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Batson Today: A Look at State Protections of Minority Defendants

 Recently, and for the first time in its history, the state of North Carolina overturned a conviction based on a Batson violation.[1] Batson v. Kentucky, decided by the U.S. Supreme Court in 1986, held that a defendant has a right to have a jury that is “indifferently chosen” and picked based on “non-discriminatory criteria.”[2] Batson came to the Supreme Court from Kentucky, after the lower court overruled an objection to striking all African American jurors.[3] The trial judge stated that “the parties were entitled to use their peremptory challenges to ‘strike anybody they want to.’”[4] If a juror is struck on the basis of race, gender, or ethnicity, it amounts to a Batson violation.[5] Batson created a three-step process to alleging a violation including (1) the defendant must show that he was part of the class of people that the prosecution was using its peremptory challenges to remove; (2) the prosecution must show a race-neutral reason for dismissing the particular juror(s); and (3) the court takes all evidence into consideration in making its decision.[6]

In 2016, Christopher Clegg was found guilty of armed robbery by a jury of his “peers” in Wake County, North Carolina.[7] Authorities charged Clegg, an African American man, with robbing a parlor employee at gunpoint in 2014.[8] In February of 2022, the North Carolina Supreme Court overturned that conviction, finding that prosecutors challenged and blocked a potential juror on the basis of race during Clegg’s trial.[9] The North Carolina Supreme Court found there were two African American jurors who “were among only three people of color within a prospective jury pool of twenty-two for Clegg’s trial.”[10] The prosecution excused Gwendolyn Aubrey from jury service,  challenging her on the basis of her “body language and lack of eye contact.”[11] The prosecution dismissed another jury for similar reasons.[12] Clegg’s counsel objected to the challenges, but the court overruled them.[13]

After lengthy discussions both in the lower courts and in the North Carolina Supreme Court, Clegg’s conviction was overturned in a 4-3 decision by the North Carolina Supreme Court, as the dismissal of the jurors was found to be on the basis of race.[14] Unfortunately, Clegg completed his sentence and parole when his conviction was overturned.[15] Clegg was the first of multiple North Carolina defendants to challenge their convictions based on Batson issues.[16]

More recently, a second North Carolina defendant’s jury selection has come to light.[17] An all-white jury sentenced Russell Tucker to death in 1966 for first-degree murder and other crimes.[18]  It took Tucker’s jury, made entirely of white people, approximately 45 minutes to reach its decision.[19] During jury selection, every single African American juror was dismissed, with the prosecution striking only 20% of white jurors.[20] Tucker’s counsel alleged that in order to strike the African American jurors, the prosecutors referred to a list called “Batson Justifications: Articulating Juror Negatives.”[21]

The Batson Justifications list includes valid reasons to strike a juror, such as an unrevealed criminal history.[22] However, the list also includes ambiguous factors, such as monosyllabic responses to questions or “any other sign of defiance, sympathy with the defendant, or antagonism to the State. [23] However, the list does not describe what “defiance” or “antagonism to the State” mean.[24]

Tucker is one of four North Carolina death row defendants who had all-white juries and are now appealing their convictions and sentences based on Batson.[25] The North Carolina Supreme Court heard arguments on all four cases on February 8, 2023, and is scheduled to issue the decisions separately later this year.[26] If Tucker’s conviction is overturned, he will be the second North Carolina defendant after  Christopher Clegg, to have a conviction overturned based on a Batson issue. The Assembly referred to Tucker’s case as “one of the most blatant examples of jury discrimination in recent North Carolina history,” stating that it is an even more obvious illustration of racial bias in jury selection than in the case of Clegg. [27]

The cases of Christopher Clegg and Russell Tucker only illustrate the Batson issues that have recently emerged in the state of North Carolina. To prevent attorneys from continuing to use racial or gender biases during jury selection, many other states have implemented new legislation to combat these issues.

The State of Washington’s General Rule 37 (“GR 37”) strives to eliminate the exclusion of minority jurors, as Batson was not “robust enough” to eliminate the racial disparities that stem from “racially neutral” questions.[28] GR 37 follows the analysis of Batson but goes so far as to list circumstances that the court should consider in making its decision, such as the number and types of questions each juror is asked, whether the juror’s answers are similar to answers of other jurors and whether a reason to excuse a juror may be disproportionately associated with race.[29] Further, the rule lists reasons that are invalid for a peremptory challenge such as prior contact with law enforcement officers, living in a high-crime neighborhood, or not being a native English speaker.[30] The rule also specifies that certain types of body language cannot be used as a reason for a peremptory challenge.[31]

GR 37 strengthens Step 3 of the Batson analysis and provides a clearer procedure to the trial court in determining whether a violation occurred.[32] After the initial objection is made and the prosecution provides its race-neutral reason for the challenge, the trial court then evaluates “the reasons given and determines whether ‘an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.’”[33] An objective observer is defined “as someone who is aware of ‘implicit, institutional, and unconscious biases’ that have resulted in unfair exclusion based upon race or ethnicity.”[34] While the rule does not prevent all exclusion of jurors based on race, it goes one step further than Batson and spells out what types of reasons may be associated with race and are therefore not race-neutral. It further gives the trial court direction in determining whether race factored into the peremptory challenge.

It appears that GR 37 is successful, as Washington State has “more challenges to the jury selection process” since the rule was passed in 2018.[35] Just last year, the Washington Supreme Court unanimously overturned the conviction of a Washington man accused of rape in the third degree.[36] The Washington Supreme Court found that at the trial level, the judge incorrectly overruled the objections by the defendant’s counsel, who argued the prosecution dismissed two African American jurors on the basis of their race.[37]

Since the implementation of Washington State’s GR 37, many other states drafted similar rules.[38] For example, Arizona, Iowa, and New York proposed legislation to abolish peremptory challenges in criminal trials, and New York made efforts to establish jury reform programs.[39] Following a study on jury selection practices, New Jersey proposed multiple amendments to court rules, as well as a program that collects juror information to help guide juror reforms.[40] Multiple other states including California, Colorado, Connecticut, Kansas, Massachusetts, Montana, North Carolina, Oregon, and Utah have created task forces aimed toward jury reforms and drafted legislation similar to or based on Washington’s GR 37.[41]

In conclusion, Christopher Clegg and Russell Tucker are only two of the many defendants who have experienced Batson violations during jury selection. It is clear the goals outlined in the original drafting of Batson have not been met, as there are still issues today involving racial disparities during jury selection. Batson alone is not enough to protect both defendants and potential jurors, from the unfair exclusion of jurors based on race. For that reason, many states have made immense efforts to implement practices to both protect the defendants on trial, and the jurors deciding their fate.

[1] Robert Edmunds, Jr., Batson is Back, With Teeth, JDSUPRA, (March 4, 2022); Seee.g.State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002).

[2] Batson v. Kentucky, 476 U.S. 79, 86-87 (1986).

[3] Id. at 83.

[4] Id.

[5] Cornell Law School, Batson Challenge, Legal Information Institute (June 2022),,may%20be%20a%20new%20trial.

[6] Batson, 476 U.S. at 94-98. In 1991, the Supreme Court changed Step 1 of the Batson analysis, when it held that the defendant and the juror no longer must be the same race in order for the defendant to make out a prima facie case. See Powers v. Ohio, 499 U.S. 400, 403 (1991).

[7] Edmunds, supra note 1.

[8] Gary D. Robertson, NC Court Overturns Conviction on Racial Bias in Picking Jury, AP News, (February 11, 2022),

[9]  Id.

[10] Id.

[11] Id.

[12] Edmunds, supra note 1.

[13] Id.

[14] Robertson, supra note 8.

[15] Michael Hewlett, A Jury of One’s Peers, The Assembly, (March 7, 2023),

[16] Id.

[17] Id.

[18] Execution Date Set in Tucker Case, Media Advisory, North Carolina Department of Correction, (October 20, 2000),

[19] Hewlett, supra note 15.

[20] Id.

[21] Id.

[22] BATSON Justifications: Articulating Juror Negatives, Indigent Defense Services, (last visited March 23, 2022),

[23] Id.

[24] Id.

[25] Hewlett, supra note 15.

[26] Id.

[27] Id.

[28] Annie Sloan, “What to Do About Batson?” Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Cal. L. Rev. 1 (2020).

[29] WASH. CT. GEN. R. 37(a).

[30] Id.

[31] Id.

[32] Daniel Edwards, The Evolving Debate Over Batson’s Procedures for Peremptory Challenge, National Association of Attorneys General, (April 14, 2020),

[33] Id.

[34] Id.

[35] Mike Carter, WA Supreme Court Overturns Black Man’s Rape Conviction Over Bias in Jury Selection, The Seattle Times (October 10, 2022),

[36] Id.

[37] Id.

[38] Batson Reform: State by State, Berkeley Law, (last visited March 30, 2022),

[39] Id. (discussing recommended modifications to the Batson test, which will “apply to “an expanded set of classes, including a juror’s race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation.”” The modification requires trial judges to apply a reasonable person standard in determining whether something like race was the reason for a peremptory challenge.).

[40] Id. (discussing that the study performed by New Jersey found “(1) ‘the processes that determine who appears at the courthouse constitute a systemic source of minority-group attrition because concerning levels [of] underrepresentation appeared in nearly all areas studied’; (2) prospective jurors are more likely to be removed for cause rather than by peremptory challenges; (2) ‘although peremptory challenges can be linked sporadically to minority-group attrition patterns,’ they are ‘not the primary reason’ jurors of color are not seated; and (3) ‘[t]he data do NOT support a conclusion that the number of peremptory challenges allocated to attorneys does no harm to jury selection practices outcomes.’”).

[41] Id.