COOMBS v. DIGUGLIELMO

United States District Court, E.D. Tennessee, at Chattanooga.

August 5, 2010

As also noted earlier, the prosecutor's response to defense counsel's challenge to the dismissal of Juror No. 1 also included the concession that: "I don't really have a sound reason." On this record, there is no way of knowing if the prosecutor's action was motivated by a genuine concern for Juror No. 1's impartiality, or whether the prosecutor's misgivings arose from the fact that the juror was Black. We do not intend to suggest an answer to that question. We do, however, require that an appropriate inquiry be undertaken by the court in response to a Batson challenge; particularly given the prosecutor's vague and elusive explanation and the apparent concession that he was not sure why he stuck Juror No. 1.

Like anyone else, trial attorneys possess those human frailties that make each of us far too susceptible to social conditioning and the subliminal bias that may result. Thus, although we do not suggest this happened here, we are reminded of Justice Marshall's observation in Batson that "[an attorney's] own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is `sullen,' or `distant,' a characterization that would not have come to his mind if a white juror had acted identically." 476 U.S. at 106, 106 S.Ct. 1712 (Marshall, J. concurring). Accordingly, "outright prevarication by [attorneys is not] the only danger . . . It is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal." Id. (internal citation and quotations omitted). Although we again stress that we are not suggesting what this prosecutor's motivation was, trial court's must be particularly vigilant when Black jurors are struck because an attorney is acting on a "hunch."

This means that a trial court must be exceedingly careful about rejecting a Batson challenge merely because the prosecutor explains that s/he did not like the way a juror looked at her/him. Although counsel's discomfort with real or perceived "looks" from a prospective juror may arise from factors that would readily survive a Batson challenge after an appropriate inquiry, Justice Marshall's admonition in Batson cautions that such discomfort may not similarly arise if a White juror looks at counsel the same way. Therefore, courts should not allow nebulous expressions of discomfort to justify striking a juror. Batson requires an appropriately tailored inquiry, an opportunity for opposing counsel to argue that the proffered reasons are pretextual, and a finding by the trial court. If it were otherwise — and an unexamined explanation were allowed to survive a Batson challenge, Batson inquires would quickly be reduced to a meaningless procedural ritual.

We realize that it may be uncomfortable and unpleasant for a trial judge to undertake such a difficult and subtle inquiry with the precision and persistence that may be required to determine counsel's true reasons for striking a juror. No judge wants to be in the position of suggesting that a fellow professional — whom the judge may have known for years — is exercising peremptory challenges based on forbidden racial considerations. However, we also realize that if Batson is to be given its full effect, trial courts must make precise and difficult inquiries to determine if the proffered reasons for a peremptory strike are the race-neutral reasons they purport to be, or if they are merely a pretext for that which Batson forbids.

Nor is it relevant that the prosecutor appears to have offered race-neutral explanations for all but one peremptory challenge. "[A] prosecutor's purposeful discrimination in excluding even a single juror on account of race cannot be tolerated as consistent with the guarantee of equal protection under the law." Holloway, 355 F.3d at 720 (citing Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990)). Although we are not suggesting that the district court should only consider the prosecutor's strike of Juror No. 1 on remand, we do note that if Juror No. 1, and only Juror No. 1, was struck because of his race, then the Batson challenge should have been sustained.

The error here is compounded by the court's refusal to allow evidence of the alleged conversations between the prosecutor and defense counsel that could have supported the defense counsel's claim of bias. That evidence, if accepted, could have established that the prosecutor believed that he failed to get a conviction in Coombs' first trial only because of a sym-pathetic Black juror. Such evidence, viewed against the prosecutor's explanation that he "just didn't like" one of the prospective jurors (who he conceded he had no good reason to strike) may well have caused an objective fact finder to conclude that Coombs' Batson challenge should have been sustained.

We realize, of course, that defense counsel was able to put the alleged out of court statement of the prosecutor before the court in an affidavit. However, that is a woefully inadequate substitute for a hearing under these circumstances. Moreover, it is obvious that the court had already determined that the Batson challenge was more irritating than meritorious. It had already explained that the proffered evidence was "not relevant to anything" even though it went directly to the prosecutor's frame of mind in exercising peremptory challenges during the selection of the second jury. Thus, we cannot say that merely allowing defense counsel a pro forma opportunity to submit an affidavit is consistent with the kind of serious inquiry required under Batson's third step.

Accordingly, we will remand the case to the district court to hold an evidentiary hearing consistent with this opinion.