Recent Batson Rulings from the North Carolina Supreme Court

Last April, the North Carolina Supreme Court decided two significant cases involving claims that prosecutors impermissibly exercised peremptory challenges against prospective black jurors based on their race:  State v. Hobbs, ___ N.C. ___, 884 S.E.2d 639 (2023) (Hobbs II), and State v. Campbell, ___ N.C. ___884 S.E.2d 674 (2023). This post reviews the framework for the review undertaken by the trial courts in those cases and the state supreme court’s opinions.

The Batson framework. The Equal Protection Clause of the Fourteenth Amendment and Article 1, Section 26 of the North Carolina Constitution prohibit the exercise of peremptory challenges to strike prospective jurors based on their race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986), as modified by Powers v. Ohio, 499 U.S. 400 (1991). The United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), established a three-step framework for trial courts to apply in determining whether a peremptory strike was impermissibly motivated by a juror’s race.

Step one. At step one, the party objecting to the strike must present a prima facie showing of purposeful discrimination.  (For purposes of this post, I will assume that the objecting party is the criminal defendant and that the objection is based on the striking of one or more black prospective jurors.) Step one is not a high hurdle, see State v. Waring, 364 N.C. 443 (2010), and requires only that the defendant produce evidence sufficient to permit the trial court to draw an inference that discrimination has occurred, see Johnson v. California, 545 U.S. 162 (2005).

Among the factors the court may consider at this stage are:

  • the defendant’s race,
  • the victim’s race,
  • the race of the key witnesses,
  • questions and statements of the prosecutor and responses from jurors which tend to support or refute an inference of discrimination,
  • repeated use of peremptory challenges against black jurors such that it tends to establish a pattern of strikes against black jurors in the venire,
  • the prosecution’s use of a disproportionate number of peremptory challenges to strike black jurors in a single case, and
  • the State’s acceptance rate of black potential jurors.

See State v. Bennett, 374 N.C. 579, 597-99 (2020); State v. Quick, 341 N.C. 141, 145 (1995).

Step two. At step two, the burden shifts to the party exercising the peremptory challenge (in our case, the prosecutor) to provide a race-neutral reason for the strike. The State’s explanation must be clear and reasonably specific, but does not have to rise to the level of justifying a challenge for cause.  State v. Golphin, 352 N.C. 364, 426 (2000). Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral.  Id.

Step three. After the prosecutor offers a race-neutral explanation, the defendant may attempt to show the State’s explanations for the challenge are pretextual. Id. The defendant may rely on evidence that includes:

  • statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case,
  • evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case,
  • side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case,
  • a prosecutor’s misrepresentation of the record when defending the strikes,
  • relevant history of the State’s peremptory strikes in past cases, or
  • other relevant circumstances that bear upon the issue of racial discrimination.

State v. Hobbs, 374 N.C. 345, 357 (2020) (Hobbs I).

At step three, the trial court must determine, based on the totality of the evidence, whether the defendant has established that it is more likely than not that the strike was motivated in substantial part by discriminatory intent. Put another way, the trial court, at this stage, “must determine whether the prosecutor’s proffered reasons are the actual reasons, or whether the proffered reasons are pretextual and the prosecutor instead exercised peremptory strikes on the basis of race.” Flowers v. Mississippi, ___ U.S. ___ , 139 S. Ct. 2228, 2243–44 (2019).

Hobbs I. The North Carolina Supreme Court held in Hobbs I that a trial court may not summarily rule on a Batson challenge at step three, but must instead explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges. 374 N.C. at 358. The Hobbs I Court remanded the case to the trial court for a new Batson hearing and entry of an order that met these requirements. The supreme court directed the trial court to consider all the circumstances including: (1) how a prospective black juror’s response compared to a similarly situated white juror, (2) the history of the use of peremptory jury challenges in jury selection in the county, and (3) the State’s use of eight of eleven peremptory challenges against black potential jurors as compared to two peremptory challenges against white potential jurors. Id. at 360.

Justice Earls wrote the majority opinion, which identified two legal errors in addition to the trial court’s failure to articulate its reasoning: (1) the trial court improperly considered the peremptory challenges exercised by the defendant, which were not relevant; and (2) the trial court focused only on whether the prosecutor asked white and black jurors different questions rather than also comparing the jurors’ answers. Chief Justice Newby dissented, faulting the majority for failing to apply the established deferential standard of review and opining that the trial court’s ruling should be upheld as not clearly erroneous.

Hobbs II. On remand, the trial court again concluded that Hobbs failed to establish a Batson violation. Hobbs appealed, and the state supreme court affirmed that determination in State v. Hobbs, ___ N.C. ___, 884 S.E.2d 639 (2023) (Hobbs II). This time, Chief Justice Newby wrote the majority opinion, and Justice Earls dissented.

The Hobbs II Court determined after reviewing the trial court’s findings of fact and conducting its own independent review of the record that the trial court’s conclusions – made at the third step of Batson –were not clearly erroneous. Those findings are discussed below.

Case not susceptible to racial discrimination. The trial court found that the defendant was black and the victim was white, while some key witnesses, and the victim in evidence admitted under Rule 404(b), were black. The trial court determined that the case was not susceptible to racial discrimination because there was no evidence that the race of any of these individuals was significant before or during trial.

State’s questions were even-handed. The trial court found that as to each of the three excused jurors and as to black and white jurors generally the prosecutors asked questions and made statements in an even-handed manner. The trial court found that the only significant differences in questioning related to the different styles of the three prosecutors engaged in jury selection.

History of peremptory strikes. The trial court found that the history of prosecutors’ use of peremptory strikes in the jurisdiction did not support a finding of purposeful discrimination. The defendant relied on a study by researchers at Michigan State University, which showed that in the jurisdiction at issue, the State was 2.5 times more likely to strike qualified venire members who were black. The trial court rejected the study on several grounds: (1) Batson claims in all of the cases it reviewed had been rejected by state appellate courts; (2) the study identified juror characteristics without input from prosecutors; (3) recent law school graduates with little to no experience in jury selection evaluated juror characteristics; (4) the study was based on transcripts; and (5) none of the prosecutors in the case at hand were the prosecutors in any of the cases relied upon by the historical evidence.

Juror comparison. The trial court conducted side-by-side juror comparisons of the excused jurors with similarly situated prospective white jurors whom the State did not strike. The trial court used the “whole juror” approach advocated by the State, rather than the defendant’s “single factor approach.” In each comparison, the trial court found that the differences between the prospective jurors’ responses outweighed the similarities. The trial court further found that even if the juror comparisons supported a finding of discrimination, the totality of the remaining circumstances outweighed the probative value of those comparisons.

Use of strikes and acceptance rate. Finally, the trial court found that the State did not use all of its peremptory strikes and that it accepted 45 percent of black prospective jurors after the first two challenged strikes and 50 percent of black prospective jurors after the third challenged strike.

As I previously mentioned, Justice Earls (joined by Justice Morgan) dissented.  She would have found that the evidence supported a finding of racial discrimination in the selection of the jury. She considered the case susceptible to racial discrimination, deemed it legal error to disregard the Michigan State study, opined that the statistics raised suspicion of discrimination, and criticized the whole juror analysis as inconsistent with precedent.

State v. Campbell, ___ N.C. ___884 S.E.2d 674 (2023). Campbell was decided the same day as Hobbs II. Writing for the majority, Justice Berger concluded that the trial court’s determination that the defendant failed to establish a prima facie case of racial discrimination at step one of the Batson analysis was not clearly erroneous.

In Campbell, the State exercised peremptory strikes to remove two alternate jurors. Campbell raised a Batson challenge as to second alternate juror, arguing that the state had used three of its four peremptories to strike black prospective jurors.

After ruling that the defendant had failed to make the prima facie showing of purposeful discrimination required at step one, the trial court ordered the prosecutor to state for the record race-neutral reasons for striking the three prospective jurors.

The State said the first juror (Vereen) knew a potential witness and was related to people in the area of the community, the second juror (Staton) knew a witness and gave concerning answers about his ability to be impartial, and third juror (Holden) knew people on the witness list who were related to a primary witness and was “‘a participant, if not an organizer, for Black Lives Matter at her current college.’” 884 S.E.2d at 678.

Campbell argued before the supreme court that a showing that the State used peremptories to strike 3 of 4 jurors was sufficient to satisfy step one. The supreme court reviewed only this initial determination, without regard to the reasons proffered by the State, since the trial court ruled at step one and only thereafter ordered the State to provide reasons for the record. 884 S.E.2d at 682 (citing State v. Hoffman, 348 N.C. 548, 552 (1998) (stating that where “the trial court clearly ruled there had been no prima facie showing of discriminatory intent before the State articulated its reasons,” the court does “not consider whether the State offered proper, race-neutral reasons for its peremptory challenge.”)).

The Court recounted that the defendant, victim, and at least one key witness were black. The State exercised two peremptory strikes during selection of the initial twelve jurors, one on a white prospective juror and one on a black prospective juror. The State then exercised two peremptory strikes on black prospective jurors during alternate juror selection. The Court stated that these were all the circumstances offered by the defendant for consideration. (In conducting its review, the supreme court noted that voir dire had not been recorded and thus the record lacked details regarding interactions between counsel and prospective jurors.)

The defendant relied on State v. Barden, 356 N.C. 316 (2002), as establishing that a 71.4 percent strike rate (corresponding to a 28.6 percent acceptance rate) establishes a prima facie case; thus, he contended that the 75 percent strike ratio in his case required reversal.

The Court rejected that argument, stating that while a numerical analysis can be useful, it is not dispositive when reviewing the totality of the facts available to the trial court. Reliance on a single mathematical ratio (which the Court differentiated from a rate) would be insufficient in this case, the court held, and would not afford appropriate deference to the trial court.

The Court further rejected the defendant’s argument that extensive written findings were required from the trial court at step one of the Batson analysis.

Justice Earls dissented. She argued that jurisprudence foreclosing review of the State’s proffered reasons at a step one analysis was flawed as it suggests that a court would be required to ignore a statement admitting discrimination. She further characterized the reason proffered by the State to excuse Holden, the woman involved in Black Lives Matter, as just another way of expressing racial prejudice.

Takeaways. To some extent, the takeaways from recent Batson cases differ depending upon one’s role.  Here are a few, divvied up in that manner.

  1. Defense attorneys, request recordation of jury selection. G.S. 15A-1241(b). In an earlier article on Batson, my former colleague Emily Coward characterized this as the one motion criminal defense attorneys will always win because granting it is mandatory.
  2. Prosecutors, absent a contrary order from the court, may decline to offer race-neutral reasons when the case is at step one. That is what the prosecutors did in Campbell, and the Supreme Court agreed that the inquiry should have concluded when the trial court found that the defendant failed to make a prima facie showing. In Campbell, the prosecutors then appropriately provided those reasons when ordered to so by the trial court.
  3. Superior court judges, take heed of the United States Supreme Court’s recognition that “America’s trial judges operate at the front lines of American justice” and that in criminal trials they “possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” Flowers, __ U.S. ___ 139 S. Ct. at 2243 (2019)
  4. Appellate jurists, keep in mind that Hobbs II did not overrule Hobbs I. Detailed findings by the trial court are required once the case moves beyond step 1. So long as the trial court engages in the requisite analysis, its conclusions are afforded great deference on appeal.