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Jury – selection – “Batson” claim; prosecutor’s failure to provide neutral explanation for striking Native American juror

State v. Karen Lynn Snow, 2012AP2323-CR, District 4, 4/4/13; court of appeals decision (1-judge, not eligible for publication); case activity

Applying the three-part, burden shifting test for Batson claims, see State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607, the court of appeals concludes the circuit court erred in rejecting Snow’s objection to the prosecutor’s peremptory strike of Whiteeagle, a prospective juror who was Native American.

The first Batson step requires the defendant to make a prima facie showing of purposeful discrimination. The court of appeals agreed with the circuit court that Snow made that showing: Snow and Whiteeagle are both Native American and Whiteeagle was the only Native American potential juror. Moreover, the prosecutor acknowledged in his explanation of his strike that he took race into account because he referred to “Ho‑Chunk traditional culture.” (¶11).

The next Batson step shifts the burden to the prosecutor to provide a neutral explanation for the peremptory strike. The court of appeals concludes the circuit court erred in concluding the prosecutor provided such an explanation:

¶17      This court has interpreted previous case law “to preclude striking a juror based on a prohibited characteristic, even if other non-prohibited characteristics were also used.” King, 215 Wis. 2d at 308. Here, the prosecutor linked his doubts as to Whiteeagle’s ability to fairly weigh testimony due to his belief that “family ties, especially in the Ho‑Chunk traditional culture, are extremely strong,” thereby demonstrating that the strike was based on a prohibited characteristic. As a matter of law, excluding a prospective juror from jury service because of race or membership in a cognizable class can never be neutral, regardless of the prosecutor’s good faith. See Guerra-Reyna, 201 Wis. 2d at 759.

The more neutral part of the state’s reason for striking Whiteeagle was that her father was “kind of” friends with two defense witnesses. (¶¶2-3). She said that wouldn’t affect her ability to be fair, but the prosecutor thought the “extremely strong” family ties of Ho-Chunk culture would cause her to give more credit to their testimony. (¶4).

Note that the state didn’t object to Snow’s new trial motion, though the circuit court denied that motion. (¶¶6-7). The state also moved for summary reversal in the court of appeals. (¶7 n.4). Perhaps those concessions reflect the cases on which the court of appeals relies: State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997) (prosecutor acknowledged striking two jurors because they were “older females”); State v. Guerra-Reyna, 201 Wis. 2d 751, 753-54, 549 N.W.2d 779 (Ct. App. 1996) (prosecutor struck prospective jurors based on their membership in a “cognizable class”–namely, they were of Mexican ethnicity); and State v. Jagodinsky, 209 Wis. 2d 577, 581, 563 N.W.2d 188 (Ct. App. 1997) (prosecutor referred to gender as one reason to strike every male from jury).

Because the circuit court erred in concluding that the prosecutor offered a race-neutral explanation for the peremptory strike of Whiteeagle, the court does not address the third Batson step—whether the defendant has proven purposeful discrimination—because the prosecutor’s failure to offer a race-neutral explanation leaves only Snow’s unrebutted prima facie claim of purposeful discrimination, Jagodinsky, 209 Wis. 2d at 585, so the only remedy is to reverse the conviction and remand for a new trial. (¶18).

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