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Jury – Selection – “Batson” Issue

State v. George Melvin Taylor, 2004 WI App 81, PFR filed 4/13/04
For Taylor: Ellen Henak, SPD, Milwaukee Appellate


¶18. Accordingly, we must now turn to the Batson challenge itself. Our supreme court has adopted the Batson principles and analysis. State v. Lamon, 2003 WI 78, ¶22, 262 Wis. 2d 747, 664 N.W.2d 607 (citing State v. Davidson, 166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991)). Lamon reiterates the three-part, burden shifting analysis set forth in Batson for the evaluation of such a challenge:

[I]n order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant’s race from the venire, and (2) the facts and relevant circumstances raise an inference that the prosecutor used peremptory strikes to exclude venirepersons on account of their race.

Lamon, 262 Wis. 2d 747, ¶28 (footnote omitted). Then, if the trial court finds that the defendant has indeed established a prima facie case, “the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]” and “[t]he prosecutor’s explanation must be clear, reasonably specific, and related to the case at hand.” Id., ¶29 (citation omitted). This step concerns the facial validity of the prosecutor’s explanation. That is, unless the prosecutor intended to cause a disparate impact with his or her peremptory strike, the impact itself does not compromise the neutrality of the strike. Id., ¶30. Finally, after the prosecutor offers a neutral explanation for the strike, the trial court “has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established.” Id., ¶32. The defendant has the “ultimate burden” of persuading the trial court that there was purposeful discrimination. Id. Thus, a showing of disparate impact is not enough-proof of discriminatory intent or purpose is essential for a successful Batson challenge.

However, as the decision goes on to note, ¶23 n. 5:

once a neutral explanation has been offered, “and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.”Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303.

In this instance, although the court concludes that the burden never shifted to the prosecutor to provide a gender-neutral explanation (this case involves an allegation of gender-, not race-, discrimination, but that is a mere detail) it reaches the merits anyway. The prosecutor’s explanations – that she struck four male jurors because among other things each had served on a prior jury – “are reasonable.” ¶23.

For an interesting discussion, see Paulino v. Castro, 9th Cir. No. 02-55924, 6/14/04 (among its more important points: prima facie showing of discriminatory intent may be shown by statistical disparity alone — in this instance, that 5 out of 6 black jurors were struckand that, once the burden has been satisfied, “(w)hat matters is the real reason they were stricken,” not the trial court’s speculative reason no matter how good it might be). See also U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05 (re: statistical disparity).

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