Batson in the Internet Age, or, Beware Great Expectations


by Tara J. Lamer

More than 30 years ago, the United States Supreme Court decided Batson v. Kentucky, which prohibits the exercise of peremptory strikes on the basis of race. How is the availability of information on the internet today changing expectations for making Batson challenges? Recent cases indicate that if you fail to conduct research on all potential jurors, do not treat potential jurors with similar traits the same, and cannot show that you acted on factual information rather than merely assumptions, you may leave yourself unable to defend your strikes if challenged.
 
In 1987, emergency workers pulled Baby Jessica from a well, Apple registered apple.com, The Legend of Zelda was released for the first time in the United States, and an all-white Georgia jury convicted a black teen named Timothy Foster of murdering an elderly woman in her home.
 
In 2006, Facebook launched NewsFeed, Twitter was invented, and a Nevada jury convicted a black man named Jason McCarty in the abduction and murder of two women he had been accused of prostituting and using to help him deal drugs.
 
Although these cases took place nearly 20 years apart, both involved brutal slayings. And because both involved the troubling and unconstitutional practice of using peremptory strikes to remove minority jurors from a panel, neither conviction survived appeal.
 
The core principle of Batson v. Kentucky is that a peremptory strike may not be used to exclude a juror on the basis of race. This principle was later expanded to include gender as a prohibited basis and to cover civil trials. Counsel has the right to lodge a challenge when a peremptory strike has been exercised on a juror included in a cognizable racial group or because of the juror’s gender. Once the challenging counsel creates a reasonable inference that the strike has violated Batson, the party exercising the strike must provide a race- or gender-neutral reason.
 
The rejections of the two murder convictions of Foster and McCarty are instructive on modern jury selection, in that they provide a starting framework for considering the extent to which the sometimes-overwhelming access to public information on potential jurors can play out in a modern Batson challenge. Today, more courts have begun to expect––and in some cases, mandate––that counsel conduct various levels of background research on potential jurors, raising questions as to how the availability of information will affect future Batson challenges.
 

The Disparate Research Problem

 
In McCarty v. State, 371 P.3d 1002 (Nev. 2016), Jason McCarty’s 2006 capital conviction for the abduction and murder of two women was overturned in 2016 after the Nevada Supreme Court determined, as one error, discriminatory jury selection. After narrowing the pool to 36 potential jurors, the State used two of its 10 peremptories to strike two of the three African-Americans remaining on the panel. One of the strikes, Juror 36, had written on her questionnaire that she was a married 28-year-old mother and full-time student.
 
When responding to the defendant’s objection, the State explained that it had conducted independent research into the background of two jurors––Juror 36 and Juror 76––after they both indicated on the questionnaires that they had immediate relatives with criminal histories. Juror 76 was also a married woman, but unlike Juror 36, she was white. Juror 76, who stated her real father had been incarcerated but she did not know the details, was asked one follow-up question in voir dire. Conversely, Juror 36 was asked 18 questions about her family member (three by the defense and 15 by the State).
 
During the background investigation, the State did not locate information on either relative referenced on the questionnaires. However, what the State did find was that Juror 36 had an old, but still-valid, work card for an adult nightclub, and told the court “with all due respect, it has nothing to do with race, but [we are] not going to leave somebody who works at a strip club on [the] panel.”
 
On appeal 10 years later, the majority wrote:
 

The State’s explanation is troubling because the State admitted that it only ran a SCOPE background check on one of the other 35 prospective jurors remaining in the venire. If, indeed, prospective juror 36’s possession of a valid work card for an adult nightclub made the State uneasy, it should have also been worried about the other 34 prospective jurors on whom it did not conduct a SCOPE background check to determine whether they had obtained a valid work card within the last three years. This kind of disparate treatment supports our conclusion that it is more likely than not that the reasons given for striking prospective juror 36 were mere pretext for purposeful discrimination.

 
The majority went on to call the discovery of Juror 36’s work card a “fortuitous excuse to remove” her from the panel. The dissenting justices wrote that, in a case involving the murder of purported sex workers, striking a juror who had a history of working in strip clubs constituted a facially race-neutral reason.
 
The defendant noted that only the prosecution had the power to conduct SCOPE background checks and that the defendant was unable to assess the validity of the race-neutral reason without such access. But even in a civil case where the parties have equal access to public information, the choice to conduct targeted research on only certain panel members leaves legitimate, allowable strikes open to scrutiny. Before deciding whether a strike is allowable, or whether to challenge a strike made by opposing counsel, consideration should be given to whether the reason is limited to one juror or if indeed it only appears to be unique because of a decision to conduct targeted research. If the same research has not been conducted on all jurors on the panel, the strike may violate Batson.
 

The Similar Traits Problem

 
In 2015, Supreme Court Justice Sonia Sotomayor almost broke the internet when she challenged the legitimacy of the Georgia prosecution team’s Batson argument in Foster v. Chatman, 136 S. Ct. 1737 (2016). Specifically, she questioned whether justifying a strike based on the incarceration of the cousin of a black panelist named Marilyn Garrett was pretextual because the prosecutor did not ask any questions about the arrest and the reason relied on the assumption that Garrett actually knew her cousin. Sotomayor noted that she herself had cousins who had been arrested but whose whereabout were unknown to her.
 
The prosecution made several other attempts at providing race-neutral reasons for dismissing Garrett. It argued, in part, that since Foster planned to argue he was from a deprived background, Garrett’s work as a Head Start teacher’s aide predisposed her to be biased. The defense countered that the panel included white teacher’s aides who were not struck.
 
If you were picking an imaginary jury today that had the same characteristics as the Foster pool, what might be a legitimate reason to strike one teacher’s aide and not another? By performing internet research on all the teacher’s aides in the pool, you can learn whether there is any real distinction between them. For example, you may be able to support the strike by showing:
 

  • “Garrett’s” preschool is surrounded by homes with an average value of $40,000, while the other potential jurors work in neighborhoods with an average home value of $400,000.
  •  

  • “Garrett’s” preschool won an award five years ago for its work with underprivileged children, while the other potential jurors work at preschools that have raised millions through capital campaigns funded by parents and local titans of industry.
  •  

  • “Garrett” posts on her social networking page about collecting basic toiletries for her students in need and about volunteering for a shoe and coat drive for the past three Novembers, while the other teachers post pictures from the preschool’s yearly trip to Aspen.

 
You will never know unless you look.
 

The Subjectivity Problem

 
Arguments can often develop around soft concepts like a juror’s “understanding” of a topic or “familiarity” with a place. To hear some argue it, these concepts can be infinite in both time and level of insight. To others, these concepts may mean something completely different.
 
In Foster, another item on the prosecution’s laundry list of race-neutral reasons to strike Marilyn Garrett was that she was lying about her familiarity with the victim’s neighborhood. She lived about 20 miles away at the time of the trial. But, prosecutors said she had gone to school in the area 20 years prior and currently worked “near” there. Is there a difference between being “familiar” with the current neighborhood the teenage-defendant Foster knew, or just with the old neighborhood as it was when Garrett was in school 20 years or more in the past?
 
Returning to our fictional jury selection today, internet research could reveal that “Garrett” had actual knowledge of the victim’s neighborhood of today rather than just prior and work-related familiarity with the neighborhood. For example, research could reveal:
 

  • “Garrett” checks-in on her social networking at a locally-owned bakery in the neighborhood at least twice a month.
  •  

  • “Garrett” was quoted in a news article about the declining economic condition of the neighborhood and the effect it has had on residents.
  •  

  • “Garrett” gave money to individuals running for office from the neighborhood.
  •  

  • “Garrett” left an online condolence to the family of a former activist in the neighborhood.

 
Of course, as discussed above, if the question raised on a challenge is whether anyone on the panel is “familiar” with the neighborhood, you would be well advised to have checked out everyone on the panel, not just a juror you want excused in that moment—in the continuing cautionary tale of the Foster case, one of the white teacher’s aides taught at a school 250 yards from the victim’s neighborhood, and she sat on the jury.
 
So, where does this all leave us? Baby Jessica is now a teacher’s aide with her own children looking up her rescue on Google, some video games today are arguably better than The Legend of Zelda, jury selection under Batson is still a thing, and the internet seems to be here to stay. If you know how to find it, a historically unprecedented volume of information is available online, and as judges get younger––and more tech-savvy in their own right––it will be interesting to watch how the practical expectations for lodging or defending a Batson challenge evolve alongside rapidly expanding technology (and, of course, peoples’ willingness to publish deeply personal details about their lives and thoughts online). What we can learn from the Foster and McCarty cases is the importance of researching all potential jurors equally and fairly, employing the same level and focus of research to all potential jurors with similar traits, and obtaining facts on which to base our decisions rather than acting on assumptions.
 
Finally, speaking of practicality, Winston Churchill is credited with saying, “You’ll never reach your destination if you stop and throw stones at every dog that barks.” Having a plan in place to know which barking dog is worth listening to—and which one is not—is going to be critical to your success when you are in front of a court that knows all about The Google––particularly when you start thinking about all the ways the same research can be conducted after you win an important verdict for your client and are facing appeal. Were you—in the modern sense—fully informed during your Batson arguments?
 
Were you expected to be?

Tara J. Lamer

Tara joined Smith & Carson as an Investigator in 2014, and focuses on product liability and business litigation. Prior to joining Smith & Carson, she represented Fortune 100 clients in products and premises liability cases. Tara has extensive experience in fact and expert witness development, alternate causation and non-use defenses, multi-jurisdictional case management, e-discovery, and mass tort technology development. She has taught continuing education on effectively defending exigency demands and wrongful death cases filed in high-volume jurisdictions. Tara is a graduate of the University of Missouri-Columbia School of Law and is a licensed Attorney in Missouri. She holds Private Investigator licenses in Missouri and Kansas.