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Jury – Selection – “Batson”

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove


¶15. In a challenge to a Batson ruling, we review the trial court’s determination as to whether the State had a discriminatory intent as a finding of historical fact, which we shall not disturb unless clearly erroneous. State v. Gregory, 2001 WI App 107, 5, 244 Wis. 2d 65, 630 N.W.2d 711. The methodology we employ is a three-step process that may involve shifting burdens, depending upon the evidence presented. In the first step, the accused must make a prima facie showing that the State acted with discriminatory intent by establishing that it exercised peremptory strikes on the basis of race, gender, or any other prohibited category. State v. Jagodinsky, 209 Wis. 2d 577, 580, 563 N.W.2d 188 (Ct. App. 1997). The trial court may consider all relevant factors in determining whether the accused made a prima facie case. State v. Walker, 154 Wis. 2d 158, 173-74, 453 N.W.2d 127 (1990).

The victims were African-American; the state struck three African-Americans, one Hispanic and three whites; the trial court’s ruling that Ross had failed to make a prima facie Batson showing is upheld as not clearly erroneous. ¶¶19-21.

For another summary of the 3-step process under Batson, see Akeem Aki-Khuam v. Davis, 7th Cir. No. 02-1945, 5/8/03. UPDATE: U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05, taking into account Johnson v. California, 125 S. Ct. 2410 (2005).


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