In my previous post, I wrote about the importance of and legal support for inquiring into prospective jurors’ perspectives on race and racial bias, which may include the Black Lives Matter movement. Let’s imagine that a potential juror expresses a favorable opinion of Black Lives Matter and also states that she can remain impartial and follow the judge’s instructions. If there is an attempt to remove that juror from the pool for cause based on her Black Lives Matter support, should it be sustained? Would it violate Batson to strike a juror on this basis? This post considers those questions.
For starters, what’s the difference between a challenge for cause and a peremptory strike?
During jury selection, there are two different tools lawyers may use to block the seating of potential jurors. The first is a challenge for cause, where the lawyer argues that the potential juror is not legally qualified to serve as a juror in a particular trial. See G.S. 15A-1212. Lawyers may make an unlimited number of challenges for cause. The second is a peremptory strike, which are limited in number and may be used to strike jurors for any reason other than race, gender, or ethnicity. See G.S. 15A-1217.
Challenges for cause
Let’s imagine that the prosecutor challenges a potential juror for cause based on her expression of support for Black Lives Matter, arguing that this support reflects bias against the police and an inability to render a fair and impartial verdict. See G.S. 15A-1212(9) (challenge for cause may be made on several grounds, one of which is that the juror “is unable to render a fair and impartial verdict”). The defense attorney objects to the challenge for cause, arguing that support for Black Lives Matter does not render her unqualified to serve as a juror and referencing her statement that she can remain fair and impartial and follow the law.
The Sixth and Fourteenth Amendments protect against the erroneous exclusion of a qualified juror in response to a cause challenge by the State. See Witherspoon v. Illinois, 391 U.S. 510 (1968) (only those jurors who cannot follow the law may be excused); Gray v. Mississippi, 481 U.S. 648 (1987) (excusing a qualified juror is reversible error); accord State v. Brogden, 334 N.C. 39 (1993). In practice, trial court rulings on challenges for cause are not reviewed on appeal as often as trial court rulings on the legality of peremptory strikes, although at least one study concluded that removals for cause are a significant and underappreciated source of racial disparities on juries. Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 789 (2020) (examining data from Louisiana and Mississippi and concluding that “black jurors’ “qualifications” for jury service, or lack thereof, operate as an important instrument of racial exclusion today”).
Since the judge’s ruling would depend on the facts of the case and the specific comments made by the potential juror, it is difficult to say in the abstract how a ruling should be made on a challenge for cause. See State v. Jaynes, 353 N.C. 534 (2001) (whether to grant a challenge for cause under G.S. 15A-1212 is a matter left to the sound discretion of the trial court); see also State v. Dickens, 346 N.C. 26, 42 (1997) (“The trial court has the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial.”). Determinations of juror impartiality are inherently subjective. See Skilling v. United States, 561 U.S. 358, 386 (2010) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”).
North Carolina appellate courts have consistently held that jurors who express pro-prosecution bias are competent to serve when they commit to basing their judgments on the facts of the case. “The operative question is not whether the prospective juror is biased but whether that bias is surmountable with discernment and an obedience to the law.” State v. Smith, 352 N.C. 531, 545 (2000); see also State v. Cummings, 361 N.C. 438, 453-56 (2007); State v. Moses, 350 N.C. 741, 757 (1999); State v. McKinnon, 328 N.C. 668, 676-77 (1991) State v. Whitfield, 310 N.C. 608 (1984). This body of caselaw would appear to protect a juror from a challenge for cause where the juror expresses support for Black Lives Matter and asserts a willingness and ability to follow the law.
Appellate court opinions from other states support this conclusion. For example, in reviewing the conviction of “Unite the Right” Charlottesville participant Jacob Goodwin for maliciously wounding counter-protester Deandre Harris, a Virginia appellate court held that it was not improper for a trial court to reject three cause challenges to jurors who participated in Black Lives Matter protests or otherwise supported the Black Lives Matter movement. Goodwin v. Commonwealth, 71 Va. App. 125, 141 (2019) (“none of the prospective jurors indicated an inability to put aside their personal opinions and provide the appellant with a fair trial based on the evidence presented”). Similarly, the Massachusetts Supreme Judicial Court recently held that it was error to remove a juror for cause for expressing her belief that “the system is rigged against young, African American males.” Commonwealth v. Williams, 481 Mass. 443 (2019). The Williams court concluded that the removal for cause of this juror was harmless as the prosecution would have used a peremptory strike to remove her from the jury, which brings us to the next question: Do peremptory strikes based on support for Black Lives Matter violate Batson?
Batson challenges to strikes related to Black Lives Matter support
Decided by the United States Supreme Court in 1986, Batson v. Kentucky, 476 U.S. 79 (1986), holds that peremptory strikes of jurors based on race, gender, or ethnicity, are unconstitutional. The Batson court announced a three-step process for determining whether a peremptory strike is unconstitutionally discriminatory. At step three, the ultimate question before the court is whether it is “more likely than not” that the “strike was motivated in substantial part by race” or another unlawful factor. State v. Hobbs, 374 N.C. 345, 351, 353 (2020). If a peremptory strike is based on that juror’s support for Black Lives Matter, is it “motivated in substantial part by race”?
The Nevada Supreme Court recently criticized the implications of such strikes. Cooper v. State, 432 P.3d 202, 206-07 (Nev. 2018). The Cooper court was “concerned that by questioning a veniremember’s support for social justice movements with indisputable racial overtones, the person asking the question believes that a certain, cognizable racial group of jurors would be unable to be impartial, an assumption forbidden by the Equal Protection Clause.” Cooper, 432 P.3d at 206 (internal quotations omitted). However, a Minnesota appellate court reviewing a case where a prosecutor asked a potential juror about support for Black Lives Matter found that “although some of the prosecutor’s questions had racial overtones,” the prosecutor’s race neutral justification for its strike was sufficient to defeat a Batson challenge. State v. Gresham, No. A15-1691, 2016 WL 7338718, at *4 (Minn. Ct. App. Dec. 19, 2016) (unpublished).
A California appellate court will address this question in People v. Silas, California 1st Appellate District Docket, Case No. A150512, where a prosecutor struck a Black woman, Chrishala Reed, from a jury pool based on her statement of support for Black Lives Matter on a juror questionnaire. Ms. Reed said she could be impartial and, in response to the prosecutor’s questioning, stated that she did not support property destruction. Speaking about the experience of being struck, she explained that she didn’t see any other Black people in the jury box and that she “felt targeted.” She continued that “[i]t was a life-changing experience for me, personally. And I still talk about it to this day. I tell my kids about it. Not to scare them but to make them aware.” See Abbie Vansickle, You Can Get Kicked Off a Jury Pool for Supporting Black Lives Matter, The Marshall Project, July 7, 2020. The trial judge denied the defendant’s Batson challenge to the strike of Ms. Reed, and that ruling is now on appeal.
In support of the defendant’s Batson challenge to the strike of Ms. Reed, an amicus brief submitted by the MacArthur Justice Center and other civil rights groups on appeal noted the prosecutor’s “aggressive and intense questioning” about Black Lives Matter, seemingly intended to “get a rise out of” the juror, as well as the number of challenges mounted by the prosecution against Black jurors and the prosecution’s history of striking Black jurors. See Brief for Amicus Curiae MacArthur Justice Center, et al. (quoting from the trial transcript). They argued that the strike of Ms. Reed violated Batson because support for the Black Lives Matter movement is inextricably tied to race and does not render a juror unfit for service.
As noted in the amicus brief, support for the Black Lives Matter movement is deeply racialized. A recent Harvard-Harris poll found that 83 percent of Black respondents had a favorable view of Black Lives Matter, whereas only 35 percent of white respondents shared that favorable view. Given that reality, a strong argument can be made that, just as many courts have held that NAACP membership is a proxy for race and therefore not a race-neutral justification for a peremptory strike, Black Lives Matter support is too deeply entangled in racial identity to be considered race neutral. See People v. Holmes, 651 N.E.2d 608, 615 (Ill. App. Ct. 1995) (“the NAACP is an organization which can be identified with race . . . [which] when viewed in combination with the fact that [the juror] was an African-American, makes her exclusion race specific where others with substantially similar characteristics are accepted”); Ledford v. State, 429 S.E.2d 124, 126 (Ga. App. 1993) (noting that trial court correctly refused to accept NAACP membership as a race neutral justification for the peremptory strike of a juror); Somerville v. State, 792 S.W.2d 265 (Tex. Ct. App. 1990) (NAACP was not a race-neutral reason for the exclusion).
The North Carolina Supreme Court once stated in dicta that NAACP membership was race neutral for Batson purposes, relying on United States v. Payne, 962 F.2d 1228, 1233 (6th Cir. 1992). State v. Fletcher, 348 N.C. 292, 316 (1998). But Payne itself did not hold that NAACP membership was a race neutral reason for a strike, only that it was not clearly erroneous under the circumstances. Payne, 962 F.2d at 1233. And the trial court in Fletcher actually concluded that the prosecutor’s removal of a juror based on NAACP membership violated Batson, prompting the prosecutor to withdraw the strike. Fletcher, 348 N.C. at 316. The Batson framework has been strengthened by both the U.S. Supreme Court and the North Carolina Supreme Court in the years since Fletcher was decided, and the court in Fletcher applied a now overruled Batson analysis, concluding that the seating of a single Black juror weighed against finding a Batson violation with respect to another Black juror. Compare Fletcher, 348 N.C. at 316 (reasoning that Batson challenges were not strong “given that one black prospective juror from the first panel was in fact already accepted and placed on the jury”), with Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (single discriminatory strike violates Batson); United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991) (“Striking only one black prospective juror for a discriminatory reason violates a black defendant’s equal protection rights, even when other black jurors are seated and even when valid reasons are articulated for challenges to other black prospective jurors.”). For these reasons, Fletcher doesn’t tell us much about how North Carolina appellate courts would review membership in the NAACP – or support for Black Lives Matter – today.
Will the North Carolina Supreme Court weigh in?
So far the only North Carolina appellate case that touched upon this issue is State v. Campbell, which is currently before the North Carolina Supreme Court. State v. Campbell, 846 S.E.2d 804, 807 (N.C. Ct. App.), review allowed, 376 N.C. 531, 851 S.E.2d 42 (2020). In responding to one of the defendant’s Batson challenges in State v. Campbell, the prosecutor stated that a Black college student’s involvement in the Black Lives Matter movement was one factor motivating the peremptory strike. Because the court concluded that the defendant did not make a prima facie case of racial discrimination as required at step one of the Batson framework, the Court of Appeals did not examine the prosecutor’s explanations for the challenged strike. But if the North Carolina Supreme Court determines that the prima facie case was satisfied, we may have a North Carolina Supreme Court opinion addressing the propriety of a peremptory strike based on support for Black Lives Matter, which will almost certainly prompt an updated blog post analyzing the status of the Black Lives Matter juror in North Carolina. Stay tuned.