United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
court memorializes here the reasons why it overruled at jury
selection defendant's objection to the government's
peremptory strikes during jury selection pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986).
a black male, was charged with forcible assault on a federal
official with a deadly or dangerous weapon, robbery of
personal property belonging to the United States, and
knowingly brandishing a firearm during and in relation to a
crime of violence. Trial of defendant's case commenced
January 6, 2020, and concluded January 8, 2020 with guilty
verdict. The issue herein addressed arose the morning of
January 6th, when after administrative conference,
the court proceeded with jury selection utilizing the struck
court called 28 randomly selected members of the jury venire
into the well for voir dire. Of those called, five
prospective jurors were black. The rest were white. After
prospective jurors answered the court's questions,
informed by the parties' requests, and addressed any
motions for cause, the court tasked the parties with
exercising their peremptory strikes. The government
mistakenly exercised five peremptory strikes on the first
issue was brought to the court's attention at sidebar and
after consultation with the sides, the court determined the
five strikes would stand and the government would be allowed
to exercise its sixth and final strike on the second pass.
Defendant objected that the government's use of
peremptory strikes violated Batson, Three of the
government's first five peremptory strikes were used to
remove black prospective jurors: G.M., T.T., and
Defendant argued that the government's use of peremptory
strikes constitutes a pattern of strikes against a racial
group, that the government struck each of the jurors because
of their race, and that the facts and other relevant
circumstances raise an inference that the prosecutor used
peremptory strikes to exclude jurors because of their race.
sidebar, the court, assuming without deciding that defendant
made a prima facie case under Batson, asked the government to
provide its reasons explaining why it struck each black
prospective juror. The government explained that it struck
the T.T. because of her body language, that she seemed
disinterested and might not consistently follow along, she is
not married, and that she has no children. The government
represented it struck G.M. because he is a pastor and it was
concerned that he would be able to sit and judge fairly.
Finally, the government explained that it struck C.W. because
of her age and her background as an engineer.
responded that the government's reasons as to each
prospective juror were pretextual, leaving the only possible
conclusion to be that G.M., T.T., and C.W. were struck
because of race.
Equal Protection Clause prohibits a prosecutor from using the
State's peremptory challenges to exclude otherwise
qualified and unbiased persons from the petit jury solely by
reason of their race." Powers v. Ohio, 499 U.S.
400, 409, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991). To
make a prima facie showing of purposeful race discrimination,
defendant must show 1) he is a member of a cognizable racial
group, 2) that the prosecutor exercise peremptory strikes to
remove venire members based on race. Batson v.
Kentucky. 476 U.S. 79, 96 (1986), holding modified
by Powers. 499 U.S. 400.
proving the second prong, defendant may rely on facts and
circumstances, including the number of racial group members
in the venire, the nature of the crime, the race of the
defendant and victim, a pattern of strikes against members of
a particular race, and the prosecution's questions and
statements during voir dire. See Flowers v.
Mississippi. 139 S.Ct. 2228, 2244-51 (2019) (finding a
Batson violation where, after six trials, approximately 41 of
42 peremptory strikes used by the government struck black
prospective jurors, and five of six peremptories in the
instant trial struck black prospective jurors). "While
the racial composition of the actual petit jury is not
dispositive of a Batson challenge, neither [is] the district
court precluded from considering it." United States
v. Grandison, 885 F.2d 143, 147-48 (4th Cir. 1989)
(finding no pattern of racially discriminatory strikes where
six of the government's nine peremptory strikes were used
to strike black prospective jurors, but two black jurors
ultimately served on the jury).
defendant makes the prima facie case, "the burden shifts
to the State to come forward with a neutral explanation for
challenging black jurors." Id. at 97.
"Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be
deemed race neutral." Purkett v. Elem, 514 U.S.
765, 768 (1995).
the government offers a race neutral explanation, "the
trial court must then decide whether the opponent of the
strike has proved purposeful racial discrimination."
Id. at 767; Batson, 476 U.S. at 98. "There will
seldom be much evidence bearing on that issue, and the best
evidence often will be the demeanor of the attorney who
exercises the challenge." Hernandez v. New
York, 500 U.S. 352, 365 (1991). "If a
prosecutor's proffered reason for striking a black
panelist applies just as well to an otherwise-similar
nonblack [panelist] who is permitted to serve, that is
evidence tending to prove purposeful discrimination."
Miller-El v. Dretke, 545 U.S. 231, 241 (2005). In
addition, "shifting explanations,  misrepresentations
of the record, and  persistent focus on race in the
prosecution's file" can sustain an inference of
purposeful discrimination. Foster v. Chatman. 136
S.Ct. 1737, 1754 (2016).
court's first task "is initially to determine
whether the defendant has shown a prima facie violation when
the issue is first raised." United States v.
Joe. 928 F.2d 99, 103 (4th Cir. 1991). If the court
concludes that defendant may be able to make a prima facie
case, "it should require the government to articulate
reasons for exercising its peremptory challenges to remove
members of the defendant's racial group."
Id. Finally, if the reasons offered are facially
neutral, "the court should provide the defendant with
the opportunity to establish pretext and then ...