What is a Batson challenge?

In State v. Weatherall, decided August 19, 2020, the SC Court of Appeals denied an appeal from a Batson challenge because the defense attorney did not follow the proper procedure outlined in Batson. Although the attorney made the Batson challenge for 1) a juror allegedly struck on the basis of race and 2) a juror allegedly struck on the basis of sexual orientation, the attorney did not follow through with either challenge and the issues were not preserved for appeal.

It’s not the end of the road for the defendant – the case may be heard by the SC Supreme Court and, more likely, the issue will be decided by a post-conviction relief (PCR) court on a claim of ineffective assistance of counsel.

What is the proper procedure for a Batson challenge, and what did the attorney do wrong in Weatherall?

What is a Batson Challenge?

In Batson v. Kentucky, 476 U.S. 79, 92-95 (1986), the US Supreme Court held that racial discrimination in jury selection violates the Equal Protection Clause – it is not just a constitutional violation for the defendant in a criminal trial, but also a violation of potential jurors’ right to serve on a jury and perform their civic duty.

The Court also outlined a procedure for making a Batson challenge that must be followed by the attorneys and court if the issue is to be preserved for appeal.

What is the Procedure for a Batson Challenge?

Every defense attorney must not only learn the procedure for a Batson challenge, but they must also be prepared to insist that the trial court follow the procedure.

Prosecutors and judges do not want a case to be reversed on appeal. That means they are not always going to insist on following the proper procedure that will allow a denial of a Batson challenge to be reviewed on appeal – in some cases, prosecutors or judges will actively attempt to derail a Batson challenge, and it is up to the defense attorney to insist on creating a record for appeal.

I’m thinking of a magistrate court trial, years ago, where, at the end of jury selection, the defense attorney told the judge, “I have a matter of law for the court.” The magistrate responded, “well, go ahead then.” The attorney had to approach the bench and whisper to the Court, “I have a Batson challenge, and that has to be made outside the presence of the jury.” After some quiet argument at the bench, the judge cleared the courtroom.

As soon as the jurors were out of the room, the officer who was prosecuting the case angrily said, “are you calling me a racist?” The attorney then explained the procedure for a Batson challenge to the officer and court and reassured the officer that it is a common motion that arises in many trials. When the officer could not come up with a race neutral reason for striking all black potential jurors, however, the Court struck the jury and they started over…

The responsibility for preserving the record is solely on the defense attorney.

What is the procedure?

1. The defense must raise the issue and make a prima facie showing that a juror was excused based on race. How do you do that? First, tell the court you have a matter of law to discuss before the jury is seated (“I have a matter of law” is code for “please send the jury out”). After the jury is sent out of the room, tell the court that you have a Batson challenge, and that juror number X was excused on the basis of race.
2. The burden then shifts to the prosecution to provide a race neutral reason for excusing the juror in question. This isn’t hard to do – prosecutors are trained to keep notes on race-neutral reasons to excuse each juror. They are unemployed. They are employed as a bartender, and, in the prosecutor’s experience, bartenders are biased in this type of case. They appeared disinterested, or they glared at the prosecutor during jury qualifications. They had facial piercings. They appeared stoned or intoxicated. Any race neutral excuse will do. If the prosecutor cannot provide a race-neutral reason for striking the juror, the Batson challenge should be granted, and a new jury must be selected.
3. If the prosecutor provides a race-neutral reason for striking the juror, the defense attorney then has an opportunity to show that the prosecutor’s race-neutral reason is a pretext. How do you show that?

Like the prosecutors, keep detailed notes on each juror’s information. If the prosecutor struck a black juror because the juror was employed as a bartender, but the prosecutor seated a white juror who is also a bartender, then their race-neutral reason is a pretext, the Batson challenge should be granted, and a new jury must be selected. If the defense cannot demonstrate that the race-neutral reason was a pretext, the Batson challenge fails.

Why was the Batson Challenge in Weatherall Denied?

It appears that the Court of Appeals denied the appeal for two reasons. First, and most importantly, the defense attorney did not insist on following the proper procedure and so the record was not preserved for appeal.

The Court of Appeals also appeared to go out of its way to excuse the judge and prosecutor for what may have been a valid Batson challenge, however – providing contradictory information from the record on appeal that only confuses the legal analysis.

The Batson Challenge Was Not Preserved for Appeal

The simple, straightforward approach to denying Weatherall’s appeal would have been to just point out why the issue was not preserved for appeal:

Importantly, when given the opportunity by the trial court, Weatherall failed to argue that the State’s reason for striking Juror 191 was pretext or that there was disparate treatment at trial. Thus, any argument regarding pretext or disparate treatment is not preserved on appeal.

The defense attorney raised the issue, the State provided what they claimed was a race neutral reason, and the defense dropped the ball and did not attempt to show pretext.

Did the State Provide a Race Neutral Reason or Not?

Although the Court of Appeals found that the issue was not preserved for appeal, they went on to provide an “advisory opinion” that the State’s race neutral reason was, in fact, race neutral:

We find Weatherall failed to prove the State engaged in purposeful discrimination based on race during the jury selection process…At trial, the State explained it struck Juror 191 because it received an NCIC report that indicated the juror had a disqualifying prior conviction. Prior to voir dire, the juror argued she did not have the conviction.

The State said that the juror had a criminal record. The juror said she did not have a criminal record. If the State had an NCIC report that said the juror had a criminal record, that should be enough for a race neutral reason, even if it was not true.

But did they have an NCIC report that said she had a criminal conviction?

The Court of Appeals contradicted itself in the “facts” section of the opinion – they did not say that the State had an NCIC report. Rather, they said that the State was concerned because the juror had a personal ID instead of a driver’s license, “which it believed was indicative of a possible conviction:”

The State explained it was concerned Juror 191 had a prior conviction because she did not have a driver’s license, she only had a personal ID, which it believed was indicative of a possible conviction.

The State’s belief that a juror might have a criminal record is not a race neutral reason to strike the juror – if it was, the State could claim, “I thought they might have a criminal record” for every juror they wanted to strike. Also, whether a juror has a driver’s license or a state-issued ID is not an indicator of bias – it’s just not relevant.

The State has the unique ability to pull an NCIC report on every juror – an inequity that can only be fixed by forcing the State to provide defense counsel with the same information for every juror.

So, did the State have an NCIC report in hand or not? Did the Court of Appeals make up that tidbit? That seems unlikely, but the language used in the facts section of the opinion – “she only had a personal ID, which it believed was indicative of a possible conviction” – certainly implies that the State did not have an NCIC report in hand, doesn’t it?

Which brings us back to the failure of the defense attorney at trial. At a minimum, defense counsel should have followed through with the Batson challenge and attempted to show that the State’s race neutral reason was a pretext, and defense counsel should have insisted on seeing the NCIC report, if one was referenced by the State, put it on the record if the State was unable to produce one, and introduce the report as evidence for the record on appeal if there was an NCIC report that did not show a criminal record.

If there was no NCIC report, Weatherall may have a case for post-conviction relief (PCR) based on ineffective assistance of counsel, if his PCR attorney can show at the hearing that the Batson challenge would have been granted if trial counsel had followed through and made a complete record.

Criminal Defense Attorney in Charleston, SC

If you have been charged with a crime in SC or believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.