Civil Law

Before getting started on the blog entry for the week, I did finish Over Ruled. What is clear from reading the book, is that Justice Gorsuch clearly believes that the administrative state had gotten too big and that sufficient guardrails for the administrative state do not exist. Also, from reading that book, it is pretty clear to me that he would think Loper Bright overruled Kisor v. Wilkie. So, administrative regulations he will uphold will have to have a very tight relationship to the particular statute and even more so with respect to any guidances. It will be interesting to see what standard ultimately comes into being with respect to carrying out Loper Bright.

 

This week’s blog entry returns us to Batson challenges. Batson is a criminal version but there is also a civil version as well. It seems that everything goes by Batson in terms of the vernacular regardless of whether it is a criminal or civil division issue. Consider the following. In response to a Batson challenge in Illinois in the case of the People of the State of Illinois v. Wright, decided by the Appellate Court of Illinois, First District, on May 31, 2024, here, the prosecutor says as the reason for exclusion:

 

“In addition to his questionable demeanor-when I say demeanor, that’s what I’m talking about, that back and forth in the not volunteering any information and not listening to the questions. He was young, he was living at home, and the concern there is that he also was a young African-American who might identify with the defendant who was around the same age at the time that this offense, the actual shooting of Officer Bansley, was committed.”

 

In Colorado, in the case of People of the State of Colorado v. Romero, here, decided by the Colorado Supreme Court on September 9, 2024, the prosecutor says as the reason for exclusion:

 

“So, Your Honor, I reason for striking with due to the fact that he appeared very disinterested and kind of had seemed to have a wandering mind at times when the court was reading the instructions and going over concepts,… When we were asking questions of everyone, he just didn’t seem particularly focused or interested in what was going on.”

 

This blog entry will explore why the Batson challenge gets thrown out in Colorado but upheld in Illinois. As usual, the blog entry is divided into categories and they are: how Batson works; Colorado Supreme Court’s reasoning in Romero on why the Batson challenge fails; Illinois appellate court’s reasoning in Wright as to why the Batson challenge prevails; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How Batson Works

 

1. Batson deals with peremptory challenges, which is the ability of a trial attorney to execute a prospective juror for any reason whatsoever. Batson says that a process needs to occur if an attorney challenges the exclusion of jurors based upon a protected characteristic.
2. The process works like this: A) the person making the Batson challenge bears the burden of making a prima facie showing that the strike was based on a protected characteristic; B) the person striking the prospective juror bears the burden of articulating a neutral reason for the strike; and C) the trial court then determines whether the person making the Batson challenge has met the burden of showing by a preponderance of the evidence purposeful discrimination against a person with the protected characteristic.
3. The court’s conclusion as to whether to allow a Batson claim does not get disturbed unless it is clearly erroneous.

 

II

Colorado Supreme Court’s Reasoning in Romero on Why the Batson Challenge Fails

1. Clear error standard of review is highly deferential to trial courts because trial courts are in a unique position to make first-hand observations related to demeanor and credibility.
2. When it comes to Batson challenges, the burden of proof always rests with the objecting party, i.e. the person making the Batson challenge. That objecting party must show by a preponderance of the evidence that the peremptory strike in question was motivated by purposeful discrimination.
3. The trial court was unable to independently say whether the juror was disinterested.
4. It is not up to the appellate courts to conduct a de novo review (a review from the beginning without considering what the trial court did), when it comes to Batson challenges. An appellate court is precluded from substituting its reading of the cold record for the trial court’s in the moment and better informed determination. As such, an appellate court must give deference to a trial court’s ruling on a Batson challenge so long as the record: 1) reflected that the trial court considered all relevant circumstances; and 2) supported the trial court’s ruling as to whether the objecting party crew purposeful discrimination on the basis of a protected characteristic by a preponderance of the evidence.
5. In a footnote, the Colorado Supreme Court noted that “race,” encompasses both race and ethnicity.
6. In a footnote, the Colorado Supreme Court notes that as a practical matter the Batson steps, particularly at step one and two, often get combined into a single instance so that it becomes impossible for the court to separate out step one from step two.
7. A trial court’s finding that a prosecutor’s articulated reason for excluding a prospective juror is credible does not require such a finding to be explicit.
8. Batson challenges have been difficult and unwieldy to apply both at trial and on appellate review.
9. Batson challenges have been in the line of fire for nearly 40 years as an ever-growing number of courts and commentators have exposed the troublesome flaws and validated Justice Marshall’s dire prognostication that Batson would prove ineffective.
10. Some states have abolished peremptory challenges altogether, such as in Arizona.
11. Some Colorado Supreme Court justices have suggested doing away with Batson challenges. However, that decision ultimately lies with the Colorado legislature because peremptory strikes are provided by statute and not by court rule as was the case in Arizona.
12. Batson challenges have to continue so long as the Colorado legislature continues to allow for peremptory strikes.
13. It isn’t hard for a person making a Batson challenge to satisfy step one of the Batson process. Although a person making the challenge have to show that the totality of the circumstances gives rise to an inference of motivation based upon a prohibited characteristic.
14. A neutral reason that an attorney must make in response to a Batson challenge means a reason based on something other than the protected characteristic of the prospective juror. When considering that neutral reason, the trial court may not consider the plausibility or persuasiveness of the stated reason. All a court can consider is whether on its face the reason is not based upon a protected characteristic. In other words, the question is whether assuming the reason for the peremptory challenge is true, the challenge is based on something other than the protected characteristic.
15. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed to be neutral.
16. At the final step of Batson, the trial court has to consider the persuasiveness of the striking party’s reason for the peremptory strike in light of any rebuttal offered. In doing that, the trial court must ponder all of the relevant circumstances bearing upon the issue of purposeful discrimination. Those relevant circumstances include, but are not limited to: 1) the striking party’s demeanor; 2) the reasonableness of the offered explanation that it was not based upon a protected characteristic; 3) whether the rationale advanced is rooted in accepted trial strategy; and 4) the plausibility of the striking party’s nondiscriminatory explanations.
17. The ultimate burden of persuasion regarding motivation based upon a protected characteristic rests with and never shifts from the person opposing the Batson challenge. After all, the opponent of the strike is the party alleging purposeful discrimination based upon a protected characteristic.
18. In considering whether the objecting party has shown discrimination by a preponderance of the evidence based upon a protected characteristic, the test to use is the substantial motivating factor test. That is, if the peremptory strike was motivated in substantial part by discriminatory intent, the Batson challenge gets upheld.
19. An implausible or fantastic explanation for a strike upper peremptory juror should probably be found to be a pretext for purposeful discrimination based upon a protected characteristic.
20. In a typical peremptory challenge inquiry, the decisive question will be whether counsel’s neutral explanation for peremptory challenge should be believed. However, there is seldom much evidence pertaining to that issue.
21. Credibility of a neutral reason is intrinsically difficult to assess because the exercising of peremptory strikes is often a matter of instinct and even articulating a reason for a strike can be difficult.
22. The demeanor and credibility of the attorney exercising the peremptory strike frequently constitute the best evidence of whether the objecting party can establish purposeful discrimination, which is a matter particularly suited for the trial judge.
23. The preferred practice is to have trial court make explicit demeanor and credibility findings because such findings are helpful on appellate review.
24. Implicit demeanor and credibility findings are okay, but what is not okay is no demeanor and credibility findings, explicit or implicit. In this case, the trial court implicitly found that the prosecutor’s neutral reasons were credible and sincere. At no point did the trial court state or even hint that it thought the prosecutor was being disingenuous or untruthful.
25. The question to consider in a Batson challenge is whether affirmative evidence in the record existed refuting the alleged neutral reason for the strike given by the attorney making the strike.
26. While the prosecutor’s reason was subjective, the trial court realized that it still could be the basis for a valid peremptory challenge.
27. Trial judges are urged to make explicit demeanor and credibility findings when making their ultimate ruling on a Batson challenge.
28. In many cases a subjective demeanor based reason will not be enough to survive clear error review because of the highly deferential standard given to trial courts when making Batson determinations.

 

III

Illinois Appellate Court’s Reasoning in Wright As To Why the Batson Challenge Prevails

 

1. At step two of the Batson process, a neutral explanation is one based upon something other than the protected characteristic. The prosecutor has to give clear and reasonably specific, legitimate, neutral based reasons for the strike.
2. A legitimate reason is not a reason that makes sense, but is a reason that does not deny equal protection.
3. Discriminatory intent may found to be inherent in an explanation where the offer of a supposedly neutral explanation has an ingredient based upon a protected characteristic.
4. The prosecutor’s reasons challenging the prospective juror based upon his demeanor and status as a young African-American male creates an inference of purposeful discrimination.
5. The court could not find that the prospective juror’s behavior demonstrated disinterest or disrespect any more than it shows cooperation with the questioning process.
6. Explanation pertaining to demeanor must be harshly scrutinized because they are so subjective and can be easily used by prosecutors as a pretext for excluding persons on the basis of a protected characteristic.
7. The prosecutor never sought to clarify the distinction between the prospective juror’s age and his race, which raises doubt as to the plausibility of the prosecutor’s concern.
8. The record does not support that the person struck from the panel had a significantly different demeanor from jurors that were not black. Also, the person struck life’s experiences were similar as to the life experiences of jurors that were not black who were not struck. Finally, the record demonstrated that many other jurors answered the questions similarly as to the juror struck.

 

 

IV

Thoughts/Takeaways

 

1. Throughout the blog entry, I used the term “protected characteristic,” and not race. After Tennessee v. Lane, here, it is clear to me that persons with disabilities are in a sufficiently high equal protection class for purposes of Batson challenges. Tennessee v. Lane held that people with disabilities when it comes to equal protection, are at least in the intermediate scrutiny class if not higher when it comes to accessing the courts. Certainly, serving on juries is a critical component of accessing the courts.
2. You might also be able to argue by analogy via Bostock, that persons of differing sexual orientation and gender identity would also have Batson challenges available, though Bostock is not an equal protection case.
3. The way Batson challenges work is pretty similar everywhere. Batson has a civil equivalent, here.
4. The big difference between Illinois and Colorado is that neutral reasons based upon demeanor get harshly scrutinized in Illinois, while in Colorado, such a reason gets the full benefit of the clear error rule.
5. I am not a trial attorney. However, if I heard the explanation of the prosecutor in Colorado, my immediate response would be that the explanation was discriminating on the basis of a protected characteristic. That is, the explanation given describes classic behavior of someone with ADHD. I am not saying that prospective juror had ADHD, but that it was a possibility. I would make the argument that the prosecutor may be regarding the juror as having a disability (ADHD). In Illinois, a demeanor-based explanation gets searching review. Even in a searching review jurisdiction, I might throw in the regarding a person as having ADHD to help with the searching review process.
6. The Colorado Supreme Court seems a bit torn with the decision when it goes out of its way to say that judges need to make explicit demeanor and credibility findings.
7. While Batson challenges work the same everywhere, there may be critical differences in your particular state concerning how an appellate court reviews a Batson determination for clear error.
8. I have not done a search for whether there is a similar difference of opinion with respect to clear error, such as what exists between Illinois and Colorado, in various federal courts, but there very well could be.
9. The ADA prohibits regarding a person as having a physical or mental impairment. It also frowns upon myths, generalization, and stereotypes. An argument can be made that is exactly what goes on when it comes to using peremptory challenges. I can understand why Arizona got rid of peremptory challenges altogether. Keep in mind, I am not a trial attorney, so it is easy for me to say that it might make a great deal of sense to get rid of peremptory challenges.
10. It is unclear whether Colorado’s substantial motivating factor test matches up with or is significantly different from the substantial factor test discussed in Bostock, here.
11. Implausible or fantastic explanations are in the eyes of the beholder, which is another reason it makes sense for Illinois to be extremely skeptical of demeanor-based explanations.

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