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Jury – Selection – “Batson” Objection

State v. Calvin Gregory, 2001 WI App 107, PFR filed 5/10/01
For Gregory: Meredith Ross, LAIP, UW Law School

Issue1: Whether defendant was entitled to a Batson hearing on the prosecutor’s articulated reasons for striking the lone African-American juror.

Holding1: The prosecutor’s asserted reasons — concerns about juror’s truthfulness; close proximity of juror’s residence to alleged scene of crime; juror’s own and family member’s involvement with criminal justice system — were racially neutral. ¶12.

Issue2: Whether defendant was entitled to a postconviction hearing on the validity of the prosecution’s asserted reasons for striking the lone African-American juror, where those reasons were based on information outside the prosecutor’s personal knowledge.


¶14. Furthermore, we also conclude that a postconviction evidentiary hearing was properly denied because a circuit court’s decision on a Batson challenge must be made before the jury is sworn. Furthermore, none of the proffers provided proof that was relevant to the prosecutor’s intent when he struck Bell. For example, none of the documents showed the prosecutor had not been told what he represented to the court in the Batson hearing or that he knew any of the information he said he relied on was inaccurate. Instead, most of the materials focused on whether the information he was given was accurate. However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike. Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992). Therefore, if a defendant is attempting to prove the prosecutor’s reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous. Stated another way, even if we were to assume, arguendo, that the prosecutor relied on inaccurate information, it does not necessarily follow that the prosecutor had the intent necessary to sustain a finding of purposeful discrimination. Here, what Gregory sought to prove by his proffers at the postconviction hearing was not relevant to the prosecutor’s intent when he struck Bell. See State v. Toliver, 187 Wis. 2d 346, 358, 523 N.W.2d 113, 117 (Ct. App. 1994). Additionally, if counsel for the defense required additional information in order to challenge the prosecutor’s statements in the Batson hearing, he should have requested a brief adjournment at that time, fully explaining what he needed and why he needed it in order to complete the Batson hearing. No adjournment was requested here. Therefore, for all the reasons set forth above, we affirm the judgment of the circuit court.

As the dissent points out, at least some of the information relied on by the prosecutor seems to be inaccurate, ¶29; and, because the question is whether the strike was purposely discriminatory, when the prosecutor claims to rely on the reports of others, it isn’t possible “to assess the credibility of that prosecutor without evaluating the information on which he or she is relying,” ¶25.

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