A “peremptory strike” is a tool used by lawyers to exercise control over who is seated on a trial jury. When selecting a jury, attorneys may use peremptory strikes to remove a certain number of potential jurors for any reason at all, other than race and gender. Since lawyers typically do not have to explain the reasons behind their peremptory strikes, they “constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Batson v. Kentucky, 476 U.S. 79, 96 (1986), quoting Avery v. Georgia, 345 U.S. 559, 562 (1953). In the 1986 case of Batson v. Kentucky, the United States Supreme Court reaffirmed that peremptory strikes motivated by race violate the Equal Protection Clause; ever since then, challenges to racially motivated jury selection have been referred to as “Batson challenges.” Batson v. Kentucky, 476 U.S. 79 (1986). (For an excellent telling of James Batson’s story and the legacy of this decision, check out the More Perfect Podcast, Object Anyway.)
The approach developed by the Batson court was intended to lower the burden of proof for claims of racial discrimination in jury selection, a practice the United States Supreme Court had already recognized as unconstitutional for over a century. See Strauder v. West Virginia, 100 U.S. 303 (1880). Before Batson, the governing standard required evidence of a pattern of discriminatory jury selection over a number of cases; it was not sufficient to demonstrate discrimination in the selection of the defendant’s jury alone. See Swain v. Alabama, 380 U.S. 202 (1965). The Batson court recognized that the Swain standard imposed a “crippling burden of proof [leaving] prosecutors’ peremptory challenges . . . largely immune from constitutional scrutiny.” Batson, 476 U.S. at 92–93.
But is the Batson standard any less crippling? Many argue that, particularly in North Carolina, Batson continues to leave prosecutors’ peremptory strikes “largely immune from constitutional scrutiny.” See Brief of Amici Curiae, NC State Bar Journal article, News & Observer Op-Ed, NC Policy Watch article, Facing South article, News & Observer Op-Ed. In the nearly thirty-four years since Batson was decided, North Carolina appellate courts have never once upheld a claim of race discrimination against a juror of color. See Daniel R. Pollitt and Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957 (2016). North Carolina is the only state within the Fourth Circuit with this record. Appellate courts in all Southern states have upheld claims of discrimination against jurors of color; Alabama courts have reversed approximately 80 convictions on Batson grounds. During those three decades, over one hundred Batson challenges were reviewed by North Carolina appellate courts. Meanwhile, studies show that, across North Carolina, prosecutors remove twice as many potential black jurors as potential white jurors during jury selection, and that, in the capital context, qualified black citizens in North Carolina are removed at about 2.5 times the rate of their white counterparts. See Ronald F. Wright, Kami Chavis & Gregory S. Parks, The Jury Sunshine Project: Jury Selection Data as a Political Issue, 2018 U. Ill. L. Rev. 1407 (2018); Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012).
Earlier this month, the North Carolina Supreme Court heard Batson arguments in two criminal cases. Both cases, State v. Bennett from Sampson County and State v. Hobbs from Cumberland County, involve allegations that race played an unconstitutional role in prosecutors’ removal of black people from jury service. These cases represent the first time in ten years that the North Carolina Supreme Court has heard Batson challenges. In that time, the United States Supreme Court reinforced, in two significant Batson opinions, the standard applicable to such claims and the high court’s willingness to reverse convictions when it determines that race was a substantial factor motivating the prosecutor’s use of peremptory strikes against black jurors. Flowers v. Mississippi No. 17-9572, 2019 WL 2552489 (U.S. June 21, 2019); Foster v Chatman, 136 S. Ct. 1737 (2016). Given the success of Batson challenges in other states and before the United States Supreme Court, what could explain North Carolina’s unique Batson record?
An amicus brief filed with the North Carolina Supreme Court in Hobbs and Bennett contains a possible answer. Amici argue that North Carolina Batson jurisprudence is out of sync with governing constitutional Batson case law, and that this disconnect helps explain the absence of appellate cases recognizing Batson violations in North Carolina. (Amici also argue that the Batson standard itself—even when properly applied—has significant limitations; and encourage the Court to follow the lead of courts in Connecticut, Washington, and California and take proactive steps beyond Batson enforcement to end race discrimination in jury selection.) Amici assert that North Carolina appellate courts have misapplied federal Batson law in five different respects, one of which I will address in this blog post: by treating the prima facie case as effectively a burden of persuasion rather than simply production.
When a party raises a Batson objection to an opposing party’s peremptory strike, Batson instructs that the court should engage in a three-step process to resolve the challenge. First, the court must determine whether the moving party has presented a prima facie case of discrimination. Second, if the court finds a prima facie case, the challenged party must state the reasons for the peremptory strike. Third, the court must examine all relevant evidence in determining whether, in the totality of the circumstances, the moving party has proven that the proffered neutral reason was a pretext for an unlawful motive, such as race or gender.
The prima facie case (step 1 of the Batson test) is satisfied where the moving party points to “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Johnson v. California, 545 U.S. 162, 170 (2005). Step one imposes on defendants a burden of production which, when satisfied, shifts the burden to the party exercising the challenge to explain the motivation for the strike. Johnson at 171. Simply put, the first two steps in the process concern the production of evidence, and the third concerns the ultimate evaluation of that evidence.
The North Carolina Supreme Court has stated that the first step is “not intended to be a high hurdle for defendants to cross.” State v. Waring, 364 N.C. 443, 478 (2010) (internal quotations omitted). However, in cases that reach the North Carolina appellate courts, many Batson challengers do not make it past step one: they lose on the ground that they failed to state a prima facie case. In the thirty-four cases in which the North Carolina Supreme Court has reviewed evidence at step one, the Court found the prima facie case satisfied in only three cases, or less than 10% of all cases. See Pollitt and Warren at 1965. Considering that step one is not supposed to be a high hurdle, that’s a low success rate. Eighteen of the Batson challenges rejected by the Court at step one contained evidence that prosecutors struck between 50% and 100% of qualified black jurors. Id. at 1966.
Amici suggest that one possible reason for the contradiction between the description of step one as a low hurdle and the reality of the low success rate is that “that North Carolina courts have never described the nature of the prima facie Batson showing in the terms articulated by the United States Supreme Court” in Johnson v. California. Amicus brief at 13. The Johnson court emphasized the minimal scrutiny appliable to step one, comparing it to the first step of the burden shifting process appliable to employment discrimination claims. Johnson v. California, 545 U.S. at 171 n.7. Johnson instructs that the first step imposes only a burden of production, and if the evidence produced suggests discrimination “may have occurred,” the Batson hearing should proceed to steps two and three for ultimate evaluation. Id. at 173. Because this burden is minimal, Washington and Connecticut have dispensed with the requirement of the prima facie case altogether, finding that it posed an unnecessary obstacle to defendants attempting to challenge juror discrimination. See State v. Edwards, 314 Conn. 465 (2014); Washington State General Rule 37. The trend, in alignment with the Johnson court’s direction, seems to be in favor of encouraging courts to reach the second and third steps of Batson challenge adjudication, to ensure that the judiciary meets the challenge of “enforc[ing] the Constitution’s guarantee against state-sponsored racial discrimination in the jury system.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017).
When you read as many Batson appellate briefs as I do, you notice that the defendants generally cite U.S. Supreme Court opinions and the State generally cites North Carolina appellate caselaw. This pattern reflects divergences that the Court may confront when it decides State v. Hobbs and State v. Bennett, two cases that give the Court an opportunity to evaluate the relationship between U.S. and N.C. Batson case law and clarify standards to help end discrimination in jury selection.