The holding in Batson v. Kentucky, 479 U.S. 79 (1986), that racial discrimination has no place in jury selection, continues to generate caselaw. As noted in a prior blog post, the Supreme Court of North Carolina had never summarily reversed a criminal conviction on the basis of a Batson violation. Instead, when a case was appealed that included credible allegations of a Batson violation, the Supreme Court historically would remand the case to the trial court for a hearing, where the issue usually resolved itself. See, e.g., State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), whose tangled history is detailed in my earlier post. Seen from another angle, in those earlier cases the Supreme Court appeared reluctant to find as a matter of law that an attorney’s behavior was motivated by bias.
Although it initially followed its past practice of remanding for a hearing in the recent case of State v. Clegg, No. 101PA15-3, 2022-NCSC-11 (2022), the Supreme Court of North Carolina went further to find, on second review, that a Batson violation had occurred.
Here are the facts. Defendant Clegg, an African-American male, was charged with armed robbery and being a felon in possession of a firearm. During jury selection, the prosecutor exercised peremptory challenges to remove two female African-American prospective jurors. When defense counsel raised Batson objections, the prosecutor tendered race-neutral reasons for those challenges. The trial court overruled the objections and the case proceeded to trial. Defendant was convicted of armed robbery but acquitted on the other charge. In an unpublished opinion, the North Carolina Court of Appeals found no error. State v. Clegg, 2017 WL 3863494 (2017).
Defendant filed both a Notice of Appeal and a Petition for Discretionary Review with the Supreme Court of North Carolina. In response, the Supreme Court issued a special order remanding the matter to the trial court “for reconsideration of defendant’s Batson challenge based upon the existing record and the entry of a new order addressing the merits of defendant’s Batson challenge in light of the United States Supreme Court Decision in Foster v. Chatman, [578] U.S. [488], 136 S. Ct. 1737, 195 L. Ed. 1 (2016), which was decided after the trial court’s decision in this case.” 371 N.C. 443 (2018). Thus, the Supreme Court followed the procedures it had used in the past, sending the case back to the trial court without making its own findings about defendant’s Batson claims.
On remand, the same judge who had tried the case conducted the hearing. The judge ultimately found that the State’s reason for peremptorily excusing the first juror was justified by the evidence.
However, as to the second juror, the trial court found problems. During defendant’s trial, the prosecutor asserted two race-neutral reasons for its peremptory challenge of this juror. The first was the answer that the prospective juror gave to a voir dire question, and the second was the prospective juror’s body language. As to the first reason, the trial court determined on remand that the prosecutor inadvertently had misstated the answer that the prospective juror had given to the voir dire question. As a result, that first reason was not supported by the evidence.
As to the second reason, the remand court on remand acknowledged a misstep of its own during defendant’s trial. As indicated in Snyder v. Louisiana, 552 U.S. 472 (2008), when a prosecutor’s race-neutral reason for a peremptory challenge is the prospective juror’s body language, the trial court should make its own specific findings regarding that factor. Without such findings, a reviewing court lacks guidance as to the trial court’s evaluation of the purportedly race-neutral reason. The court made no such findings during defendant’s trial. As a result, the prosecutor’s second rationale was not supported by sufficient evidence.
Thus, the trial court determined on remand that neither of the prosecutor’s stated reasons for peremptorily excusing the second prospective African-American juror was supported. Even so, the court found that defendant had failed to prove “purposeful discrimination” on the part of the State and overruled defendant’s Batson objections on that basis.
The Supreme Court of North Carolina then allowed defendant’s supplementary petition for discretionary review. After discussing the history of Batson, the Supreme Court reviewed the trial court’s determination for clear error. The Supreme Court went through the Batson analysis in detail (the majority opinion is one hundred paragraphs long) and concluded that the remand court had clearly erred in overruling defendant’s Batson objection as to the second prospective juror. Because defendant’s conviction could not stand in light of this conclusion, the Supreme Court declined to analyze the remand court’s denial of the Batson challenge to the first prospective juror.
In considering its remedy, the Supreme Court noted that defendant had already served the active portion of his sentence and also had been discharged from all post-conviction supervision. Accordingly, it vacated defendant’s conviction and remanded the case to the trial court for “any further proceedings.”
This lengthy opinion (which includes a concurrence and a thirty-paragraph dissent) is worth reading carefully. Nevertheless, the takeaway is unmistakable. While the Supreme Court may still be willing to give the trial court the first crack at reconsidering a viable Batson challenge (as it has in the past), the Court now appears ready upon further review to call a Batson foul.
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