Prosecutors Using Batson Challenges: A Look At How Prosecutors Are Using Batson Challenges Against A Defendant’s Peremptory Challenge During Voir Dire

At some point in an attorney’s career, the following question will be asked by a family member or a random person they meet a bar: “How do I get out of jury duty?”

My smart-ass answer to this question is “just tell the court that you don’t believe in the constitution, and if it is a criminal case tell the defense attorney you believe that if a cop arrests a person they are automatically guilty.”

Now in Ohio, a prosecutor and a criminal defendant may each peremptorily challenge three of the jurors in a misdemeanor case and four of the jurors in a felony case.  So what the hell is a peremptory challenge?

A peremptory challenge is a tool that both the prosecutor and criminal defense attorney use during the jury selection process (voir dire for all you legal types) to reject potential jurors without stating a reason.  As you can imagine, this can and did lead to some courtroom battles between prosecutors and criminal defense lawyers.  Specifically, could a defendant who is a minority stop a prosecutor from purposefully removing jurors who are also minorities?

In Batson v. Kentucky, 476 U.S. 79 (1989), the United States Supreme Court answered that question.  In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution precludes purposeful discrimination by the State in the exercise of its peremptory challenges so as to exclude members of minority groups from service on petit juries.

One important part of the Batson holding was “purposeful discrimination by the State” not the State and Defendant.  Well, in State v. Yuschak, 2016-Ohio-8507, the State used a Batson challenge against the defense during jury selection.  With that, let’s take a look at Yuschak.

In Yuschak, Yuschak arranged for his girlfriend’s cousin to obtain drugs form Yuschak’s daughter in an attempt to arrange for a police bust of the drug deal so that his daughter could be arrested and treated for her drug addiction.  After the cousin contacted the daughter to seek drugs, the daughter contacted a man with whom she has gone to school with to help her obtain the drugs.

Said school friend agreed to drive the daughter to Cleveland, and kindly advanced her money to purchase heroin.  The school friend then drove the daughter to a Dairy Queen parking lot where she had arranged to meet the cousin to complete the drug transaction.  The cousin arrived with Yuschak at the Dairy Queen.  After they arrived, the school friend was shot by Yuschak.

Yuschak was indicted on attempted murder, felonious assault, and weapons under disability, with firearm specifications attached to the attempted murder and felonious assault.

Yuschak went to jury trial and was found guilty on all charges.  The trial court sentenced Yuschak to an aggregate term of ten years in prison.  Yuschak filed a timely appeal.

Yuschak filed numerous assignments of error in his appeal, but for our discussion we are going to focus on the following assigned error:

“The trial court’s denial of Mr. Yuschak’s peremptory challenge was a substantive violation of his right to a fair and impartial jury.”

Specifically, Yuschak argued that the trial court erred by denying his peremptory challenge of a venireperson based upon the State’s Batson challenge.

When looking a Batson challenge, “a court adjudicates a Batson claim in three steps.”  State v. Were, 2008-Ohio-2762.  First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination.  State v. Maxwell, 2014-Ohio-1019.  Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge.  Id.  Finally, the trial court must decide based on all the circumstances whether the opponent has proved purposeful racial discrimination.  Id.

The critical question, which the trial judge must resolve, is whether counsel’s race-neutral explanation should be believed.  Hernandez v. New York, 500 U.S. 352 (1991).

During voir dire, a potential juror identified as Ms. Griffin, asked the court if the proceedings would continue past 5:00 on the days of court proceedings because she had a deadline by which she was required to pick up her daughter from daycare.  The trial court informed Ms. Griffin that the goal would be to finish proceedings each day prior to 5:00.

Later during voir dire, the State asked Ms. Griffin what the latest time was by which she would have to leave each day.  She responded that she would need to leave by approximately 5:30.  The defense counsel followed that question up by asking Ms. Griffin if she would get stressed if court proceedings were nearing 5:00.  She responded that she would probably be concerned, but it would not affect her ability to concentrate.

When exercising peremptory challenges, the defense indicated that it wished to exercise a peremptory challenge with respect to Ms. Griffin.  The following exchange then occurred:

State: Your Honor, we would challenge that one, a Batson challenge here, and just ask for a reason.

Defense Counsel:  I didn’t like the answer about her being nervous about her having to worry about 5 o’clock.

Court:  Well, she only needs to be out by 5 o’clock which is something within the Court’s control so we will not keep her here past 5 o’clock so she will not have to worry and based on the Batson, I’m denying that peremptory.

Defense Counsel:  Okay

State:  Well, in this case, just for the record, there are some issues that one could think that someone from the Defense attorney, the Defense would want to exclude an African-American person so I would – I just didn’t think there was any reason.

Defense Counsel:  Okay

Court:  You can save it for appeal

Now Yuschak’s argument has two parts as it relates to the State’s Batson challenge.  The first being the State cannot use a Batson challenge and the second being that defense offered a racially neutral explanation for their peremptory challenge of Ms. Griffin.

The appellate court shot down Yuschak’s first argument by stating that Batson has been extended to defense peremptory challenge made by a defendant.  Georgia v. McCollum, 505 U.S. 42 (1992).  So that argument is out!

Before going into Yuschak’s second argument as it relates to Batson, I think it is important to point out that I believe that the trial court put the cart before the horse when making its decision.  Specifically, I think the trial court should have explained in more detail whether or not the State made a prima facie case for racial discrimination.  Personally, I don’t think the State made a prima facie case.

To establish a prima facie case, a litigant must show how he or she (juror member) is a member of a cognizable racial group and that the peremptory challenge will remove a member of the litigant’s race from the venire. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95.  The peremptory challenge opponent is entitled to rely on the fact that the strike is an inherently discriminating device, permitting those to discriminate who are of a mind to discriminate.  State v. Hernandez, 63 Ohio St.3d 577.  The litigant must then show an inference or inferences of racial discrimination by the striking party.  Hicks.  The trial court should consider all relevant circumstances in determining whether a prima-facie case exists, including statements by counsel exercising the peremptory challenge, counsel’s questions during voir dire, and whether a pattern of strikes against minority members is present.  Id.

Looking at the above exchange, the State simply stated that they are using a Batson challenge against defense counsel’s peremptory challenge.  The State did not show any inferences of racial discrimination by defense counsel.  The trial court should have dug in deeper and ask what inferences from defense counsel’s voir dire would lead the State to believe there was racial discrimination.

Based on my reading of the exchange, the State tried to jump in, after the trial court denied defense counsel’s peremptory challenge, with an explanation.  Which I can only infer as being the following 1) defendant is white, 2) victim is African-American, 3) Ms. Griffin is African-American.

I believe this is a stretch and I don’t believe that the trial court did a great job diving into whether or not the State made a prima facie case.

Moving on, the appellate court did not buy that the defense made a racially neutral explanation for why they wanted to use a peremptory challenge against Ms. Griffin.

The appellate court felt that the trial court made it clear to Ms. Griffin that the court proceedings would end by 5:00 p.m. each day so she not to worry about picking up her child.  In addition, the appellate court pointed out that her concern as to the time would not affect her ability to concentrate.  Thus, the appellate court could not say that the trial court clearly erred in its apparent conclusion that the race-neutral reason provided by the defense was not credible.  see State v. Payne, 2013-Ohio-5230.

Personally, anytime I hear opposing counsel or the court say “we should be out of here in about 20 minutes” I automatically assume that my hearing will go on for another hour to two hours.  This case was about a father who attempted to kill his daughter’s drug dealer to get her off of drugs.  To think that the daily trial proceedings would end on the dot every day at 5:00 p.m. is ridiculous in my mind.  Defense counsel’s reasoning made sense to me.

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