CrimLaw

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The federal supreme court has agreed to hear a Batson argument. I thought Batson was dead and buried. Yes, technically it's the law but try a Batson challenge and see how far you get. The prosecutor can get real creative although the favored excuses I've seen have been pretty rote: "I excuse all teachers and government workers" and "I don't like the fact that juror number 6 doesn't own property."

Of course, one often finds one's self in a position of a Batson truce: A pool of 20 jurors arrives (the typical felony number in Virginia). 15 are white (3 of whom are obvious bubbas), 1 is oriental, and 4 are black.

Your client is a black, 19 year old male whose first statement to you is "I'd never have stolen the car if I'd realized I'd gone over the line from Richmond to Arrestafield (Chesterfield county's well known nickname)." His second statement is that it is all because of his heron problem (not hair - o - in, hair - on; street pronunciation). Later, the jail-house lawyers get ahold of him and convince him he should take a jury trial because "I know they found me with the car but nobody saw me take it and I have 20 years over my head (prior conviction of grand larceny: 20 years suspended for ten years)."

In Virginia 20 people sit and are questioned as a group. Failing a strike for reason, the twenty are struck alternating prosecutor, defense, prosecutor, defense until there are only 12. After the sides strike (in private) the clerk then dismisses the struck without letting anyone know who struck them. You get thru the questions and, as usual the judge and prosecutor rehabilitate every person you wish to strike for reason by asking the magical question: "Mrs. Smith, I know that you told the defense attorney that you are married to the police chief and your two sons are in the police academy, and that one of your cousins was assaulted by someone who look just like the defendant and that you think the defendant has beady eyes, but do you think you can set all that aside and follow the law as I explain it to you?" Juror: "Why, yes sir, I can do that." Judge: "No reason to strike this lady, defense counsel."

Then come the preemptory strikes. You've already decided that the first strike is going to be the black, muslim professor on the front row who has been staring with barely concealed contempt at your client and is not going to cut him one milimeter of slack. Then a small miracle occurs: the prosecutor's first strike is the professor. Three of his four strikes are blacks (he leaves the black bank VP in order to cut the white girl with the dead-head t-shirt). Of course all of your strikes are white (the three bubbas and Mrs. Smith).

You obviously have a situation where race has played a part in the prosecutor's strikes. But if you raise a Batson objection you face two problems (If you succeed). (1) The professor is back. (2) The prosecutor can make the same claim as to your strikes and he has 4 out of 4 to work with. Of course, both sides realize that Batson claims never go anywhere because the other side will always come up with some other reason to explain the strike (he was wearing a bow-tie your honor). Therefore, the claim is seldom raised (usually done by young lawyers or dabblers who spend most of their legal lives elsewhere).