Texas SC decision could end peremptory strikes in jury selection

By Steve Korris | Oct 1, 2008

Justice David Brister

AUSTIN – A recent decision by the Texas Supreme Court regarding peremptory strikes could reshape the state's jury selection process.

"As these strikes have outlived their original purpose, it is time we did something about them," Justice David Brister wrote in a concurring opinion released Sept. 26.

In the opinion, justices awarded a new trial to Donald Davis in Harris County district court on his claim that Fisk Electric Company fired him for racial reasons.

The decision wiped out a jury verdict against a black man in a discrimination suit because his former employer struck five blacks from the jury.

All nine justices found racial motives in Fisk's jury selection. Chief Justice Wallace Jefferson wrote that "at least two of the strikes were based on race."

Brister and Justice David Medina found racial motives on both sides.

The justices on the state's highest court proposed repealing a rule that allows each side to strike six prospective jurors on a peremptory basis, without any explanation.

The practice was created to ensure that the community was fully represented on a jury, Brister wrote, but can now be used as a tool to discriminate against potential jurors.

"Parties needed peremptory strikes in early Texas because potential jurors were hand picked by the local sheriff, and later by jury commissioners, and tended to reflect a limited part of the community," Brister wrote.

"The only way to reduce or eliminate discrimination and suspicion is to reduce or eliminate these strikes," he wrote.

According to court documents, Fisk fired Davis, an assistant project manager, in 2001. Davis then sued Fisk under federal law and the Texas Labor Code.

At trial during jury selection, attorneys interviewed 28 prospective jurors. They shrank the pool to 24 by striking four for cause or by agreement.

Six blacks remained in the pool, and Fisk struck five of them.

Davis's attorney, Renuka Vinchurkar Jain, objected to Fisk's strikes. She said they violated a U.S. Supreme Court precedent, Batson v. Kentucky.

District Judge John Wooldridge asked Fisk's attorney to explain the strikes. Wooldridge accepted the explanations and overruled the objections.

At the close of trial, jurors found in Fisk's favor.

Davis appealed, and the 14th District court of appeals affirmed the verdict. Davis then took his appeal to the Texas Supreme Court. In order to prevail he needed to prove only one unfair strike, and justices agreed that he proved two.

The justices found that Fisk struck potential juror Patrick Daigle for a "nonverbal" reaction to a question about punitive damages.

"Nonverbal conduct or demeanor, often elusive and always subject to interpretation, may well mask a race based strike," Jefferson wrote.

"For that reason, trial courts must carefully examine such rationales," he wrote.

Fisk didn't strike a white juror who expressed in words what Daigle purportedly expressed without words, he wrote.

Jefferson also rejected a claim that Fisk struck potential juror Michael Pickett due to his employment as a musician. Fisk chose not to strike unemployed whites, he wrote.

"It is difficult to imagine that Pickett, who was employed and who did not respond affirmatively when Fisk inquired whether anyone had been terminated or when Fisk asked the panel whether, if they were involved in industries in which there were layoffs, they could not be fair and impartial, was less desirable than these jurors because of his musical career," Jefferson wrote.

He also rejected a claim that Fisk struck Pickett for his reaction to the "N-word," writing that whites and Hispanics responded at least as strongly to the word.

Then Jefferson, himself black, extended forgiveness.

"We acknowledge that peremptory strikes, often based on instinct rather than reason, can be difficult to justify," he wrote. "The trial lawyer's failure to do so here does not suggest personal racial animosity on his part."

He wrote, "A zealous advocate will seek jurors favorably inclined to his client's position, and race may even serve as a rough proxy for partiality."

"But whatever the strategic advantages of that practice, the Constitution forbids it," Jefferson wrote. "It is not enough, under the Supreme Court precedent we examine here, that the lawyer be pure of heart. We assume that he is."

Jefferson's kind words didn't soothe Brister and Medina. "If we are to blame rather than just decide, we ought to be more even handed," Brister wrote.

Davis used all six of his strikes to exclude white males, he wrote.

"Rather than using this case as an opportunity to disparage one attorney, I would use it as an opportunity to discontinue a practice inherently based on stereotypes," he wrote.

The Court's decision "does not go far enough to ensure every American citizen the opportunity to sit on a jury," Brister wrote.

"Twenty years after Baston, it is now clear we cannot always detect how many of those strikes are racially motivated, no matter how hard we try," he wrote.

"In the meantime, we are doing neither the jury system nor racial harmony any favors by encouraging lawyers to accuse each other of racial motives so they can get a second trial if they lose the first one," he wrote.

The court hesitates to curb peremptory strikes, Brister wrote, because lawyers believe they can use them to mold a favorable jury.

Brister also wrote that problems with peremptory strikes are widespread in Texas.

"Batson challenges are far more frequent here than anywhere else," he wrote.

He counted 1,364 Batson challenges in Texas state courts, 676 in California, 342 in Illinois, 181in Pennsylvania, and four in Idaho.

"More than any other state, we in Texas must consider whether peremptory strikes are worth the price they impose," he wrote.

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