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Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 61 (1986).


The Supreme Court has held that purposeful discrimination in the exercise of a prosecution’s peremptory challenges violates an accused’s Fifth Amendment right to equal protection. Previously, to establish such a violation the defendant had the burden of showing: (1) that he was a member of a cognizable racial group, (2) that the prosecutor had exercised peremptory challenges to remove members of defendant’s racial group, and

(3) that from the prosecutor’s strikes, an inference could be drawn that such strikes were made on account of race. Wingo v. Blackburn, 783 F.2d 1046, 1050-51 (5th Cir. 1986).


However, the Supreme Court went on to eliminate the first requirement, holding that a defendant has third-party standing to litigate the claim of race-based exclusion of jurors, whether or not the defendant and the jurors are members of the same race. Powers

  1. Ohio, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Justice Kennedy, writing for the Court, noted that Congress has enacted criminal sanctions for such race-motivated exclusions, and that the policies underlying such sanctions include the notion that a venire man has a right not to be excluded from the jury based on the color of his skin. The Court went on to say that the traditional rules of third-party standing — that the litigant has suffered an injury in fact, that he have a relationship to the third party, and that his own rights are somehow hindered by the deprivation of the third party’s rights — were all satisfied by the white defendant who had had blacks excluded from his jury due to race-based strikes.


A white-on-white murder precludes constitutional error through prosecutor’s peremptory challenge of blacks. Decision rendered before Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 61 (1986).


But see         Esquivel v. McCotter, 791 F.2d 350 (5th Cir. 1986)(en banc);


Smith v. McCotter, 798 F.2d 129, 132 (5th Cir. 1986) (holding Batson does not apply retroactively in capital cases).


See               US v. Townsley, 856 F.2d 1189 (8th Cir. 1988), a pre-Batson case held white co-defendants had standing to complain of the discriminatory exclusion of blacks asserted by their black co-defendant as the white defendants were treated differently based on the fact they were being tried with a black defendant);


Hernandez v. State, 538 So.2d 521 (Fla. App. 1989) (noting member of any race may complain of the exclusion of any race from grand or petit jury). The Florida Courts are split though.


Smith v. State, 515 So.2d 149 (Ala. Cr. App. 1987) (stating white defendant may not complain of the exclusion of a black juror even if defense counsel is black).


Contra         Campbell v. Louisiana, 523 U.S. 392 (1998)(Supreme Court decision holding that a white criminal defendant has the requisite standing to raise equal protection and due process objections against black persons in the selection of grand jurors.)


Three Fifth Circuit decisions that predated the decision, although noting the grant of certiorari in Batson, denied such claims of discriminatory use of peremptory jury challenges relying on Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed.2d 759



See also  Edwards v. Scroggy, 849 F.2d 204, 206-07 (8th Cir. 1988) (noting that the court found no denial in due process at exclusion of blacks from the jury based on Swain and the prosecutor’s experience that blacks were more sympathetic to the defense than whites were);


Jones v. Davis, 835 F.2d 835 (11th Cir. 1988) (holding testimony of defense attorneys about prosecutor’s track record striking all blacks from venire and one lawyer’s testimony that while working in prosecutor’s office he was told he had been a fool to leave a black on the jury established discriminatory use of peremptory challenges by prosecutor under Swain);


Foster v. Chatman, 195 L.Ed. 2d. 1 (2016) (holding that the decision that Foster failed to show purposeful discrimination under the three-step process under Batson was erroneous.

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