The prosecutor’s use of a peremptory strike to remove an African-American from the jury did not violate Batson v. Kentucky, 476 U.S. 79 (1986), because none of the three parts of the Batson are satisfied in this case.
To succeed on a Batson claim, a defendant first must make a prima facie case that the prosecutor’s peremptory challenge was solely race-based. State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607. If that showing is made, the burden shifts to the prosecutor to state a race-neutral explanation for the strike. Id., ¶29. Then, the trial court must determine whether the defendant has proved purposeful discrimination. Id., ¶32.
First, James hasn’t made a prima facie showing the strike of one juror was based on race. There were seven African-Americans in the entire venire; one was excluded from the panel called for voir dire, leaving six. The prosecutor moved to excuse three of the six for cause; James agreed there was cause to exclude two of the three—Jurors 6 and 22—but objected to excluding the third one—Juror 21—for cause. The court excused the two jurors on which the parties agreed but refused to exclude Juror 21. The prosecutor ultimately used a peremptory strike against Juror 21 as well as Juror 14, who hadn’t been the subject of a request to strike for cause. James didn’t object to the peremptory strike of Juror 21 because the prosecutor had race-neutral reasons (the juror’s negative attitude toward police). James did, however, object to the strike against Juror 14. (¶¶2-12).
While James argues a pattern of strikes against jurors of a particular race may establish a prima facie showing of discrimination, e.g., United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005), the court of appeals says that, under these facts, there is no pattern:
¶23 James’s pattern argument suffers two fatal flaws. First, James mistakenly includes strikes for cause as well as peremptory strikes to establish his “pattern.” However, Batson and every case since has made it clear that discriminatory intent is based solely on peremptory strikes. See id., 476 U.S. at 96; see also Lamon, 262 Wis. 2d 747, ¶28. Second, James’s pattern argument implodes because his basis is just one peremptory strike—that of Juror 14. It is inherently impossible to have a “pattern” of one.
¶26 [Based on the facts of the case] only one of the State’s peremptory strikes, that of Juror 14, is properly part of James’s pattern argument. The premise of the pattern argument is that a disproportionate pattern of strikes against a cognizable group may show that members of the defendant’s race were excluded from the panel, based solely on race. See Stephens, 421 F.3d at 512. However, the only peremptory strike that is left as a basis for James’s pattern argument is the strike of Juror 14. And as noted above, one strike does not make a pattern.
Even if James made a prima facie showing, he loses on the remaining two steps as well. As to the second step, the State provided a race-neutral explanation that was “clear, reasonably specific, and related to the case at hand,” Lamon, 262 Wis. 2d 747, ¶29.
¶32 Here, the trial court relied on the prosecutor’s statement that Juror 14 (an African-American male), like Juror 2 (a white male), had a reaction during the voir dire that caused the prosecutor to believe he was “not disposed to listening to the State if not potentially hostile.” The prosecutor did not just simply deny discriminatory intent, he gave a clear and specific reason for his strike that was linked to a legitimate factor in the case—the credibility of police witnesses. He stated he saw a “reaction” from Juror 14 to questions posed to all the jurors concerning their beliefs in the truthfulness of police officers. Based on the reaction he saw from Juror 14, the prosecutor used a peremptory strike because Juror 14 did not appear to be willing to give the State’s case an impartial listen. That is far more of an explanation than just a denial. It has facial validity and is not on its face in any way inherently discriminatory. See Lamon, 262 Wis. 2d 747, ¶30.
Finally, the record supports the circuit court’s conclusion under the third step that James hadn’t shown purposeful discrimination:
¶35 ….[The circuit court] had already rejected James’s pattern argument and concluded that the prosecutor provided a “clear, reasonably specific” reason for the strike that was based on a legitimate, non-discriminatory factor. It had observed that Jurors 6 and 22 had clearly stated they could not believe police officers, and that Juror 21 was not believable when he said he could set aside his negative feelings about police officer credibility. Further, the court found that the prosecutor struck a white juror, Juror 2, as well as Juror 14, for the same reason—their hostile reactions to the prospect of police officers being truthful.