Skirting the Line: Recent Batson Cases 

The idea behind Batson v. Kentucky is a simple one: an attorney cannot use peremptory challenges to dismiss potential jurors without valid cause, and never based only on race. Yet, as is the case with many ambiguous statutes, there have been efforts to circumvent the protections in the Batson rule. This is accomplished by asking questions that skirt around explicit protections, such as, “Have you ever had a bad encounter with the police?” or “What is your opinion about the Black Lives Matter movement?”

Two recent examples of attorneys using such challenges in order to, seemingly, reduce the prevalence of black jurors in high-profile cases based on their opinions about race have made the news.

In the widely-publicized trial for the death of Ahmaud Arbery in 2021, allegations of racial persecution arose after eleven white jurors were chosen to represent a county with a 20% Black population. The case itself was one of three white men who had either participated or shot Arbery while he was jogging in their neighborhood. Out of twelve Black potential jurors, eleven were struck by the defense in peremptory challenges with the reasoning that they did not believe that they could be objective about the facts of the case. One Black juror’s opinion that “no one needs to have their life taken” is reported to have been enough to dismiss them completely from serving on the jury.

California’s Supreme Court ruled in September 2021 that a juror’s exclusion from serving for a 2016 double murder was in violation of Batson because of the judge and prosecutor’s mischaracterization of Black Lives Matter. Crishala Reed had been questioned on her views of the movement and her support was viewed as sufficient grounds to use a peremptory challenge to keep her from being a juror.  The judge and prosecutor were held to have excluded Reed on the basis of race because of their own negative biases attached to Black Lives Matter.

One of the proposed fixes in Arizona is to completely eliminate peremptory challenges all together. This comes on the back of recent legislation in Washington and California that allows judges to deny peremptory challenges if it is determined that an objective observer would view race as a factor in its use. While this seems like a promising first step, one has to wonder if the insidious nature of bias and the win-at-all-costs mentality of voir dire questioning would just encourage even more inventive questioning in order to preclude disfavored jurors.