POINT OF ERROR NUMBER ONE
‘The Trial Court Erred in Refusing to Strike or Reform the Jury Panel, After the Defendant
met the Budden Under Batson, Demonstrating that the State had Disproportionately Used
its Peremptory Strikes
Against African-American Veniremen{
OF FA‘
After the State exercised a peremptory strike to remove the first African-American
venire member from the jury panel, defense counsel urged a Baison challenge, citing the fact
that the State treated the venire member disparately than the other potential jurors it had
examined; that the State’s actions were indica of a racially-based reason for excluding the
potential juror, and that the defense had made a prima facie showing of an improper motive
on the State’s part.’ Batson v. Kentucky, 476 U.S. 79 (1986)
The trial court agreed that the defense had made a prima facie showing for a biased
intent, and conducted a Batson hearing, The prosecutor stated on the record her reasons for
3Defense counsel also made a Batson challenge with regard to the State's jury shuffle.
The State argued that the challenge was untimely, as defense counsel did not raise it
until after the State had questioned venire member #68. However, #68 was the first
African-American on the panel, and defense argued that it had no basis for believing
the State's jury shuffle was racially based until the State acted with apparent racial
motivation in questioning venire member #68. Regardless, the trial court refused to
conduct a Batson analysis with regard to the jury shuffle. Case law is unsettled on the
issue of whether Baison should apply to jury shuffles, but logic would dictate that it
should, “One scholar has argued that, logically, Batson should extend to jury shuffles.
See E. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned
Peremptory Strikes in the Jury Selection Process, 46 Baylor L. Rev. 947, 982 (1994),”
Ladd v. State, 3 8.W. 3" 547, n, 9 (Tx.Cr.App. 1999)
16excluding the potential juror, including that the juror indicated she would hold the State to
ahigher burden of proof, and that she was confused over death penalty issues, The trial court
overruled the Batson challenge.
Defense counsel again urged a Batson challenge with respect to venire member #76,
after the State exercised a peremptory strike to remove her from the pane! when the Trial
Court denied the State’s challenge for cause. This time, the Trial Court stated that it was
unsure that a prima facie case had been established, but out of an abundance of caution,
requested the Prosecutor state the reasons behind the peremptory strike. The State proffered
a lengthy response, then, without allowing questions or argument from the defense, the trial
court overruled the Batson challenge, finding the State’s reasons were adequate.
The State’s exercise of its peremptory challenges left Reginald Blanton, the Appellant
here, with a jury devoid of any A frican-Americans. *
4 The State also excluded another African-American venire member #64, Frannie
Rettig, when the trial court granted the State’s challenge for cause. The potential juror
answered unequivocally that she could never assess the death penalty. (R.R. v. 15, p.
93)
I7ARGUMENTS AND AUTHORITIES
The Trial Court did not Comply with Batson’s Requirements
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits race-based jury selection. Batson v. Kentucky, 476 U.S. 79 (1986).>
Batson stands for the proposition that a defendant has the right to be tried by a jury whose
members are selected pursuant to nondiscriminatory criteria. Batson, 476 U.S. at 86, citing
Martin y, Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 339, 345 (1880). As
such, the State’s ability to freely employ its peremptory strikes during voir dire is subject to
the commands of the Equal Protection Clause. Batson, 476 U.S. at 89. The Equal Protection
Clause guarantees the deféndant that the State will not exclude members of his race from the
jury venire on account of race, or on the false assumption that members of his race asa group
are not qualified to serve as jurors, see Norris v. Alabama, 294 U.S. 587, 599 (1935): Neal
STexas Code of Criminal Procedure Art. 35.261 mirror’s Batson’s language and
further requires race-neutral reasons for the exercise of peremptory strikes:
(a) After the parties have delivered their lists to the clerk under Article 35.26 of
this code and before the court has impaneled the jury, the defendant may request the
court to dismiss the array and call a new array in the case. The court shall grant the
motion of a defendant for dismissal of the array if the court determines that the
defendant is a member of an identifiable racial group, that the attorney representing the
state exercised peremptory challenges for the purpose of excluding persons from the
jury on the basis of their race, and that the defendant has offered evidence of relevant
facts that tend to show that challenges made by the attorney representing the state were
made for reasons based on race. If the defendant establishes a prima facie case, the
burden then shifts to the attorney representing the state to give a racially neutral
explanation for the challenges. The burden of persuasion remains with the defendant to
establish purposeful discrimination.
(b) If the court determines that the attorney representing the state challenged
prospective jurors on the basis of race, the court shall call a new array in the case.
Texas Code of Criminal Procedure Art, 35.261.
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