a quick overview. In the 1986 case of Batson v. Kentucky the U.S. Supreme held that peremptory strikes may not be used to remove jurors if motivated by race, a protection that was later extended to other discriminatory factors. This protection against juror discrimination applies to jury selection in civil and criminal cases. There was nothing new about the U.S. Supreme Court’s holding that juror discrimination is unconstitutional; that much has been clear since at least 1880, when the high court announced as much in Strauder v. West Virginia, 100 U.S. 303 (1880). The rub has been the difficulty of proving intentional discrimination.

Batson v. Kentucky was supposed to address this problem. The Batson court announced a three-part test for determining whether a lawyer has engaged in unlawful juror discrimination: (1) the party opposing the strike states a prima facie case (“some evidence”) of discrimination; (2) the party defending the strike states their non-discriminatory reason(s) for the strike; and (3) the judge determines if there was intentional discrimination, in other words, whether the reason given at step 2 was false and pretextual. In the example above, the test was applied as follows: (1) the judge found evidence of discrimination, (2) the attorneys presented non-discriminatory explanations for striking each of the eight black jurors, and (3) the judge accepted the attorneys’ reasons and permitted the strikes.

The Batson test has provided limited protection against discrimination in jury selection, as Justice Thurgood Marshall famously predicted in his Batson concurrence. Batson v. Kentucky, 476 U.S. 79 (1986) (“[t]he decision today will not end the racial discrimination that peremptories inject into the jury-selection process”) (Marshall, J., concurring). In our state, for example, our appellate courts have heard over one hundred Batson cases but have never found the Batson standard met in a case involving alleged discrimination against a juror of color. Yet, as an amicus brief filed by former state and federal prosecutors argued, “it is clear that race discrimination continues to be a serious problem that threatens the integrity of the American justice system.” See Amicus Curiae Brief of Former State and Federal Prosecutors, State v. Marcus Robinson, North Carolina Supreme Court Case No. 411A94-6; see also Race and the Jury: Illegal Discrimination in Jury Selection, Equal Justice Initiative, 2021 Report. In North Carolina, studies have found disparate treatment of black jurors in capital and non-capital contexts: one study found that black jurors were struck by prosecutors at 2.48 times the rate of other jurors in capital trials between 1990-2010, and a statewide study of noncapital felony trials published in 2018 found that prosecutors struck black people from juries at twice the rate of white jurors.

State v. Hobbs and State v. Bennett Reflect an Evolving Batson Doctrine in North Carolina

The last time I blogged about the Batson doctrine in North Carolina, we were awaiting the North Carolina Supreme Court’s rulings in a pair of Batson cases: State v. Hobbs and State v. Bennett. The North Carolina Supreme Court’s 2020 decisions in Hobbs and Bennett clarified and strengthened the state’s Batson standard, and subsequent North Carolina appellate cases have reflected the impact of those rulings. In the discussion below, I will summarize these developments and provide a forecast of what may be on the horizon as our courts continue to confront claims of juror discrimination.

The North Carolina Supreme Court’s decision in State v. Hobbs, 374 N.C. 345 (2020), announced several important holdings:

  • The trial court must “explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges.” This means, in the words of math teachers everywhere, trial judges must show their work when reviewing evidence of juror discrimination. Bare rejections of Batson challenges are insufficient, as they preclude meaningful appellate review.
  • The Hobbs opinion reaffirms the importance of historical evidence of discrimination and comparative juror analysis, which includes both comparison of questions asked and answers provided. It was these two types of evidence that the trial judge failed to analyze on the record.
  • The Hobbs court rejected the what aboutism that can occur in response to Batson challenges, holding that strikes made by the party challenging an allegedly discriminatory strike are irrelevant to the resolution of a Batson challenge.
  • The Hobbs court held that the above flaws in the trial judge’s Batson analysis—the failure to explain how the court weighed the historical evidence, the failure to consider answers as well as questions when conducting comparative juror analysis, and the consideration of defense strikes—were “legal error” and therefore reviewed them de novo rather than for clear error. While it is well established that issues of law generally are reviewed by appellate courts de novo, this distinction hadn’t been articulated in North Carolina Batson jurisprudence before Hobbs. The Hobbs majority helpfully distinguished between (1) a trial judge’s factual findings as to whether the Batson evidentiary standard has been met—a ruling that is treated with “great deference” and will be overturned only when “clearly erroneous”—and (2) the trial judge’s articulation and application of the Batson standard itself—an issue of law that will be reviewed by appellate courts de novo. See, e.g., State v. Smith, 860 S.E.2d 51 (2021) (unpublished) (citing this framework from Hobbs).
  • The Hobbs court clarified the amount of evidence required to succeed on a Batson challenge at step three. Batson requires the objecting party to show that it is “more likely than not” that the “strike [was] motivated in substantial part by race [or another unlawful factor].” In other words, a Batson violation does not require a conclusive finding that discrimination occurred. Instead, it represents a finding that the risk that discrimination may have occurred is high enough to disallow the strike. See also Miller-El v. Dretke, 545 U.S. 231, 273 (2005) (“of course, the right to a jury free of discriminatory taint is constitutionally protected—the right to use peremptory challenges is not.”) (Breyer, J., concurring).
  • The Hobbs court reemphasized its prior holding in State v. Waring that Batson doesn’t require a showing that an unlawful factor is the sole reason motivating a peremptory strike. Instead, “the third step in a Batson analysis is the less stringent question whether the defendant has shown ‘race was significant in determining who was challenged and who was not.’” Hobbs at n.2, quoting State v. Waring, 364 N.C. 443, 480, (2010).

The Bennett court held as follows:

  • At step one, the prima facie case is not intended to be a high hurdle. Step one is satisfied “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” This holding, while established in both federal and North Carolina legal doctrine, has not always been reflected in case outcomes. The Bennett court found a prima facie case where “the prosecutor’s strike rate was 40% for African American prospective jurors and 0% for white prospective jurors[,] 100% of the peremptory challenges that the prosecutor exercised were utilized to excuse African American prospective jurors[,]” and there was no obvious race-neutral justifications for the prosecutors strikes of the two African American potential jurors. Step one, as both Hobbs and Bennett clarify, imposes a burden of production rather than persuasion.
  • Where both parties and the judge stipulate to juror race, the juror’s race is sufficiently established for purposes of Batson appellate review.

Impact of State v. Hobbs and State v. Bennett

Recent North Carolina appellate cases considering Batson claims reflect the impact of Hobbs and Bennett. Several cases have been remanded for rehearings where the trial judge’s analysis of the Batson evidence was inadequate under Hobbs. See, e.g., State v. Hood, 273 N.C. App. 348 (“[t]he trial court’s summary denial of a [d]efendant’s Batson challenge precludes appellate review”; remanded for new Batson hearing); State v. Holden, 275 N.C. App. 421 (2020) (“the trial court erred in failing to make findings of fact and conclusions of law reflecting its analysis of the evidence in ruling upon Defendant’s challenges to the peremptory strikes”); State v. Whiting, 275 N.C. App. 981, (2020) (“the trial court summarily denied Defendant’s Batson challenge[;] [i]n the absence of any findings of fact, this matter must be remanded for a new Batson hearing so that the trial court may adequately address the issue of whether Defendant established a prima facie case”). Over time, as lawyers and trial court judges adjust to Hobbs and Bennett, we may see more Batson objections; more transcripts of non-capital jury selection as lawyers request complete recordation to ensure appellate review; more extensive evidentiary showings and hearings; more Batson challenges satisfying the low bar of the prima facie case; and, eventually, fewer remands based on insufficient findings of fact as courts adjust to the impact of these opinions.

What remains to be seen is whether Hobbs and Bennett will lead to any new trials based on findings of juror discrimination. Only one reported decision has reversed a North Carolina trial judge’s rejection of a defendant’s Batson challenge; in that case the court didn’t find that discrimination occurred, but that the judge erred in not requiring the prosecutor to offer race-neutral justifications for striking at least one black venire member. State v. Wright, 189 N.C. App. 346 (2008). In the last two decades, in contrast, the U.S. Supreme Court has reversed convictions on the basis of Batson violations in four cases: Flowers v. Mississippi, 139 S. Ct. 2228 (2019); Foster v. Chatman, 136 S. Ct. 1737 (2016); Snyder v. Louisiana, 552 U.S. 472 (2008); and Miller-El v. Dretke, 545 U.S. 231 (2005). All four cases involved defendants convicted of murder, three of the four were capital, and two were reviewed under the doubly deferential standard applicable to state cases in federal courts. Nevertheless, the U.S. Supreme Court found juror discrimination under Batson and that the violation required a new trial. Hobbs and Bennett may signal greater scrutiny by the North Carolina appellate courts.

Beyond Hobbs and Bennett

 A few other North Carolina Batson updates are worth mentioning. For reasons highlighted by Justice Marshall in his Batson concurrence, juror strikes based on demeanor are of particular concern. Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J., concurring) (“[L]itigants[may] more easily conclude that a prospective black juror is ‘sullen,’ or ‘distant[.]’”). In North Carolina, our appellate courts have affirmed trial judge acceptances of body language and demeanor-based strikes. Our appellate courts have found that it was not error to permit strikes explained by the juror’s crossed arms, State v. White, 349 N.C. 535 (1998); folded arms, State v. Robinson, 336 N.C. 78, 95 (1994); leaning away, State v. Lyons, 343 N.C. 1, 12 (1996); nervousness, State v. Smith, 328 N.C. 99, 125 (1991); head-strong attitude, State v. Floyd, 115 N.C. App. 412, 415 (1994); softspokenness, State v. Gaines, 345 N.C. 647, 668 (1997); belligerence, State v. Bonnett, 348 N.C. 417, 434 (1998) hostile attitude, State v. Jackson, 322 N.C. 251, 255 (1988); and smiling, State v. Locklear, 349 N.C. 118, 139 (1998), for example.

These strikes may be receiving greater scrutiny. In State v. Alexander, the North Carolina Court of Appeals recently observed that “demeanor-based explanations . . . are particularly susceptible to serving as pretexts for discrimination” and are “not immune from scrutiny or implicit bias.” State v. Alexander, ___ N.C. App. ___ (Oct. 20, 2020) (internal quotation omitted). This is an area to watch, as several states have recognized that demeanor-based explanations are often racialized. See, e.g., Avery v. State, 545 So. 2d 123, 127 (Ala. Crim. App. 1988) (reasons such as looks, body language, and negative attitude are susceptible to abuse and must be “closely scrutinized” by courts).

Finally, while the Bennett court accepted that the record of juror race was sufficient based on the stipulation of the parties and judge, in State v. Campbell the Court of Appeals emphasized the importance of full recordation of jury selection for the purpose of preserving Batson challenges. “Defendants are entitled to have their Batson claims and the trial court’s rulings thereon subjected to appellate scrutiny. To do so, it is incumbent on counsel to preserve a record from which the reviewing court can analyze the [factors relevant to the Batson test]. Thus, we urgently suggest that all criminal defense counsel follow the better practice and request verbatim transcription of jury selection if they believe a Batson challenge might be forthcoming.” State v. Campbell, 272 N.C. App. 554, review allowed, 376 N.C. 531, (2020). Motions to record jury selection are often described as the one motion criminal defense attorneys will always win because granting of the motion is mandatory. There is no reason not to request complete recordation of jury selection in every case. Additionally, judges may, on their own motion, have jury selection recorded to ensure meaningful review of juror discrimination claims. G.S. 15A-1241(b).

Jury Reform in North Carolina?

Many states have recognized that Batson is a flawed standard and have adopted or recommended reforms to address the persistence of jury discrimination. In 2018, Washington became the first state to develop a stronger Batson standard by adopting General Rule 37. The Washington courts found that “implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.” General Rule 37 was designed to address Batson’s shortcomings by, among other things, directing the courts to consider specified circumstances in ruling on peremptory challenges and identifying certain reasons, such as prior contact with or distrust of law enforcement, as presumptively invalid. Last year, California enacted legislation replacing Batson with a more searching anti-discrimination standard, and Arizona recently abolished peremptory challenges altogether.

In December 2020, the North Carolina Governor’s Task Force for Racial Equity in Criminal Justice (TREC) recommended several jury reforms, including (1) diversifying North Carolina juror pools; (2) strengthening legal protections against juror discrimination in a manner similar to Washington GR 37, (3) educating jurors about the importance of guarding against the influence of bias on decision-making, (4) developing a comprehensive jury selection data collection, and (5) establishing a commission with an eye to comprehensive reform. See Task Force Recommendations 91-94. Readers interested in learning more about these recommendations may consider attending an upcoming TREC Learning Series on Jury Reform, which I will be moderating. More information can be found here.

The post Grappling with Juror Discrimination, 35 Years After Batson v. Kentucky appeared first on North Carolina Criminal Law.

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