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At least one court, however, has held both (1) that a court may not stifle consideration of factors supporting an inference of discriminatory purpose by halting consideration of same after applying Batson’s merely illustrative “pattern” of three or four strikes test and (2) that the prosecutor does not refute a prima facie case of discrimination by expressing only an empty hunch about a venire man but must state a “clear and reasonably specific’ explanation of his ‘legitimate reasons'” for excluding a juror peremptorily. US v. Horsley, 864 F.2d 1543 (11th Cir. 1989).

“Initially, we hold that the vague explanation offered by the prosecutor in the instant case was legally insufficient to refute a prima facie case of purposeful racial discrimination. While the reasons given by the prosecutor ‘need not rise to the level justifying exercise of a challenge for cause’   The prosecutor must nevertheless give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges. . . . The prosecutor’s explanation in the present case, ‘I just got a feeling about him’, obviously falls short of this requirement. As the Batson court concluded, ‘If [such] general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause would be but a vain and illusory requirement’   Batson noted that a pattern of strikes against black jurors might be a relevant circumstance to consider, the Court stated that the example was merely illustrative.   We have held that the number of black jurors struck is not dispositive to the issue of whether a prima facie case has been established. . . . Consideration of other factors which might have supported an inference of discriminatory purpose, the most obvious of which was the prosecutor’s disparate treatment of venire men who were similar in relevant aspects except race. US v. Horsley, 864 F.2d 1543 (11th Cir. 1989) (citations omitted).

Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987) (noting that because prosecutor explained his reasons for excluding black jurors the presumption his reasons were proper disappears and a court may then determine, or later on, in the record review the true character of the exclusion).

“When the defense moved for a mistrial on the ground that the prosecutor’s decision to strike those three jurors was based on improper racial considerations, the prosecutor volunteered the following explanation for his actions:

I think the record should reflect that the fact that the three jurors were black was not my reason for striking them, but, instead, it was the background, education and knowledge to understand fairly sophisticated scientific evidence which I intend to bring to the jury in this case.

The decision in Swain does not completely insulate a prosecutor’s use of peremptory challenges in a given case. Although the Supreme Court declined to require an inquiry into a prosecutor’s decision to remove blacks from a particular jury, we believe that where, as here, the prosecutor volunteers the reasons for his actions and makes them part of the record, he opens the issue up for review. The record is then no longer limited solely to proof that the prosecutor has used his peremptory challenges to strike all black jurors from the defendant’s jury panel, and the presumption that the prosecutor has acted properly falls away. At that point, the court has a duty to satisfy itself that the prosecutor’s challenges were based on constitutionally permissible trial-related considerations, and that the proffered reasons are genuine ones, and not merely a pretext for discrimination.  [b]y volunteering his reasons for striking the black jurors, he made those reasons part of the record subject to our review. He is no longer ‘cloaked by the presumption of correctness’, and we may review his motives ‘to determine whether the purposes of the peremptory challenges are being perverted’. Garrett v. Morris, 815 F.2d 509, 510, 513 (8th Cir. 1987).

The prosecution should not be permitted to peremptorily excuse minority jurors for reasons not explored in voir dire.


See               Williams v. State, 538 So.2d 1250 (Ala. Cr. App. 1988);


Avery v. State, 545 So.2d 123 (Ala. Cr. App. 1988).


Ex Parte Branch, 526 So.2d 6090 (Ala. 1987) (suggesting the standard for review of the trial court’s finding regarding peremptory challenges is the “clearly erroneous@ standard).


See also  Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987) (suggesting exclusion of all blacks from jury panel because black jurors lacked background, education and knowledge to understand scientific evidence was pretext for racial discrimination).


On appeal, a district court’s finding on a Batson challenge is accorded much deference, however, there is no need to remand the case to if it is obvious that the explanations given were pretextual – the appellate court can reverse the district court’s finding.


See               U.S. v. Stephens, 514 F.3d 703 (7th Cir. 2008) (“deference is due only when a district court properly performs its task in the first instance”)(reversing district court’s finding that prosecutor discriminated against minorities and reinstating convictions).

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