Prosecutor’s Explanation for Her Strikes Did Not “Pass Muster,” But Still No Batson Violation

Bobby Johnson v. United States, No. 11-CF-134 (decided January 29, 2015)

Players:  Associate Judges Fisher & Easterly, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  Dissenting opinion by Associate Judge Easterly.  Erek L. Barron for Mr. Johnson.  Trial Judge: Michael Rankin.

  

Facts:  A jury convicted Mr. Johnson of various assault and weapons charges stemming from an incident where, according to the government, he shot at a potential government witness in his brother’s upcoming trial.  During jury selection, the prosecutor struck two African American males from the jury panel.  The trial court sua sponte called the parties to the bench and pressed the government for a race neutral explanation.  The prosecutor offered the following explanation for her decision to dismiss the jurors: (1) the first juror was a “soft spoken” older man who, she believed, would get “pushed around in a jury”; and (2) she did not believe that the second, a younger man, would be an “assertive member of the jury” given his “inexperience[] in his youth.” 

The trial court did not agree with the prosecutor’s assessment of the older juror, stating that the explanation did not “pass muster” and that the court did not “get that at all.” “I don’t think I see any of that in the way the older man answered those questions.”  But although the court did not believe the juror’s behavior suggested that he would be “pushed around,” the court concluded that it was not its “job to agree with [the prosecution] or disagree with them.” Instead, the trial court needed to decide whether the government articulated a valid rational for dismissal.  The trial court concluded that there was not yet a “legitimate [Batson] challenge,” but cautioned that its “antenna [was] definitely up.”

Issue 1:  Did the trial court rule on whether the prosecutor engaged in purposeful discrimination (Batson step three)? If the trial judge made such a finding, were his findings clearly erroneous?

Held:  (1) The trial court made findings on Batson prong three and concluded that the prosecutor did not engage in purposeful racial discrimination.  The trial judge first concluded that the prosecutor proffered a non-race based reason for their strike (Batson stage two) – “soft-spoken” and “youthful[]” – and then articulated the Batson stage three legal test: whether the juror’s demeanor exhibited “the basis for the strike attributed to the juror by the prosecutor.”  The trial judge then immediately ruled that the defense failed to demonstrate a “legitimate [Batson] challenge.”  “In context,” the Appellate Court interpreted this as a “ruling on stage three of the Batson process.”

(2) The trial court’s findings were not clearly erroneous.  Although the judge provided little to no explanation for his ruling, and in fact, at one point stated that the prosecutor’s explanation did not “pass muster,” no case “required [him] to make detailed factual findings.”  The trial judge observed the jurors and, based on his observations, concluded that there was no “legitimate Batson challenge.”  This was sufficient.

The Court rejected Appellant’s claim that because the prosecutor asked the jurors no questions in voir dire, her explanations were not credible. The trial judge asked those jurors questions himself, observed their responses “first hand,” and could himself make “critical credibility determinations.”

Of Note:

• Even though the defense did not raise a challenge to Batson step two (whether the prosecution proffered a race-neutral explanation), the Court noted that being “soft spoken” and “non-assertive” are both race-neutral explanations for a peremptory strike.

• Although the prosecution stated that it struck one juror because of his youthful age, it did not strike two other jurors who were eventually seated – one who was one year out of high school and one who was a sophomore in college.

• In dissent, Judge Easterly argued that reversal was warranted.  Below, the trial court stated that it found the prosecution’s explanation for why it dismissed the older juror – because he was “soft-spoken” – incredible.  The trial judge never wavered from this position, and the prosecution did not provide the trial court with any additional arguments.  Because at that point, “the only conclusion for the court to draw . . . was that the government had improperly struck [the juror] on the basis of race,” it was error for the court not to reseat that juror.  JB.

Read full opinion here.