Race and Gender Challenges in Jury Selection

We all know that Batson v. Kentucky applies in civil cases.  But a new decision released yesterday from the Tennessee Supreme Court – Zakour v. UT Medical Group – actually discusses how judges and lawyers should apply Batson in real life. 

This is the meat of the opinion:

In this case, the trial judge did not explicitly find that the Plaintiff had established a prima facie case of purposeful discrimination. However, we conclude that the trial court did implicitly  make that determination, given the fact that the trial court asked the Defendants to respond to the Plaintiff’s Batson objection. See Woodson, 916 S.W.2d at 905 (“While the procedure used by the  trial judge created difficulties, we must conclude that the trial judge determined that a prima facie case of purposeful discrimination had been established. Otherwise, the court would not have required defendants to explain the challenge.”). The trial court also failed to make a finding of  whether the Plaintiff carried her burden of proving a discriminatory motive by the Defendants. Because the trial court empaneled the jury and allowed the trial to proceed after the Plaintiff’s  objection, we conclude that the trial court found the Defendants had provided a gender-neutral  reason for their challenges. However, we stress again the importance of the trial court making  detailed findings for the record; doing so would have clarified the basis for the trial court’s implicit rulings in this case and simplified the review process on appeal.

When asked to respond to the Plaintiff’s Batson challenge, the Defendants denied an discriminatory motive in exercising their peremptory challenges, then stated that the challenges were “all based on experience and body mechanics.” As we discussed in the previous section, a prima facie case of purposeful discrimination may not be rebutted by a mere assertion of good faith or denial of a discriminatory purpose. See Batson, 476 U.S. at 98. Thus, we are left to decide whether the trial court erred by concluding that “experience and body mechanics” were sufficient reasons under Batson to exercise peremptory challenges of six women on the venire.

As an initial matter, we note that in order to meet the requirements of Batson, a race- or gender- neutral reason for exercising a peremptory challenge must be clear, reasonably specific, legitimate, and related to the particular case being tried. See id. Here, the record does not indicate whether the Defendants were referring to the experiences of particular jurors or the trial experiences of counsel when they gave “experience” as one of the justifications for challenging the six women who were the basis for the Plaintiff’s second Batson objection. Even if we knew which of these two possible meanings the Defendants intended, this reason would still be too vague to justify the exercise of a peremptory challenge. See, e.g., People v. Reynoso, 74 P.3d 852, 858 (Cal. 2003) (stating that a trial court should not relieve the opposing party of its burden to offer a neutral reason for exercising a peremptory challenge “by readily accepting vague explanations”). This leaves us to determine whether “body mechanics” is a sufficient reason under Batson to justify the Defendants’ peremptory challenges of six women on the venire.

We are aware that lawyers routinely take note of a venireperson’s body language during voir dire and use that as a factor in exercising a peremptory challenge. See, e.g., Barfield v. Orange  County, 911 F.2d 644, 646 (11th Cir. 1990); United States v. Ruiz, 894 F.2d 501, 506 (2d Cir.  1990); State v. Seals, 684 So.2d 368, 375 (La. 1996); State v. Carroll, 34 S.W.3d 317, 319 (Tenn. Crim. App. 2000); State v. Butler, 795 S.W.2d 680, 687 n.4 (Tenn. Crim. App. 1990) (citing State v. Hood, 780 P.2d 160, 166 (Kan. 1989)). However, in order to avoid a Batson violation, it is important that counsel specifically state the particular body language that forms the basis for a peremptory challenge ….

However, the Defendants’ reliance on “body mechanics” as a reason for striking six of the ten women in the venire differs markedly from the explanations that have been found acceptable under Batson. The Defendants failed to describe particular displays of body language – such as scowling at the attorneys, failing to make eye contact, falling asleep during voir dire, and so forth – that provided the basis for excusing the female jurors. As we have already noted, in order tosatisfy the requirements of Batson, an attorney’s justification for exercising a peremptory challenge must be clear, reasonably specific, legitimate, and related to the particular case being tried. See Batson, 476 U.S. at 98. The Defendants’ explanation in this case does not meet that standard. Therefore, we find that the trial court erred in overruling the Plaintiff’s second gender based Batson objection.

Read the decision here.  The current citation for the case is No. W2003-01193-SC-R11-CV  (Tenn. January 22, 2007).  The opinion was authored by Judge Sharon Lee from Madisonville, who ordinarily sits on the Eastern Section of the Court of Appeals but served as Special Justice on this case.