On Batson and Being a Black Lawyer

I recently tried the first civil jury trial in the United States District Court for the District of Columbia since the beginning of the COVID-19 pandemic.  While a jury verdict in favor of our client was the most satisfying part of the experience, the most surprising part was that I was able to successfully raise a Batson challenge.

 

The term “Batson challenge” comes from Batson v. Kentucky, 476 U.S. 79 (1986), a U.S. Supreme Court case which held that peremptory challenges are unconstitutional when used to exclude a potential juror based on race, ethnicity, or sex in a criminal matter.  The Supreme Court expanded Batson to allow private litigants in civil cases to make the same objection in Edmonson v. Leesville Concrete, 500 U.S. 614 (1991).  Batson challenges typically proceed in three steps: 1) The party raising the challenge must make a prima facie showing that a peremptory strike was exercised on the basis of race; 2) The opposing party must respond with a race-neutral basis for the strike; and 3) The trial court must determine whether the party making the peremptory strike has shown purposeful discrimination.

 

According to the American Bar Association, African American attorneys represent just five (5) percent of all attorneys in America.  That percentage dwindles more when you exclude black attorneys practicing criminal and family law.  I have been the only black attorney in a mid-size law firm with almost seventy (70) other attorneys.  I have been the only black summer associate.  I am the only black partner in my current firm.  Navigating predominantly white spaces is something that I have had to do my entire life, so I am not uncomfortable being the first or the only.

 

The defendant in my case is a lobbying firm. The case involved the defendant’s misclassification and failure to pay overtime compensation to my client under the Fair Labor Standards Act and the District of Columbia Minimum Wage Act.  My client is a white female under the age of thirty (30).  My colleague who tried the case with me, Philip Krone, is white and in his mid-thirties.  Similarly, both opposing counsels were white men over the age of fifty (50).  The defendant was a seventy-nine (79) year old white man and the sole proprietor of the eponymous lobbying firm.  Accordingly, I assumed age rather than race would be the issue in picking the jury.

 

The jury venire was made up of roughly fifteen (15) people.  The jury pool, much like the rapidly gentrifying city, skewed younger, whiter and more affluent.  There were only five (5) African Americans in the jury venire.  Opposing counsel used all three (3) of their peremptory challenges to strike black jurors.  The strikes were strange because the three (3) jurors were different ages, had different professions, and lived in different parts of the city.  Two (2) of the three (3) had white collar jobs.  One was even a manager.

 

Once I saw opposing counsel’s list, I immediately knew that something was rotten in Denmark and raised a Batson challenge to all three of opposing counsel’s peremptory strikes.  When the judge pressed opposing counsel for a race-neutral reason for why he chose his strikes, he simply stated that the three (3) had admitted to working jobs where they received overtime wages in the past.  When I responded that ten (10) of the fifteen (15) people in the jury venire responded similarly, the judge pressed opposing counsel about what made the three (3) African American jurors different. Opposing counsel then began describing his reason for striking one African American male because he “used to work in construction.”  The judge’s face and my face dropped when we both realized that opposing counsel was describing another black male in the jury venire, a man who was seventy-five (75) years old and potentially old enough to be this juror’s grandfather.  Did opposing counsel think that we all looked alike?

 

Opposing counsel continued digging and declared that he “did not even notice the jurors’ race.”  I had to suppress a laugh because race was the only thing that the three (3) potential jurors had in common.  The judge granted our Batson challenge and seated two (2) of the three (3) with the jury (the last juror, an African American female, would not have made it to the seven (7) member jury panel anyway).

 

There are two practice pointers litigators should take away from this experience.  First, always have a legitimate, race-neutral reason for making a peremptory strike.  Second, do not accept furiously scribbled notes from your client about who he wants to strike unless you can read his handwriting and you are prepared to stake your reputation on your client’s questionable choices.

 

Broderick C. Dunn is a partner in the Fairfax firm of Cook Craig & Francuzenko.  His practice centers on the representation of executives, employees, and small businesses in a wide range of employment law issues. Mr. Dunn is highly active in the Virginia and Fairfax Bar Associations and speaks and writes regularly on employment law issues.  He has been selected to the Virginia “SuperLawyers®” lists by his colleagues.