OCTOBER D87 - Voice For The Defense Online

to respond to an unresolved Batson issuethenecessity for an evidenfiory hearing. InPrice v. Stale," the court stated:appellant failed to establish by .evidence (in the nature of a stipnla-Ition or otherwise), that he was black1 and that the six jurors struck by the, State were black. Further, we findI that he failed to establish byevidence, any relevant circumstancesto raise an inference that the prosecutorused his peremptory challengesto exclude veniremembersfrom the petit jury on account oftheir race.)"The court further stated that the observationsof defense counsel was not evidence.Courts in other states have also requireddefendant to establish his prima facie caseby means other than the statements of hisco~nsel.~'In light of the holding in the only Texascase on this specific issue, prudent counselshould present evidence to support eachelement of the prima facie case. It shouldnot be difficult to obtain a stipulation orjudicial notice of the defendant's race andthe race of the prospective jurors challenged.If defense conusel wishes to establishthese matters by statements in therecord, he should be sworn in and givetestimony as would any other witness.'"Cognizable Racial GroupIn Texas, challenges under Batson havethus far been raised only by black and hispanicdefendants. The test for a cognizableracial group is whether it is a recognizable,distinct class singled out for different treatmentunder the laws as written or as applied.33Under this defmition, the possiblegroups expand beyond traditional racialclassifications. In Rijo v. St~te,~' for example,the defendant was characterized bydefense counsel as "from the DominicanRepublic" and "partially Negroid and partiallySpani~h."~~ The court held that thedefendant was affiliated with the black raceand, therefore, could protest the exclusionof a black man from the jury. Texas caseshave also permitted challenges to be raisedby hispanic defendant^.^^ American Indianshave also been held to be acognizable racial group." In a case decidedon the basis of Massachusetts' stateconstitutional rights, the court foundFrench-Canadians to be a distinct groupmeriting prote~tion.'~The specific mandate of Batson islimited to race; however, courts in Massachusettsonce again relying on their stateconstitution have extended the protectionto gender." The same court in Commonlvealthv. Samuel4o was unable to finda constitutional basis for challenging theexclusion of young personsStrikes Outside Racial GroupOne of the elements of the prima faciecase under Batsom is that the prosecutor hasexcluded members of defendant's racialgroup. In State v. Cl~risfensen,~' theMissouri appellate court held that Bamnwas inapplicable when the defendant waswhite and complained of the exclusion ofblacks from his jury." A similar positionwas taken in Fields v. Peogle;4' uonetheless,the court held that the Colorado stateconstitution and the sixth amendmentallowed a blackdefendant to challenge theexclusion of hispanics. Other courts havepermitted white defendants to challenge thestriking of blacks from the jury.*'Inference of DiscriminationThe Court of Criminal Appeals has furtherconfused an area left unresolved byBatson: will the simple exclusion ofminority members alone raise the inferenceof purposeful discrimination? In its firstopinion in Keetorr v. Slate,45 a caseinvolvinga black defendant and prosecutorialchallenges to three black venirepersons,the court held that the defendant had toshow that there were sufficient other factsto raise an inference that the prosecutor excludedvenirepersons on account of theirrace. The coun withdrew Keeton I on itsown motion. In Keetort 1Z26 the court didnot address the requirements of a primafacie case but rather remanded for a trialcourt determination. In cryptic language,Judge Miller suggested that the fact that"an inference of racially motivated juryselection could be demonstrated by thestrikes themselves" was a new procedure.47Whether he was attempting to drawa distinction between the Swam standardand the new Barson procedure or was commentingupouthe proof necessary to d~awthe inference remains unclear. Althoughcourts in California have held that an inferenceis raised solely by demonstratingthe exclusion of venirepersons of the sameracial group,'"most state courts have concurredwith KeeronBatson suggested several Gircumstanceswhich may raise the necessary inference."A 'pattern' of strikes against blackjurorsincluded in the particular venire might giverise to an inference of dis~rimination.~Similarly, the prosecutor's questions andstatements during voir dire examinationand in exercising his challenges may supportor refute an inference of discriminatorypurpose. These examples aremerely illnstrati~e."~' Other cases haveput forward a variety of tools for counselto employ in seeking to raise the inference.In Contmonwealtlt v. so are^,^^ the courtfound an inference where the prosecutorutilized peremptory strikes to exclude 92%of blacks on the venire while excludingonly 34% of the white jurors. Striking 19of 23 members of defendant's cognizablegroup has also been held to be such a disproportionateexclusion so as to raiae aninference.53 Even if courts snbsequentlyestablish that an inference is raised solelyfrom the simple exclusion of minorityrnembcrs, noncthelcss, u statistically-basaldetermination - that morc blacks than whitcswere struck may better illustrate themagnitude of the exclusion.i~~jlammatory caseCourts have found an inference wherethe subject matter of thecase was such that"racial overtones were unavoidable."" InWashing.ton, the black defendant was accusedof operating a prostitution ring.There were also allegations of sexual relationshipswith whiteprostitutes. Thecourtnoted that the defendant might meet thestereotypical image of a "pimp", andstated that those circumnstances were astrong indication that a prima facie casewas established.Ss Similarly, in Sinrpson v.Mas~achusetrs,~~ a black defendant wascharged with sexually assaulting a whitefemale. The victim's consent was at issue.The court noted "racial prejudice couldeasily lead whitejurors to draw inferencesagainst [the defendant]. "5'race of victimClosely related to the inflammatoryOctober 1987 1 VOICE far the Defense 23