Wamget v. State

detachment, summary judgment in specifically to Shah retinal Moss was referred Accordingly,-the condition, improper. his favor was treat retinal buckle- his should be af- appeals’ judgment surgery necessary follow- court removal concludes oth- up treatment firmed. Because the Court part course of erwise, eye respectfully Moss other I dissent. that condition. went to problems his visual specialists about with muscles, nature eye his but the

acuity and problem for which Shah specific Moss—-retinal detachment —never

treated

changed. continuing

I that neither the mere agree pa-

relationship physician between a continuing diag- tient of a nor the nature WAMGET, Appellant, Charlie support that a finding nosis will alone course of treatment established Rowntree,

particular condition. The STATE of Texas. If an does S.W.2d at 105-06. examination not to treatment the condition relate No. 926-00. rise to the but is “dis- gives litigation Appeals of Texas. Court of Criminal complete,” crete and not constitute does treatment. Nykorchuck,

continuous Sept. Here, 434, 577 N.Y.S.2d N.E.2d at 1028. testified continued

though, Shah that Moss chec- periodic for “routine see Shah

kups” surgery. after buckle-removal

And, contrary to the conclusion Court’s

that the was not November 1994 visit surgery, for the buckle-removal

recheck

Shah’s notes from Moss’s October specifically that Moss’s

recheck visit note year. in one

condition should rechecked originally November visit was 20, 1994, almost ex-

scheduled for October

actly after the year one October Although implies

visit. appointment did not relate

November treatment, follow-up

to a course case posture of this

summary-judgment

requires dispute us to resolve this favor.

Moss’s

IV Conclusion estab- conclusively did

Because Shah “dis-

lish the November 1994 visit was to a complete” and unrelated

crete course of treatment for Moss’s

follow-up Freeman, Houston,

Charles Appel- for lant. DA, Houston,

Alan Curry, Asst. Mat- Paul, Austin, Atty., thew State’s for State. OPINION PER CURIAM.

Appellant was convicted of murder and years sentenced imprisonment. to sixteen appeal On he claimed the trial court abused its in overruling discretion a Bat- son Court of challenge. Appeals The af firmed. Wamget No. 14-96- (Tex. slip op., 01188-CR 1999 WL 672327 App. Aug.31, [14th Dist.] — Houston 1999)(not published). granted appel We petition discretionary lant’s review to Appeals decide whether the Court of erred in holding may be a race factor co existing with reason long a non-racial race is not the reason for the strike.1 begin by addressing question We whether it was established “race” was even a underlying factor the peremptory strike, apart question from the further its coupling with a non-racial reason. See n. infra. examination,

During voir dire the State used a peremptory challenge against Veni- reperson Appellant objected No. 38. being impermissibly the strike as race- Kentucky, based under Batson v. prosecutor gave following reasons granted appellant’s 1. We also review of ther decided sec- consideration have that those error, points grounds granted. ond and improvidently third but fur- appellant’s Appeals rejected chal- The Court the exercise Venireperson venireperson’s na- lenge against concerning Nо. 38: claim spoke origin: up much more dur- tional No. 38 also trial court

Appellant argued erence to Liberia ing she was check card, at this concern. some concern. She also is exercising Under [defense counsel’s] born that. overruled the challenge. time and born the a strike circumstances in— Liberia. Let me that the was according under Batson.2 improper prosecutor’s voir dire. gave that gave to her me some employed double- reason Also The ref- me Batson See Hill with was may not be race there The Court of Criminal strike, court’s decision clearly a non-racial race was the reason for is no evidence in the [Tex.Crim.App.1992]. we cannot hold that challenge regarding [v. erroneous. State], the be a factor to reason reason; overrule Appeals has held S.W.2d for the strike. however, record that the co-existing appellant’s Juror Because ^[860] State’s race trial appeal, claimed the appellant On direct Wamget, slip op. No. at 7. 14-96-1188 by “committed trial court reversible error Appellant urges to hold that this Court appellant’s objec- overruling article 35.261 given peremptory the reasons for a when a Appellant argued tion.” that reliance on a implicate congenital classification strike venireperson’s absolutely nationality “is so arising origin, such as nationаl the taint unconstitutionally offensive as to override removed from the invalid reason cannot be purportedly ex- any other race-neutral with that do not combination reasons argued cuse.” He further that “whenever implicate congenital suspect or classifica- a party a peremptory challenge exercised “race” tions. The State maintains that against venireperson partially even be- the strike given was not reason for or her race origin, cause of his or national Venireperson and that the against No. 38 such challenge is unconstitu- Appeals not hold that race argued did appellant’s tional.” State rejected a reason for in this case. claim should be because the was the strike Essentially, State’s strike was not the fact that racially says motivated.3 State against Appellant argued prof- long person the State’s line of that allow a other cases divergent original fered race-neutral nationalities who reasons follows: who have ju- subsequently become to ‍​​‌‌‌​​‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​‍serve on citizens respect a ruse with to be- That's No. asserting with I am ries. And so that in mind you go asking through-I cause if back am proffered by that the reasons that have been judicial offering take Court to notice and I am pretext.... State are shams and сopy juror evidence a into information then, form.... With that in I would mind might there be 3. The State maintained that point jurors out to the Court are several there proper to because reason strike someone employed.... respect that are not With to they they are where were bom or where from: Liberia, respect In I Liberia situation prospective juror questions, juror A is from New York didn’t ask no ask the who didn't may is used brought question be struck because he or she forward to her about the ruse, fact, seeing that has tak- nationality violence. The violence issue. In it’s not place years en in Liberia in recent dwarfs improper someone it would be have struck [Venireperson that seen in New No. nationality, particularly York. based on aware was, Libe- not struck she was a ques- was because 38] that there was no individual was "born in person rian but rather because she tion asked as to whether that Liberia,” have been more whatever. be a thus citizen or It would either (sic) seeing of Peter v. and all of the used to violence. violation State Prospective Juror No. 38 was born

Liberia is a race-neutral reason for the (1988); Rigual, State v. 256 Conn. prosecutor’s use of a peremptory strike. (2001)(“[d]iscrimination A.2d reason, For this the State argues, of ancestry basis or national origin Appeals Court of properly held that “there violates the Equal Protection clause of the is no evidence the record that race was federal constitution [and][c]onsequently, the reason for the State’s strike.” if Only Batson, which was decided on the basis of we hold that country of one’s birth is clause, the Equal Protection ap must be not a race-neutral reason for exercising a plied protect venirepersons from being strike, do we reach ques- juries excused from because of their ances tion of whether its combination with two try Alen, origin”); national State v. race-neutral reasons is violative of Bat- So.2d 452 (Fla.1993)(recognizing Hispanics son..4 protected as a class under Equal Protec Clause, tion Hispanic exclusion of ven- I. ireperson for reason that was not race- It is more than settled that exclusion Batson); neutral violated State v. Ram from jury service ethnicity because of or bersed, 923, 640, 170 Misc.2d 649 N.Y.S.2d nationality Equal violates the Protection 642 (N.Y.Sup.Ct.l996)(Italian-Americans Texas, Clause. See Hernandez v. 347 U.S. are cognizable group under Batson and 475, 477-78, 667, 74 S.Ct. 98 L.Ed. 866 Equal Clause); Protection see also Her (1954)(in case involving exclusion of venire- York, 352, 355, nandez v. New 500 U.S. 111 persons descent, of Mexican reject Court 1859, S.Ct. 114 L.Ed.2d 395 (1991)(recog ed argument classes, State’s two nizing that exclusion of Latinos from jury “white and Negro,” were within contem based on ethnic origin Equal would violate plation of Fourteenth Amendment and Clause); Protection see also United States stated that “exclusion of eligible otherwise Salazar, 304, Martinez 120 persons from solely service because S.Ct. 145 L.Ed.2d 792 (2000)(stating their ancestry or origin national is discrim Clause, that “under Equal Protection a prohibited ination by the Fourteenth defendant Amendment”); peremptory exercise a Chalan, United States v. (10th challenge to potential juror remove a F.2d sole Cir.1987)(recog- nizing striking ly on the juror’s gender, American basis of the Indians on ac ethnic race”); count of race origin, Partida, would violate Batson and or Castaneda v. Clause), Equal denied, Protection cert. 488 430 Objecting at trial to the State’s use of a support Texas argument Constitution in of his against strike Venireperson No. nationality permissible is not a reason for 38 and the against use of strikes (“Equali- I, strike. Tex. Cont. art. sec. 3a potential jurors, number of other appellant ty under the law shall not be denied or 35.26(1) stated that the strikes "violate Article sex, race, color, abridged because of creed or of the Texas Code of Criminal Procedure as origin”). Appellant rely national did not well as in the alternative violates Batson support federal constitution or Batsоn in Kentucky, versus perception, federal Appeals. of his claim before the Court law, Equal Protection under the the 14th Nonetheless, Appeals analyzed the Court of Constitution, Amendment of the United States appellant the issue under Batson and does not impermissible jurors selection of based aspect opinion. take issue with this of its appeal, appellant race.” On direct claimed reviewing Because we are the decision of the the trial court "committed by reversible error Appeals, Court of addressing we are limited to overruling appellant's article objec- 35.261 question under Batson. Appellant tion.” language relied on from the series of descendants “continued as a cogniza Americans

(1977)(holdingMexican stock,” is called parent who Equal purposes group ble racial Dictionary of Webster, v. Ala An American analysis under Swain N. Protection (New ). York Language 666 English bama 1830) lineage “the original), (emphasis Indeed, nationality are ethnicity and Webster, Dictionary A 2 N. family,” of a by meant precisely what is probably more (New Ha- Language English purposes Equal of the term “race” for 1841), of a common “descendants ven or In Francis Col- Saint Protection Clause. Donald, Etymo- ancestor,” Chambers’ J. 604, 107 Khazraji, 481 U.S. lege v. Al Lan- Dictionary English logical (1987), L.Ed.2d 582 the United 1871). (Londоn The 1887 guage race dis- equated States expanded the defi- edition Webster’s based on crimination with discrimination “The descendants nition somewhat: in- essentially them origin, holding ethnic tribe, ancestor; peo- family, common un- purposes of an action terchangable nation, presumed or ple believed in that Respondent § 1981.5 der U.S.C. Webster, N. to the same stock.” belong case, Iraq, States citizen born United English Language Dictionary of Francis Col- tenure Saint denied 1887). (W. until It was not Wheeler ed. college under Respondent sued the lege. began century that dictionaries the 20th 1981, § discrimination alleging 42 U.S.C. Caucasian, Mongolian, referring to the religion origin, based on national and/or so, Even modern Negro races.... and Supreme granted certio- race. The Court among the defi- still include dictionaries Ara- person rari decide whether “a of tribe, race, people, family, “a nitions of racial ancestry protected was bian to the same stock.” 607, belonging nation § at discrimination under 1981.” Id. Dic- Third New International Webster’s 107 2022. S.Ct. (1971); Ninth tionary 1870 Webster’s previously had been con- Section 1981 (1986). Dictionary 969 Collegiate New “racial by prohibiting the Court as strued century 19th also Encyclopedias of the in the of contracts. making discrimination” groups race in terms of ethnic described College in Francis The issue Sаint 1858, Americana in Encyclopedia ... respondent alleged whether the had racial races such example, to various referred meaning the discrimination within id., 5, 123, Finns, 6 at p. gypsies, vol. question, § To answer this the 1981. id., Hebrews, 602, 123, at and Basques, understanding the Court examined id.,6 at 209. century by looking in the 19th “race” 610-11, from that encyclopedias dictionaries and at College, 481 U.S. Saint Francis period: examples of “races” 2022. Other 107 S.Ct. century of 19th in various editions century, given years

In the middle of the 19th Swedes, Norwe- encyclopedias included referred to race commonly dictionaries licenses, taxes, ment, and pains, penalties, provides: 5. Section 1981 kind, very and to no other. exactions jurisdiction of the persons within the All to the term Although § does not refer right the same in United States shall have "race,” it Territory Supreme and en- has construed every to make State contracts, sue, parties, give evi- be force dence, prohibit all "racial discrimination” equal benefit of and to the full and public Run- making private and contracts. security proceedings for the laws and all McCrary, yon v. enjoyed by persons property white (1976). 49 L.Ed.2d citizens, subject punish- to the and shall Germans, Greeks, Finns, Italians, gians, including enabling legislation of Russians, Jews, Spanish, Mongolians, and Equal Protection of the Fourteenth Clause Hungarians. point- Id. Thе Court further Amendment, supports the view that congressional ed out that the debates of Fourteenth Amendment “was intended to “replete the time were with references to protect variety groups not now labeled ”6 Chinese, ... Scandinavian races 102; Biaggi, F.Supp. ‘races.’ see Latin, Spanish, ... ... ... Anglo Rambersed, (“[i]n also at 644 649 N.Y.S.2d races, Jews, Mexicans, Saxon ... ... ... realities, light of the dialectic historical blacks, ..., ... Mongolians Gypsies can assuredly Equal be concluded that for [and] Germans.” Id. at jurisprudence supports Protection Batson 5.Ct. 2022. Based on the above evidence expansive meaning construction of the time, of society’s view of “race” at the ‘cognizable group’ that is inclusive Supreme Congress Court concluded that variety groups of a of ethnic and ancestral prohibit intended to discrimination due to subject discrimination”); to intentional person’s ancestry or ethnic characteris- Md.App. Chew 527 A.2d § tics under 1981. The Court stated that (1987)(Fourteenth 332, 348 Amendment “such discrimination is racial discrimina- Rights and Civil Act of 1866 were written § Congress pro- tion that intended 1981 to representatives same senators and hibit, whether or not it would be classified session), vacated, congressional same as racial terms of modern scientific the- 562 A.2d 1270 As ex Md. 613,107 ory.” Id. at plained by particularity: one court with analysis Court’s cоncern A cursory of the relevant socio review ing College races Saint Francis logical and literature re anthropological applied been Equal Protection/Bai undermines, inforces, rather than son context. See v. Biaggi, United States often invisible link race and between 96, (E.D.N.Y.1987), F.Supp. aff'd, 673 101 origin, national emphasizing such factors (2nd Cir.), denied, 853 F.2d 89 cert. 489 geographic distribution and culture 1052, 1312, 109 S.Ct. 103 L.Ed.2d 581 race formation.... (1989); Rambersed, 649 N.Y.S.2d at 644. history of Turning legislative Some courts to the have determined that the leg Act, that of history post-civil islative of legislation, Rights war America’s first Civil 857, (3rd Many Cir.l994)(stating "race” "We be courts use terms and "eth F.3d 870 nicity” origin” interchangeably apply perempto or "national lieve that Batson does not Batson, purposes discussing ry challenges they for without unless are based on classi fications, meaning scope origin, term "race” under such as race or national equal equal protection subject scrutiny and the under Batson clause. Her are to 'strict' denied, nandez, 355, doctrine”), (sug protection U.S. at S.Ct. 513 U.S. 500 111 1859 cert. 969, 439, (1994); gesting that if State used chal 115 (7th lenges jury Canoy, to exclude Latinos from due to United States v. 38 F.3d 893 "racial,” origin, Equal Cir.l994)(using it "national ori ethnic would violate Protec terms interchangeably referring gin" tion under and “ethnic Clause Batson minorities” throughout opinion examining addressing regarding "race” neu claim Batson-based Riguаl, trality explanation venireperson); 771 of State’s in context of exclusion of Asian (holding applicable alleged discriminatory A.2d at 944 Batson exclusion Bedonie, Latinos); prohibit challenges ba States v. 913 F.2d use of United 782, (10th Pemberthy, origin ancestry); Cir.l990)(referring of ethnic 795 to mem sis (“[tjhis Navajo "recog F.Supp. at n. court will bers of Tribe as members of 156 13 Batson), Equal juris group” under cert. de follow the Batson and Protection nizable racial 1253, 2895, nied, prudence, terms 'race' and 111 S.Ct. which uses the (1991); Pemberthy Beyer, 'ethnicity' interchangeably”). L.Ed.2d 1059 v. adoption following the quently reenacted further the was enacted to which amendment as Section the fourteenth Amend- the Thirteenth protections of Act of 1870.... Rights the Civil 18 of (1865), replete with refer- finds ment has some ties Section 1981 Accordingly, scope encompassing to a broad ences the thir- as well as to to the fourteenth statutory struc- persons”.... “[T]he “all teenth amendments. ... history persuade legislative ture and Congress was intent that the 39th College, 784 v. Francis Al-Khazraji Saint principle then establishing ... a broader (3rd Cir.1986), affd, 481 U.S. F.2d necessary simply to (1987); have been would 95 L.Ed.2d 107 S.Ct. (what particular and immediate Chew, meet at 349 Su- 527 A.2d see also newly Negro freed slaves.” plight respect with preme Court concluded Act of Rights of Civil intent of framers Likewise, history of the legislative to intent apply equal with forсe 1866would (1868) illus- Fourteenth Amendment Clause, Equal framers of Protection amend- beyond doubt that trates people dealing with same were same who designed to insure ment ses- during congressional same problem constitu- principles enjoyed Act’s sion). validity. tional of the Fifteenth

Following ratification no Accordingly, agree we that the (1870), Congress passed broadly Amendment un ought “race” to be as tion of 1870, essentially re- Enforcement Act of and the purposes of Batson derstood making enacting the 1866 statute it is has been Protection Clause as Equal nationality clear its ambit extended to interpreted

groups. post-civil legislation war context of other Francis 1981. See Saint such Section history major 19th legislative 2022; College, 481 U.S. century rights civil enactments “em- 795 S.W.2d see also Salazar brace[s], least, membership in a at the His (Tex.Crim.App.l990)(referring to ethnically distinc- group establish purposes “race” for panics as tive....” Batson). under ing cognizable group (citations Rambersed, 649 at 644 N.Y.S.2d “race,” purposes of Bat- hold that We omitted). opinion The lower court’s son, ancestral line encompasses notions of the College Francis demonstrated Saint based ethnicity. And discrimination connection between the Four- historical racial discrimina considerations is on such § teenth Amendment and 1981: Batson. tion under enacted as originally 1981 was Section understanding of But this broad Rights act part of Section of the Civil party on the race carries with it a burden of the authorized Section claim, the to establish making the Batson to the United thirteenth amendment person question ethnicity of the Because of doubts Constitution. States racial cognizable of a pass the he is a member Congress’ authority to show over Campione, States group.7 See United Act of it was subse- Rights Civil attitudes, ideas or ex- thread of a common supreme court has held that in 7. One state ‍​​‌‌‌​​‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​‍(3) community of inter- periences; shares a cognizability to an ethnic show order to challenging party group’s interest cannot group, must show the such that the the ests group ex- represented is group: adequately if process; jury selection cluded from the (1) clearly by some defined and limited is and, factors; (4) experiencing (2) experienced or is possesses has or identifiable factor (7th Arab, 942 F.2d Cir.1991)(“spelling he was bom an rather than solely person’s surname is place insufficient —stand on the or nation his origin, or his ing religion, alone —to show that he or he belongs she will have made out a ease particular § to a under group”). ethnic This 1981.” College, is Saint Francis case, prerequisite making prima (emphasis U.S. at 107 S.Ct. 2022 add- facie ed). and, Thus, case, any part distinguished is Court the burden of be- persuasion in tween showing purposeful solely discrimination based on discrimin born, country where one was ation.8 The further which would question presented discrimination, not be viewed as race the instant case is country whether the discrimination based on place one’s birth one’s ancestral is a sufficient on ground line or ethnicity, which would person’s which to establish a constitute ethnicity for race discrimination. In a purposes concurring opin- of making a Batson claim based ion, pointed Justice Brennan ethnicity. on out that “the

line between discrimination based on ‘an- II. cestry or ethnic characteristics’ ... emphasized ‘place discrimination based or nation of person’s that a ... ethnicity ancestry origin,’ bright or is not a does one”: not equate country with the where he was It ancestry is true that one’s ethnic —the born. In the second to last sentence of its group from which an individual and his opinion in College, Saint Francis or her ancestors are descended —is “If respondent Court stated: on remand necessarily the same as one’s national prove subjected can that he was to inten- origin country person “where a —the bom, tional or, discrimination based on the broadly, country more fact discriminatory treatment group and is in need оf lar ethnic or racial is critical. The protection community prejudices. moving party's statements of the conclusion Rico, Commonwealth v. 551 Pa. 711 A.2d should also enumerate the observations and Another court stressed the assumptions upon which the conclusion is importance moving party statement, of the to state on based. The more detailed the record the relevant facts which it greater provides the incentive it identifying relies in someone as a member of striking any party disagreement to state allegedly cognizable group: may example, moving par- have. For if the observations, along Visual with other crite- ty general appear- notes an accent and a ria, surnames, etc., ance, indicates, language, such as de- moving party, which to the dire, veloped during undoubtedly voir are venireperson Hispanic, that the the other side, utilized in identifying connection with having details and the benefit those cognizable members of racial or ethnic having apprised precise been charac- When, groups.... conclusion, based on such observa- prompted teristics which criteria, fact, states, party tions and as a pressed will be hard not to note differ- concerning his or her conclusion com- moving party ences it have with the position withоut, particular of the venire that a process, conceding the is- venireperson group, is a member aof sue. State, against party alleges peremptory the Mejia whom 328 Md. 616 A.2d used, challenges being discriminatorily are 362-63 & n. 8 and, side, being the other aware of the case, making prima 8. In having it must be oppor- critical criteria and had the facie observations, person question tunity shown that the venire in is a to make similar does assertion, cognizable group. challenge member of a racial Bat not the fact will be son, (to deemed 476 U.S. at estab established. record, detail, Setting prima purposeful ... out in the in the lish case of discrimina facie tion, reaching prospective bases for the conclusion that defendant first must show particular person particu- juror cognizable group). is a member of a is member of eth predominate country’s inheriting that ancestors came.” his or her from which more on ances Ethnicity based nicity. is however, Often, identical as the two are one country where the lineage tral than one was born a factual matter: the born, may not be may or which own primary stock is one’s nation whose Thus, ancestors. of one’s country Moreover, origin national group. ethnic alone, birth, is standing country of one’s or ancestry claims have bеen treated an indica While race-neutral. in circumstances. ethnicity claims some needed. would be ethnicity, more tion of context, in example, For the Title VII party alleging discrimina hold that the We overlap legal as a matter. the terms under nationality ethnicity or on tion based (1986) (emphasis § 29 CFR 1606.1 See establish adequately will not Batson added) (national origin discrimination ra ethnicity cognizable and venireperson’s to, “inelud[es], not limited but is country of by showing only the group cial opportunity equal employment denial of birth, likewise fail party will their and such individual’s, his or her of an or because race persuasion of meet its burden of ancestor’s, place origin; or or because per showing that discrimination cultural, physical, an individual has on the only was based emptory strike a national linguistic characteristics of birth. See country venireperson’s of the Man- origin group”) Espinoza Farah [v. 765, 767-68, Elem, Purkett v. Co.], at ufacturing supra, [414 86] U.S. (1995)(“ulti- L.Ed.2d S.Ct. (1973)] 384, 38 L.Ed.2d 287 [94 with, rests persuasion mate burden of (the ancestry deletion of the word from . from, opponent never shifts § finial Title VII of version 703 of strike”); Ford v. S.W.3d ¿2 Rights Act of U.S.C. Civil jurispru (Tex.Crim.App.l999)(“... Texas 2000e-2(e), § intended “was not proffers holds that once the State dence change, suggesting material that the perempto for its explanations race-neutral ‘ancestry origin’ terms ‘national strikes, the burden is on the defendant ry synonymous”). I considered prose court that the to convince the trial opinion to therefore read the Court’s race-neutral. reasons were not cution’s on state that discrimination based Thus, production shifts the burden to state a in birthplace step alone is insufficient in to the State the defendant one two, step persuasion § the burden of claim under but defendant”). never shifts from 614,107 College,481 Saint Francis (em- J., (Brennan, concurring) S.Ct. 2022 III. phasis original). strik Appellant claims the State’s exactly Brennan was Justice ground No. 38 on the ing Venireperson ethnicity out that right pointing in Liberia” demon that she was “born or, origin specifically, national more on her nation strates discrimination based born, are often not country where one was other evi Appellant points to no ality. Alen, 616 So.2d necessarily the same. See that the support argument of his dence (“[N]ational important, origin at 455 race, ap was based State’s strike decisive, determining factor in but not further at query the State pellant did person’s ethnicity”). increasingly This is reason. regarding trial its stated Given today’s rapidly expanding global solely true argument was based appellant’s person any A of ethnic back society. country venireperson’s birth on the of more, in his may color be born he has failed grоund nothing and and/or dis- persuasion to establish race necessarily burden of country of the world without crimination ethnicity.9 persons impartial. based on We hold can be fair and Judicial Court of Appeals did err in con- not contrary, chal- peremptory rhetoric to cluding that there was “no evidence not further lenges goal. do this Nor that record race was the reason for the Moreover, they intended to. Batson ever holding strike” and trial court’s State’s progeny, and have made a muck its further overruling appellant’s of challenge Batson by of things transforming voir dire into against Venireperson not clear- No. 38 was lengthy involving inquires inap- ordeal into ly erroneous.10 propriate questions ethnicity of race and judgment The Appeals of the Court of is nothing that not have to do with affirmed. impartiality, but will also become increas- ingly changing muddled the face of our

MEYERS, J., concurring opinion. filed society.1 JOHNSON, J., dissenting filed a lot Marshall did not have a of Justice opinion. ability faith in erad- Batson’s detect and of

MEYERS, J., icate racial discrimination in the use concurring filed this per- opinion. peremptory challenges. He believed challenges emptory should be abolished: nearly accounts, By inquiry all that Batson,] today[, The decision will not ought during to be the central concern per- dire questioned voir is whether the venire- that end the discrimination prima support abolishing peremptory 9. Whether a of case discrimina- vanced in facie moment, given claims, was made here tion is of no challenges. Constitutional statistical that the trial court conducted a full studies, Batson argu- public policy historical hearing, the State offered a "race neutral” ments, opinion all been made. will have This strike, reason for its court ruled the trial couple arguments I touch on that have question the ultimate of intentional dis- thought-provoking, by found but these are no York, crimination. v. New Hernandez only angles means the from which to consider 352, 359, 114 L.Ed.2d constitutionality perempto- The this issue. (1991)("Once prosecutor has offered a challenges ry worthy is an issue of considera- explanation race-neutral for the thought, although I devote ble was unable to challenges and the trial court has ruled on the energy it the time and to here. One commen- question ultimate tion, discrimina- intentional Burger points out even tator Chief Justice preliminary issue whether the point at one observed that chal- prima showing defendant had made a facie might equal lenges protection survive an moot”). becomes analysis: recognize We that we do not reach the requires of "ra- A clause a minimum question upon granted which we review in government ap- no tionality” in actions has Appeals case—whether the erro- this Court of arbitrary plication capricious to "an neously held a factor that "race co- right.” reason; however, existing with a non-racial Alschuler, Albert W. The may not be a the strike.” race reason for Dire, Jury: Peremptory Challenges, Voir appellant's ground is because for review This Verdicts, Jury U. Chi. and the Review assumption based the State which Batson, (1989)(quoting L.Rev. being argues assumption is incorrect-the J., (Burger, U.S. at 106 S.Ct. 1712 dis- strike, race was a factor for the State’s senting)). by further com- As articulated this by prosecutor’s evidenced to the reference mentator, Equal says "The Protection venireperson's birthplace. argu- State’s clause The ment, essence, assumption peo- government directed at under- 'When the this core treats review, appellant’s ground had lying to be ple differently, it has to have a reason.' ‘No, essence, first. addressed peremptory challenge says ” Id. at 203. doesn’t.’ issue, researching amazed 1. In this I was variety arguments the number and ad-

861 come, Mr. Marshall has inject time has Justice emptories jury-selection into the peremptory challenge to abolish the urged, accomplished can process. goal That discriminatory”), аpp’d 616 inherently chal- only by eliminating peremptory (Fla.1993); People v. Hernan So.2d 452 lenges entirely.... poten- The inherent 350, 85, dez, 553 N.Y.S.2d 552 75 N.Y.2d challenges to distort peremptory tial of 621, (1990)(Titone, J., concur N.E.2d 625 the ex- jury process by permitting than de suspect I that rather ring)(“... jurors grounds clusion of on racial im complex judicially set of veloping ideally lead the Court to ban should standards, posed limitations and the most entirely justice the criminal them Leg course would be for the constructive system. existing to take a hard look at the islature 79, 102-103, Kentucky, Batson v. 476 U.S. peremptory system with a view toward 1712, 107, 90 L.Ed.2d 69 106 S.Ct. viable”), determining whether it is still (1986)(Marshall, J., concurring). Time has 352, 1859, 114 111 500 U.S. aff'd I proven today Marshall and right, Justice Hoffman, (1991); L.Ed.2d 395 Morris B. register my agreement growing with the Challenges be Abol Peremptory Should jurists ranks of other and commentators Judge’s Perspective, ished: A Trial 64 U. who have come to the same conclusion. 809, 819, 848 Chi. L.Rev. City University v. See Minetos New York, 177, F.Supp. 183 & I. (S.D.N.Y.1996)(stating perempto- that “all always peremptory I chal- had assumed ry challenges should now be banned as an necessary as a lenges were conceived unnecessary waste of time and an obvious impartial jury. Af- achieving means to an corruption judicial process” all, repeatedly Supreme ter Court re- holding “peremptory challenges per se indispensable pеr- fers to the function of State, equal protection”); violate Alen in this emptory challenges regard, 1083, So.2d are echoed most those assurances J., (Fla.Dist.Ct.App.l992)(Hubbart, con- Alabama, 127, courts.2 J.E.B. v. 511 U.S. curring)(“Rather engage than in a pro- 137, 1419, 114 S.Ct. 128 L.Ed.2d 89 longed case-by-case strangulation of the (1994)(noting only legitimate interest peremptory challenge period over a peremptory challenge is exercise many years which the end will effective- securing impartial jury); fair and United or, ly peremptory challenge eviscerate the Martinez-Salazar, States v. best, unpre- result in a convoluted and 120 S.Ct. L.Ed.2d (2000)(“The system challenge part

dictable selection enor- peremptory mously heritage” “[w]e difficult to administer —I think the of our common-law challenges espousing tory peremptory use of does not While at once the invaluable ser- ensuring peremptory challenges logically impartiality affect the of the resul- vice of jury: possibility prejudice impartial jury, fair and tant "The of racial unwaveringly peremptory petit jury affects the has maintained that in the selection of bearing presentation at all challenges have no adversarial of the case not constitutional ‘proxy’ peremptory for bias that the erroneous loss of a chal- if race is not allowable Oklahoma, lenge we can conclude that [citation omitted] is harmless. See Ross v. product jury-whether white it is the an all (1988) (erroneous in the exer- of defendant’s chal- chance or of racial discrimination denial challenges-can lenge resulting neverthe- for cause in loss of cise of impartial challenge capital a fair and verdict in the case did not violate con- less render minority right impartial jury). defendant.” Batiste v. stitutional This Court trial of (Tex.Crim.App.1994) previously even discrimina- 888 S.W.2d observed that n Hoffman, Peremptory Challenges Should per- the role of the long recognized have Judge’s Perspective, A Trial challenge reinforcing in defen- be Abolished: emptory unlimit- by impartial jury”); supra to trial an at 819 & 848. The Crown’s right dant’s Co., peremptory challenges really Edmonson v. Leesville Concrete were chal- ed 620, 2077, 614, which, L.Ed.2d due to the Crown’s lenges for cause (1991)(sole purpose peremptory In infallibility, indisputable. were royal permit litigants to assist challenge words, Crown, is to by virtue of its other impartial in trier government selection of Crown, articulate being the did not have to Harbin, fact); see also United States for the strikes. Id. at 845. To a reason (7th Cir.2001) 532, (“peremp- 250 F.3d 1300, advantages, by most off-set these tory significant are a means of challenges thirty- courts awarded criminal defendаnts But there is achieving impartial jury”). an capital in cases peremptory challenges five in really logical legal argument little (at time, nearly pun- all were felonies chal- support peremptory of the use of death). prac- In by ishable Id. at 820-21. securing impartial lenges as a means of tice, however, English criminal defendants jury. supra. Perhaps n. this is See rarely any peremptories.3 Over used peremptory challenge because the peremptory chal- years, the number compo- historically never conceived as steadily criminal defendants lenges given jury impartiality. nent of twenty in thirty-five decreased-from in in to three to seven jury system began At time the in 1989. finally, to their elimination law, English take in be- root somewhere peremptory chal- Id. at 822. The Crown’s 1270, peremptory chal- tween 1220 and away taken in lenge rights were in lenges appeared capital first in cases jurors any ability to exclude for rea- other response to two conditions: Crown than was abolished sons other for cause handpicked prospective jurors all and the Thus, conceived in originally an unlimited number 1989.4 Crown could exercise law, common chal- peremptory English Morris B. peremptory challenges. trial, times, Cyprus spy all seven defendants perceived when 3. "Even in ‍​​‌‌‌​​‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​‍modern chаllenges peremptory and exer- eventually complete pooled aboli- their abuses led to the B. grand Morris peremptory challenge England, cised a total of seven.” tion of the Hoffman, use, Challenges Peremptory Should be its as late as had been described trials, Judge’s Perspective, supra Abolished: A Trial frequent no than one in seven more at 822. rarely than chal- with more one Hoffman, lenge B. Per- in a case.” Morris emptory Challenges per- A use of Should be Abolished: outlawed the While Parliament 821; 1305, the Judge’s Perspective, supra emptory challenges by see Crown in Trial Alschuler, devel- W. circumvented this restriction also Albert Crown Dire, “standing aside.” Jury: Peremptory oping procedure called Chal- and the Voir Verdicts, prosecutors July supra By practice, the Crown’s lenges, this and the Review of jurors potential challenges could ask number of (peremptory were used at 165-66 during of the other English history stand aside the selection rarely in that some histori- so unavailable). jurors Only chosen they jurors. Per- if the number ans concluded were Eng- after challenges were insufficient to constitute emptory were abolished in cause, challenges for they parties exercised their public perception land due peremptories, corruption, despite the defendant exercised his subject to abuse and recalled. Mor- standing English courts: would those aside restrained use of them Hoffman, Challenges Peremptory Should telling "Perhaps nothing of the re- ris B. is more Perspective, Judge’s su- English be Abolished: A Trial have manner in which strained standing aside Crown's challenge pra 821-22. The than exercised the trials, rights in 1989. publicized were abolished most of these fact that in the jurors juror impar- to with fort to select that are as biased lenges nothing had do they I think much to tiality.5 Nor do have possible. their In order to elimi- favor as jury impartiality today.6 do with likely jurors are not to be biased nate who are, who in their favor and retain those contrary, parties uti- strategically To the peremptory challenges parties rely group generalizations:7 their in an ef- lize thriving impartiali- fading England, it noting juror 5. It also worth that from use in was is component ty not a of trials at the time excluding was disfavored America as a means of peremptory challenges appeared in the first jury by groups from service. And all Hoffman, century. accounts, mid-thirteenth Morris B. incredibly in this it was effective Challenges Peremptory Abolished: A instance, Swain, Should be capacity. For “When Mr. Judge’s Perspective, supra at Trial 846. En- fame, by Swain v. Alabama was convicted his glish jurors at that time were still trial wit- Talladaega County jury early all-white nesses, selеcted because their connection to 1960s, person any sat on Tal no black had Rather, knowledge of the case. as ex- criminal, ladega jury, County trial civil or above, plained peremptory challenges arose Hoffman, living memory.” Peremp Morris B. crown, as a reaction to the excesses of the tory Challenges Should be Abolished: A Trial argue beginnings and some that these render Judge’s supra Perspective, at 829. Problems challenge purpose today: without valid persist. Justice Marshall noted in Batson that peremptory challenge The fact County felony trials in "[i]n Dallas sprang corollary to life as a to the axiom of 1983-1984, prosecutors peremptorily struck royal infallibility terribly important is ... eligible jurors; black the chance of 405 of 467 peremptory challenge The ideas that the is qualified sitting jury black on a was 1 in undemocratic, decidedly suscepti- that it is Batson, compared to 1 in 2 for a white.” authorities, significant by ble to abuse and J., (Marshall, U.S. at 106 S.Ct. 1712 irrational, inherently that it is all flow di- concurring)(citing Morning Dallas News rectly peremptory fact that the (March 1986)). challenge actually is the lost heir of the right kings. Something divine funda- is example approach to 7.An extreme of this mentally wrong system jury with a selection selecting jurors biased in favor of the State lawyer perfectly in whiсh a can excuse pre-Batson prosecutors' could be found in qualified impartial objectively jurors manual: offering any explanation. without The something fundamentally wrong that is is looking juror, but You are not fair lawyers are no more infallible than hy- strong, rather a biased and sometimes kings.... cogitate today When we about pocritical individual ... You are not look- exactly peremptory challenge what has ing minority group member of a juror impartiality, to do with we should not may subject oppression-they him to which say 'nothing.' be ashamed to empathize always with the ac- almost 846-47; Marder, Nancy Id. at see also S. physical cused. ... Look for afflictions. Beyond Challenges Peremptory Gender: people usually sympathize with the These Jury, the Roles 73 Tex. L.Rev. jurors accused.... I don't like women be- (1995)(“[t]he peremptory, which was once a do, They cause I can't trust them. howev- Crown, loyalists exclude device to er, jurors involving make the best in cases been transformed into a mechanism for ex- against Extremely children.... ov- crimes cluding prospective jurors based stereo- erweight people, especially women and types”). men, young indicates a lack of self-disci- pline People .... from small towns and ru- altogether why peremptory It’s clear good ju- generally make Stаte’s ral areas challenge prominence in has achieved such People rors. from the east or west coasts country. this Some believe the American ex jurors.... often make bad Intellectuals perience years part is due in no small to the etc., teachers, generally are too such surrounding slavery, the abolition of civil war good Hoffman, always Hunters make liberal.... and the Morris B. Reconstruction. gener- jurors.... Jewish veniremen State's Peremptory Challenges A Should be Abolished: ally poor jurors. State’s Jews have a Judge’s Perspective, supra At make Trial at 827-28. challenge history oppression generally empath- the same time the good selecting impartial jury The trial advocate starts with the cise in to an ”); proposition thing that the last he wants selecting exercise favorable neutral, Alschuler, unprejudiced unbiased and Albert W. wants, course, jury. Dire, He the most Jury: Peremptory and the Voir biased and he can prejudiced jury pos- Challenges, and the Review Jury Ver- with, (“[t]rial dicts, sibly up provided come it is biased supra lawyers at 203 fre- prejudiced way. his This no quently they observe use suggests juries, that the American crim- challenges, impartial means not to secure justice system juries inal does not seek neu- likely but to secure to favor their tral, unprejudiced juries. positions”). partiеs unbiased and But utilizing while are impartial It goal jury, achieves the of an their a challenges as vehicle however, by process dynamic the of engaging every for in discrimination of equilibrium. healthy From the clash of against every group, kind and conceivable adversaries, striving group membership two skilled each is becoming harder to partial jury identify. most obtainable his direction, emerges synthesis there II. impartiality.... they

resultant As en- gage guesswork jury educated brings problem— Which us to another selection, spot each adversary tries to group classifying that of identification and probable prejudices coursing persons groups. majority’s within “ through ‘race,’ the mainstream and the byways holding purposes that of Bat- racial, son, religious, of American sexu- encompasses notions of ancestral line life— al, ethnic, educational, residential, ethnicity” Majority opin- eco- correct. nomic, agree using per- social—and then to maximize I that ion 857. And mini- running those in his favor and to emptory against person solely strikes running against mize those him.... The person’s ethnicity account that is a viola- course, an recognizes, protection. advocate that But equal defining tion of group individual member of a does not cognizable group or determin- racial/ethnic necessarily group’s share the character- ing group particular what racial/ethnic a venireperson istics but there is nonetheless falls within become such likelihood that nearly more-than-random an ordeal as to be either absurd or peremp- individual will. With available impossible. example, following For tory challenges, plays the trial advocate gives types discussion some hint of the the law of averages. problems identifying associated with a ven- ireperson “Hispanic” defining and with Chew, added); (emphasis 527 A.2d at 345 Hispanics cognizable group: as a Marder, Nancy Beyond see also S. Gender: they seek Peremptory Challenges Acknowledging group and the that the Roles of physi- supra (“[lawyers] identify religious no Jury, at 1093 have shares characteristics, majority its transformed from an exer- cal bases selection concurring opinion in Bat- ize with the accused. Lutherans and Marshall in his son). stereotypes has usually Church make Reliance on such of Christ veniremen good jurors. side of the bar. State's been confined to the State’s Alschuler, attorneys just likely engage are Albert W. Hie Defense Dire, assump- Jury: Peremptory Challenges, stereotypical in the same kinds of Voir however, Verdicts, highly unlikely, Jury supra at tions. It is and the Review 210- Batson, adversary (quoting prosecutors' has transcribed from same manual since writing. portions quoted by from which were Justice such views “Hispanics” deprive protection then them of the identification of into ances- characteristics, class, typified by cognizable admitting while tral “often surname,” ma- questionable Finally common others.... language, “the lan- language being Spanish.” jority There are refers to a common “native However, major Spanish.” problems transporting guage being this def- with application each of the countries exceptions, inition into actual few today’s “Hispanics” from which are de- In United States rived, Spain, including originally Spanish Census Bureau used a surname by indigenous inhabited tribes. The lan- standard of the inaccura- [but][b]ecause tribes, guage indigenous of these is their measure, cies such the Census Bu- “native language.” dropped reau that standard.... “Hispanic” ... The term is far from

[According Census Bureau accepted being classification.... study,] one-third of those who claim “Hispanic” use of the term is a [T]he Hispanic origin Spanish- do not have a governmentally contrived term: Furthermore, language surname. Spanish- “Hispanic”

one-third of those who have as an ethnic label is the language product surnames do not consider of a decision Office (OMB) Hispanics. themselves The surname Management Budget and approach operationalize additional result оf to as “A label failing Mexican, Rican, “Hispanics” person to account for who Perto Cu- ban, through adoption either marriage or American or Central South English obtain an surname. Spanish origin, Similar- other culture of re- ly, surname gardless classifications fail to con- of race. “Hispanics”

sider whose surnames are ap- The definition OMB creates further commonly Spanish, considered plicational problems. By including whose surnames are a result of varied Americans, South that definition also in- European ancestry, whose surnames cludes and descendants of Bel- residents Anglicized, have been or whose sur- ize, Brazil, Guayana. British and French names are derived from other than By including Spanish “other culture or Spain.... Castillian origin,” Filipinos, it includes and all oth- colonies, approach The surname Spanish including would also lead er those classifying “Hispanic” as practice, others who Africa. In the OMB definition share the language. Spain, Spanish surnames and the does not include nor colo- continents, Spain Until 1968 and respectively, although Span- nies other governed Equatorial and Guinea Moroc- iards and their descendants are certain- co, ly “Spanish as well as other African origin.” settlements culture or Although Rio de Oro and Ifni. not the Another define common label used to result, intеnded Africans from these set- group this is that of “Latins” or “Lati- engulfed by tlements would be this cate- nos”. Without a doubt the label of “Lat- gory. ... many problems ins” raises as as “His- Conversely, many “Hispanics” panics.” do not ... The problem is not do, speak Spanish. Many speak group.... who label attached to the Many of the language.... problem variations de- is that the United States if authors, immi- Spanish-speaking government, accomplished scendants stat- isticians, linguists, no grants, longer speak know how to etc. have been un- Spanish. language “Hispanic,” This lack of would able to what is a define time, make-up society of our clarity, how is same precision some

with People longer can no rapidly changing. juror which judge a trial to determine within identifiable falling as classified protected? be stricken and which is can at groups of black or white. See id. (Gersten, J., Alen, at 596 So.2d 1093-1095 (moving “bi-polar world of black (citations omitted)(emphasis concurring) becomes, grays,” white into subtler added); 90 Md. Mejia see also in- beginning, from the predicted some 1207, 1213(accepting the App. 599 A.2d that, worst, we are creasingly apparent “Hispanic” but re- appellant’s definition slope with irreversibly slippery adrift on a amorphous and ferring “candidly to it as a place short of the stopping no foreseeable vacated, definition”), 328 Md. imprecise peremptory challenge. elimination of court 616 A.2d 356 Another best, to at least a At we are sentenced making ethnic as- prospect viewed the diverting ethnological playing decade of in- distasteful and particularly sessments and How parlor game called “Who is What appropriate: Alen, It?”); 596 So.2d at Know Do We reduced, rank eth- “... we would be (Hubbart, J., coneurring)(noting that amateurs, playing guessing nological “many are County in Dade alone there surnames, even as games based besides minority groups ethnic cognizable judge, trial and the trial had counsel Americans, including Anglo Hispanics: indulge, would have been they chosen Americans, Americans, native Arab Jewish spec- rankly such amateurish reduced to Americans, European other Ameri- engage If such required ulation country is a observing that our cans” however, might one conclude game, exception of with the immigrants, nation of woman, one prosecution that the struck Indian, “all and therefore the American (or surname hus- LaGrange, Ms. whose minority, eth- belong to some Americans surname) suggests possible a band’s ”). origin group.... nic/national French, Canadian, Cajun or French III. man, Mr. Pakkiana- background; one than, possible suggests surname a whose remiss in point A final that I would be background; a sec- Pakistani оr Indian inability of mention is the utter failing to man, Estrada, ond Mr. whose surname the progeny to deal with Batson and its Spanish, possible European a suggests discriminatory intent by which ease Brazil- European Portuguese, Hispanic, explana- “racially neutral masked a ian, a third Filipino background; and virtually impossible task tion” and the man, Lehman, sug- Mr. whose surname uncovering pretext. back- possible Jewish gests German Batson’s familiar with We are now Kentucky If Batson v. ground. race dis- step required prove to three test amok, prosecutor run the allowed to in the exercise of crimination to upon, suggest, called we

might be (1) perempto- of a opponent challenge: neutral, ethnically neu- give racially prima facie must make out ry challenge neutral, tral, neu- gender religiously (2) discrimination; the bur- of racial case of these explanation for or all tral proponent production shifts to den of possibilities.” merely arguable a race- forward with the strike to come (3) strike; and explanation for the problem at 1212-13. The neutral Mejia, 599 A.2d then decide whether Bat- court must by the fact that while the trial compounded proved pur- opponent of the strike logically will extend to the application son’s Explaining discrimination. poseful at group, virtually any identifiable two, Batsоn, step attempts applying partic- in Batson stated that at and in ular, prosecutor pretext, articulate a neutral at the existence of assessing “must explanation particular map” related to the case are “all over the is an understate- Minetos, give F.Supp. to be tried” and a “clear and reason- ment.9 at 183- See ably specific” explanation “legitimate n. 6. his 84 & exercising challenges.”

reasons for IV.

Batson, 476 U.S. at 98 n. & S.Ct. step inevitably 1712. But further expounding grow two Batson claims will Elem, number, in- prose- compelling Purkett the Court said a hour hour of required venirepersons’ cutor is not to “an ex- back- quiry articulate into ethnic planation persuasive, plau- inquiry that is or even and further grounds heritage 765, 768, supposed impulses sible.” 514 into thoughts added). strike, (1995)(emphasis proponent issues that are meant, Moreover, explained, juror impartiality. What had the Court irrelevant to by a reason” “legitimate peremptory challenges was “not a reason do not further sense, goal impartial jury, makes but reason that does of an there is no his- deny equal protection.”8 supporting Id. torical rationale their continued prosecutor’s 115 S.Ct. 1769. But if a right ex- use and there is no constitutional planation a peremptory viability peremp- strike does not them. The continued plausible, tory have make sense or even be challenges is not before this Court how are trial pretext? today. urge legislature courts assess But I would great difficulty. say With To that courts’ take a serious look at this issue.10 With Breyer types might per- 8. Justices Stevens and actually viewed Purk- motivate the step departure ett 's articulation of emptory”). two such a from the standard set out in Batson as to portion overrule that Id. at Batson. suggested 10.Some thinkers on this issue have J., (Stevens, dissenting, joined 115 S.Ct. 1769 peremptory challenges that elimination of J.). by Breyer, may call some modification to the other system. commonly The most mentioned rem- In expansion one demonstrative effort to with the deal edies are to make some on chal- cause, problem. appellate judges lenges requiring New York drafted for a less than and/or Alen, guidelines apply- some to assist trial courts in verdict. 596 So.2d at unanimous See Minetos, J., (Hubbart, ing step. concurring)(suggesting Batson's second 925 1090 F.Supp. guidelines at 184. The grounds challenge listed certain that a for "traditional for striking jurors pre- reasons for expanded] that could be cause be [could so to include sound, pretextual sumed strategic, nondiscriminatoiy and other reasons that rea- But, presumed pretextual. why might juror’s could be as not Id. son trial counsel doubt a court, impartiality capacity perform ju- as noted a New Yоrk federal district as a course, Alschuler, ror”); listing Supreme "[o]f in this manner has the Albert W. Dire, creating guide Jury: Peremptory unfortunate effect of a how-to Court and the Voir Verdicts, defeating challenges. guide- Challenges, Jury for Batson Such and the Review of juror supra (challenges might lines do not ensure that not strikes are at 207 for cause be where, racially finding par- that are advocates allowed even without a motivated— tiality, juror’s ability on notice of which reasons will best survive a or fairness nonetheless 184-85; doubt, judicial appeared review.” Id. at also Nan- ‍​​‌‌‌​​‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​‍see Court has Marder, cy Beyond Peremptory upheld constitutionality S. Gender: the of non-unanimous Challenges Jury, proce- supra and the Roles the at verdicts in state criminal cases—a ("over parties idiosyncratic jurors time learn which reasons dure that denies the abili- others.); acceptable simply ty judgments are and which are not and to frustrate the Nan- Marder, adjust accordingly, cy Beyond Peremptory their reasons without nec- S. Gender: essarily underlying Challenges Jury, supra the abandoning stereo- and the Roles the at comments, made, production I join opinion of burden of these the the has been the party the other to come Court. shifts to forward explanation. Id. If with a race-neutral a explanation prоffered, race-neutral then JOHNSON, J., dissenting a filed trial court decide the must then whether opinion. objecting party proven purposeful the majority I respectfully dissent. The 767, Id. 115 S.Ct. discrimination. at at the the opinion appeals affirms court of 1770-1. appellant that “failed in his burden of basis that appeals The court found under persuasion to establish race discrimination State, our decision Hill v. 827 S.W.2d Ante, ethnicity.” based on at 859. In 860, opinion), (plurality so, (Tex.Crim.App.) doing majority decides an issue denied, 905, rt. way in no for ground that is related to ce (1992), 297, may 121 L.Ed.2d 221 race be a granted by review that was this court. reason, co-existing factor with non-racial contended, appellant appeal, inter On may that it not the reason for but be alia, that decision to use a state’s n Tex.App. Id. at strike. LEXIS strike challenge to venire *11-*12. held at The court thus that No. 38 was in member violation Batson “because there was no evidence Kentucky, v. race for record that was the reason The state stated strike,” say State’s could not it struck this member venire because appellant’s decision trial court’s to overrule Liberia, unemployed, she was born challenge venire mem regarding Batson spoke during appellant’s more voir dire Id. clearly ber No. 38 was erroneous. examination. holding After that unem *4, 6540, at Tex.App. LEXIS *12. valid, reason, ployment was race-neutral appellant’s granted petition We for discre discrimination, pretext and not for tionary review to determine whether the appeals appel court of went on to consider erroneously held appeals court of claim that a based on the lant’s strike with may co-existing be a “race factor pro origin member’s national venire reason; race non-racial however by Batson. Wamget hibited No. a reason for the strike.” CR, 672327, at *4 14-96-001188 1999 WL Thus, by appel (Tex.App. August question presented Dist.] [14th —Houston (not 1999) designated publication), ground lant’s review is whether Bat- given Tex.App. at *11. When son violation when race is occurred LEXIS made, party for a objecting such a claim is as one reasons strike, Prior prima showing only but not the reason. must first make facie Hill, court party peremptory several intermediate decisions the other has used a approach, the veni- to the “taint” challenge to remove a member of adhered so-called Elem, i.e., a peremptory v. if race is factor in re on account race. Purkett 767, 1769, 1770, 131 strike, 765, then a been Batson violation 514 U.S. 115 S.Ct. (1995). State, 811 S.W.2d showing proven. See Moore v. L.Ed.2d 834 Once such (discussing challenge require as relaxation of expansion some reform such 1103 challengеs grounds peremptory cause in event requirement— verdict traditional unanimous Kessel, eliminated); Adver- Gordon Van require following English example, we could Trial, sary Excesses in Criminal American hours of delibera- to two verdict after two ten 403, (1992) Dame L.Rev. 537-38 67 Notre tion). (elimination challenge might

869 197, 1328, (1997); (Tex.App. 200 L.Ed.2d 489 Wallace v. [1st Dist.] 137 — Houston 1991, ref'd); State, (11th pet. McKinney Morrison, 1271, v. 761 87 F.3d 1273-5 Cir. (Tex.App. Corpus S.W.2d 549 1996), denied, 1044, Christi cert. 519 U.S. 117 — 1988, State, pet.); Speaker no v. 740 616, (1996); S.Ct. 136 L.Ed.2d 540 United (Tex.App. 486 Dist.] S.W.2d [1st Darden, 1507, 70 1531-2 States v. F.3d — Houston 1987, little, pet.). no Hill if provides itself (8th denied, Cir.1995), 1149, cert. 517 U.S. any, precedential Judge Maloney’s value. (1996), 1449, 116 & S.Ct. opinion “lead” adhered to the so-called 1026, 2567, 116 S.Ct. L.Ed.2d 135 i.e., approach “dual motivation” that race (1996); Welborn, 1084 Holder v. 60 F.3d may coexisting factor with a non (7th 383, Cir.1995); 389-90 v. Jones Plas strike, reason for a but that it ter, (4th 417, Cir.1995); 57 F.3d 420-22 Hill, not be the reason for the strike. 827 (2nd Senkowski, 24, v. Howard 986 F.2d 30 (plurality opinion). S.W.2d 866-9 How Cir.1993); Alcantar, v. United States 897 ever, just three other members of the (9th Cir.1990). 436, F.2d 440 joined opinion. court Judge Baird’s However, a number of state courts have concurring opinion, joined by also three rejected approach, this and have taken the other judges, adopted ap the “taint” reason, “taint” discriminatory view that a Hill, proach. (Baird, 827 S.W.2d at 870-5 other, if given even in combination with J., joined Clinton, Overstreet, and Be- reasons, legitimate, taints the entire navides, JJ., concurring). Judge Miller proceеdings, and requires so a reversal. result, concurred without an See, Lucas, 366, e.g., State v. 199 Ariz. 18 opinion. 160, 163 2001); P.3d (App. Payton Div. 1 v. split The in Hill this court reflects the Kearse, 51, 205, 329 S.C. 495 S.E.2d 209- split on this issue found around the coun (1998); 623, 10 Haigler, State v. 334 S.C. try. A number of federal courts have 88, (1999); State, 515 McCray S.E.2d 92 adopted the “dual approach: motivation” if 911, (Ala.Crim.App.1998), 738 So.2d party exercising chal 450, Ga.App. Rector v. lenge acknowledges that a discriminatory S.E.2d 863-5 At least one factor, reason was a along legit with other court of military adopted review has this factors, imate juror, for excluding a then Greene, approach. United States v. party challenging the per use of the (CMA 1993). M.J. The Texas emptory challenges prima has made facie appears Court also to have showing discrimination, oppos and the adopted approach. this See Powers v. Pa ing party has the burden of showing that lacios, (Tex. 813 S.W.2d 490-1 & n. 1 legitimate given pre- reasons are not 1991). textual, i.e., that even improp without the motivation, er majority opinion would still have struck the instant case See, juror. e.g., Tokars, ground granted United States v. does not answer the (11th 1520, 1531-34 Cir.1996), 95 F.3d review: cert. does the “taint” or the “dual view denied, U.S. 137 motivation” prevail view Texas criminal Thus, L.Ed.2d 357 & 520 jurisprudence? the issue decided question 1. It instead prima "address[es] of ethnicity. make facie case of Ante, whether it was Cleаrly, established that 'race' was at 852 & 857. the court of otherwise, underlying even a factor since it cited Hill for appeals found strike,” appellant proposition and decides that may did not that “race abe factor co reason," persuasion required existing meet his burden of under with non-racial and over Burkett, i.e., of Batson step appellant’s point the first he did ruled of on that basis. error encompassed overlap between by majority today tainly great is not deal of race/ethnicity and of birth here. place review granted ground within Furthermore, place if ethnici- of birth and Moreover, properly so is not before us. ty overlap do here and venire member No. not present question this case does descent, very is of African that fact was place birth country “whether of one’s ma- probably parties. obvious all The to grounds sufficient which to establish is probable to this jority’s recognize refusal ethnicity person’s making a Batson overlap makes its all the more decision Ante, at ethnicity.” claim based on 858. troublesome. appeals’ Because the court of decision in I issue, dissent. encompasses have way no this we no jurisdiction make such a determination. Garcia v. 536-37 S.W.3d

.See (jurisdiction of (Tex.Crim.App.2000)

n. 5 Criminal limited Appeals

Court of ap- by

review decisions the courts

peals); see also Ceim. PROC. art. Tex.Code Tex.R.App.

4.04, 2;§ The P. 66.1. court’s Wayne HALL, Appellant, Michael regarding concern the distinction between race/ethnicity place of birth well The Texas. STATE of im- petition be reason to dismiss this as providently granted for con- or to remand 73,787. No. issue, provides of that it sideration but no Appeals of Texas. Criminal affirm the appeals.

reason to court of Jan. 2002. Nevertheless, the court holds because Rehearing March Denied does, it I feel it to examine necessary its race/ethnicity place that determination overlap do not substantially

of birth (and many

instant case other cases of bias). true,

alleged racial it is as a While proposition, race/ethnicity

general birth, distinguished place of

may be majority

for the of the countries

world, place strong of birth is a indicator location ethnicity. Given Liberia’s (a

(West Africa), history republic founded slaves), by freed and its

in 1821 American (to repatriate slaves

original goal former ancestors), cer- of their there is

the home 672327, n previous Tex.App. appeals’ opinion, well as its Wamget, WL at court of * by majority’s at reasons offered at determination the other LEXIS 11-12. No. through excluding venire member tempt holding bolster its the court of the state for pretextual, the court appeals’ quote ‍​​‌‌‌​​‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​‍that evidence in the were race-neutral and not "there is no appeals certainly saying that "there is no the strike” that race was the reason for record 859) (ante, taking the record race was reason distorts evidence in that sentence to Hill in the for the strike.” of context. Given the cite out

Case Details

Case Name: Wamget v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 12, 2001

Citation: 67 S.W.3d 851

Docket Number: 926-00

Court Abbreviation: Tex. Crim. App.