*1 HECHT, joined by Justice Justice

BRISTER, dissenting.

For expressed the reasons today my

dissenting opinion in Zurich American Nokia, Inc.,

Ins. Co. v. 268 S.W.3d (Tex.2008) (Hecht, J.,

2008 WL 3991183

dissenting), respectfully dissent from the opinion

Court’s in this case. DAVIS, Petitioner,

Donald COMPANY,

FISK ELECTRIC

Technologies Management & Fisk

Inc., Respondents.

No. 06-0162.

Supreme Court of Texas.

Argued April 2007.

Decided Sept.

Rehearing Denied Dec. *2 Jain, & Asso- Renuka V. Jain

Renuka V. TX, P.C., for Petitioner. ciates, Sugarland, McGraw, Gray, Looper Reed & Cary J. Sanders, Looper Reed P.C., Wayne Kyle Jr., McGraw, Hogan Richard P. Mark & Hogan, Hogan, Hogan & Bruch Jennifer Houston, TX, L.L.P., Respondents. Virginia Hoelscher, K. Brown McCar- project manager. assistant In February roll, L.L.P., Austin, Lindsey-Pot- Allecia 2001, Fisk was awarded the contract to Houston, tinger, TX, for Amicus Curiae. install School, cables at Goodson Middle *3 Cypress Fairbanks School District. Chief Justice JEFFERSON delivered problems After arose on the pro- Goodson Court, opinion joined of the by Justice ject, Fisk terminated Davis. Davis asserts HECHT, O’NEILL, Justice Justice race, that his termination was based on his WAINWRIGHT, MEDINA, Justice part by as evidenced in supervisor’s GREEN, JOHNSON, Justice Justice and alleged use of the “n-word” planning when Justice WILLETT. Davis’s termination. generally Our rules permit party each Fisk,1 in Davis claiming a civil action sued to exercise six violations of peremp- strikes, tory § which are challenges “made U.S.C. 1981 and the Texas Labor to a without assigning any reason liability. Code. Fisk denied The case was therefor.” Tex.R. P. 233. But trial, Civ. called for and at the conclusion of peremptories exercised for improper an dire, voir peremptorily Fisk struck six ve- reason, gender, like race or are uncon- members, nire five of whom were African case, stitutional. In this the African American and all of whom were minorities. petitioner American asserted that he was objected, citing Kentucky, Davis Batson v. terminated based on his race. The re- 476 U.S. 90 L.Ed.2d 69 spondents used challenges at (1986),2 court, hearing, the trial after a trial to exclude five of six African Amer- objection. overruled the The re- icans from the venire but contend that verdict, turned a defense the trial court their doing reasons for so had nothing signed a take-nothing judgment, and the to do with the potential jurors’ race. court of affirmed. 187 S.W.3d reasons, however, stated 577. granted petition We Davis’s for re- conjunction in viewed with the 83% re- apply Supreme view to the United States comparative juror moval rate and a anal- guidance peremp- Court’s most recent ysis, defy neutral explanation. Because tory challenges allegedly that are race- we conclude that at least two of the (Feb. 23, based. 50 Sup.Ct. Tex. J. 446 race, strikes were based on we reverse 2007). in part the court appeals’ judgment and remand the case for a trial. new II Challenge Background

Factual Davis, American, single complaint: Donald Davis African raises worked for Fisk Company Electric as an Fisk based on prospective struck Palacios, Company, Davis sued Fisk Electric Fisk strikes to civil cases. In Powers v. Technologies, Management (Tex. 1991), Inc. For we followed 813 S.W.2d simplicity, respondents simply we refer to as “equal protection Edmonson and held that "Fisk.” denied in when race is factor counsel’s peremptory challenge pro exercise of a Co., Inc., In Edmonson v. Leesville Concrete reference, spective juror.” For ease 614, 616, challenge will raised in this case refer to (1991), Supreme L.Ed.2d 660 Court ex simply challenge. a Batson prohibition tended Batson’s on race-based prove could Miller-El determine whether wrote race, in of Batson. We last violation State, 748 violation. v. Shouk challenges Goode on Batson banc). (en (Tex.Crim.App.1988) (Tex.1997), in the S.W.2d feh, 943 S.W.2d landscape has years, intervening dire the voir reviewed The trial court after the trial Significantly, evolved. provid record, prosecutors and one Mil case, decided unexplained previously ed his rationale Dretke, ler-El v. expla trial court deemed strikes. (“Miller-El L.Ed.2d 196 suffi [and] credible “completely nations ”), concluded in which the Court II a case purposeful there was “no and found cient” *4 to petitioner was entitled that a habeas II, at 545 U.S. Miller-El discrimination.” criminal prosecutors in his relief because 236, of Crimi 2317. The Court 125 S.Ct. potential peremptorily trial struck affirmed, the voir stating that Appeals nal II is a Although Miller-El on race. based support” for “ample provided record dire case, many of the same it involves criminal explanations. race-neutral prosecutor’s here, it in examine (Tex.Crim. factors at issue and we State, 69,677 v. No. Miller-El 1993) some detail. curiam), 16, p. (per App. Sept with Miller-El’s 1986 un began The case relief sought then habeas Miller-El court. 2254, raising trial in a Texas trial his capital again § murder der 28 U.S.C. II, selection, used at jury prosecutors 545 U.S. During claim. Miller-El Batson 237, to ten African The federal district peremptory strikes remove 125 S.Ct. relief, Fifth Circuit the venire. Miller-El ob- and the Americans from court denied improperly certify Miller-El jected appealability. the strikes were refused Cir.2001). (5th race, County Johnson, given the Dallas F.3d 445 based on v. 261 Attorney’s prac- granted historic certiorari Supreme District Office’s The Court ju- entitled excluding blacks from criminal Miller-El was tice of consider whether that, and, under determin The trial court concluded Batson claim ries. review of his Alabama, claim then the of the Batson v. which was that “the merits ing Swain were, least, by jurists of ra- complaints debatable governing standard at the selection, been was entitled jury reason,” there had that Miller-El cially based held Miller-El appealability. of blacks as “systematic no exclusion a certificate of 237, (citing II, and thus no 125 S.Ct. 2317 policy” by matter of that office at 545 U.S. II, 322, Cockrell, jury. to a new Miller-El v. 537 U.S. entitlement Miller-El (“Mil 236, (quoting L.Ed.2d 931 545 U.S. at S.Ct. I”)). Alabama, certifi granting 380 U.S. After Swain v. ler-El (1965)). cate, rejected Miller-El’s Miller-El Fifth Circuit 13 L.Ed.2d Dretke, 361 to death. Id. v. and sentenced claim. Miller-El was convicted Cir.2004). (5th F.3d 849 pending, the Su- appeal While certiorari, Miller-El granted again Batson, re- decided “which preme Court 936, 124 Dretke, U.S. requirement placed Swain’s threshold reversed, (2004), again L.Ed.2d 811 under a discrimination systemic prove II, 545 U.S. claim, jury Amendment Fourteenth the merits of Miller-El’s this time on prose- that discrimination the rule challenge. jury suf- selecting the defendant’s cutor requires challenge that a Batson Noting viola- establish the constitutional ficed to circum- ‘“all relevant Appeals an examination Id. The Court Criminal tion.” ” factors stances,’ five examined the Court trial court to case to the remanded the in determining juror’s selection in Mil- black possibility belief ler-El’s criminal trial violated Equal reformation even though repeatedly Protection Clause. Miller-El approval stated his penalty the death Batson, 125 S.Ct. 2317 (quoting impose testified that he could 96-97, 1712). The first according legal to state standards even analysis involved an of the statistical data when the alternative sentence of life im- pertaining prosecution’s to the (like prisonment give would a defendant strikes. The Court noted that prosecutors world) everyone else in the opportu- used peremptory strikes to exclude 91% of nity to reform. the eligible African-American venire mem- 245, 125 Id. at S.Ct. 2317. bers —a percentage great too to attribute merely to “[hjappenstance.” Id. at Warren, As for the Court noted that the 125 S.Ct. 2317. proffered State’s reason —that Warren’s comparative Court then conducted a voir dire answers were inconsistent— juror analysis, noting that power- “[m]ore plausible, seemed plausibility but “its [was] statistics, ful however, than these bare *5 severely prosecution’s undercut the fail- side-by-side comparisons of some black ve- object ure to panel to other members who panelists nire who were struck and white expressed much like Id. views Warren’s.” panelists who were allowed to serve.” Id. at comparing 2317. After S.Ct. explained The Court prosecu- a “[i]f panel his answers to members who ex- proffered tor’s reason striking a black conclusions, pressed similar the Court de- panelist applies just as well to an other- cided that significant race was in determin- wise-similar permitted nonblack who is to ing who was challenged and who was not. serve, that is evidence tending prove to Id. at 125 S.Ct. 2317. The Court also purposeful discrimination to be considered rejected appeals’ independent the court of at step.” Batson’s third conducting Id. In expressed general conclusion that Warren analysis, rejected this the Court the notion penalty, ambivalence about the death be- that struck venire members must be com- cause prosecutor’s the stated reasons for pared only jurors to who in are identical striking Warren did not allude to such (save race): all respects per “A se rule that ambivalence. at Id. 125 S.Ct. 2317. a defendant cannot win a Batson claim The Court then noted: unless exactly there is an identical white provides oppor- [T]he rule in Batson juror would leave Batson inoperable; po- tunity prosecutor give to the to the jurors tential products are not of a set juror, reason for and it re- cookie cutters.” Id. at 247 n. quires plausibil- judge to assess 2317. The Court prosecu- focused ity all light of that reason in evi- tion’s questioning of two black venire bearing dence with a on it. It is true Billy Jean Fields and Joe War- members — peremptories are often the sub- compared ren —and their answers to those jects instinct, given by regard Fields, whites. and it can sometimes With the Court say determined that: be hard to what the reason is. But illegitimate grounds like race are

nonblack whose remarks on reha- issue, a prosecutor simply got bilitation signaled could well have a limit state his he can and reasons as best willingness their a impose death questioned plausibility sentence were not stand or fall on the further challenge objection, prosecu- and drew no but the reasons he A Batson gives. expressed tion apprehension about a does not call for a mere exercise in case, thinking up any been offered basis. If son has ever rational up, nothing stops suspicion the stated reason not hold its of dis- does significance not fade in- pretextual rising does to an criminatory intent from judge, a trial or an ference. court, a imagine might can reason (citation 254-55, Id. shown false. The up been omitted). Appeals’s and the dissent’s eliminating a substitution of reason for relied on was A fourth factor the Court satisfy nothing does Warren “contrasting questions posed voir dire stating racially prosecutors’ burden of panel nonblack respectively to black and own explanation neutral for their ac- Id. at members.” tions. gave panel black members Prosecutors (citations vivid, 251-52, death penalty account of the graphic Id. at S.Ct. 2317 omitted) added). feelings asking about the member’s (emphasis before subject, gave on the while it nonblacks

A third factor Court considered was description.” the State “bland Id. While shuffle, prosecution’s jury use of disparate questioning oc- conceded that Texas,3 and one that the practice unique curred, disparity that the asserted proba- Court held could “indicate decisions differing panel based on members’ views bly Id. based on race.” expressed penalty the death 2317. The Miller-El was shuffled —those “graphic script,” ambivalence received times, eight request some of both *6 wa- while those who did not received the (three times) prosecution and the de- 256-57, 125 version. Id. at times). tered-down (five fense Miller-El record, however, Based on the 2317. 14, n. at 255 125 S.Ct. The Court “ that black the Court concluded venire prosecution’s noted that ‘the decision to likely to members were more receive jury predominant seek a shuffle when regardless graphic script expres- of their of number African-Americans were seated ambivalence, sions and the State’s ex- of panel, in the along front of the with its for planation eight failed four of black delay objection decision formal to the script. that panel members who received defense’s shuffle until the racial after com- 258, Additionally, revealed, at 125 S.Ct. 2317. suspicion Id. position was raise a given four five who were sought that the State African- out of nonblacks exclude ” 254, had script at were not those who jury.’ graphic Americans from Id. I, (quoting expressed 125 S.Ct. ambivalence but were instead Miller-El 1029). of, vehemently This in 123 S.Ct. was favor unambiguously testimony to, amplified by opposed penalty. that the Dallas the death Id. at County Attorney’s had that pre- District Office 2317. The also noted viously admitted to the shuffle to using disparately manipulative used State juries. manipulate makeup the racial of minimum questioning regarding punish- Id. Court concluded: 2317. The ments. Id. 125 S.Ct. argued practice State conceded that in that The State notes its brief there opposition to or premised that it was on might racially neutral for reasons regarding the death shuffling jury, penalty, ambivalence suppose and we there 261-62, racially But rather than race. Id. at 125 S.Ct. might be. no neutral rea- Carlson, Batson, J.E.B., Jury Pro- Peremptory Strikes in the Selection 3. See Elaine A. cess, (1994). Beyond: L.Rev. Baylor Quest Paradoxical Reasoned noting 2317. The Court disagreed, emphasis that al’s race was their minds “only of questioned 27% nonblacks on the every potential when they considered subject expressed these views were juror. subjected question, to the trick Id. at Holding again, 100% of black Once members. pros- state court’s conclusion about the implication prosecutors’ of in race ecutors’ strikes those two was choice questioning explained cannot be wrong convincing “to a clear and degree,” 263, 125 away.” Id. S.Ct. 2317. appeals’ the Court reversed the court of Finally, the Court considered the Dallas judgment entry and remanded the case for County Attorney’s history District Office’s Miller-El, judgment “together with “systematically excluding blacks from orders Id. appropriate relief.”

juries.” Specifically, pre- Id. the defense sented evidence the DA’s office had Ill adopted policy a formal to exclude minori- Batson Procedure service, policy ties from was “ in a ‘Jury summarized ‘manual entitled mind, this With context in a Selection Criminal [sometimes Case’ turn challenge to the Batson at issue in ” Sparling known as the Manual]’ case, a procedural but first address prosecutors. distributed to (quoting Id. presented matter. Davis ob I, U.S. at dire, jection at the conclusion of voir after 1029). Although the manual was written both sides exercised their the evidence showed was avail- strikes, its challenges. Fisk then defended prosecu- able to at least one of Miller-El’s beginning Juror No. Michael Pick tors. Id. The Court observed also immediately ett. court The trial overruled prosecutors had noted of each objection upon hearing the Batson Fisk’s prospective juror on their cards. Id. explanation. asked Davis’s counsel to ad Considering totality of the circum- reasons, dress preserve Fisk’s “to the rec *7 stances, Court the held: ord The trial here.” court answered: reality It that deny blinks the State objection. “You’ve the That raised burden Warren, struck Fields and included in shifts. The burden has shifted. over [of 91% black venire members who [the] ruled objection. the No. 9. Let’s move on. struck], they were black. If you put want on the record something The strikes correlate no fact with as well this, at can the conclusion of we do so. race, they they correlate with and procedure No. 9?” A was followed similar during by a occurred selection infected justification for for each the re Fisk’s disparate and shuffling questioning that maining strikes. explains better than race-neu- objection By overruling the be by tral reason advanced the State. The ex pretextual positions permitting State’s confirm fore Davis to rebut Fisk’s Mil- claim, planations, part ler-El’s and trial prosecutors’ the own the court overlooked Goode, proclaim Sparling *8 “presume the this trial court noted that would ing argument, again the unless findings to be sound objection, “finding] court’s factual overruled the Batson reasons, of ‘presumption articulated Miller-El rebut[ted] that the Defense has evi by convincing clear and particular correctness at least for their decisions ” II, 545 U.S. striking a nonrace for dence.’ Miller-El basis (citing 28 125 2317 U.S.C. them.” pretexts step [by to be process, court] found the trial vant. At the third Nevertheless, party purposeful discrimination.” must determine if the chal- trial court emphasized that purposeful Supreme Court has lenging proven has the strike discrimination, persuasion regard- ultimate burden of racial and the trial court "the with, never ing rests and may explanation racial motivation believe or not believe the from, [perempto- opponent of by party per- shifts offered who exercised stage ry] emptory challenge. It is at this strike.” (citations Goode, poten- omit- S.W.2d at 445-46 implausible justifications ted). (and will) jurors "may probably tial be 2254(e)(1)). § Like our abuse discretion their peremptory challenges. Fisk struck standard, Goode, (83%) see 943 S.W.2d at five of the six African Americans but applied (5.5%) standard in Miller-El II was one eligible nonblack insatiable,” “demanding but not prospective jurors,5 “[hjappenstance “ ‘[djeference does by pre- unlikely definition produce this disparity.”6 Mil ” II, I, clude relief.’ Miller-El U.S. at ler-El U.S. at 123 S.Ct. 1029. 240, 125 2317 (quoting Miller-El v. B

Cockrell, 1029); 537 U.S. at Williamson, see also United States v. Analysis Comparative Juror (5th Cir.2008) that, F.3d (noting Beyond statistics, comparative the raw “ although ‘[t]he trial court has a pivotal juror analysis is similarly troubling. claims,’ in evaluating role ... we struck Daigle, Juror No. Patrick are also cognizant that the provided following explanation: has made plain appellate review of jurors, Of all juror No. act”) alleged Batson errors is not hollow initially thought I good good would Louisiana, Snyder (quoting us, juror for [sic] that corpora- reacted -, -, L.Ed.2d punished tions should be with the use of (2008)). We now turn an analysis punitive damages. He was the most “all relevant circumstances.” subject. addition, clear on that In y attempted to him draw out of a discus-

sion from him about his involvement Analysis this management-employee committee Continental, thing something

A recognized would me think make he Disparity Statistical many of the claims that discrimination Here, Miller-El, as in they statistics deal said he with—I know he didn’t are “remarkable.” Miller-El have any personal involvement 240, 125 (noting prosecu cases; S.Ct. 2317 he discrimination but seemed to tors used strikes to ready exclude be too to believe that Continental members). 91% of eligible black venire discriminatory employment prac- tices; which, Jurors chosen twenty- you know, were from the first I could be total- eight At ly this, Honor; members the venire. the con wrong about Your parties’ clusion of the questioning, my four that I high belief is tend to panelists that, struck degree skepticism for cause or about agreement, parties and the then submitted Continental and the fact that didn’t 5. Fisk used its sixth strike remove a venire The concurrence’s Davis’s focus on strikes mark, initially Asian member of descent. Davis in- misses the do not answer cluded challenge improperly within the Batson whether Fisk’s strikes were based *9 note, later abandoned the claim. We on race. U.S. at 255 n. Cf. however, challenged Davis have (criticizing that could the Fifth Cir- well, juror’s though declining give weight this exclusion as even cuit for to to the much and the racially jury venire member were not the same evidence motivated shuffles Ohio, 400, 402, race. Powers v. 499 U.S. had five because Miller-El shuffled only (holding prosecutors L.Ed.2d 411 times twice: shuffled may object that a flatly defendant to race-based "Miller-El's shuffles are irrelevant to peremptory challenges or prosecutors’ whether not he and revealed a de- whether shuffles race). blacks.”). share excluded the same sire to exclude also noted supported by me the record” and to skepticism have that same caused attempted question a chal- Dai- we should exercise that never to believe him. lenge on any alleged “nonverbal cues.”8 gle about immediately overruled The trial court then term, Supreme Court de Last to objection the strike. Davis’s cided a involving case nonverbal ques- Davis’s counsel conducted the Louisiana, Snyder In conduct. and, tioning damages, as is punitive improperly prosecution that the Court held the colloquy,7 Daigle evident from never juror. Snyder, potential struck a questions verbally responded to the about at -, prosecution 1203. The punitive damages. Fisk nonetheless as- strike, for its one of gave two reasons Daigle in the trial court that non- serted Brooks, juror, the potential which that was corporations should verbally “reacted that “very throughout looked nervous” punished punitive be with the use dam- at -, Id. questioning. ages.” type Fisk did not elaborate on noted that “record [did] Daigle of nonverbal conduct that manifest- actually a judge the trial made show that ed, say Daigle other than to was “most concerning Brooks’ determination Mr. de subject. clear” on the counsel ob- Davis’s at -, meanor.” Id. 1203. Ab jected “the that that nonverbal cues De- finding, fense are not sent Court concluded throughout Counsel has cited such exchange 7. The entire consisted of the follow- Donaldson: Yes. ing: y’all that with counsel: And understand Davis asking you judge every question I’m is anybody feel Davis counsel: Does here very spe- going give you to the instructions punitive damages they’re what meant to do cifically every aspect question that do, person punish person stop case; you’ll and all have I’ve asked doing thing again? from the same That's law, right? No. to do is follow the Juror punitive damages people what are. Do you problem awarding have a with will punitive damages cases think that certain punitive damages? you should be awarded? Do think that No, puni- Vinzant: but I think the amount punitive damages something always damages required punish company tive compensates feel a victim? You that? not the same as should be awarded is often card, you up your and I Let’s hold It’s different the individual. scale. punitive everybody want feels 13, you’re opposed Davis counsel: Juror No. always damages compensates a victim. Ju- damages? Yes. punitive Parker: [Vinzant], [Parker], [John- ror No. already No. I've counsel: Juror 26? Davis son]. you, sorry. your 47? What talked qualify I have that. Donaldson: damage question? punitive opinion on the qualify my I'll answer. Prescott: they overcompensated— said that You your qualifications. I’d like Davis counsel: amount, it If it’s an absurd would Prescott: depends It on the amount. Donaldson: overcompensated. you I can’t see. Can hold it Davis counsel: 44, you Juror counsel: And No. said Davis up, eyes please? My getting 47? bad too, you qualify your would answer correct? age. right. No. 44. All Juror old depend qualification on the And does the qualification? your what’s facts, depends on the amount? saying just I’m that there Donaldson: mean, Yes. talking Prescott: limit. we’re reason- dollar money able sums of here. one concurrence’s statement "no Davis counsel: Yes. trial, today, denies even denied at talking That’s fine. If we’re Donaldson: just Fisk’s counsel million, reacted struck okay, $80 absurd. that’s objec- unfairly they did” narrows Davis’s said counsel: Would the reasonableness of Davis *10 me, sup- sum, “not depends the nonverbal conduct was you agree tion that would ported by the upon facts? record.” it “presume that could not that the trial counsel. We do not think Snyder excludes judge prosecutor’s credited the assertion explic- sources of verification other than an Thus, that Mr. Brooks was Id. nervous.” See, it finding. People trial court e.g., [to while “deference the trial court] es Davis, Cal.App.4th Cal.Rptr.3d pecially appropriate where a trial judge 809, 817 (Snyder require did not finding has made a that attorney an credi reversal on based demeanor-related strike bly relied on demeanor in exercising a though even trial court did not make an strike,” at -, id. here explicit finding demeanor, juror’s as to there was no such finding, and we cannot “demeanor [was] shown the record presume the trial court credited Fisk’s ex from inability her lateness and to follow planation. the court’s instructions” and “[n]o thus Additionally, lack of further detail needed”). finding further point, was reaction, Daigle’s about purported Fisk’s instead, that the communication be it, question Daigle failure to and the proved appellate an reflected in rec- failure to strike a white who ex- ord, must, therefore, identify and counsel pressed verbally what Daigle purportedly specificity. conduct with some did nonverbally, give pause. us Perempto- ry may strikes legitimately be based on Nonverbal conduct or demean- conduct, permitting nonverbal but strikes or, always often elusive subject based an assertion nefarious con- interpretation, may well mask a race-based “happened,” duct identifying without its reason, strike. For trial courts must nature any and without additional record carefully examine such Our rationales. support, strip would Batson meaning. which, noted, sister court as we has a Opposing must opportuni- counsel have an jurispru much Batson developed more accusation, ty to rebut the the trial court Goode, do, dence than we see 943 S.W.2d must be enabled decide whether the 450,9 prosecutor’s held that state has charge accurately what hap- describes ments that he didn’t like a venireman’s dire, pened during appellate voir and the “attitude, pretextual were demeanor” must court have a record on which to base when his verbal failed to show answers analysis. its Verification of the occurrence hostility, prosecutor and the “never men may come from the bench if the court specific body language, any tioned or it; may by it proved ju- observed other him non-verbal actions which led or, acknowledgement; may ror’s be oth- as, by borne believe the venireman was biased erwise out the record by State, example, explanations the detailed of his case.”10 Hill v. 827 S.W.2d inattentive, suggests expressions. very Some research that over facial He's 94% here, complaints unhappy body language, Batson occur in criminal cases. looks to be Melilli, posture just See Kenneth J. Practice: feel he was such that made him What WeHave Learned About Batson and Per- only way I can uncomfortable. emptory Challenges, 71 Notre Dame very long, unhap- characterize it is he had a L.Rev. (1995). corners, face, py mouth down-turned at the was, eyes frankly, quite downcast. And he case, Ap- In later Court Criminal State, way peals following found the expla- "demeanor” being addressed Defense Counsel. sufficiently specific nation to be to survive a feelings just My wasn’t- [sic] is that challenge: here, happy didn't want to be wasn't to be Martinez, here, quite frankly, just Prosecutor: Mr. I he was an felt like unknown Judge, put got having unhap- quantify the notes down when I rather than risk through somebody talking poor py person to him was he on the

519 (1981)), 1089, merely and 67 207 L.Ed.2d (Tex.Crim.App.1992) (noting 869-70 nonverbally “reacted” juror a itself’); stating that for speaks “the accord record (2d 116, is insufficient. Kelly, 121 Brown 973 F.2d v. Cir.1992) (noting that demeanor-related Daigle question Fisk’s failure per- may legitimate

reasons basis for suggests also purported reaction his sufficiently “if emptory challenge little to do with Daigle’s reaction had provide upon a which to specific to basis II, Fisk’s strike. Mack v. legitimacy”);

evaluate their 246, (noting prose- 125 2317 Anderson, 36, Ill.Dec. Ill.App.3d 371 308 ju- question prospective cution’s failure 215, 280, (noting 861 N.E.2d 297 given suggest- for strike ror about reason given that “conduct and demeanor must be “probably pretext; prosecutor would ed scrutiny perceptions close because such history [questioned family if the him] mattered”) as a dis may easily pretext parte be used Ex (citing actually had (Ala.2000) and, Travis, 874, attorney “did crimination” 776 So.2d 881 (“[T]he by providing engage not a a and failure to make record clear State’s a meaningful he voir dire examination on sub- reasonably specific explanation of what alleges ject the State it is concerned about perceived juror’s to be” the struck “disin- terest,” suggesting explanation is evidence that the support the record failed to pretext a sham and a discrimina- explanation given); v. neutral Zakour Serv., tion.”)); Inc., Rayne Alex v. Concrete 763, Group, UT Med. 215 S.W.3d (La.2007) (noting that “the (Tenn.2007) So.2d (holding 774-75 that “to avoid cursory questioning ques- of or mere lack violation, important a it is juror tioning excluding peremp- before specifically particular counsel state Moreover, torily pretext). evidence” body forms language that the basis for Vinzant, Fisk did not strike a white challenge”; lawyer’s identifi- prob- have a who stated that would not body language cation of must be “suffi- See Mil- awarding punitive damages. lem ciently specific provide upon a basis U.S. at 125 S.Ct. 2317 ler-El which to evaluate legitimacy,” [its] (holding pretext if a that evidence exists “body enough mechanics” was not detailed equally panel to other mem- applies reason (citation objection) to survive Batson omit bers, were not minorities not ted); Miller, v. Fed. see also Blades struck). suggest These factors (2d Cir.2008) App’x (affirming 315-16 puni- “reaction” to Daigle’s stated body trial acceptance specific court’s reason — pretextual. damages tive arms, language, including crossed —was explanation, trial race-neutral as well as Thus, remaining turn to the reason rejection “body court’s of strike based Daigle: that he offered for formulaic, language non-specific eager too to believe that em- seemed — denied, —, way”), Airlines, cert. U.S. discriminated ployer, Continental (2008). requires S.Ct. 2971 did employees and that he reasonably specific explanation” “clear and skepticism about dis- express sufficient strike, Bat legitimate Daigle, reasons for a a seventeen- crimination claims. son, Continental, listed his year employee 476 U.S. at 98 n. manager” Community occupation as “customer service (quoting Dep’t Tex. Affairs Burdine, job explained his as follows: v. State, Yarborough S.W.2d respond readily questions that didn’t asked, him, Judge. (Tex.Crim.App.1997). would be strike *12 Daigle: It’s called aide-of-eounsel. It’s Fisk counsel: You’ve been never on a

just having like union without the case of yourself? race representative union. We’re the be- Daigle: No. management tween person. Fisk you counsel: But what do in these every But time we hear a case we cases though is listen both sides hear don’t it from our office. We try to determine whether there is to judge have case from someone a basis in fact for the belief that an case, else’s office. like in I So job adverse determination was dis- party, don’t know either which is what criminatory. there;

we do over so it give doesn’t us well, Daigle: Yes, have to decide wheth- somebody a bias about work we er management right was or the em- judge with. We per- have their ployee right. was about, formance and have that bias Okay. Fisk counsel: ‘Well, I know this individual. Can I Daigle: management right Either [sic] fairly?” judge deal with We different employee on their decision offices, offices. We three have Tam- a right to back. come pa, Lake, Salt and Houston. So they’ll send us a case from another Fisk counsel: And do understand cor- versus office here home. rectly what us is you’re telling there’s your nothing about either that or feel- Fisk counsel: And it out separating ings regard prior with to a employ- you so that don’t know people, ment you situation that makes feel way they’re limiting the bias that case, inclined to giving start this somebody might have knowing from Plaintiff a little bit of a head start? party? Daigle: Daigle: Yes. No. you

Fisk exactly counsel: Then know The court of held Fisk’s what we’re with doing this voir dire sufficed, explanation striking for Daigle process? because though Daigle even stated he Yes. Daigle: fair, required could be “counsel is not all voir take dire answers at face value.” Fisk you counsel: Do deal with true, 187 S.W.3d at 585. While that cases sometimes where an employee there is in the nothing voir dire record to says they’re being discriminated support explanation Daigle counsel’s against of race? believed Continental discriminated Daigle: We all deal with of it. employees indeed, Daigle, longtime em- — Fisk counsel: Race? ployee, leaving job stated that old for his discrimination, Race Daigle: everything. [him],” Continental “a better for move Fisk counsel: And are there times only thing and the about race said said, employees “Something hap- discrimination was that he had never cases pened to me because of race” at Con- best, one. At the rec- been involved with panel you tinental where were Daigle ord shows that was neutral about agreed that? issues, employment provid- discrimination That Daigle: agreed on it? ing support no Fisk’s asserted reason Right. Fisk counsel: if him. Even con- Daigle: Daigle’s I’ve never been on a description case cerned about myself. having aide-of-eounsel as “like position (a people the issue is in this case where union” concern that union without *13 job trial), performance off expressed getting it does not laid over never was (or Also when things that nature. explain why failed to strike even and Fisk — woman, juror a about a I don’t remember question) white Juror 29 made membership her in a or unsolicited union. whether was solicited having comment friends of Afri- about Daigle’s voir appeal, On Fisk cites race, he was one can-American responses past personal experi dire that; laughed at jurors noticeably who as a for the ences with discrimination basis he from his reaction did and it was clear This reason —never advanced in strike.11 two or that. And there were not believe may the trial now be used to court— challenged were people three other who See, II, justify e.g., the strike. Miller-El He also is one on that same basis. (noting 545 U.S. to have appeared who to us people that, like illegitimate grounds “when strongest whole “N” reaction issue, got in a prosecutor simply are not his And whether or word issue. as he can and stand state his reasons best if company, there feelings about fall of the reasons he plausibility or in the testimony people that one of the (noting that gives”); see also id. reason — you company the “N” word want used given during hearing but after keep going? me to initial reasons were shown be State’s afterthought” incorrect “reeks of and questioned never We note that Fisk balance, “pretextual timing”). showed On job instead relied on Pickett about his but we conclude that for strik Fisk’s reasons card, juror which Pickett’s information ing Daigle reasonably accept “cannot be em- that Pickett was musician stated II, ed.” Miller-El 545 U.S. at Baptist Church. ployed by Pleasant Hill I, (citing S.Ct. 2317 Miller-El 537 U.S. at (noting that 123 S.Ct. 1029 the credi Moreover, facially race-neu- while bility given by of reasons can be measured tral, so when this reason becomes less reasonable, improbable, “how or how jurors compared Pickett is to other who are; explanations whether not struck. Juror No. was unem- in proffered rationale has some basis ac ployed; Juror No. had been terminated cepted strategy”)). trial employer and then his to enforce sued contract; 4’s employment Juror No. hus-

Although improper exclusion of even juror unconstitutional, repeatedly Snyder, one had laid off from 552 band been at -, in jobs, also she stated that we find construction Pickett, had troubling years experienced Fisk’s strike of Michael he last two juror explained finding no. 5. its reasons for new em- “really problems bad” Pickett as had ployment; follows: Juror No. 10 been termi- imagine that Pick- It is nated. difficult today, I ever came to court had

Before ett, employed and did not who was problem No. 5 with Juror affirmatively inquired respond when Fisk And fact that that is is a musician. anyone had been terminated whether causes me to be- employment whether, if panel very good when Fisk asked the not be lieve he would in which in industries certainly were involved Defense case and ad- “complete- that the reasons that court concluded 11. The court of noted this justified question ly did vanced at trial strike. new” not reach the reason reason, rely S.W.3d at 585 n. of whether Fisk could on that layoffs, they there were could not fair real supervi- “a hard time with” Davis’s impartial, was less desirable than n-word, Reynaga sor’s use of the immedi- these because of his musical career. ately agreed, stating “I also feel the same Instead, it seems that strike way, and all pre- know that words group “based on a group bias where the by thoughts. ceded So even before he said trait is not shown to chal- apply it, thoughts those were there.” The re- State, lenged juror specifically,” Whitsey v. mainder of Fisk’s questioning on the n- *14 796 S.W.2d 716 (Tex.Crim.App.1989) word follows: (holding prosecutor’s that black strike of Fisk Okay. Anybody counsel: else who female because she was a teacher way? feels that Juror No. 5? “liberal,” and nothing teachers were when Well, Pickett: I to qualify have that. in the record out bore that characteriza- Depending was, on what the evidence tion, law”), was “insufficient as a matter of just because he said that didn’t neces- suggests pretext. and sarily mean that was the reason he proffered Another reason for terminated; the that but fact he Pickett was that he strongly reacted problem. said that is a real big asked about anticipat- the “n-word.” The Fisk fact you counsel: But the don’t ed trial evidence included testimony it, it, like If said right? you don’t supervisor Davis’s had referred to him us- like it? ing “the n-word.” Davis’s counsel men- Pickett: I It’s not or not whether like dire, during tioned this voir Fisk’s and him or not. attorney follow-up questioning conducted on the Fisk explained matter. No, its strikes Fisk I’m not about talking counsel: jurors (Pickett, of three him, African-American it, it. You don’t like that he said Harts) Edmund, Euline Mary part and it, right? you’re saying? Is that what based their verbal and nonverbal re- Pickett: Correct. sponses to the n-word questioning. Coun- say Fisk you But would counsel: sel stated that Pickett was “one of the that’s question a different from how who people appeared to us to the have why made and decision was strongest reaction to whole word ‘N’ discharged, you Plaintiff was issue”; Edmund all people “[o]f would listen to that evidence? panel, appeared ... to us to that, pointed Pickett: If the evidence subject strongest feelings on the of the ‘N’ possible to make that kind of a word”; and Harts was “also one of the decision. jurors who the strongest had reactions to 3., Fisk Ms. counsel: And Juror No. subject use of the ‘N’word.” you do Reynaga, agree with that? But examination of the voir dire on Reynaga: Yes. Pickett, the n-word shows that issue Ed- Anybody else feels mund, and counsel: Harts were no more offended couldn’t, like based on what Stehling, than Ann n-word Martha far, Yinzant, they’ve heard to the Reynaga, Clara so listen John David instructions, follow the Court’s three nonblack venire members who were Court’s 26, you not struck and No. who were seated on instructions? Juror jury.12 raising your While Edmund stated that she had card there? Indeed, surprising day age, universally it would be venire if in this offensive is, particularly epithet. members did react to what how, who just made and now mean, I listen sion was agree. I I can

Vinzant: decision, instructions, you’re going then the Court’s made the and follow it, way you’ve saying in a screen been we’re smoke to realize problem peo- company with No. 25? Okay. here. Juror word, me that’s using that ple already you’ve preju- Stehling: I think company prob- management cultural making question you’re us diced— people’s I don’t lem. know already. credibility your witness come out roles—and I’m sure that will talking Mr. You’re Fisk counsel: a systemic But if it’s evidence. Blanton? problem company, cultural Stehling: Yes. way predisposed am to be one going Well, a fair com- that’s Fisk counsel: I am. or the other? way? you Why ment. do feel you If out that that is Fisk counsel: find *15 already pre- Stehling: you’ve Because systemic problem a cultural about what’s sented this information company and that there are a bunch inappropriate. It’s happened. Blanton people of besides Mr. who to inappropriate counsel: It was Fisk alleged and you to have said that hear “N” say that he said the word? evidence, going that that’s to be im- Well, to have to Stehling: going we’re you, portant evidence to is what using the keep hearing someone you’re saying? “N” word. Extremely important. Vinzant: Well, actually what I be- Fisk counsel: one, Fisk counsel: Number know /all testimony that after was was lieve I’m and neither is counsel Mr. discharge decision was made Plaintiff, giving you the evidence in having this case. You’ll hear the evidence Blanton was a conversation Everybody basically, from the witness stand. with someone where he said that, then, right? understands And going going ‘We’re to do this. We’re two, significant number I think it’s it be how we do to have to careful say point this for me to that Mr. Now, ‘N’ person.” because he’s an company Blanton doesn’t work for this testimony was that's on based anymore. testify. He’s But going given. get I it back here a want on track you good made a Stehling: I don’t think second, okay, I this a said credibility your of impression ago: I don’t think minute whether— witness. now, I’m going listen to me here. the three African-American Fisk struck argu- In you closing remind of this: in this participated who venire members again. I’ll I don’t say ments Hispanic white and colloquy but not their raving think Mr. Blanton is a whether at least counterparts, responded think he racist or not—and don’t Fisk’s stated strongly to the n-word issue. is, I if think is—but don’t the venire for the strikes included reasons discharge de- anything do with issue. reactions to the n-word members’ cision in this case. And that’s because given] applied also fact that reason [a “The you I think when all of the evi- hear members, panel most to these other fact, I’m not sure things dence—in struck, white, them is evi- them none of you’ll right Ms. even knows Jain now— II, 545 pretext.”13 how the deci- dence of Miller-El you realize when hear Harts, part Fisk’s based in on than in Fisk’s strike of 13. This is nowhere more obvious 2317; Daigle),14 U.S. agree see also Unit- Fisk’s strike of we cannot (5th Huey, ed States v. 76 F.3d 641-42 that Pickett’s was irrelevant. Pow- Cir.1996) (holding as- ers, defendant’s at 491 (holding equal S.W.2d sumption minority jurors would protection is if is a denied “race factor” in biased hearing tape after racial slurs on peremptory challenge). recordings “nothing more than an as- In concluding that Fisk’s reasons for sumption partiality based on race and a striking Pickett were non-pretextual, form of stereotyping, racial both which appeals erroneously court of relied condemned”; repeatedly have been exclud- Pickett’s voir during statements dire that ing minority venire members that basis he had been the victim racial discrimina- Batson). violated “strong Pickett’s reac- tion. Pick- 187 S.W.3d at 582-83. While form responses tion” of his verbal assertion, did ett make such did questions Fisk’s stronger was no than experience not cite Pickett’s with discrimi- some of his counterparts, nonblack Thus, nation as a basis for the strike. suggests pre- Fisk’s strike on this basis court of relied should not have text. upon Pick- supporting these statements as The final reason given Pick- ett’s strike. See ett was he laughed when Juror said (lawyer must S.Ct. 2317 “state his *16 he had African American friends. Davis reasons as best he can and or fall on stand disagrees laughter that Pickett’s was plausibility the gives”; of the reasons he if based on that statement but instead as- up, stated reason does not hold it is imma- response serts that it was in to Juror 29’s “an can terial that court a imagine

joke about a friend who was more success- might up reason that not have shown ful than expla- he. Even assuming Fisk’s false”). sum, In of none Fisk’s reasons for correct, nation was Fisk also claimed striking “reasonably Pickett accept- can be challenged have two three other venire II, ed.” Miller-El U.S. But, members for the same reason. S.Ct. 2817. fact, Fisk cited a for laughter as basis member, striking only one other venire VI

also African American. Fisk And never questioned laughter, Pickett an- about his Conclusion may other indication that this reason be its pretextual, fully Despite goal, laudable Batson has explained as more above. II, been difficult to enforce. laughter appears While Pickett’s at first In Miller-El tried, plausible, year blush to be a race-neutral decided a this case reason after him, when we examine the the Court noted that Batson’s totality the (including of circumstances “individualized a focus came with weakness insufficient, claim that she was of had “one the word is for the reasons outlined above. strongest subject reactions of fact, of 'N' use word.” In Harts never -, Snyder, 14. See 552 U.S. at responded

verbally questions (noting that "all of the circumstances n-word, regarding including Fisk’s direct animosity upon that bear the issue of racial questions about whether Blanton’s use of consulted,” per- must be and "if there [are] impact the n-word would venire’s consider- outcome, sisting court doubts as to the a ation of the evidence. To the extent required to would be consider strike conduct, relying merely stating on nonverbal challenged juror] bearing might for the [one strong that Harts had a “reaction” to n- [another]”) upon the strike of consulted.”). here, rele- And very on owing emphasis to its must its own of those many include might a vant circumstances particular prosecutor reasons 239-40, II, a II, including sta- in Miller-El give.” pertinent disparity unequal treatment tistical jurors. comparable any facially If neutral sufficed reason challenge, answer Batson then Batson acknowledge We more than

would not amount to much strikes, rather than often based instinct false, are Some stated reasons Swain. reason, justify. Miller- can be difficult to false although some reasons 252, 125 U.S. at El up shown within the four corners of so here lawyer’s failure do trial case, not given may sometimes court animosity racial suggest personal does beyond unless it looks the case be sure See, Antony Page, e.g., Bat- part. Hence, explanation at hand. Batson’s Spot: Stereotyp Unconscious son’s Blind may rely that a on ‘all rele- defendant Peremptory Challenge, 85 ing and the vant circumstances’ to raise an inference (not 155, 160-61, B.U. L.Rev. purposeful discrimination. dem ing compellingly that “research Batson, (quoting Id. at 125 S.Ct. 2317 of unconscious onstrated the existence 1712). 96-97, 106 Miller- U.S. A gender-based stereotyping”). race- and “totality El I’s of the circumstances” anal jurors favorably zealous advocate will seek heavy courts, ysis places a on trial burden and race position, inclined to his client’s acknowledge fac some of the proxy par may rough even serve as especially tors that Court examined —most See, tiality. e.g., Kentucky, 476 Batson v. comparative analysis per —are 79, 139, 1712, 90 L.Ed.2d 69 haps easily appeal, more reviewed on *17 J., (Rehnquist, dissenting) (noting transcript benefit of a from which such “proxy” that factors like race are often a may accurately be comparisons most bias). But potential whatever II’ s drawn. But without Miller-El strategic advantages practice, of that searching inquiry into the basis of the forbids it. the Constitution strikes, a challenged Batson would become any in thinking up “mere exercise rational that we as- suggests concurrence 252, 125 basis.” Id. at S.Ct. 2317. Fisk’s counsel. cribe sinister motives to II, however, question presented, no is not Unlike Miller-El there is harbors pattern particular of a this advocate evidence here historical whether will, juries. explains, But ill whether the record on excluding blacks from Miller- statistically significant grounds, El made clear factors it neutral a II it five jurors. enough, It is were exhaustive nor exclusion of black not considered neither precedent we mandatory; courts must consider “all rele under the here, lawyer pure that the reviewing vant Bat- examine be circumstances” II, is. at heart. assume that he Our hold- challenges. son Miller-El We Batson, personal senti- ing depends not on the (quoting 96-97, 1712); on state of also ments of the advocate but U.S. at see at -, Snyder II and em- Snyder, 1203 the record. Miller-El U.S. (“In Dretke, cannot be promise made that Batson’s phasize Miller-El v. the Court may be satis- objec requirements fulfilled if its considering it that in a Batson clear merely by ticking a race-neutral tion, reviewing in fied off ruling claimed to from checklist. error, explanation ... all of the circumstances Batson After examining totality plaintiffs of the cir- The strikes here were even more cumstances, we explains defendant’s, conclude that race “remarkable” than the as Fisk’s strikes of Daigle plaintiffs Pickett better per- counsel used all six of her (100 reason, than other trial emptory percent) court strikes to exclude abused its in failing discretion sustain white males.2 County, In Harris where tried, challenge. Davis’s every this group case racial is a 2317; Powers, minority.3 The Court’s extra effort to cen- S.W.2d in part15 at 491. We reverse sure one counsel after disregarding his court appeals’ judgment explanations and remand procedural grounds sim- the case to the trial court for a new ply trial. too one-sided.

Tex.R.App. 60.2(d). P. I agree peremptory provide strikes an opportunity for discrimination. But Justice BRISTER delivered a provide opportunity also to accuse concurring opinion, in which Justice an opponent of and get discrimination joined MEDINA as to Part III. if badly. new trial the first one turns out BRISTER, joined by Justice Justice As origi- these strikes have outlived their III, concurring. MEDINA to Part nal purpose, something time we did using them. Rather than this case disagree with the Court’s conclusion as an opportunity disparage one attor- defense counsel’s strikes ney, opportunity I would it as an use racially were motivated. Neutral reasons practice inherently discontinue a based given properly for them but were not stereotypes. As the Court misses preserved, part because the rules opportunity, I judg- concur changed during appeal. The differ- ment. having ence between not neutral reasons merely preserving them nois tech- “Guilty” I. or “Not Proven”? (like

nicality; charges of discrimination itself) discrimination can far-reaching prima Davis facie established effects, including use in future trials.1 by showing violation 5 of Fisk’s 6 If we just blame rather than strikes were used African-Ameri- *18 decide, ought impact we to be more even-handed. cans.4 But alone disproportionate court, Bureau, County 15. In the unsuccessfully trial Davis U.S. State & See Census Fisk, Quickfacts, against moved for sanctions and the http://quic kfacts.cen- available court affirmed the sus.gov/qfd/states/48/48201 (reporting trial court’s .html challenge portion order. Davis does not figures demographic County, for Harris appeals' 38.2%, judgment. court of Hispanic/Latino Texas as: White non- 19.0%, 36.9%, 5.4%). Hispanic Asian Black Dretke, 231, 240, 1. See Miller-El v. 545 U.S. Cockrell, 322, 342, 162 L.Ed.2d 196 4. Miller-El v. 537 U.S. (“Miller-El II”) (holding (2003) ("Miller- discrimination L.Ed.2d policies could be from ("[Statistical inferred that existed I”) El evidence alone raises County decades earlier Dallas District At- prosecution some debate as to whether office, torney’s may discrimination in- striking acted with a race-based reason "all ferred from relevant circumstances” in- prospective jurors.”); Kentucky, v. cluding ”look[ing] hand”). beyond 79, 97, case U.S. L.Ed.2d (1986) ("For example, ‘pattern’ of strikes surname, Hispanic 2. One of six against particular these had black included in might give his but identified his card as venire rise to an inference dis- crimination.”). "white.” express an trial Instead, count in the absence of it shifts not violate Batson.5 does finding. striking party to “come court the burden explanation.”6 forward with a neutral Daigle explanation is that final Fisk’s so, require but errors procedural Fisk did job discrimi- said had been victim he disregard explanations us to those by the claim made precise nation —the juror, all it to at least one which is respect saying per- It without plaintiff. goes takes.7 ju- are often used emptory strikes explanation first Fisk’s (as op- experiences rors personal whose Daigle Patrick was nonverbal conduct might cause posed gender) their race or strongly suggesting punitive he favored party.9 identify opposing with an them to damages. years But after this trial two trial, after ground But was first stated this occurred, held in a par- As during hearing. not the Batson juror’s non- Snyder v. Louisiana neutral ex- ty come forward with a must support conduct can strike verbal hearing, during the Batson planation expressly that the judge if the trial states ground this either. cannot consider on that ba- challenge denied acknowledging that Fisk’s than Rather judge expressly trial sis.8 The here de- may perfectly neutral counsel have had challenge regarding Michael nied the preserve them simply but failed reasons conduct, but Pickett based on nonverbal (in doing rules so because the part say regarding did not the same Dai- out of its go the Court seems changed), might conduct gle. While the nonverbal way that Fisk’s heap up arguments entirely neutral have been valid and fact, racially In motivated. strikes explanation for this strike at time reason to doubt the neutral there is little trial, it we cannot consider now because counsel, except that explanations by Fisk’s judge’s comply findings the trial do not properly pre- were not grounds those with the new rule. served. explanation was that Dai- Fisk’s second attorney sufficiently thing It to hold that an

gle skeptical is one did seem explanation, a neutral potential prove for racial failed to about the discrimina- attorney that an quite another to hold employer, tion Continental Airlines. jurors solely because of supports black Nothing the written record excluded record, this the former is it their race. On explanation. Perhaps was based on conduct, the latter is not. Davis again established but nonverbal if so cannot York, jurors.”); challenging see also Miller-El New black 5. See Hernandez 359-60, 125 S.Ct. 2317. 114 L.Ed.2d 395 *19 ("[A]ction (1991) will not be held unconstitu- — Louisiana, U.S. —, —, solely racially Snyder tional results in a 7. v. (2008). impact.... racially L.Ed.2d 175 disproportionate Proof of discriminatory required purpose intent or is Equal at -, a violation of the Protection show S.Ct. 1203. 8. Id. Clause.”) Heights (quoting Arlington v. Metro. 252, 264-65, Corp., Dev. fact, Hons. complaint Daigle’s discrimination In (1977)). 50 L.Ed.2d 450 unusual, the "havoc” that as it involved was co-supervisors when his non-black resulted Batson, money making was more than out he found ("Once perception prima they facie of himself as the defendant makes were. But provided a neutral showing, State to the burden shifts to the victim discrimination explanation for a reason strike. neutral come forward entitled to a new trial because Fisk did not nal juror’s courts that claims about carry (1) its burden. But I would not so nonverbal conduct are taken as true if: certain we know defense missed, counsel’s the conduct could not have been (2) true motives. and opposing counsel would have de- Here, nied the claim had it been untrue.14 trial, no one denied at or denies even Scrutinizing II. Shrugs Jurors’ today, just that the struck reacted The goes by pro- Court also overboard they as Fisk’s counsel did. said Davis’s hibiting peremptory strikes based aon only response has been that the conduct juror’s (1) nonverbal conduct unless supported by was “not the record”—which conduct is “with identified the record of course nonverbal If rarely conduct is. specificity,” some juror and ques- rules, adopt we our sister court’s it.10 tioned about Neither has ever been explanation jurors’ is Fisk’s nonver- required by any or procedur- constitutional (as sufficiently bal conduct specific, it is rule, al both appellate-level exalt clari- held) court of as a established ty reality. over trial-level matter of law.15 Supreme United States Court has requirements com- Court’s new are imposed never restrictions. ex- these For pletely recognize impractical. Most of us Collins, ample, in Rice v. upheld the Court surprise, disgust, eagerness explanation juror that a her “rolled it, reasonably see but giving a “clear and dire, during eyes” voir though even specific” explanation of muscles which trial judge did not see it no ques- one twitched is another Yet matter. the Court juror tioned the about it.11 In v. Snyder says attorneys publicly any announce must Louisiana, there again questioning was no record, reaction question saw on the physical about very conduct that “looked it, about allow counsel opposing me”; rejected nervous to the Court rebut, and obtain a con- ruling explanation only judge because the trial good duct occurred. This like a sounds adopt not expressly did it.12 If the Consti- way antagonize jurors; attorney requires precise tution specification and complies expect can like exchanges interrogation explicit re- nonverbal following: actions, it is odd that the Court you I Counsel: Juror No. notice that so. never said Why yawning. is that? Nor has the Court Criminal Appeals, yawning. Juror 7: I No. wasn’t despite what claims. Hill I Judge, Counsel: want record claim, support State cannot such a yawning, reflect Juror No. 7 rejected expla- reason our sister court though even he denies it. black, male, nation that “He’s I he’s No was Opposing Counsel: he not. way didn’t responded my like questions,”13 nothing had body Judge, may to do with Counsel: Yes he was. language. The actual rule in ruling? Texas crimi- have a *20 S.W.3d 518, 860, 10. 268 (Tex.Crim.App.1992). 527. 869 13. 827 S.W.2d 333, 339, 969, 11. 546 U.S. 163 State, 455, 187 458 14. Thieleman v. S.W.3d (2006). L.Ed.2d 824 (Tex.Crim.App.2005). - -, -, 1203, 170 12. U.S. (2008). 187 S.W.3d 570, L.Ed.2d 175 584.

529 many of him, how those always cannot detect watching your I wasn’t so Court: motivated, you racially no matter And now can’t are request denied. strikes 7, you try. guarantee can we though strike Juror No. even hard we Nor how only him. if focus on cases thoroughly protection embarrassed we equal minority many” where “too like one If This will never the Court wants work. meantime, In the we jurors were struck.18 prohibit peremptory strikes based jury nor ra- doing system neither the conduct, directly say it should so nonverbal encouraging harmony by favors cial imposing an test impractical rather than racial mo- accuse each other of lawyers to indirectly. that so does they if get can a second trial they tives so Peremptory Ending III. Strikes one. lose first not far opinion go Yet the Court’s does removing in Haphazard success enough every American citizen to ensure the best we jury might be from selection a jury. to sit on opportunity peremptory if strikes were expect could composition jury If of is matter necessary impar- for a fair and absolutely chance, pure jurors nor litigants of neither Peremptory jury. they tial But are not. system has treated complain can of important part older strikes were But unfairly.16 peremptory them strikes systems panels jury which complexion of litigants change allow randomly Each side in ancient selected. jury, they charges is why provoke which jurors strike 50 because each Rome could of The suspicions and discrimination. 100 for the got propose side way to reduce or eliminate discrimination peremptory needed panel.19 Parties suspicion and is to reduce or eliminate early potential strikes in Texas these strikes. by hand-picked the local sher- jurors were commissioners,21 iff,20 by jury and later allows more strikes Texas Twenty part to reflect a limited than most of our sister and tended states.17 Batson, community.22 years after is now clear Illinois, 474, 499, leading present jury law object of our 16. See Holland v. 493 U.S. 803, (Mar- summoning resulting 110 107 905 from L.Ed.2d avoid the evils shall, J., ("Public sheriffs_”). dissenting) confidence is juries by of appearance gov- undermined trying against ernment to stack the deck 1, 1876, Leg., Aug. 15th approved 21. See Act defendants and to remove Afro- criminal 4, 78, R.S., 7, §§ 1876 Tex. Gen. Laws ch. solely jury from service because of Americans Gammel, reprinted 8 The Laws 79 in H.P.M.N. their race. No similar inference can 1822-1897, (Austin, at 915 Gam- Texas of chance.”). operations from the drawn [http:// 1898), mel Co. available Book permalink/meta-pth- texashistory.unt.edu/ v. ex rel. Puentes HCCI-San Estate Cortez 6731:916?search=peremptory]. See also Jef- Antonio, Inc., (Tex.2005). S.W.3d 90 Jury System Jury: frey Abramson, The We. Batson, (1994) (noting 18. See Democracy Ideal J., ("Prosecutors (Marshall, concurring) "key man” the federal courts used the blacks are left free discriminate selecting who were system notable citizens provided hold selection intelligence probity” recognized “men of level."). 'acceptable' discrimination to an 1960). recently as C.J., (Burger, S.Ct. 1712 19. See id. Alabama, 202, 207, 22. See Swain dissenting). (1965); Joanna 13 L.Ed.2d Sobol, Note, Occupa- Greenlee, Hardship Excuses Gulf, Ry. C. & S.F. Co. v. 20. See (1888) ("[T]he Exemptions: Impairment tional Tex. 8 S.W. *21 530 today jury

But are randomly arbitrary capricious venires zens from state selected,23 anyone to, is related action.29 challenges In 1991 peremptory in, interested against party action”;30 biased they or were to declared be “state case disqualified.24 is It is hard to see why always “arbitrary been as recognized litigants to need remove capricious” by very unbi- their nature.31 As half jurors get ased an impartial written, to jury espe- Justice affirm that “[t]o Scalia — cially peremptories mostly Equal are based to applies Protection Clause instinct, intuition, and inference.25 effectively This strikes of individual to eases, especially true civil as a challenge.”32 frac- abolish peremptory juror tious or two keep cannot the rest majority A of could per- this Court curb rendering from a verdict.26 emptory today, they strikes stem en- There is no right per- tirely constitutional from our Rules Civil Procedure.33 emptory Indeed, strikes.27 recent cases reason we hesitate to do so is that suggest true, opposite may them, lawyers as sev- tenaciously protective justices eral have already concluded.28 believing can use these strikes The Equal Protection protects Clause jury.34 Study study citi- mold a after favorable Batson, 102-03, “Fair Community”, Cross-Section concurring); 69 S. 476 U.S. at 106 155, (1995). (Marshall, J., CAL.L. ("The REV. 161 n. 17 concurring) S.Ct. 1712 today decision will racial not end the discrim- 23. See Tex. Gov’t Code § 62.004. inject peremptories jury- ination that into the process. goal selection That can be accom- § 24. See tex. Gov’t Code 62.105. plished eliminating chal- lenges entirely.”). 25. gets Because each side six peremptory person jury, strikes a twelve see TexR. 267, See, Jubelirer, e.g., 29. 541 Vieth v. U.S. 233, Civ. P. the two sides can remove half of 320-21, 1769, 124 S.Ct. L.Ed.2d 546 158 eligible jurors. (2004); AlleghenyPittsburgh Coal Co. v. Coun- Ohio, 400, 425, Va., ty County, 26. See v. Powers Comm’n Webster W. 499 U.S. 111 488 1364, (1991) (Scalia, 336, 344, L, 633, S.Ct. 113 L.Ed.2d 411 U.S. 102 109 S.Ct. L.Ed.2d 688 (“In Carr, 186, 207, dissenting) (1989); system a criminal-law v. Baker 369 U.S. 82 691, single (1962). which prevent biased can S.Ct. 7 L.Ed.2d 663 acquittal, deserved conviction or a deserved importance [peremptory challenges] Co., 30. See v. Concrete Edmonson Leesville minimized.’’). should not be 614, 622, 2077, 500 S.Ct. U.S. 111 114 (1991). L.Ed.2d 660 McCollum, 42, 57, 27. Georgia See v. 505 U.S. 2348, (1992) 112 S.Ct. 120 L.Ed.2d 33 378, States, 370, 31. U.S. Lewis v. United 146 (”[P]eremptoiy challenges are not constitu- 136, (1892) (quoting 13 36 4 L.Ed. 1011 tionally protected rights.... fundamental Blackstone, W. Commentaries on the Laws of repeatedly This Court right has stated that the Alabama, (1769)); England v. 346 Swain 380 may peremptory challenge to a be withheld 824, 219, 13 L.Ed.2d U.S. altogether impairing without the constitution- (1965) (same). guarantee impartial al of an and a fair trial.’’); 79, 91, Kentucky, v. 476 U.S. Ohio, 400, 425, 32. Powers (1986) (”[T]he 90 L.Ed.2d 69 L, (1991) (Scalia, L.Ed.2d right per- Constitution does not confer dissenting). Welch, emptory challenges”); Tamburello v. (Tex.1965) (noting 392 S.W.2d 33. See Tex.R. Civ.P. peremptory challenges provided in Texas are solely by procedure). of civil rules Vasquez, Hyundai Motor Co. v. 189 S.W.3d Collins, 333, 344, (Tex.2006) ("Peremptory 28. See challenges Rice v. J., (Breyer, they perceive L.Ed.2d parties reject jurors allow

531 (cid:127) Florida, 90 from shown this belief to be unfounded.35 true, is if it were that reason not But even (cid:127) Pennsylvania, from 181 not in- enough: “Peremptory strikes are (cid:127) Illinois, 342 from ‘select’ a permit party ... to a to tended jury.”36 favorable (cid:127) California, and from 676 problems discriminating All these — (cid:127) 1,364 from Texas. cases minorities, trial, and disrupting state, in Texas More than other jurors par- discarding perfectly good —are peremptory strikes must consider whether ticularly in acute Texas. Whether price they impose. generous are worth diversity, allow- of state’s strikes, peremptory something of or ance

else, are more challenges far fre- anywhere than A recent

quent here else. citing for cases

Westlaw search state court

to yields:

(cid:127) Idaho, 4 from cases

(cid:127) Alaska, 17 from

(cid:127) Colorado, 43 from

(cid:127) 58 from Oklahoma.

(cid:127) Minnesota, 74 from impressive unsympathetic position.”); lack attor- be their Patter states a consistent of to 914, Dunn, Attorneys ney regard. performance v. son Dental Co. 592 S.W.2d 919 (Tex. 1979) (noting peremptory challenges disagree substantially what information select, jurors permit party reject rely "are intended to cer on and which produce accuracy upon subjective perception consistently low of tain based levels prejudices.”); unsym preference particular jurors might judging verdict those al., omitted); position”) (emphasis pathetic L. et On the to his Norbert Kerr Effectiveness of 114, Welch, Prejudicial v. Voir Dire in Criminal Cases Tamburello 392 S.W.2d 117 (Tex.1965) Empirical Study, (noting peremptory challenges Publicity: An 40 AM. Pretrial 665, (1991); controversy Fule- ensure REV. 699 Solomon M. used to "that the U.L. Penrod, Myths D. and Reali- decided are not ro & Steven The whose members temperament Attorney Jury predisposed by pri or ties Selection Folklore reason of Works?, Jury 17 experience upon What to look with disfavor Selection: Scientific 229, Alabama, (1990); case”); W. 250 Albert side of the also J.E.B. see v. Ohio N.U.L.Rev. Alschuler, Jury: and the J., (not Dire, (1994) (Scalia, Challenges, dissenting) Peremptory and the Re- L.Ed.2d 89 Voir Verdicts, ing Jury peremptory "each view U. strikes reflected Chi. L.Rev. (1989); get disposed Zeisel Shari Seidman jury favorably Hans & side's desire Diamond, case”); Edmonson, Challenges Peremptory to its atU.S. Effect J., (O’Connor, ("[A] dissenting) Experiment in Jury and Verdict: An a Fed- S.Ct. 2077 Court, 491, 517 eral District 30 Stan. L.Rev. strike is a traditional adversarial Saks, act; (1978); parties use further their Michael J. TheLimits Scienti- these strikes to interests...."). Empirical, 17 perceived Jury Ethical and Selection: own fic (1976); J. 21-22 Dale W. Bree- Jurimetrics der, Empirical Dire An Voir Examinations: Hastie, Attorney-Conducted 35. See Reid Is (1965). Study, 505-06 38 S. Cal. L.Rev. the Selec- Voir Dire An Procedure Effective Junes?, Impartial tion Am. U.L.Rev. 750; Hyundai, S.W.3d at ("[Ajttorney-conducted voir dire is Cortez Antonio, Inc., 87, 94 procedure 159 S.W.3d an selection of HCCI-San not effective (Tex.2005) right ("Litigants empir- have the impartial juries. Although none of one.”). jury, perfect, impartial a favorable all demon- ical studies evidence notes that 943 step.4 the Manu- Batson’s third See cess, party noted: As we have shifts to the who has the burden strike to come forward with a exercised the step process, opponent At the first of the explanation.... It is not until peremptory challenge race-neutral of the must establish step persuasiveness of the prima a facie the third that the case of racial discrimina- tion_During step pro- justification challenge becomes rele- the second of the IV not doubt the 445-46. We do S.W.2d in the engagement full voir trial court’s Review Standard it proceedings, and Batson but none dire permitted Davis’s theless should system, the federal In contrast rath explanations, to rebut Fisk’s counsel stan “clearly erroneous” employs which opportu she had the ruling er than before review, court’s we review trial dard of (“Because nity to do Id. so. for abuse discretion. ruling strikes challenging party Goode, (noting “[a] at 446 943 S.W.2d persuasion, has the ultimate burden of if its deci its discretion trial court abuses provide that the trial court should conclude unreasonable, and with arbitrary, sion ‘is ” ... party challenging the strikes and guiding principles’ out reference to rebut race- opportunity reasonable “similar, al observing that standard (citation omitted). explanations.”) neutral to,” “clearly federal though identical not complains evading court’s Davis trial standard); Hernandez v. erroneous” cf. step, the third and court York, New objection by held Davis waived the (holding L.Ed.2d in the court. raising not trial not be finding a trial will disturbed court’s contrary, To the S.W.3d Davis’s “ ‘left appellate unless the court trial court to specifically counsel asked the firm conviction a mistake definite and explanations address Fisk’s for the strikes. ”) (quoting United been committed’ request trial court refused her Co., Gypsum States v. United States something on the “put said she could L.Ed. record at the conclusion of this.” We con State, (1948)); Young v. 826 S.W.2d request clude that Davis’s was sufficient to (noting that (Tex.Crim.App.1991) “[a] complaint, the trial court of advise [trial court should reverse reviewing the objection. Davis did not waive findings only when court’s] or, Nonetheless, as we failing supported by the error sufficient evidence fol- ”). of discretion’ proper say, low harmless in this often ‘abuse procedure was I, gov proceeding In a habeas permitted case. The trial court Davis to standard of review set forth hearing, a bill erned make after Effective Death in the Antiterrorism and Davis’s counsel addressed Fisk’s strikes Act of given. Penalty After listen- explanations Texas