Texas Supreme Court Reinvigorates the Batson Challenge in Davis v. Fisk Elec. Co.
On September 26, 2008, the Texas Supreme Court injected new life into the use of a Batson challenge in civil cases, noting that the “landscape has evolved” since it last considered the issue in Goode v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997). The Court looked to Miller-El v. Dretke, a criminal case settled by the Supreme Court of the United States, for guidance, noting that the principles underlying the Batson challenge were fundamentally similar. 545 U.S. 231 (2005). The Texas Supreme Court adopted a five-point totality of the circumstances test to be employed in the review of a Batson challenge and, of vital import, reiterated the procedural elements of a correct challenge. Both are reviewed below.
The Five Point Test:
The first element of the five-point test consists of a statistical analysis of the use of the peremptory strikes. The dismissal of a statistically significant number of minorities vis-à-vis white jurors raises a presumption of racial motivation (this is also applicable to constitutionally protected classes such as gender). The Court, quoting in part from the Supreme Court’s opinion, found peremptory strikes impermissible when the “statistics are remarkable,” and the strikes “correlate with no fact as well as they correlate with race.” (Example: when 83% of Black venire persons are dismissed compared to only 5.5% of White venire persons, this is “remarkable.”)
The second element consists of a comparative juror analysis. This entails comparing the stricken jurors to retained jurors to see in any of those of the retained jurors evinced traits used as the reason form striking jurors who were arguably dismissed for racial reasons. The Court was clear that this comparison does not require all other characteristics between the stricken and retained jurors be equal—an impossible requirement
The third element was the use of a jury shuffle when a large number of a racial group presents itself in the first portion of the venire. This fact, especially though not necessarily, coupled with testimony that shuffling the jury is a tool used to exclude a particular racial group, can lead to a strong presumption that race played a role in the dismissal of particular jurors.
The fourth element consists of a comparative analysis of the questions presented members of the venire. When questions are either different or addressed to jurors of different races in a systematically distinct manner, this can lead to a presumption that a party is targeting a certain racial group for exclusion from the jury. Again, the use of a statistical analysis of the application of questions to jurors of different races was employed.
The fifth element of the Batson challenge consists of looking at the historical evidence that a party has sought to remove jurors of a particular race from a jury.
Proper Procedure:
The Court reiterated that a Batson challenge, in this case race-based-dismissal, is properly executed when a party challenges the propriety of a peremptory strike. This Batson challenge creates a rebuttable presumption that the juror was wrongfully dismissed for racial reasons, and the burden shifts to the striking party to justify the dismissal.
The striking party is now required to bring forward a race neutral reason for the dismissal. The Court noted that a non-racial reason MUST be clearly articulated, as the appellate court cannot contemplate, much the less supply, a plausible reason as to why the juror was excused. The onerous remains with the dismissing party at the time of the challenge to justify the use of his peremptory strike. If the striking party attempts to employ “non-verbal” cues or subtle differences in how jurors responded to questioning, it must explain those cues and subtleties in detail, giving the trial court the opportunity to address those with specificity. Only what is discussed on the record may be the basis for an appeal.
The Court here reminds the motioning party that in order to prevail in a Batson challenge on appeal, the proffered race-neutral reasons given must have been challenged as mere pretext. This third step is consistent with the long-held requirement that matters on appeal must first have been fleshed out for the trial court to allow the trail court to adequately address a party’s concerns.