YOU CANNOT STRIKE A PROSPECTIVE JUROR BASED SOLEY ON RACE (and … the reason you give for doing so better be a good one).
The PA Superior Court has decided the case of Commonwealth v. Edwards, No. 436 EDA 2015 (January 2, 2018), holding that although listing the races and genders of prospective jurors on a peremptory strike sheet is ill-advised, it does not per se violate the Equal Protection Clause of the Fourteenth Amendment; however, under the totality of circumstances in this case, Edwards demonstrated a violation by showing that the Commonwealth struck at least one juror with discriminatory intent.
Police charged Edwards with various offenses relating to numerous robberies he allegedly committed with a co-defendant. His was ultimately listed for trial and, prior to jury selection, he asked the trial court how it conducted voir dire. The trial court responded that it would ask prospective jurors questions and the attorneys would not be permitted to make inquiries. Edwards did not object to this procedure. However, Edwards did object to the trial court’s staff placing the race and gender of each prospective juror on the juror strike sheet prior to handing the sheet to counsel. The trial court overruled his objection.
With its eight peremptory challenges, the Commonwealth struck seven prospective African-American jurors. Once the parties exercised their respective peremptory strikes, Edwards objected to the Commonwealth striking four prospective African-American jurors pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).** In Batson, the Supreme Court of the United States held that a prosecutor’s challenge to potential jurors solely on the basis of race violates the Equal Protection Clause of the United States Constitution. The trial overruled Edwards’ objection, concluding that the Commonwealth exercised its strikes in a non-prejudicial manner and overruled Edwards’ objection.
Edwards was ultimately convicted of eight counts of robbery, eight counts of conspiracy to commit robbery, eight counts of carrying a firearm without a license, eight counts of carrying a firearm on the streets of Philadelphia, eight counts of possessing an instrument of crime, attempted murder, aggravated assault, and conspiracy to commit aggravated assault.
On appeal, Edwards raised several objections, including challenges to the sufficiency of the evidence and allegations that the Commonwealth harbored racial animus in the use of its peremptory strikes.
As to the Batson challenge, Edwards first contended that the trial court violated Batson as a matter of law by listing the races and genders of potential jurors on the peremptory strike sheet. Additionally, he argued that the Commonwealth violated Batson by striking four African-American members of the venire.
As to the first claim, although the Superior Court found “the trial court’s practice both ill-advised and inappropriate,” it concluded that there were compelling grounds for refusing to adopt a per se rule that precludes this practice. First, there was no precedent for such a holding. Secondly, the Superior Court recognized that the law of Batson is one of fact, not of law, thereby not subject to being defined by per se rules. Accordingly, “attempts to fashion absolute, per se rules are inconsistent with Batson where the Supreme Court of the United States instructed trial courts to consider all relevant circumstances.”
Consequently, the Superior Court turned to a factual analysis of Edwards’ Batson claim. In doing so, the Superior Court set forth the appropriate standard as follows:
First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination.
As to the first step, the Superior Court explained that Edwards was required to show that he was a member of a cognizable racial group; that the prosecutor exercised a peremptory challenge or challenges to remove from the venire members of the his race; and, that other relevant circumstances combined to raise an inference that the prosecutor removed the juror(s) for racial reasons. Edwards is African-American and the Commonwealth struck seven African-American prospective jurors. “Furthermore, although listing the races and gender of prospective jurors on the peremptory strike sheet did not qualify as a per se Batson violation, it [was] a relevant circumstance that raised an inference that the prosecutor struck the jurors based on their race.”
As to the second step, the Superior Court explained that “the prosecution’s obligation to come forward with a race-neutral explanation of the challenges once a prima facie case is proven, does not demand an explanation that is persuasive, or even plausible. Rather, the issue at [this] stage is the facial validity of the prosecutor’s explanation. [And, u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” In assessing the Commonwealth’s explanations, the Superior Court concluded that the Commonwealth offered race-neutral reasons for striking the four African-Americans in question. Notably, although the Commonwealth’s proffered reason for excluding one juror, No. 67, was because she was “leaning back, seemed a little cavalier, had her arm resting on the back and while we were conducting voir dire in the back, she was sitting there with her arms crossed and her head kind of nodded, seemed guarded and again as if she didn’t want to be here”), the Superior Court nonetheless found the explanations provided by the Commonwealth to be facially acceptable.
As to the third step of the Batson analysis, the Superior Court explained that it was in this step that the trial court is required to determine if the defense has carried its burden of proving purposeful discrimination. At the outset, the Superior Court rejected the Commonwealth’s argument that the third prong need not be explored (and a Batson claim should fail) whenever the prosecution states race-neutral reasons for disputed peremptory challenges, even if the proffered explanation lacks persuasive force or plausibility. Instead, the Superior Court noted that, “It is at this stage that the persuasiveness of the facially-neutral explanation proffered by the Commonwealth is relevant.”
Edwards “did not attempt to rebut the Commonwealth’s race-neutral explanations. He also did not withdraw his Batson challenge. Instead, [Edwards] believed that the reasons offered by the Commonwealth were so unpersuasive (Ed. note – e.g. – B.S.) that he did not need to offer argument as to why the race-neutral explanations were pre textual.”
And … the Superior Court agreed.
Specifically, the Superior Court stated that although the facts here were not a per se Batson violation, when combined with other factors, they supported an inference of racial discrimination. Additionally, “the probability of the Commonwealth striking such a disproportionate number of African-Americans by chance is extremely low.” And, lastly, “the Commonwealth’s race-neutral explanation for striking Juror 67 was wholly underpersuasive in that the Commonwealth relied on her supposedly inattentive posture to conclude that she would not discharge her duties as a juror in a fair and impartial manner.”
Lastly, because the Superior Court concluded that the Commonwealth’s peremptory strike of Juror 67 was racially motivated and violated Batson, Edwards’ judgment of sentence was vacated and his case remanded for a new trial, despite his unsuccessful challenge to the sufficiency of the evidence presented at his trial.
** EDITOR’S NOTE – This is an unpaid and unsolicited recommendation of Radiolab’s More Perfect … an excellent podcast series about the Supreme Court. More Perfect “explores how cases deliberated inside the rarefied world of the Supreme Court affect our lives far away from the bench.” For example, More Perfect‘s podcast episode, Object Anyway is a fantastic analysis of the Batson case mentioned in this blog.