A Complete Primer on Batson Challenges, Courtesy of Ohio’s Fifth District Court of Appeals

December 5, 2016
Ohio’s Fifth District Court of Appeals recently decided the case of Castillo v. Pilot Travel Ctrs., L.L.C. This was an appeal by a Licking County slip-and-fall Plaintiff (he allegedly fell and sustained injuries at a Pilot gas station/”travel center”) who lost his case following a jury trial. Somehow he made it past summary judgment, avoiding the fate of the Plaintiffs in Bovetsky v. Marc Glassman, Inc.Darah v. Coaching by Kurt, L.L.C. and Lattimore v. K & A Market, Inc., but the jury found for the Defendant anyway.

The Plaintiff appealed, but only asserted one assignment of error, as follows: 


In voir dire (the jury selection process), the attorneys for both sides question the pool of potential jurors in order to pick an acceptable jury. Depending on the state/jurisdiction, both sides have a certain number of “peremptory challenges” where they can get rid of a juror even if the other side wants to keep that juror. The only limitation on peremptory challenges is that they can’t be used to exclude people of a certain race. If one side believes the other side is using a peremptory challenge to exclude a juror because of his or her race, they can make a “Batson challenge” and the other side has to articulate their race-neutral reason(s) for not wanting that juror. The side making the challenge has the ultimate burden of establishing that the true reason for the peremptory challenge is race, and it is up to the Judge to observe the candor and demeanor of the attorney making the challenge, scrutinize the proffered reason and decide whether or not to exclude the potential juror in question.
In this case, the Court laid out the standard and the burden-shifting framework and ultimately affirmed the Trial Court’s rejection of the Plaintiff attorney’s Batson challenge. Here is how it played out:
{¶7} Whenever a party opposes a peremptory challenge by claiming racial
discrimination “[a] judge should make clear, on the record, that he or she understands
and has applied the precise Batson test when racial discrimination has been alleged in
opposition to a peremptory challenge.” Hicks v. Westinghouse Materials Co., 78 Ohio
St.3d 95, 99, 1997–Ohio–227, 676 N.E.2d 872.
{¶8} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:
First, a party opposing a peremptory challenge must demonstrate a
prima-facie case of racial discrimination in the use of the strike .[ ]. To
establish a prima-facie case, a litigant must show he or she is a member of
a cognizable racial group and that the peremptory challenge will remove a
member of the litigant’s race from the venire. The peremptory-challenge
opponent is entitled to rely on the fact that the strike is an inherently
‘discriminating’ device, permitting ‘those to discriminate who are of a mind
to discriminate’ .[ ]. The litigant must then show an inference of racial
discrimination by the striking party. The trial court should consider all
relevant circumstances in determining whether a prima-facie case exists,
including all statements by counsel exercising the peremptory challenge,
counsel’s questions during voir dire, and whether a pattern of strikes against
minority venire members is present. [ ]. Assuming a prima-facie case exists,
the striking party must then articulate a race-neutral explanation ‘related to
the particular case to be tried.’ [ ]. A simple affirmation of general good faith
will not suffice. However, the explanation ‘need not rise to the level justifying
exercise of a challenge for cause.’ [ ]. The critical issue is whether a discriminatory intent is inherent in counsel’s explanation for use of the strike;
intent is present if the explanation is merely pretext for exclusion based on
race. [ ]. (Internal citations omitted.) Hicks v. Westinghouse Materials Co.,
78 Ohio St.3d 95, 98–99, 1997–Ohio–227, 676 N.E.2d 872.
{¶9} Although the striking party must present a comprehensible reason, “[t]he
second step of this process does not demand an explanation that is persuasive or even
plausible;” so long as the reason is not inherently discriminatory, it suffices. Purkett v.
Elem, 514 U.S. 765, 767–768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Rice
v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973–74, 163 L.Ed.2d 824 (2006).
{¶10} Finally, the trial court must determine whether the party opposing the
peremptory strike has proved purposeful discrimination. Purkett, supra, 514 U.S. at 766–
768. It is at this stage that the persuasiveness, and credibility, of the justification offered
by the striking party becomes relevant. Id. at 768. The critical question, which the trial
judge must resolve, is whether counsel’s race-neutral explanation should be believed.
Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991);
State v. Nash, 5th Dist. Stark No.1995CA00024, 1995 WL 498950, 2 (August 14, 1995).
This final step involves considering “the persuasiveness of the justification” proffered by
the striking party, but “the ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768.
{¶11} In the case sub judice, appellant alleged that, as a result of his injury, he
could not be gainfully employed for the remainder of his life. Appellant was seeking in
excess of $2 million in damages.
{¶12} During voir dire, Juror No. 14, Brenda Hill, stated that she had fallen and
hurt her back at work while working as a nurse’s aide and that she had been out of work
for 15-20 years. When asked, she stated that she was on disability and that her disability
was the reason for her unemployment. The following discussion took place on the record
when appellee’s counsel stated that he was using his second peremptory challenge on
{¶13} MR. DUBYAK: Seriously? 
{¶14} MR. RICHARDSON: Yeah. 
{¶15} MR. DUBYAK: You’re going to have to go on the record for that one. 
{¶16} MR. RICHARDSON: Why, because she’s unemployed and she’s on
{¶17} THE COURT: Shhh. 
{¶18} MR. DUBYAK: Because she’s the only African American – 
{¶19} MR. RICHARDSON: That doesn’t – – only if – – only if there’s a pattern of it.
I’m doing it because she’s unemployed (sic) and on disability. That’s why I’m doing it. I’ll
put that on the record.
{¶20} THE COURT: So – – 
{¶21} MR. RICHARDSON: It’s only if there’s a pattern of behavior. A pattern of
picking base on some criteria. 
{¶22} THE COURT: Let’s pick the jury. 
{¶23} MR. RICHARDSON: No, that’s – first – – 
{¶24} THE COURT: Well, I need to rule on this objection right now. You’re
objecting to his peremptory challenge of an African American juror? 
{¶25} MR. DUBYAK: The only one on the entire panel. 
{¶26} THE COURT: Right. And your response to that is. 
{¶27} MR. RICHARDSON: My reason for peremptory has nothing to do with her
race. It has to do with her – – the fact that she testified that she’s been disabled, and that’s
she not unemployed (sic), and it doesn’t sound like she would be a good juror. I’m using
a peremptory challenge. 
{¶28} MR. DUBYAK: Lee Priest is unemployed. 
{¶29} MR. RICHARDSON: Well, I didn’t say I wasn’t going to get rid of him next. 
{¶30} THE COURT: She did indicate that she injured her back. She was on
{¶31} MR. RICHARDSON: Right. 
{¶32} THE COURT: I find that’s a race-neutral justification, so I’m going to
overrule the objection. So, this is all on the record. 
{¶33} Transcript at 133-135. 
{¶34} We find that the trial court did not err in permitting appellee to excuse
Brenda Hill as a juror. Assuming, arguendo, appellant had met his prima facie burden to
go forward on the challenge, appellee’s counsel gave a race neutral reason for using a
peremptory challenge against Brenda Hill. Appellee’s counsel indicated that he was
concerned that Hill, who on disability and was unemployed, would not be a “good juror”
in a personal injury case in which the plaintiff was alleging permanent injuries that
rendered him unable to work. We are mindful that only the trial court observed first-hand
“the demeanor of the attorney who exercise[d] the challenge, along with whether [each
stricken panelist’s] demeanor can credibly be said to have exhibited the basis for the strike.” United States v. Mensah, 737 F.3d 789, 796 (1st Cir.2013) (internal quotation
marks omitted). On direct appeal, the trial court’s findings may be reversed only if the trial
judge is shown to have committed clear error. Rice v. Collins, 546 U.S. 333, 338, 126
S.Ct. 969, 163 L.Ed.2d 824 (2006). We find no such error here.
One observation: the Plaintiff was seeking over $2,000,000 in damages, claiming he could never work again. This may have been a bit overambitious. There is a lot that cannot be discerned from the opinion, like whether he was even working before the fall, his profession, his job history, his pay history, his age, how serious his injuries were, how the fall happened and what type of damage he allegedly suffered, etc. I suppose it is possible he was a nuclear physicist who earned several hundred thousands of dollars a year but hit his head and suffered serious brain injuries that don’t allow him  to work. Or perhaps he is a 35-year old police officer whose career was cut short. Regardless, it is a challenge to seek such a high amount of damages, especially in a slip-and-fall case.

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