Ex Parte State

"MR. ACCARDI: As to Michelle Hurt, again, she is approximately the Defendant's age and the Defendant's appearance. Also, there are two unknown factors for the State in this case, one, she worked at A M with Ms. Bessie Robinson and she is going to be a witness for the State. She was also employed by Sears. We have no specific information on her relationship with Sears, whether it be favorabl[e] or unfavorabl[e].

"MR. LAMPLEY: It seems to me like she would be more of a State's witness, or State's juror, than a defense juror, inasmuch as she worked around Ms. Robinson.

"MR. ACCARDI: That possibly could be, Your Honor. We have an uncertainty as to that.

"MR. LAMPLEY: She also stated, Your Honor, that she could be fair and impartial to both sides.

"THE COURT: Well, again, let me say for the record that this is new ground for me. I have read theBatsondecision and I understand it — well, I can't say that I understand it. I think theBatsoncase is saying that you must have some other reason to exercise peremptory strikes besides the race of the juror. Is that correct? Is that a fair statement?

"MR. ACCARDI: I think that's the exact words of the Court."

"The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider 'all relevant circumstances' which could lead to an inference of discrimination. SeeBatson,476 U.S. at 93,106 S.Ct. at 1721, citingWashington v.Davis,426 U.S. 229,239-42,96 S.Ct. 2040,2047-48,48 L.Ed.2d 597(1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

"1. Evidence that the 'jurors in question share[d] only this one characteristic — their membership in the group — and that in all other respects they [were] as heterogeneous as the community as a whole.'Wheeler,22 Cal.3d at 280,583 P.2d at 764, 148 Cal.Rptr. at 905. For instance 'it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions,'Wheeler,22 Cal.3d at 280,583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.

"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors.Batson,476 U.S. at 97,106S.Ct. at 1723.

"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire.Swain [v. State ofAlabama], [380 U.S. 202at 224,85 S.Ct. 824at 838,13 L.Ed.2d 759(1965)].

"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire.Batson,476 U.S. at 97,106 S.Ct. at 1723;Wheeler,22 Cal.3d at 281,583 P.2d at 764,148Cal.Rptr. at 905.

"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions.Slappy v. State,503 So.2d 350,355(Fla. Dist. Ct. App. 1987);People v. Turner,42 Cal.3d 711,726 P.2d 102,230 Cal.Rptr. 656(1986);Peoplev. Wheeler,22 Cal.3d 258,Page 1077281,583 P.2d 748,764,148 Cal.Rptr. 890,905(1978).

"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., inSlappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged.Slappy,503 So.2d at 352and 355.

"7. Disparate examination of members of the venire; e.g., inSlappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors.Slappy, 503 So.2d at 355.

"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury.Batson,476 U.S. at 93,106 S.Ct. at 1721;Washington v. Davis,426 U.S. at 242, 96 S.Ct. at 2049.

"9. The state used peremptory challenges to dismiss all or most black jurors. SeeSlappy,503 So.2d at 354,Turner, supra.

"After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors.Batson,476 U.S. at 97,106 S.Ct. at 1723. The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates tothe particular case to be tried, and which is nondiscriminatory.Batson,476 U.S. at 97,106 S.Ct. at 1723. However, this showing need not rise to the level of a challenge for cause. [Ex parte]Jackson, [516 So.2d [768] at 772 (Ala. 1986)]; [State v.]Neil, 457 So.2d [481] at 487 [(Fla. 1984)];Wheeler, 22 Cal.3d at 28182,583 P.2d at 765, 148 Cal.Rptr. at 906.

"In addition to a clear, specific, and plausible nondiscriminatory explanation of a specific characteristic that affected the decision to challenge, the following are illustrative of the types of evidence that can be used to overcome the presumption of discrimination and show neutrality:

"1. The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck.

"2. There is no evidence of a pattern of strikes used to challenge black jurors; e.g., having a total of 6 peremptory challenges, the state used 2 to strike black jurors and 4 to strike white jurors, and there were blacks remaining on the venire.

"Batsonmakes it clear, however, that '[t]he State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result." 'Batson,476 U.S. at 94,106 S.Ct. at 1721, citingAlexander v. Louisiana,405 U.S. 625,632,92 S.Ct. 1221,1226,31 L.Ed.2d 536(1972). Furthermore, intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination.Batson,476 U.S. at 97,106 S.Ct. at 1723. Finally, a prosecutor cannot overcome the presumption 'merely by denying any discriminatory motive or "affirming his good faith in individual selections." 'Batson,476 U.S. at 98,106 S.Ct. at 1723, citingAlexander,405 U.S. at 632, 92 S.Ct. at 1226.

"Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext.Wheeler,22 Cal.3d at 282,583 P.2d at 763-64,148 Cal.Rptr. at 906. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:

"1. The reasons given are not related to the facts of the case.

"2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.

"3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck.Slappy,503 So.2d at 354;Turner,42 Cal.3d at 725,726 P.2d at 110,230 Cal.Rptr. at 664;Wheeler,22 Cal.3d at 282,583 P.2d at 760, 148 Cal.Rptr. at 906.

"4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors.Slappy, 503 So.2d at 355.

"5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire. Cf.Slappy,503 So.2d at 354;Turner,42 Cal.3d at 715,726 P.2d at 103,230Cal.Rptr. at 657.

"6. '[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.'Slappy,503 So.2d at 355. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror."

"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.

"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. SeeMcCray v. Abrams, 750 F.2d [1113], at 1132 [CA2 1984];Booker v. Jabe,775 F.2d 762,773(CA6 1985), [vacatedMichigan v.Booker,478 U.S. 1001,106 S.Ct. 3289[92 L.Ed.2d 705] (1986), on remandBooker v. Jabe,801 F.2d 871(6th Cir. 1986), cert. denied,Michigan v.Booker, [479] U.S. [1046],107 S.Ct. 910[93 L.Ed.2d 860] (1987)]. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. Cf.Norris v. Alabama, 294 U.S. [587], at 598-599, 55 S.Ct. [579], at 583-84 [79 L.Ed. 1074(1935)], seeThompson v. United States,469 U.S. 1024,1026,105 S.Ct. 443,444,83 L.Ed.2d 369[1984] (BRENNAN, J., dissenting from denial of certiorari). Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, supra, at 86, so it forbids the State to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basisPage 1079of such assumptions, which arise solely from the jurors' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or 'affirming his good faith in individual selections.'Alexander v.Louisiana,405 U.S., at 632,92 S.Ct., at 1226. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.'Norris v. Alabama, supra,294 U.S. at 598,55 S.Ct., at 583-84. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination."