Batson error leads to conviction reversal 

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The peremptory striking of a Black juror by a prosecutor who couldn’t provide the trial court with an acceptable race-neutral reason for the dismissal constituted a substantive violation of the defendant’s constitutional right to equal protection, a divided North Carolina Supreme Court has ruled. 

In the high court’s Feb. 11 order, Justice Robin Hudson wrote that the state impermissibly excluded one of only two Black women in the jury pool (the court declined to consider the dismissal of the second woman) after Wake County Superior Court Judge Paul Ridgeway rejected the state’s race-neutral reasons for the strike. The majority also found that the prosecutor disparately questioned the prospective juror, and that the trial court considered arguments not presented by the state and held the defendant to too high a burden in his Batson challenge.  

“As a consequence, the totality of the evidence presented for the court to consider established that it was sufficiently likely that the strike was motivated in substantial part by discriminatory intent,” Hudson wrote. “This constitutes a substantive violation of defendant’s constitutional right to equal protection under the Fourteenth Amendment of the United States Constitution, and the trial court clearly erred in ruling to the contrary.” 

Harmless error? 

In April 2016, Christopher Clegg, a Black man, was convicted of robbery with a dangerous weapon. The prosecutor in the case struck the only two Black women from the jury pool, prompting Clegg to raise a challenge under Batson v. Kentucky, a 1986 U.S. Supreme Court ruling that established a three-step process through which courts analyze racial discrimination claims during jury selection. Under Batson, a defendant must show that the state exercised a race-based peremptory challenge. If so, the state must offer a facially valid, race-neutral explanation for the challenge. The trial court must then decide if the defendant has proven “purposeful discrimination.” 

Here, prosecutors offered race-neutral reasons for the strikes, stating that juror Aubrey—on whom the Supreme Court focused—was struck because of her body language when being spoken to and because she said “I suppose” when asked whether she could be fair and impartial. 

The trial court found that the justifications couldn’t be supported by the record, either because the state misremembered (Aubrey answered “I suppose” when asked if she could focus on the testimony, not be fair and impartial) or the court failed to make an adequate record of her body language. Ridgeway found that while Clegg showed evidence of statistical disparities regarding the statewide exercise of peremptory challenges by prosecutors, Clegg failed to provide the necessary “essential evidence of purposeful discrimination.” 

Ridgeway cited U.S. Supreme Court cases Foster v. Chatman and Miller-El v. Dretke as two featuring “glaring evidence” of racial discrimination, including trick questions and specific policies within a prosecutor’s office of systematically excluding African-Americans from juries. 

Clegg took his argument to the state’s Court of Appeals, which rejected it, finding that although Aubrey’s “I suppose” answer was to the question of whether she could remain focused on the trial because of her “day and night” job (rather than whether she could be fair and impartial), prosecutors’ concerns about her failure to make eye contact and their ability to be fair and focused were neutral explanations for the strike. 

Four strikes 

The Supreme Court disagreed, holding that while no one mistake by the trial court independently required reversal, it had committed four interrelated errors that collectively did. 

First, when the trial court rejected both of the state’s race-neutral explanations for the strike, it shouldn’t have overruled Clegg’s challenge because invalid justifications are “functionally identical” to no justifications at all. 

“In such circumstances, the only remaining submissions to be weighed—those made by the defendant—tend to indicate that the prosecutor’s peremptory strike was “motivated in substantial part by discriminatory intent,” Hudson wrote. 

Second, the trial court held Clegg to an improperly high burden of proof under Batson, which requires only that a defendant show that it’s more likely than not that a peremptory strike was improperly motivated. The trial court recited the proper burden in its decision, but didn’t apply it with fidelity, Hudson found. 

“Instead, it looked for smoking-gun evidence of racial discrimination similar to what has been present in previous U.S. Supreme Court cases that have found Batson violations,” Hudson wrote. 

While the facts of Miller-El and Foster are sufficient to constitute a Batson violation, they aren’t necessary to show that a peremptory challenge was substantially, not solely motivated by discrimination. 

Next, the trial court shouldn’t have considered evidence not presented by the prosecution on its own accord. For instance, a white male juror had stated that he could juggle his work duties, whereas Aubrey didn’t indicate any such flexibility. While the state could have argued that Aubrey’s schedule might impact her ability to focus, it didn’t. 

Citing Flowers v. Mississippi, Hudson noted that a Batson challenge doesn’t call for a “mere exercise in thinking up any rational basis.” 

“If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false,” Hudson wrote. 

Finally, Hudson wrote that the trial court failed to adequately consider disparate questioning and acceptance of comparable white and Black prospective jurors. After questioning the white male and Aubrey and receiving similar responses, the prosecutor used a peremptory strike to remove Aubrey. 

The Supreme Court noted that one exchange stands out both for what the prosecutor did and didn’t do. He singled out Aubrey for further questioning regarding her ability to concentrate on the case—though she wasn’t the only prospective juror to indicate logistical challenges to jury service—but didn’t follow up with the white male who indicated that a professional obligation might impact his ability to focus, instead turning to question Aubrey again. This is when Aubrey answered, “I suppose” and “I think so” when asked if she could focus and do what she needed to as a juror. 

“Responses that are perfectly normal in jury selection and perhaps even more honest and conversational than a flat ‘yes,’” Hudson wrote. “Indeed, if Ms. Aubrey had answered with a flat ‘yes’ … one can realistically imagine a prosecutor seeking to justify a peremptory strike on the grounds that such an answer was too short, cold, or confident.” 

In a concurring opinion, Justice Anita Earls noted that she would further hold that the peremptory strike of the second Black woman was also unlawful because the prosecutor cited her work at a psychiatric hospital as an indication that she could be sympathetic to the defendant’s mental health issues. But Clegg’s competency had already been established and there was no reason to believe that the jury would have to hear or decide about regarding competency, Earls wrote. 

“Significantly, the prosecutor did not ask any other juror if they had experience with mental health issues or competency issues,” Earls wrote. “These facts alone are sufficient to demonstrate that the prosecutor’s race-neutral explanation is pretextual.” 

Chief Justice Paul Newby and Justice Tamara Barringer joined Justice Phil Berger in dissent. Berger wrote that prosecutors can make mistakes during the “back and forth” of a hurried Batson hearing. 

“That is entirely understandable, and mistaken explanations should not be confused with racial discrimination, not honest, unintentional mistakes,” Berger wrote. 

But racial discrimination, Hudson wrote, undermines the judicial system’s credibility and tears at the fabric of democracy. 

“Accordingly, the Batson framework establishes a process through which we seek to root out any remaining vestiges of racial discrimination in jury selection through the use of peremptory strikes,” Hudson wrote. 

Special Deputy Attorney General Amy Irene represented the state. Dylan Buffum of Hillsborough represented the Clegg. Buffum did not respond to a request for comment. 

The 91-page decision is State v. Clegg (Lawyers Weekly No. 010-003-22). The full text of the opinion is available online at nclawyersweekly.com. 

Follow Heath Hamacher on Twitter @NCLWHamacher