The New Mexico Court of Appeals has reversed a defense verdict in a wrongful death case, holding that the defendants’ use of peremptory jury strikes to remove Hispanics from the jury was unconstitutional and violated the principles established by the U.S. Supreme Court in Batson v. Kentucky (and later extended to civil cases in Edmonson v. Leesville Concrete Company). The opinion is Bustos v. City of Clovis, a unanimous decision written by Chief Judge Michael Vigil.
The decedent was Juventino Ceballos Hernandez, a Mexican citizen who began acting erractically while staying with friends in Clovis. Police were called, and Mr. Ceballos Hernandez assaulted them. Police then “hogtied” him and dragged him to a police vehicle. Because he was injured during this process, police took him to the hospital, where a doctor gave him medications to calm him down. After that, Mr. Ceballos Hernandez stopped breathing, and eventually died. His family sued the city, the police officers, and medical personnel (the latter settled).
At trial against the city and the police officers, defense counsel used three of five peremptory strikes against jurors with Hispanic surnames. Under the Batson test, the party opposing a peremptory strike must establish a prima facie case that the strike was used in a discriminatory way. If that is established, the party exercising the strike must come forward with a race or gender-neutral explantion for the challenge. If a neutral explanation is given, the court must then determine whether purposeful discrimination has been shown. Here, the trial court rejected the plaintiffs’ Batson challenges, finding that sufficiently race-neutral explanations were given for the strikes.
The Court of Appeals rejected some of the plaintiffs’ challenges, but agreed that no sufficiently race-neutral explanation was given for striking Juror No. 27, a man who identified himself as a “Mexican.” Defense counsel’s explanation for striking him was that “there are other people on this jury who are further down the line that I’d like.”
The Court found that this is normally sufficient justification for exercising a peremptory strike, but not when a prima facie showing of discrimination has been made. A race-neutral explanation must be more than a mere denial of discriminatory intent, but instead “must be sufficiently specific to allow the party challenging the strike to exercise its right ‘to refute the stated reason or otherwise prove purposeful discrimination.'” The Court found that defense counsel’s explanation was not sufficiently specific — it wasn’t enough for counsel to say that defendants preferred another juror; he or she had to explain why, so that the trial court could properly evaluate whether the explanation was race-neutral.
Of course, I would hope that no attorney, whether on the plaintiff’s side or the defense, would ever exercise a peremptory challenge in an intentionally discriminatory fashion. That is not only illegal, but unethical and immoral.
However, even lawyers who act in good faith during jury selection may still be faced with Batson challenges, and as this case shows, they must be prepared to defend their good-faith peremptory strikes against a Batson challenge.
