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Do Defendants Speak with One Voice In Reverse-Batson Challenge?

By Brian A. Zemil, Litigation News Associate Editor – November 5, 2008

Upholding a reverse-Batson challenge to a defense strike of a white juror, the Second Circuit Court of Appeals has grappled with the issue of whether one defendant’s discriminatory intent should be imputed to all defendants, even if the others had justifiable race-neutral reasons for opposing that same juror.


In United States v. Thompson, five criminal defendants collectively exercised 14 preemptory challenges, striking 12 white and 2 Latino jurors. The government challenged the strike of one of the white jurors, under Batson v. Kentucky, alleging that defense counsel’s use of peremptory challenges during voir dire was racially motivated.


In Batson, the U.S. Supreme Court prohibited prosecutors from exercising peremptory challenges to prospective jurors based on race. In a reverse-Batson challenge, the government accuses the defense of this same discriminatory practice in exercising its peremptory challenges.


The U.S. District Court for the Southern District of New York in Thompson found that the disproportionate number of white jurors who defense counsel struck made a prima facie showing of discrimination.  It then re-sat the struck juror, finding that the defendants’ reasons for striking the juror were pretextual and discriminatory because they had not struck African-American jurors who provided similar voir dire responses.


Appealing their convictions, defendants argued that the court erroneously lumped them together as a single voice, rather than making findings with respect to each one. In its initial ruling, issued on June 5, 2008, the Second Circuit opined that a trial judge only needs to find that one defendant, out of many, had a discriminatory motive against a juror that was struck.


About one month later, however, the Second Circuit issued an amended opinion [PDF], deleting its ruling that one defendant’s discriminatory motive was enough.  Instead, the court found that the trial court had properly evaluated the reasons given by each defendant before arriving at its finding of discriminatory intent.


The Second Circuit’s amended ruling leaves open the question of how reverse Batson challenges will be reviewed in future multidefendant cases.


“This concern is likely more academic than real,” says Thomas Gilson, Phoenix, AZ, cochair of the Section’s of Litigation’s Criminal Litigation Committee.


“In most multiple-defendant cases, if a single defendant articulates persuasive, race-neutral reasons for a peremptory challenge, the trial court is likely to approve the challenge under Batson and McCollum,” Gilson says.


However, “jury selection procedures can be so varied that it is necessary for counsel to clarify how the court will proceed—whether it will permit only one voice or multiple voices for the parties,” notes Larry Rosenberg, Washington, D.C., cochair of the Section’s Trial Practice Committee.


The Thompson opinion found that the trial court appropriately determined the defendants’ discriminatory motive “based on all the facts and circumstances,” consistent with Snyder v. Louisiana [PDF], where the U.S. Supreme Court approved a comparative review of the juror challenges.


“The decision demonstrates that a trial court and an appellate court reviewing a Batson or reverse-Batson challenge will engage in a comparative review of the characteristics of the challenged juror and the jurors who were seated without challenge—and to prevail, the attorney exercising the challenge needs a rationale that does not pertain to jurors she did not challenge,” says Laurie Fulton, Washington, D.C., cochair of the Criminal Litigation Committee.


“The court is concerned with the discriminatory harm inflicted on a juror and so the case signals that a challenge can also arise in civil cases,” says Rosenberg.


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