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Batson claims: One that got away

Here are a couple more cases for your Batson file.

Can a prosecutor strike a prospective juror she suspects would have trouble understanding complicated DNA evidence?

It’s a question the Court of Appeals had to back away from, even after the Supreme Court of Virginia had granted a delayed appeal to a convicted rapist.

Responding to a Batson motion, a Dinwiddie County prosecutor told Circuit Judge Pam Baskervill that she struck three African-American jurors “because of her concern that they would not be able to fully understand the complicated DNA evidence that would be presented at trial,” according to the Court of Appeals’ Oct. 6 unpublished opinion. The prosecutor pointed out that one of the jurors was unemployed and the other two jurors worked at the Southside Virginia Training Center, one of them in the laundry.

Baskervill noted that only one juror had been identified in the record as unemployed, and that distinction was sufficient. She did not otherwise find any “purposeful discrimination,” and overruled the Batson motion.

But appellant David C. Gilliam III failed to comply with Rule 5A:18, Rule 5A:20(e) and Rule 5A:25(c)(3). Each violation, standing alone, might not be enough to scuttle his appeal, wrote Judge Robert N. Humphreys.

But put them altogether, they spell default.

Humphreys said the panel could “not address the merits of whether the implicit assertion by the prosecutor in this case that either unemployed African-Americans or those who happen to be employed at the Southside Training Center are thereby incapable of comprehending DNA evidence is a sufficiently race-neutral reason” for the exercise of a peremptory challenge.

In another case released the same day, the Court of Appeals discussed “demeanor” as a basis for a Batson-safe strike.

At a second-degree murder trial, the defendant used his four peremptory strikes on Caucasian jurors, because of their demeanor.

With regard to one juror, Greensville County Circuit Judge W. Allan Sharrett allowed he could recognize what defendant was talking about: “[I]t’s hard to pin down, but in particular she was staring at the defendant,” and “I did notice that she was intense.” He denied the Batson motion.

The defendant gave no particular reason for striking a second white juror, but simply said “there were other jurors more appropriate for this case.” And a third juror was struck “for the same reasons.” Not good enough, Sharrett said, and he sustained the Batson challenge.

A fourth juror said she was a friend of the prosecutor, according to the defendant, but the judge pointed out that two other jurors knew the prosecutor, so that was not a race-neutral strike. The court again sustained the Batson challenge. The appellate panel affirmed the trial court rulings.
By Deborah Elkins

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