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Court of appeals rejects jury pool and Batson challenges

State v. Michael Exhavier Dunn, 2018AP783-CR, 4/30/19, District 1 (not recommended for publication); case activity (including briefs).

The lead issues in this appeal are whether the jury pool for Dunn’s trial represented a fair cross section of the community and whether Dunn was denied equal protection when the DA struck 2 of the 3 African-Americans from the 30-person jury pool for his case.

Jury pool cross section. A criminal defendant has the right to a jury selected from a fair cross section of the community. Duren v. Missouri, 439 U.S. 357, 359 (1979). To establish a violation, he must prove that: (1) the excluded group is “distinctive” within the community; (2) the representation of the group in the venire is not fair in relation to the number of people in the community; and (3) the under representation is due to the systematic exclusion of the group from the jury selection process.

Dunn noted that 23.6% of Milwaukee County’s voting population is African-America, whereas African-Americans comprised only 10% of Dunn’s jury pool. He also argued that Milwaukee County only uses a DOT list for its jury selection process. Thus, people who do not have ID cards or driver’s licenses are excluded from juries. The excluded people are disproportionately minorities. (Opinion ¶¶29).

The court of appeals rejected his argument because the Director of State Courts compiles the master list of jurors from multiple sources–not just the DOT. It also uses lists from the DOR, the DNR and registered voter lists, among others. Furthermore, Dunn’s calculations actually show a disparity of less than 10%, which is acceptable by law. United States v. McAnderson, 914 F.2d 934, 941 (7th Cir. 1990). (Opinion ¶¶ 30-35).

Batson challenge.  Boiled down, a Batson challenge requires proof that: (1) the DA used peremptory strikes to remove members of the defendant’s race from the venire; and (2) the relevant circumstances raise an inference that the DA used the strikes to exclude venire persons on the account of race. If the defendant makes a prima facie case, then the burden shifts to the State to offer a race neutral explanation. The trial court weighs the credibility of the explanation, taking into consideration, for example, defense evidence that the DA’s reasons were pretextual. State v. Lamon, 2003 WI 78, ¶¶28-39,  262 Wis. 2d 747, 664 N.W.2d 607.

In Dunn’s case the DA claimed that he struck 2 African-American jurors because one was seen sleeping and the other worked 3rd shift, and it was the DA’s policy to strike 3rd shift workers.  The trial court and the court of appeals accepted these explanations without considering the defense evidence or making any credibility findings. For example, Dunn had pointed out that the DA did not strike another 3rd shift worker, who was not African-American. Also, he noted that the 3rd shift workers could  get excused absences from work so that they could be well-rested during the trial See Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998) (“A facially neutral reason for striking a juror may show discrimination if that reason is invoked only to eliminate African-American prospective jurors and not others who also have that characteristic”).

As for the DA’s assertion that the other African-American juror was sleeping, there was no evidence in the record to support it. If anything, the transcript reflected that the juror was engaged and raising her hand throughout the jury selection process. The court of appeals just ignores Dunn’s extensive argument and evidence on these points. See, e.g. Dunn’s Reply Brief at 4-10. For more posts on Batson issues, click here.

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