Change begins with us - eliminating discrimination during jury selection

These three words ignited a worldwide debate about systemic racism.² In the United States, we have been forced to take an uncomfortable look at the history of our justice system’s treatment of African Americans. Our country has struggled with these issues since its founding, and a journal article cannot do them justice. We can, though, recognize the important role lawyers play in protecting against discrimination in one critical area – the jury selection process.

Over time, the United States Supreme Court has recognized the need to protect against discrimination during jury selection. The Supreme Court’s solution relies on the most fundamental concept of our judiciary – the adversarial system. Through voir dire and the “Batson challenge,” lawyers are tasked with protecting against discrimination. Like any other aspect of our adversarial system, the protections against discrimination in jury selection are only as effective as the attorney’s ability to enforce them.

To fulfill this vital role, lawyers must understand the protections provided against discrimination, and how to enforce them. This article will focus on the development and current scope of the “Batson challenge.” We will then address how lawyers must protect against discrimination both while using their own peremptory strikes, and by using “Batson challenges” to prevent their opponents from discriminating during jury selection. We will focus on the use of Batson challenges in Missouri state court.³ The goal of this article is for attorneys to appreciate our role in stopping discrimination, and to provide the tools necessary to fulfill this role.

Development of the Batson Doctrine
The seminal United States Supreme Court case addressing the elimination of discrimination in jury selection is Batson v. Kentucky.⁴ Generally, Batson and its progeny prohibit the use of peremptory strikes to discriminate based on race, ethnicity, or gender. Litigants are tasked with preventing this form of discrimination through the “Batson challenge.”

Perhaps the most striking feature of the Batson decision is the date. The Supreme Court did not decide Batson until 1986. To fully understand how to serve our role in fighting against discrimination, we must first understand how this role developed.

Strauder v. West Virginia (1879)
Jury service has long been recognized as a vital obligation of citizenship in our democracy.⁵ Jury service has also been restricted through discrimination. At first, courts openly discriminated by excluding individuals from jury service based on race and gender. Over time, discrimination became less blatant, as parties exercised peremptory strikes to exclude potential jurors based on race, ethnicity, and gender.

The United States Supreme Court first attempted to address the elimination of discrimination in jury service in Strauder v. West Virginia,⁶ which was decided in 1879.⁷ In Strauder, the Supreme Court struck down a state law prohibiting non-white men from serving on juries. The Supreme Court noted the recently ratified Fourteenth Amendment had been enacted to prohibit exactly this type of discrimination.⁸ The Supreme Court held West Virginia’s exclusion of African Americans from jury service violated the Equal Protection Clause of the Fourteenth Amendment. Notably, the Supreme Court stressed a criminal defendant does not have a constitutional right to a jury containing fellow members of the defendant’s race.⁹ African Americans could not be excluded from jury service, however, based solely on race.

Although under Strauder African Americans could not be precluded from serving on juries, nothing prevented a litigant from exercising peremptory strikes to remove African Americans from juries based solely on race. More than 80 years passed before the Supreme Court attempted to address this practice. The result of this belated attempt, however, was to embrace exercising peremptory strikes based on race, and to create an almost impossible standard for establishing discrimination in jury selection.

Swain v. Alabama (1965)
In Swain v. Alabama,¹⁰ decided in 1965, the Supreme Court rejected the defendant’s claim the prosecutor had violated his constitutional rights by using peremptory strikes to remove all of the African Americans from the venire panel. In Swain, the Supreme Court attempted to balance two foundations of our jury system: the right to a jury selected without discrimination based on race, and the importance of peremptory strikes to ensure a fair trial.

Although acknowledging there is no constitutional right to a peremptory strike, the Supreme Court described peremptory strikes as “‘one of the most important of the rights secured to the accused.’”¹¹ The Supreme Court also noted “[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”¹² The Supreme Court recognized parties often exercise peremptory strikes “on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.”¹³ In Swain, the Supreme Court expressly endorsed the use of peremptory strikes based on race, along with other group affiliations, because veniremen are necessarily “challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.”¹⁴

In Swain, the Supreme Court held striking African Americans from the venire panel in an individual case could not be a denial of equal protection because all potential jurors of every background are subject to being struck without cause.¹⁵ The Supreme Court held a prosecutor’s use of peremptory strikes could not be challenged in a particular case because the effectiveness of peremptory strikes depended on the fact the party did not need to give a reason for the strike. In fact, the Supreme Court said “[t]he presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.”¹⁶

In Swain, the Supreme Court held an equal protection violation could only be shown through a pattern of systemic discrimination beyond the individual case. To show systemic discrimination, the defendant needed to demonstrate the prosecutor removed African Americans “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim.”¹⁷

The Swain court’s systemic discrimination requirement was roundly criticized for being essentially impossible to establish. The evidence presented in Swain showed the difficult burden created by the Supreme Court’s systemic discrimination standard. The Swain case, decided in 1965, involved a criminal trial in Talladega County, Alabama. The defendant showed no African American had served on a jury in Talladega County since 1950.¹⁸ The Supreme Court found this did not establish a pattern of systemic discrimination because the defendant did not show the prosecutor alone (as opposed to the defendant) had struck the African American potential jurors.¹⁹ Criticism of the Swain decision laid the foundation for the Batson decision 21 years later.

Batson v. Kentucky (1986)
Recognizing the high burden created by Swain, in Batson v. Kentucky,²⁰ the Supreme Court held a defendant could establish a case of purposeful discrimination based solely on evidence concerning the prosecutor’s use of peremptory strikes at the defendant’s trial. In doing so, the Supreme Court rejected Swain’s requirement for evidence of systemic discrimination.²¹

In Batson, the Supreme Court also rejected the Swain Court’s acceptance of prosecutors making peremptory challenges based on the assumption African American jurors would favor an African American defendant.²² The Supreme Court held “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”²³

To protect against discrimination, the Batson Court outlined a three-step process. First, the defendant must establish a prima facie case of discrimination.²⁴ Once a prima facie case of discrimination is established, the prosecutor must provide a race-neutral explanation for striking the potential juror.²⁵ The reason given does not need to rise to the level of a strike for cause, but the prosecutor cannot simply deny a racial purpose for striking the venire person. Once the prosecutor provides a neutral explanation, the trial court must decide if the defendant has established purposeful discrimination.²⁶ While outlining the general procedure for what became known as a Batson challenge, the Supreme Court left the creation of specific procedures for the challenge to the lower courts.²⁷

Expansion of Batson
Following Batson, the Supreme Court issued several decisions in the early 1990s expanding Batson’s scope beyond a prosecutor striking African Americans from criminal trials of African American defendants. In Powers v. Ohio,²⁸ the Supreme Court held Batson applied even when the defendant and the potential juror were not of the same race. Significantly, in Powers the Supreme Court sought to protect not only the constitutional rights of the defendant, but the constitutional rights of the potential juror. While noting a potential juror does not have a constitutional right to serve on a jury, the Supreme Court held the potential juror does have a constitutional right to participate in the jury process free of discrimination.²⁹ The Supreme Court also found the defendant had standing to enforce the constitutional rights of the potential juror.³⁰

By focusing on the constitutional rights of the potential juror, the Supreme Court laid the foundation for a significant expansion of Batson. Also, the ultimate makeup of the jury was no longer determinative. A single strike of a potential juror could be a constitutional violation of that potential juror’s constitutional rights, regardless of the ultimate composition of the jury.³¹

Ethnicity
Also in 1991, the Supreme Court extended Batson to include ethnicity in Hernandez v. New York.³² In Hernandez, the defendant challenged the prosecutor’s exclusion of Spanish-speaking Latino potential jurors. Although the Supreme Court found the prosecutor had provided a sufficient neutral reason for striking the potential jurors, the Court emphasized prosecutors could not exclude potential jurors based solely on their ethnicity.³³

Civil Trials
In Edmonson v. Leesville Concrete Co., Inc.,³⁴ the Supreme Court extended Batson to civil cases. The original issue in Batson had been the state depriving a criminal defendant of his or her constitutional rights to a fair trial. In Edmonson, the Supreme Court found Batson’s constitutional protections against discrimination applied even without the state as a party.³⁵ The Supreme Court reasoned civil litigants were participating in the judicial process, which inherently involved some level of state action.³⁶ The Supreme Court also focused on the fact the individual potential jurors had a constitutional right to participate in jury selection free of discrimination, which could be enforced by the parties.³⁷

Reverse Batson Challenges
In Georgia v. McCollum,³⁸ the Supreme Court found prosecutors can raise Batson challenges to peremptory strikes by criminal defendants (sometimes known as a “reverse Batson challenge”). Because the individual jurors had constitutional rights to be protected, those protections applied equally regardless of whether the state or the defendant brought the challenge.

Gender
Finally, in J.E.B. v. Alabama, ex rel. T.B.,³⁹ the Supreme Court held Batson applied to gender discrimination. Gender discrimination during jury selection is a relatively new phenomenon in the United States, simply because historically women could not serve on juries.⁴⁰ Women obtained the right to vote with the ratification of the Nineteenth Amendment in 1920, but by 1927, only 19 states allowed women to serve on juries. Mississippi became the last state to allow women on juries in 1968.⁴¹

In J.E.B., the male defendant in a paternity action challenged the use of peremptory strikes to remove men from the jury, resulting in an all-female jury.⁴² In extending Batson to gender discrimination, the Supreme Court rejected the argument men could reasonably be expected to be more sympathetic to men in a paternity/child support action, and women could be expected to be more sympathetic to women.⁴³ The Supreme Court rejected this “gross generalization” as relying on the “‘very stereotype the law condemns.’”⁴⁴

In J.E.B., the Supreme Court made one of its most significant expansions of the Batson doctrine by applying it to gender discrimination. Although the Supreme Court focused on discrimination against women, the case itself involved a Batson challenge to the use of peremptory strikes to remove men from the jury – i.e., a Batson challenge can be raised based on the exclusion of either male or female jurors. By applying Batson to gender, the Supreme Court essentially held any peremptory strike could be subject to challenge.

Application to Religion, Sexual Orientation, Age, and Disability?
Following J.E.B., the Supreme Court has applied the Batson doctrine to discrimination based on race, ethnicity, and gender. Lower courts have wrestled with the application of Batson to additional areas of discrimination, such as religion, sexual orientation, age, and disability. For example, the 2nd Circuit has extended Batson to religious discrimination.⁴⁵ The 9th Circuit, in one of the first decisions to address the issue, held Batson applied to discrimination based on sexual orientation.⁴⁶ Although legal protections exist against discrimination based on age, courts have routinely held Batson does not apply to peremptory strikes based on age.⁴⁷ Courts have also struggled with whether Batson should apply to strikes based on disability.⁴⁸

The Future of Batson
Since the Batson decision, prognosticators have predicted Batson would eventually lead to the removal of peremptory strikes from our jury system. Several authors argue the only way to truly remove discrimination from the jury selection process is to remove peremptory strikes completely⁴⁹ (a thought that would likely make any trial lawyer cringe).

On the other side of the coin, Justice Clarence Thomas has argued that by extending constitutional protections to potential jurors, the Court has gone too far, and made it too easy to bring a Batson challenge.⁵⁰ Justice Thomas does not argue discrimination should be allowed in the jury selection process. Rather, he argues the Supreme Court essentially created a constitutional right that did not exist when it extended Batson to potential jurors.⁵¹

Despite law review articles and dissenting opinions, the Supreme Court has remained committed to the Batson challenge as the primary method for eliminating discrimination in the jury selection process. In 2019, in Flowers v. Mississippi,⁵² in a 7-to-2 decision, the justices spoke glowingly of the role of Batson in combating discrimination in the jury selection process. Based on the opinion in Flowers, we can confidently say lawyers will continue to be called on to bring Batson challenges to prevent discrimination.

The Lawyer’s Role in Preventing Discrimination
Attorneys are tasked with preventing discrimination in two ways. First, lawyers must prevent themselves and their clients from engaging in discrimination during jury selection by conducting a thorough voir dire. Second, lawyers are tasked with preventing their opponents from discriminating during jury selection by bringing Batson challenges.

The Role of Voir Dire in Eliminating Discrimination
Stopping discrimination begins with us. Even well-intentioned attorneys may resort to stereotypes based on race, ethnicity, or gender when they simply do not know much about a potential juror. A common excuse for discrimination (repeatedly rejected by the Supreme Court) is the reality that litigants often know relatively little about potential jurors at the beginning of voir dire. Without adequate information, litigants may fall back on stereotypes to decide how to exercise their peremptory strikes. The Supreme Court is abundantly clear – lawyers cannot rely on stereotypes that members of a particular race, gender, or ethnic group may have a certain bias based solely on their race, gender, or ethnicity.

The Supreme Court places the onus on lawyers to conduct a thorough voir dire to avoid falling back on these stereotypes. “If conducted properly,” the Supreme Court instructs, “voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise.”⁵³ “Voir dire,” the Court continues, “provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently.”⁵⁴

In reality, even the most skilled questioning cannot force some potential jurors to offer in-depth answers in the intimidating setting of a packed courtroom. Nevertheless, even observing the mannerisms and attitudes of the potential jurors can enable litigants to base peremptory strikes on the person and not the stereotype. By conducting a thorough voir dire, lawyers do not need to rely on inherently discriminatory stereotypes regarding race, ethnicity, or gender when exercising peremptory strikes. Instead, litigants can exercise their peremptory strikes based on the unique aspects of the individual – regardless of race, ethnicity, or gender.

A failure to conduct an adequate voir dire can also undermine a party’s response to a Batson challenge. As set forth below, in response to a Batson challenge, the striking party must offer a neutral reason for exercising the strike. A lawyer’s failure to question potential jurors about a subject that is later used to justify a peremptory strike “is evidence suggesting that the explanation is a sham and a pretext for discrimination.”⁵⁵

Of course, the scope and duration of voir dire is governed by (and even conducted by, in some courts) the trial judge. If a trial judge seeks to cut off or limit voir dire, counsel should note the importance the Supreme Court places on voir dire to eliminate discrimination during jury selection.

Litigating the Batson Challenge
The burden falls on lawyers to conduct an adequate voir dire to avoid reliance on racial, ethnic, or gender-based stereotypes. Equally important, lawyers are tasked with preventing their opponents from discriminating during jury selection. To fulfill this role, lawyers must be able to argue the Batson challenge.⁵⁶

Step One – Raising the Batson Challenge
The first step of a Batson challenge is for the challenging party to establish a prima facie case of discrimination in the use of a peremptory strike. In Missouri state court, a party satisfies this requirement by challenging one or more peremptory strikes and identifying the cognizable group to which the struck person belongs.⁵⁷ The challenging party in Missouri state court does not need to provide any further justification for the challenge to establish a prima facie case of discrimination.⁵⁸

To establish a prima facie case of discrimination, other jurisdictions may require an additional showing of relevant facts and circumstances that raise an inference of a discriminatory purpose.⁵⁹ Evidence to support an inference of a discriminatory purpose has included statistical evidence regarding the use of peremptory strikes based on race, gender, or ethnicity; the opposing attorney’s disparate questioning and investigation of jurors; side-by-side comparisons of jurors who were and were not struck; and the attorney’s history of using peremptory strikes in prior cases.⁶⁰

Step Two – Providing a Race/Ethnicity/Gender Neutral Reason
Once a prima facie case of discrimination has been established, the party exercising the peremptory strike must offer a neutral reason for the strike.⁶¹ The neutral reason must be more than an unsubstantiated denial of discriminatory purpose.⁶² The striking party must give a clear and reasonably explicit explanation for the strike.⁶³

Notably, the reason given for the peremptory strike does not need to rise to the level of a strike for cause.⁶⁴ In fact, the Supreme Court has said the reason given in response to a Batson challenge does not need to be persuasive – or even plausible – so long as the reason given is neutral.⁶⁵ The explanation offered by the striking party will be deemed a neutral reason unless the offered reason is inherently discriminatory.⁶⁶ This does not mean a party can defeat a Batson challenge with an implausible explanation.⁶⁷ Rather, once a neutral reason for the peremptory strike is given, the challenging party must show the neutral reason is a mere pretext, and the true reason for the strike is discriminatory.⁶⁸

Step Three – Arguing Pretext
When the trial court is satisfied the striking party has provided a neutral reason that is not inherently discriminatory, the challenging party is given the opportunity to show the explanation was pretextual, and the true reason for the strike was discriminatory.⁶⁹ The challenging party bears the burden of proof to show the opposing party exercised the peremptory strike for a discriminatory purpose. The trial court must then decide if the challenging party has carried his or her burden of proof and established purposeful discrimination.⁷⁰ The trial court’s chief consideration is the plausibility of the striking party’s explanations “in light of the totality of the facts and circumstances surrounding the case.”⁷¹

Deciding pretext is an inherently factual inquiry that relies on the trial court’s perceptions of the potential jurors as well as the behavior of the lawyers. As such, courts have avoided providing bright-line rules to establish pretext. They have, however, established certain factors that courts can look to when deciding pretext. Courts will consider the existence of similarly situated jurors who were not struck; the degree of logical relevance between the proffered explanation and the case to be tried; the attorney’s credibility, based on demeanor or statements during voir dire and the court’s experiences with the attorney;⁷² the demeanor of the excluded venireperson; and the disproportionate use of strikes against members of a cognizable group.⁷³

Similarly Situated Jurors Who Were Not Struck
The existence of similarly situated jurors who were not struck is the most common, and most effective, method for a party to show pretext. In fact, Missouri courts have called a party’s failure to strike similarly situated jurors “crucial” to deciding pretext.⁷⁴ The Supreme Court of Missouri’s decision in State v. Marlowe⁷⁵ provides an example of the use of similarly situated jurors to establish that a neutral reason given by the prosecutor was a pretext. This case also demonstrates the Batson procedure in Missouri state court and the record needed on appeal.

In State v. Marlowe, the prosecutor used a peremptory strike to remove the only African American on the panel. The defendant was white, but under Powers v. Ohio he had standing to raise a Batson challenge for the exclusion of the African American potential juror. The defendant raised the Batson challenge prior to discharge of the venire panel, thereby making a timely Batson challenge. The defendant identified the potential juror who had been struck, made a record of the fact the potential juror was an African American, and argued the strike had been made in violation of Batson. As such, the defendant had adequately raised the challenge and the prosecutor had to provide a race-neutral reason for the peremptory strike.

In response, the prosecutor initially argued he struck the potential juror because she was a government employee and she was “going to soon be part of a class action.”⁷⁶ During further argument, the prosecutor dropped any explanation based on employment and focused exclusively on the fact the juror had indicated she was going to be involved in a class action. The trial court questioned whether the reason given by the prosecutor was entirely race neutral. However, the trial court determined the reason given by the prosecutor was sufficient to require the defendant to show pretext (recall at this stage the reason given does not need to be persuasive, or even plausible).

To show pretext, the defense relied on similarly situated jurors who had not been struck by the prosecutor. Jury questionnaires showed two white jurors had also indicated they were “in class actions,” but the prosecutor did not strike any of the white jurors. The defense also argued involvement in a class action had only marginal relevance to the assault and weapons charges at issue in that case. Nevertheless, the trial court determined the prosecutor had provided an adequate race-neutral reason and denied the Batson challenge. Following denial of the Batson challenge, the defense entered the jury questionnaires into the record.

On appeal, the Supreme Court of Missouri held the trial court committed “clear error” by denying the Batson challenge.⁷⁷ The Court relied heavily on the evidence that similarly situated white jurors had not been struck from the jury. For the first time on appeal, the State attempted to offer additional justifications for striking the juror. The Court ignored these post hoc justifications because the prosecutor failed to offer them while arguing the Batson challenge.⁷⁸ The Court also noted involvement in a class action bore little relevance to the case to be tried. The Court found that, considering the totality of the facts and circumstances, the defense had established that the prosecutor’s stated reason for striking the African American juror was a pretext.

Employment as a Neutral Reason
Peremptory strikes are often based on preconceived notions associated with a person’s occupation. An individual’s occupation has generally been recognized as a neutral reason for exercising a peremptory strike.⁷⁹ This may seem contradictory. The Supreme Court is clear parties cannot rely on stereotypes based on race, ethnicity, or gender – while recognizing peremptory strikes are often, by necessity, based on “stereotypes of some kind, expressing various intuitive and frequently erroneous biases.”⁸⁰ The Supreme Court explained this difference by noting when peremptory strikes are made based on stereotypes “other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group’s competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life.”⁸¹

The challenge for courts is to ensure stereotypes associated with certain occupations do not become blanket excuses to discriminate based on race, ethnicity, or gender. For example, in State v. Edwards,⁸² the prosecutor responded to a Batson challenge by noting the potential juror was a postal worker. The prosecutor explained he “always struck postal workers.”⁸³ Importantly, the prosecutor elaborated on why he “always struck postal workers.” The prosecutor explained he considered postal workers to be bad jurors for the state because postal workers work in one of the most heavily regulated bureaucratic jobs. Citing prior experience, the prosecutor explained he believed serving on a jury provided postal workers a relief from this heavy regulation and an opportunity to break the rules. Significantly, the record also showed the prosecutor had struck jurors who had similar jobs. The prosecutor struck a potential juror who worked for Federal Express as well as a juror who was married to a postal worker.

In response, the defense argued this was a pretext because the prosecutor did not strike a juror who worked for a city or a juror who the defense mistakenly thought worked for the military.⁸⁴ The prosecutor responded these were not truly similar jurors and did not support a claim of pretext. The trial court found the prosecutor provided an adequate race-neutral reason for the strike and denied the Batson challenge.

On appeal, the Supreme Court of Missouri wrestled with the concern that allowing peremptory strikes based on occupation could become a blanket excuse for discrimination. The Supreme Court noted, however, the prosecutor had explained his reasoning for making the strike and the prosecutor had exercised the strike against similarly situated jurors. The Supreme Court cautioned trial courts should scrutinize strikes based on occupation carefully, and consider whether “the occupation and the claimed traits relate to the particular case or juror, whether similarly situated jurors are treated differently, . . . and not allow a strike to rest solely on the claim that the juror is ‘a postal worker.’”⁸⁵ In Edwards, the Supreme Court ultimately held the prosecutor provided an adequate race-neutral reason because the prosecutor explained why he viewed postal workers as unfavorable jurors as it related to the case, and because the prosecutor also struck similarly situated white jurors for the same reason.⁸⁶

Examples of Neutral Reasons
Reflecting the case-by-case nature of Batson challenges, Missouri courts have considered a wide range of proffered neutral reasons to justify peremptory strikes and claims of pretext.⁸⁷ While each case is unique, prior decisions on pretext can help lawyers formulate their arguments both to support and to defend against Batson challenges. Missouri courts have found the following proffered neutral reasons (along with many others) to be race/ethnicity/gender neutral: age;⁸⁸ marital status;⁸⁹ unemployment;⁹⁰ failure to pay attention during voir dire;⁹¹ familiarity with the crime scene;⁹² arrest or incarceration of a family member;⁹³ employment such as working as a teacher⁹⁴ or social worker;⁹⁵ a juror’s clothing and attire;⁹⁶ and hostility towards the lawyer during voir dire.⁹⁷

Time to Raise a Batson Challenge
A Batson challenge will be waived if it is not timely raised. In State v. Parker, the Supreme Court of Missouri held a Batson challenge must be raised before the venire panel is discharged (but not immediately after the peremptory strike is exercised).⁹⁸ The Court recognized judicial efficiency would suggest a Batson challenge should be raised as soon as possible (as opposed to waiting until strikes by both sides had been used). Nevertheless, the Court found that allowing the challenge to be brought at any time prior to the discharge of the venire panel protected against waiver of the constitutional right, while still allowing for judicial economy.⁹⁹

Remedy for a Successful Batson Challenge
One of the reasons a Batson challenge must be raised before the venire panel is discharged is the remedy. Following a successful Batson challenge, the attempted peremptory strike will be reversed, and the juror will be seated on the jury if otherwise qualified to serve.¹⁰⁰ Following a successful Batson challenge, the panel will not be struck, assuming the potential juror has no idea that one of the parties attempted to strike the juror.¹⁰¹

Appellate Review
The record during a Batson challenge is vital for a potential appeal because of the highly deferential standard to Batson challenges. “‘In reviewing a circuit court’s decision concerning a Batson challenge, a circuit court is accorded great deference because its findings of fact largely depend on its evaluation of credibility and demeanor.’”¹⁰² As such, the denial of a Batson challenge will only be reversed if the appellate court finds clear error.¹⁰³

During the hearing on a Batson challenge, counsel should ensure the trial court states on the record the reasons for ruling on specific neutral reasons and claims of pretext – especially when the trial court is relying on observations of the demeanor of the potential juror.¹⁰⁴ For example, when the proffered neutral reason rests on a potential juror being inattentive during voir dire, or demonstrating hostility towards the lawyer, counsel should seek to determine if the trial court observed the behaviors of the potential juror. If the record is silent and the trial court denies the challenge, the appellate court will most likely assume this silence indicates the trial court observed the same behaviors.¹⁰⁵ Following the denial of a Batson challenge, the lawyer should make a record of the racial, ethnic, and gender composition of the panel and the jury. Counsel should also place the jury questionnaires into evidence so that there is a record for appellate review.

Conclusion
We are human. The courts cannot simply enact a rule to magically remove discrimination from the jury selection process. We are also advocates. The courts have created a system whereby the parties police each other to remove discrimination, through both voir dire and a Batson challenge. The rest is up to us.

Endnotes
1  Timothy F. McCurdy practices trusts and estates litigation, elder law, and civil litigation at Lashly & Baer, P.C. McCurdy has tried jury trials in state and federal courts ranging from commercial litigation to medical malpractice cases. He is the former president of the BAMSL Trial Section and has practiced in St. Louis since graduating from Notre Dame Law School in 2002.

2  On May 25, 2020, George Floyd, an African American, died while being arrested by Minneapolis police. A bystander recorded the arrest. The video shows a white police officer pinning Floyd to the ground by placing his knee on Floyd’s neck. On the video, Floyd can be heard saying, “I can’t breathe.”

3  As of July 2020, Batson v. Kentucky has been cited in more than 17,000 court decisions. Any attempt to provide a comprehensive examination of Batson challenges in all 50 states and federal jurisdictions would require a multi-volume treatise that would be out of date on publication.

4  Batson v. Kentucky, 476 U.S. 79 (1986).

5  See, e.g., Powers v. Ohio, 499 U.S. 400, 407 (1991) (“Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”).

6  Strauder v. West Virginia, 100 U.S. 303 (1879).

7  The Strauder decision was a high water mark for the Supreme Court for protecting the rights of African Americans. This high water mark quickly receded. In 1883, the Supreme Court decided the Civil Rights Cases, 109 U.S. 3 (1883), that struck down the Civil Rights Act of 1875. The Civil Rights Act of 1875 prohibited segregation based on race in public places. Thirteen years later, in Plessy v. Ferguson, 163 U.S. 537 (1896), the Supreme Court blessed the doctrine of “separate but equal” by rejecting a challenge to a law prohibiting African Americans from sitting in the same railcars as whites. The Supreme Court’s decision in Plessy served as the legal foundation for state-sanctioned discrimination until the Supreme Court reversed itself in Brown v. Board of Education, 347 U.S. 483 (1954).

8  Strauder, 100 U.S. at 308-309 (1879).

9  Id. at 305.

10  Swain v. Alabama, 380 U.S. 202 (1965).

11  Id. at 219 (quoting Pointer v. United States, 151 U.S. 396, 408 (1894)).

12  Id. at 220.

13  Id.

14  Id. at 221.

15  Id. (The Supreme Court, in the language of 55 years ago, reasoned “Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.”).

16  Id. at 222.

17  Id. at 223.

18  Id. at 205.

19  Id. at 224-226.

20  Batson v. Kentucky, 476 U.S. 79, 92-93, 96 (1986).

21  Id. at 92-93.

22  Id. at 89.

23  Id.

24  Id. at 96.

25  Id. at 97.

26  Id. at 98.

27  Id. at 99.

28  Powers v. Ohio, 499 U.S. 400 (1991).

29  Id. at 409.

30  Id. at 415.

31  See, e.g., Flowers v. Mississippi, 588 U.S. --, 139 S.Ct. 2228, 2241 (2019) (“In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many.”).

32  Hernandez v. New York, 500 U.S. 352 (1991).

33  Id. at 371.

34  Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).

35  Id. at 616.

36  Id. at 627.

37  Id. at 628-631.

38  Georgia v. McCollum, 505 U.S. 42 (1992).

39  J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127 (1994).

40  Id. at 131.

41  Missouri falls in the middle of the pack of states by allowing women to serve on juries in 1945.

42  J.E.B., 511 U.S. at 129.

43  Id. at 138-139.

44  Id. (quoting Powers, 499 U.S. at 410).

45  U.S. v. Brown, 352 F.3d 654 (2nd Cir. 2003).

46  SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014).

47  See, e.g., State v. Letica, 356 S.W.3d 157, 165 (Mo. banc 2011) (citing State v. Smith, 944 S.W.2d 901, 912 (Mo. banc 1997)).

48  For example, in U.S. v. Watson, 483 F.3d 828 (D.C. Cir. 2007), the D.C. Circuit, applying rational basis review, found the prosecutor’s use of peremptory strikes to remove two blind potential jurors did not violate the Equal Protection Clause. The prosecutor justified the strikes of the blind jurors by noting the prosecutor’s evidence relied heavily on photographs and videos, and the prosecutor did not believe a blind juror would be able to effectively serve as a juror. Id. at 835.

49  See, e.g., Nancy S. Marder,Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge, 49 Conn. L. Rev. 1137 (2017); Patricia J. Griffin,Jumping on the Ban Wagon: Minetos v. City University of New York and the Future of the Peremptory Challenge, 81 Minn. L. Rev. 1237 (1997).

50  See, e.g., Flowers, 139 S.Ct. at 2269-2274.

51  Id.

52  139 S.Ct. 2228.

53  J.E.B., 511 U.S. at 143.

54  Id. at 143-144.

55  State v. McFadden, 191 S.W.3d 648, 654 (Mo. banc 2006).

56  The Supreme Court of Missouri’s opinion in State v. Parker, 836 S.W.2d 930 (Mo. banc 1992), is an excellent resource for an attorney who needs a refresher on Batson challenges while preparing for trial in Missouri state court. In Parker, the Supreme Court established the procedures for trial courts to follow while applying Batson. Many of the hundreds of Missouri appellate decisions addressing Batson challenges cite to and rely on the decision in Parker.

57  State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992).

58  Id.

59  Batson, 476 U.S. at 96-97; Luckett v. Kemna, 203 F.3d 1052, 1054 (8th Cir. 2000).

60  Flowers, 139 S.Ct. at 2243.

61  Parker, 836 S.W.2d at 939.

62  Batson, 476 U.S. at 97.

63  State v. Meeks, 495 S.W.3d 168, 176 (Mo. banc 2016) (quoting Batson v. Kentucky, 476 U.S. 79, 98 n. 20 (1986)).

64  Batson, 476 U.S. at 97.

65  Purkett v. Elem, 514 U.S. 765, 768 (1995).

66  Parker, 836 S.W.2d at 934 (citing Hernandez v. New York, 500 U.S. 352, 111 (1991)). For examples of inherently discriminatory reasons for striking a potential juror, see State v. Meeks, 495 S.W.3d 168 (Mo. banc 2016) (wanting to strike two potential jurors, the prosecutor struck an African American venireperson on the assumption the defendant would strike the white juror; the prosecutor provided an inherently discriminatory reason for the strike); State v. Mosely, 534 S.W.3d 879 (Mo. App. W.D. 2017) (the prosecutor struck a venireperson because of her “status” – interpreted as referring to her race; the prosecutor provided an inherently discriminatory reason for the strike).

67  Purkett, 514 U.S. at 768 (the persuasiveness of the striking party’s offered reason becomes relevant in the third phase of the Batson challenge).

68  Parker, 836 S.W.2d at 939.

69  Id. If the party raising the Batson challenge fails to attempt to show pretext after a neutral explanation is offered, the party cannot challenge the explanation on appeal. State v. Washington, 288 S.W.3d 312 (Mo. App. E.D. 2009).

70  Parker, 836 S.W.2d at 939.

71  Id.

72  See, e.g., Kesler-Ferguson v. Hy-Vee, Inc., 271 S.W.3d 556, 560 (Mo. banc 2008) (when asked to provide a race-neutral reason for a peremptory strike there was a long pause while counsel tried to articulate a reason, and at one point striking counsel could not remember if he was referring to the correct juror).

73  State v. Bateman, 318 S.W.3d 681, 690-691 (Mo. banc 2010); Parker, 836 S.W.2d at 940.

74  State v. Taylor, 18 S.W.3d 366, 371 (Mo. banc 2000) (citing State v. Antwine, 743 S.W.2d 51, 65 (Mo. banc 1987)).

75  State v. Marlowe, 89 S.W.3d 464 (Mo. banc 2002).

76  Id. at 468.

77  Id. at 470.

78  Id. at 469.

79  See, e.g., State v. Johnson, 207 S.W.3d 24, 37 (Mo. banc 2006) (quoting State v. Williams, 97 S.W.3d 462, 472 (Mo. banc 2003)).

80  J.E.B., 511 U.S. at 143, n 14.

81  Id.

82  State v. Edwards, 116 S.W.3d 511 (Mo. banc 2003).

83  Id. at 525-526.

84  Id. at 526.

85  Id. at 528.

86  Id.

87  See Hon. Robert H. Dierker, 28 Mo. Criminal Practice Handbook § 20:7 (2020).

88  State v. Readman, 261 S.W.3d 697 (Mo. App. W.D. 2008).

89  State v. Barnett, 980 S.W.2d 297 (Mo. banc 1998).

90  State v. Hinkle, 987 S.W.2d 11 (Mo. App. E.D. 1999).

91  State v. Reynolds, 502 S.W.3d 18, 31 (Mo. App. E.D. 2016).

92  State v. Nylon, 311 S.W.3d 869, 882 (Mo. App. E.D. 2010).

93  State v. Deck, 994 S.W.2d 527, 537 (Mo. banc 1999).

94  State v. Alford, 519 S.W.3d 812, 814 (Mo. App. E.D. 2017).

95  State v. Hall, 955 S.W.2d 198, 206 (Mo. banc 1997).

96  State v. Williams, 97 S.W.3d 462, 471 (Mo. banc 2003).

97  State v. Thurman, 887 S.W.2d 411, 413 (Mo. App. W.D. 1994).

98  Parker, 836 S.W.2d at 935.

99  Id.

100  State v. Grim, 854 S.W.2d 403, 416 (Mo. banc 1993).

101  Id.

102  Bateman, 318 S.W.3d at 687 (quoting Kesler-Ferguson, 271 S.W.3d at 558).

103  Id. at 687 (Mo. banc 2010) (citation omitted); see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

104  See, e.g., Snyder, 552 U.S. at 479 (finding the record failed to show whether the trial court agreed with the prosecutor’s claim the stricken juror appeared nervous during voir dire).

105  See, e.g., State v. Reynolds, 502 S.W.3d 18, 31 (Mo. App. E.D. 2016) (absent anything in the record regarding a purportedly inattentive potential juror’s demeanor and facial expressions, the appellate court deferred to the trial court’s decision to deny the Batson challenge).