Central Alabama Fair Housing Center v. Lowder Reality Co., Inc. Brief of Appellants Cynthia Foster, Denise Frazier, Barbara Gill-Smith, Brenda Smith, and Ezell Smith

    ►

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 99-6133

CENTRAL ALABAMA FAIR HOUSING CENTER, CYNTHIA FOSTER, 
DENISE FRAZIER, BARBARA GILL-SMITH, BRENDA SMITH,

and EZELL SMITH,

Plaintiffs-Appellants

v.

LOWDER REALTY CO., INC., LOWDER NEW HOMES, INC, LOWDER 
NEW HOMES SALES, INC, COLONIAL COMPANY, JAMES LOWDER, 

BARBARA BONDS, JOHN DOROUGH and FRASER SPARKMAN,

Defendants-Appellees

A DIRECT APPEAL OF A CIVIL CASE FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

BRIEF OF APPELLANTS CYNTHIA FOSTER, DENISE FRAZIER, 
BARBARA GILL-SMITH, BRENDA SMITH, and EZELL SMITH

ELAINE R. JONES 
Director-Counsel

LESLIE M. PROLL 
REED N. COLFAX 
NAACP Legal Defense &

Educational Fund, Inc.
1444 Eye Street, N.W, 10th Floor 
Washington, D.C. 20005 
(202) 682-1300

COUNSEL FOR APPELLANTS FOSTER, FRAZIER, 
GILL-SMITH, B. SMITH, AND E. SMITH



CERTIFICATE OF INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT

The undersigned counsel hereby certifies that the following persons and

entities have an interest in the outcome of this case:

1. Judge W. Harold Albritton (Trial Judge)

2. Balch & Bingham, LLP (Counsel for Defendant Coldwell Banker)

3. Barbara Bonds (Defendant-Appellee)

4. David R. Boyd (Counsel for Defendant Coldwell Banker)

5. Delores Boyd (Counsel for Plaintiffs)

6. Judith A. Browne (Counsel for Plaintiffs)

7. Central Alabama Fair Housing Center (Plaintiff-Appellant)

8. Norman J. Chachkin (Counsel for Plaintiffs-Appellants)

9. Reed N. Colfax (Counsel for Plaintiffs-Appellants)

10. The Colonial Company (Defendant-Appellee)

11. Judge Charles S. Coody (Magistrate Judge)

12. John Dorough (Defendant-Appellee)

13. Cynthia Foster (Plaintiff-Appellant)

14. Denise Frazier (Plaintiff-Appellant)

15. Dean Garfield (Counsel for Plaintiffs)

No. 99-6133 CAFHC v. Loader Realty

C-l o f C3



•ft

No. 99-6133 CAFHC v. Lowder Realtv«✓

16. Barbara Gill-Smith Estate (Plaintiff-Appellant)

17. Frances Heidt (Counsel for Defendants)

18. E. Barry Johnson (Counsel for Appellees)

19. Elaine R. Jones (Counsel for Plaintiffs-Appellants)

20. Kaye, Scholer, Fierman, Hays & Handler, LLP (Counsel for Plaintiffs)

21. Robin G. Laurie (Counsel for Defendant Coldwell Banker)

22. James Lowder (Defendant-Appellee)

23. Lowder New Homes, Inc. (Defendant-Appellee)

24. Lowder New Homes Sales, Inc. (Defendant-Appellee)

25. Lowder Realty Co., Inc. (Defendant-Appellee)

26. NAACP Legal Defense & Educational Fund, Inc., (Counsel for Plaintiffs- 

Appellants)

27. Leslie M. Proll (Counsel for Plaintiffs-Appellants)

28. Kerry Scanlon (Counsel for Plaintiffs)

29. Fern Singer (Counsel for Defendants)

30. Sirote & Permutt, P.C. (Counsel for Defendants)

31. Fraser Sparkman (Defendant-Appellee)

32. Brenda Smith (Plaintiff-Appellant)

C-2 of C3



No. 99-6133 CAFHC v. Lowder Realty

33.

34.

35.

36.

37.

Ezell Smith (Plaintiff-Appellant)

Charles Stewart (Counsel for Defendants) 

Pamela L. Sumners (Counsel for Appellant) 

Gail C. Washington (Counsel for Defendants) 

Chris Willis (Counsel for Defendants)

C-3 of C3



STATEMENT REGARDING ORAL ARGUMENT

Appellants Foster, Frazier, Gill-Smith, B. Smith, and E. Smith request oral 

argument in this matter. This appeal raises several important issues regarding the 

application of Batson that have not yet been addressed by this Court and presents 

the atypical circumstance where a trial court errs by upholding a party’s Batson 

challenge to a peremptory strike. Further, resolution of this appeal will require a 

fact-specific exploration of the voir dire and jury selection that occurred at trial. 

Appellants’ counsel, who represented plaintiffs at trial and conducted juiy 

selection, could assist this Court in understanding the sequence and intricacies of 

the voir dire and the jury selection at trial. Appellants believe that this Court’s 

understanding of this matter would be greatly assisted by oral argument.

i



TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS ..................................................C-l

STATEMENT REGARDING ORAL ARGUMENT............................................ i

TABLE OF CONTENTS .......................................................................................ii

TABLE OF AUTHORITIES...............................................................................  iv

STATEMENT OF JURISDICTION....................................................................viii

STATEMENT OF ISSUES..................................................................................... 1

STATEMENT OF THE CA SE............................................................................... 1

I. Proceedings B elow ............................................................................. 1

II. Statement of Facts...............................................................................2

III. Standard of Review............................................................................. 7

SUMMARY OF ARGUMENT............................................................................... 8

ARGUMENT........................................................................................................... 9

I. The District Court Deprived Plaintiffs of Their Important
Right to Exercise Peremptory Challenges..........................................9

A. Defendants Failed as a Matter of
Law to Establish a Prima Facie Case of
Discriminatory Use of Peremptory Strikes................................ 9

B. Plaintiffs Offered Five Race-Neutral Reasons
For Their Attempted Peremptory Strike .............................. 18

ii



Table of Contents (Continued)

C. Defendants Did Not Meet Their Burden 
of Proving That Plaintiffs’ Exercise of 
Their Peremptory Strike Was Motivated by 
Discriminatory Intent............................................................... 23

1. Defendants Presented No Evidence Showing 
That Plaintiffs’ Five Race-Neutral Reasons
Were Pretexts for Race Discrimination......................... 25

2. The Record Contains No Evidence 
Supporting a Finding That Plaintiffs’ Reasons
for Exercising Their Strike Were Pretexts for Race 
Discrimination................................................................29

II. The District Court’s Erroneous Denial of Plaintiffs’
Peremptory Challenge Mandates Remand to the District
Court for a New Trial......................................................................... 42

CONCLUSION..................................................................................................... 45

CERTIFICATE OF COMPLIANCE..................................................................... 48

CERTIFICATE OF SERVICE ............................................................................. 49

ADDENDUM (Transcript of Voir Dire and Jury Selection) ................................50

iii



TABLE OF AUTHORITIES

FEDERAL CASES

Arch v. Schmir, 824 F. Supp. 1042 (N.D. Ga. 1987) ..........................  10, 17

Arizona v. Fulimante, 499 U.S. 279 (1991) ..............................................  44

Barfield v. Orange County, 911 F.2d 644 (11th Cir. 1990).......................  37

*Batson v. Kentucky, 476 U.S. 79 (1986) ..........................................passim

Duda v. Board o f Education o f Franklin 
Park School District, 133 F.3d 1054 (7th Cir. 1998) .............................  27

Dudleyv. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir. 1999) .. 9,39,43

Hernandez v. New York, 500 U.S. 352 (1991) .................................... 19, 24

Hollingsworth v. Burton, 30 F.3d 109 (11th Cir. 1994) ............................ 39

Hurd v. Pittsburg State University, 109 F.3d 1540 (10th Cir. 1997) ... 19, 21

J.E.B. v. Alabama, 511 U.S. 127 (1994) .................................................... 26

Lewis v. United States, 146 U.S. 370 (1892) ............................................. 45

McKeel v. City o f Pine Bluff, 73 F.3d 207 (8th Cir. 1996) .........................  24

Morrison v. Jones, 952 F. Supp. 729 (M.D. Ala. 1996) ............................ 12

Olympia Hotels Corp. v.
Johnson Wax Development Corp., 908 F.2d 1363 (7th Cir. 1990) ........ 44

*Purkett v. Elem, 514 U.S. 765 ........................................................  passim

Roberts v. Singletaiy, 794 F. Supp. 1106 (S.D. Fla. 1992) .....................  16

IV



Table of Authorities (Continued)

Swain v. Alabama, 380 U.S. 202 (1965) ....................................... 28, 43, 45

United States v. Alvarado, 923 F.2d 253 (2nd Cir. 1991) ........................12

United States v. Allison, 908 F.2d 1531 (11th Cir. 1990).................... 11, 16

United States v. Alston, 895 F.2d 1362 (11th Cir. 1990).....................  36, 38

United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) ............. 28, 43, 45

United States v. Banks, 10 F.3d 1044 (4th Cir. 1993) ...............................  34

United States v. Bennet, 928 F.2d 1548 (11th Cir. 1991) .................... 32, 33

United States v. Bergodere, 40 F.3d 512 (1st Cir. 1994)........................... 12

United States v. Broussard, 987 F.2d 215 (5th Cir. 1993) .......................  44

United States v. Byse, 28 F.3d 1165 (11th Cir. 1994).............  27, 31, 32, 33

United States v. Cure, 996 F.2d 1136 (11th Cir. 1993) ....................... 25, 37

United States v. David, 662 F. Supp. 244 (N.D. Ga. 1987) ......................  10

United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986).......................... 16

United States v. Henderieth, 922 F.2d 748 (11th Cir. 1991).....................37

United States v. Horsley, 864 F.2d 1543 (11th Cir. 1989) ........................  37

United States v. Jiminez, 983 F.2d 1020 (11th Cir. 1993)......................... 15

United States v. Lewis, 837 F.2d 415 (9th Cir. 1988)................................  39

United States v. Lewis, 892 F.2d 735 (8th Cir. 1988) ...............................  12



Table of Authorities (Continued)

United States v. Martinez-Nava, 838 F.2d 411 (10th Cir. 1988)............... 36

United States v. Mathis, 96 F.3d 1577 (11th Cir. 1996)......................  32, 33

United States v. Maxwell, 160 F.3d 1071 (6th Cir. 1998) ......................... 27

United States v. McFerron, 163 F.3d 952 (6th Cir. 1998) ........................  44

United States v. Perez, 35 F.3d 632 (1st Cir. 1994) ..................................  21

United States v. Puentes, 50 F.3d 1567 (11th Cir. 1995) ..........................  15

United States v. Ruuska, 883 F.2d 262 (3rd Cir. 1989) .............................  44

United States v. Sneed, 34 F.3d 1570 (10th Cir. 1994).............................. 19

United States v. Stewart, 65 F.3d 918 (11th Cir. 1995) .......................passim

United States v. Tokars, 95 F.3d 1520 (11th Cir. 1996),
cert, denied, 520 U.S. 1151 (1997) ......................................... 19

United States v. Williams, 936 F.2d 1243 (11th Cir. 1991)................. 12, 38

Vasey v. Martin Marietta Corp., 29 F.3d 1460 (10th Cir. 1994),
cert, denied, 520 U.S. 1213 (1997) ........................................  30

Wallace v. Morrison, 87 F.3d 1271 (11th Cir. 1996) ................................ 24

Woods v. Dugger, 711 F. Supp. 586 (M.D.Fla. 1989) .............................. 16

VI



Table of Authorities (Continued) 

STATE CASES

Foster v. State, 639 So. 2d 1263 (Miss. 1994) .......................................... 35

State v. Vang, No. C l-96-12051997, WL 207597 (Minn. App. 1997) .... 35

FEDERAL STATUTES

28U.S.C. §§ 1291 & 1294 ......................................................................  vii

28 U.S.C. §§ 1331, 1343(a)(4), 2201 ......................................................  vii

29U.S.C. §§ 621 etseq ...............................................................................27

42 U.S.C. § 3613(a)(1)(A) .......................................................................  vii (*)

(*) Denotes Cases Upon Which Appellants Primarily Rely

vii



STATEMENT OF JURISDICTION

The district court had jurisdiction over the subject of this action pursuant to 

28 U.S.C. §§1331, 1343(a)(4), 2201, and 42 U.S.C. § 3613(a)(1)(A).

This court has jurisdiction over the subject of this action pursuant to 28 

U.S.C. §§1291 & 1294, and Federal Rule of Appellate Procedure 4(a).

The final judgment from which this appeal is taken was entered on 

December 22, 1998. Plaintiffs timely filed, on January 7, 1999, a motion for 

judgment as a matter of law or, alternatively, motion for a new trial pursuant to 

Federal Rules of Civil Procedure 50(b), 59, and 60(b)(6). The district court entered 

an order denying plaintiffs’ motion for judgment as a matter of law or, 

alternatively, motion for a new trial on January 12, 1999. Pursuant to Federal 

Rules of Appellate Procedure 4(a)(1)(A) and 4(a)(4)(A), plaintiffs filed a timely 

notice of appeal on February 11, 1999.

This appeal is taken from a final judgment entered in favor of all defendants 

and against all plaintiffs on all claims.

viii



STATEiMENT OF ISSUES

1. Whether the district court erred by finding a prima facie case of racial 

discrimination in plaintiffs’ use of peremptory challenges based solely on the 

fact plaintiffs used two of three allotted peremptories to strike two of eleven 

white prospective jurors?

2. Whether the district court clearly erred by finding that plaintiffs’ peremptory 

strike of a white juror was motivated by racially discriminatory intent?

STATEMENT OF THE CASE

Five African-American homeseekers and the Central Alabama Fair Housing 

Center alleged racial discrimination under the Fair Housing Act of 1968 and the 

Civil Rights Act of 1866 by defendant real estate companies and their managers 

and owners in the provision of services relating to the showing, negotiating for, and 

purchasing of homes.

I. Proceedings Below

After a jury trial, a verdict was returned in favor of defendants on all claims. 

On December 22, 1998, the district court entered judgment in favor of all 

remaining defendants and against all plaintiffs.1

1 Defendant Coldwell Banker is not a party to this appeal. Coldwell Banker was 
dismissed prior to trial pursuant to the district court’s Order on Summary 
Judgment. RIO-164-1.

1



II. Statement of Facts

On December 7, 1998, the United States District Court for the Middle 

District of Alabama called a jury venire for service in a term of civil jury court 

before Judge Harold Albritton. R15-2. This action, the only case to be tried durin 

the term, was brought by six plaintiffs asserting violations of the Fair Housing Act 

of 1968 and the Civil Rights Act of 1866. R3-49-1 to 17. The plaintiffs are 

African Americans who were seeking to purchase homes in Montgomery, 

Alabama. Plaintiffs alleged that the defendant real estate companies-Lowder 

Realty Co., Inc., Lowder New Homes, Inc., and Lowder New Homes Sales, Inc., 

and their parent company, The Colonial Company-and their managers and owners 

intentionally steered them away from predominantly white neighborhoods and 

toward predominantly African-American neighborhoods. Id.

Plaintiffs’ claims were supported by evidence demonstrating that defendants 

discouraged plaintiffs from buying homes in defendants’ predominantly white 

subdivisions and refused to negotiate or sell to plaintiffs when they nonetheless 

sought to purchase defendants’ homes. Id. The claims of racial steering were 

further buttressed by direct and circumstantial evidence showing that the Central 

Alabama Fair Housing Center’s paired housing testers were steered toward 

neighborhoods predominantly populated by persons of the tester’s race. Id.

<J
Q



Three days preceding the calling of the venire, the Jury Commissioner 

distributed to the parties copies of the list of jurors on the venire and questionnaires 

completed by the veniremembers. R15-2. After the venire was sworn by the clerk, 

the district court judge conducted voir dire and allowed the attorneys for the parties 

to ask questions that further explored answers given by individual venirepersons.

R 15-3 to 61. Counsel for plaintiffs exercised that privilege and made follow-up 

inquiries to the jurors who gave responses to the judge’s questions. R15-10 to 61. 

After voir dire was completed, the district court excused four jurors who asserted 

that for personal reasons it would be impossible or an extreme hardship to serve on 

the jury. R15-56 to 59. The court then heard the parties’ challenges for cause.

R15-62. Plaintiffs made challenges for cause against five jurors, one of which, as 

to Juror #3, was granted. R15-62 to 67. Defendants made two challenges for 

cause, against Juror #20 and Juror #22, both of which were granted by the court. 

R15-67 to 68.

The court stated that it would empanel eight jurors and permitted each party 

three peremptory challenges. R15-68. Of the prospective jurors-the first fourteen 

remaining on the venire-eleven were white and three were African American. The 

parties exercised their peremptory strikes by concurrently writing down all of their 

requested strikes and returning them to the clerk. Plaintiffs and defendants each



utilized two of their three allotted peremptory strikes. R15-75.

Plaintiffs asserted that defendants, who used their two strikes to challenge 

African-American jurors, exercised their strikes on the basis of race in violation of 

the Equal Protection Clause. R15-69. The district court found that aprima facie 

case was established “where defendants’ only strikes were black jurors and that no 

black jurors remained on the panel as constituted.” R15-69.2 The district court 

required defendants to give race-neutral reasons. R15-70.3 Defense counsel stated 

that Juror #7, Jennifer Axel, was struck because she was grimacing, frowning, and 

staring straight ahead; their jury consultant pointed out she was sleeping; and one 

of defense counsel asserted that he always strikes people from Lowndes County. 

R15-70. Defense counsel stated that Juror #8, Antoinette Anderson, was struck on 

the grounds that she was grimacing and frowning; that her arms were crossed; that 

their jury consultant pointed out she was sleeping; that she was a “social worker 

type;” and because one of defense counsel asserted that he also always struck 

people from Bullock County. R15-70 to 71. When the court noted that it did not

2 Defense counsel later corrected the district court by noting that one African- 
American juror, Juror #13, had not been struck and would serve if the parties’ 
peremptory strikes were upheld. R15-69 to 70.

3 The African-American prospective jurors were: Juror #7, Jennifer Axel; Juror 
#8, Antoinette Anderson; and Juror #13 Patricia Mitchell. R15-69 to 70. The 
remaining prospective jurors were white. Id.

4



see either of the jurors sleeping, defense counsel acknowledged that he did not 

personally see the jurors sleeping, but that his jury consultant informed him that she 

had. R15-71 to 72. The district court found that grimacing and holding arms to the 

chest were insufficient grounds for challenge and could cover race-based reasons. 

R15-72 to 73. The district court then rejected defense counsel’s argument that he 

regularly struck jurors from Lowndes and Bullock County.4 R15-73. Accordingly, 

the district court upheld plaintiffs’ claim under the Equal Protection Clause as to 

both jurors and they were placed on the jury empaneled to hear the case. R15-73.

Defendants then asserted that plaintiffs had engaged in intentional 

discrimination when exercising their two strikes against Juror #5 (Johnson) and 

Juror #9 (Donaldson). R15-73. The district court found aprima facie case of 

“racial striking” solely on the basis that the plaintiffs’ two strikes were used against 

white jurors. R15-74. When plaintiffs exercised their peremptory challenges, 

eleven of the fourteen prospective jurors were white. The district court asked 

plaintiffs to provide race neutral reasons for striking the two jurors. R15-74.

4 Defense counsel asked the court to reopen the record after jury selection to 
allow him to clarify his statement that he always struck prospective jurors from 
Lowndes and Bullock Counties. R15-85. Defense counsel corrected himself by 
saying that there may be instances, dependent on the prospective juror’s other 
characteristics, when he would leave a prospective juror from one of those counties 
on the jury. Id. Defense counsel asserted that he just could not recall a specific 
instance in the past where he had failed to strike a juror from one of those counties. 
Id.

5



Plaintiffs stated that they struck Juror #5 on the ground that he belonged to the 

National Rifle Association. The district court found this reason race neutral. R15- 

78 to 79. The court accordingly denied defendants’ challenge to plaintiffs’ strike of 

Juror #5. R15-79.

Plaintiffs presented five separate reasons for striking Juror #9, Donaldson. 

First, Donaldson held a bank account with Colonial Bank, a company within the 

same corporate family as several of the defendant corporations. R15-76. Second, 

Donaldson owned rental property. R15-76. Third, Donaldson’s immediate family 

members belonged to various clubs and organizations about which the district court 

had questioned the venire. R15-76. Fourth, Donaldson’s status as an alcoholic-as 

revealed on the court’s juror questionnaire form-may render him more susceptible 

to any stress associated with jury service in a two-week civil rights trial. R15-75. 

Fifth, the stress of serving on a jury may be further exacerbated by the fact that 

Donaldson lived eighty or ninety miles from the courthouse. R15-78. Each of the 

reasons was based on information contained in the record, including the jury 

questionnaires completed by each member of the venire.

The district court failed to state whether it considered plaintiffs’ reasons 

race-neutral but immediately presented defendants with the opportunity to 

challenge the sufficiency of those reasons. R15-76. In response, defense counsel

6



stated only that they believed that Donaldson had not had a drink since 1991, that 

Donaldson rented commercial and not residential property, and that they did not 

believe in striking a person because he was an alcoholic. R15-77to78. The 

district court then concluded that the ownership of a warehouse had nothing to with 

the case and that being a recovering alcoholic and living ninety miles from the 

courthouse were not legitimate reasons for striking a juror and could cover race- 

based reasons. R15-79. With no further discussion of these three reasons proffered 

by plaintiffs and no discussion whatsoever of plaintiffs’ other two proffered 

reasons, the district court sustained defendants’ challenge to plaintiffs’ attempted 

peremptory strike. R15-79. The district court placed Donaldson on the jury of 

eight that was empaneled to hear the case and the remaining jury venire was 

excused. R15-79 to 81. Donaldson ultimately served on the jury that rendered a 

verdict and became the jury foreperson. R15-88.

III. Standard of Review

The appellate court gives deference to the district court’s finding regarding 

whether the defendants presented sufficient evidence to prove a prima facie case of 

discrimination in the use of peremptory challenges.

7



The appellate court reviews whether defendants proved that plaintiffs’ strike 

of a juror was motivated by discriminatory intent under a clearly erroneous 

standard.

SUMMARY OF ARGUMENT

The district court deprived plaintiffs of one peremptory challenge to which 

they were entitled when it disallowed plaintiffs’ attempted strike of Donaldson and 

placed Donaldson on the jury. The rejection of the strike, based on defendants’ 

assertion that plaintiffs’ strike was motivated by discriminatory intent, was 

erroneous. By interfering with plaintiffs’ exercise of a peremptory challenge, the 

court prevented plaintiffs from utilizing this important tool for ensuring a fair and 

impartial trial. The error resulted from the district court’s failure to follow the 

well-established procedure for detennining whether a peremptory strike was based 

on racial discrimination and erroneously placing on plaintiffs the burden of proving 

that the strike was not discriminatory. The defendants failed to prove that 

plaintiffs’ peremptory strike was motivated by discriminatory intent. Further, no 

evidence in the record supported the conclusion, much less proved, that plaintiffs’ 

strike was racially discriminatory. The wrongful deprivation of plaintiffs’ 

peremptory strike requires that the case be remanded for a new trial.

8



ARGUMENT

I. The District Court Deprived Plaintiffs of Their Important Right to
Exercise Peremptory Challenges.

The Supreme Court has established a simple procedure for resolving an 

Equal Protection challenge, under Batson and its progeny, to a party’s attempted 

peremptory strike. Batson v. Kentucky, 476 U.S. 79 (1986). First, the party 

challenging the peremptory strike must establish aprima facie case of 

discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995) (citations omitted); 

Batson, 476 U.S. at 96. Second, if the court finds that a prima facie case of 

discrimination is proven, the party making the peremptory strike is afforded the 

opportunity to articulate a non-discriminatory explanation for the peremptory 

strike. Purkett, 514 U.S. at 767; Batson, 476 U.S. at 96-98. Third, if a non- 

discriminatory reason is offered, the court must determine whether the party 

challenging the strike has met its burden of proving the existence of purposeful 

discrimination. Purkett, 514 U.S. at 767; Batson, 476 U.S. at 96-98.

A. Defendants Failed as a Matter of Law to Establish a Prima 
Facie Case of Discriminatory Use of Peremptory Strikes.

In order to establish a prima facie case of discriminatory use of peremptory 

strikes, the party objecting to a peremptory strike bears the burden of establishing 

facts sufficient to support an inference of racial discrimination. Dudley v. Wal-

9



Mart Stores, Inc., 166 F.3d 1317, 1321 (11th Cir. 1999). The appellate court gives 

deference to a district court’s finding that grounds exist to infer racial 

discrimination in a party’s use of peremptory strikes. United States v. Stewart, 65 

F.3d 918, 923 (1 1th Cir. 1995).

When detennining whether a party has established a prima facie case of 

racial discrimination in the use of peremptory strikes, “the trial court should 

consider all relevant circumstances.” Batson, 476 U.S. at 96. Consequently, a trial 

court must examine whether the party has shown sufficient “relevant 

circumstances” to raise an inference that the opposing party excluded a prospective 

juror on account of race. See, e.g., Arch v. Schnur, 824 F. Supp. 1042, 1043 (S.D. 

Fla. 1993); United States v. David, 662 F. Supp. 244, 245-46 (N.D. Ga. 1987) 

(rejecting asserted prima facie case where “[t]he only relevant circumstance urged 

by the [djefendant is the claim that the prosecutor used a pattern of strikes against 

black jurors.”), aff’d 844 F.2d 767 (11th Cir. 1988). In Batson, the Supreme Court 

offered two examples of the circumstances the trial judge may consider-whether 

the party engaged in a “pattern” of strikes against veniremembers of one race and 

whether the party’s questions and statements during voir dire supported a finding of 

discriminatory purpose. Batson, at 97.

The defendants in this case pointed to only one fact in support of their claim

10



of discrimination: plaintiffs’ two peremptory strikes were used to strike white male 

jurors. R15-73 to 74. With no other factual or evidentiary support, the district 

court found a prima facie case of racial striking.D “Both challenges having been 

against white jurors, I find there is a prima facie case ofracial striking....” R15-74. 

As a matter of law, this evidence is insufficient to raise an inference of 

discrimination by plaintiffs.

The mere fact of striking a juror or a set of jurors of a particular race does 

not create an inference of racial discrimination. This Court has held that “[i]n 

making out a prima facie case, ‘the defendant must point to more than the bare fact 

of the removal of certain venirepersons and the absence of an obvious valid reason 

for the removal.’” United States v. Allison, 908 F.2d 1531, 1538 (1 1th Cir. 1990) 

(quoting United States v. Young-Bey, 893 F.2d 178, 179 (8th Cir. 1990)). 

Consequently, a showing that a party used its authorized peremptory strikes against 

jurors of one race does not, standing alone, establish a prima facie case of 

discrimination. Instead, the number of persons of a particular race stmck takes on 

meaning only when coupled with other information such as the racial composition 

of the venire, the race of others struck, or the voir dire answers of those who were

■ The district court explicitly found a prima facie case of racial striking and 
implicitly denied defendants’ further suggestion that plaintiffs struck on the basis of 
gender.

11



struck compared to the answers of those who were not struck.

The only instance where the number of jurors of one race struck may itself 

be sufficient to establish a prima facie case is where a party strikes all or nearly all 

of the members of one race on a venire. United States v. Williams, 936 F.2d 1243, 

1246 (11th Cir. 1991) (implicitly finding prima facie case where prosecutor struck 

all of the African-American members of the venire); see Morrison v. Jones, 952 F. 

Supp. 729, 732-33 (M.D. Ala. 1996) (granting petition for writ of habeas corpus 

where prima facie showing was found on basis of evidence demonstrating that 

prosecutor struck twenty of twenty-one black venire members and offered no 

evidence to rebut prima facie showing).6 As a result, a party advancing a Batson 

argument ordinarily should “‘come forward with facts, not just numbers alone.’” 

United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994) (quoting United States 

v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)).

6 A corollary to this principle recognized by other circuits is that an inference of 
discrimination based on the number of jurors of a particular race struck will arise 
only where there is a substantial disparity between the percentage of jurors of one 
race struck and the percentage of their representation on the jury. See, e.g., United 
States v. Alvarado, 923 F.2d 253, 255 (2nd Cir. 1991) (“Only a rate of minority 
challenges significantly higher than the minority percentage of the venire would 
support a statistical inference of discrimination.”). Other courts have even 
reasoned that no circumstance could justify a finding of a prima facie case based 
solely on the numbers of jurors of one race struck. See, e.g., United States v. Lewis, 
892 F.2d 735, 736 (8th Cir. 1989) (“[W]e have held that reliance on 
percentages., .alone does not make out a prima facie case under any standard.”).

12



The fact that plaintiffs struck two white jurors—the sole fact relied upon by 

defendants in support of their claim of discrimination and the sole fact relied upon 

by the district court in finding aprima facie case of discrimination—is insufficient 

to raise an inference of discrimination. First, not all, nearly all, or even most 

whites on the panel were struck by plaintiffs. After resolving the challenges for 

cause, only the first fourteen jurors could potentially serve on the panel.7 Of those 

fourteen jurors, three were African-American and eleven were white. 

Consequently, after plaintiffs struck two white jurors, nine white venirepersons 

remained who could potentially serve on the jury.

Second, plaintiffs’ rate of challenging whites jurors was not significantly 

higher than the representation of white jurors on the venire panel. The composition 

of the venire was 80% white. With their two strikes, plaintiffs’ rate of challenging 

white jurors could have only been 0% (if they struck two blacks), 50% (if they 

struck one black and one white), or 100% (if they struck two whites). 

Consequently, the 100% rate actually utilized by plaintiffs was the rate that most 

closely approximated the percentage of whites among the prospective jurors.

Further, the probability of striking two white jurors was significantly higher 

than the probability of striking either a juror of each race or two African-American

7 The court stated it would seat eight jurors and each side was given three 
peremptory challenges. R15-68.

13



jurors. If plaintiffs had exercised their two peremptories in a completely random 

manner, there was a 60% probability that they would have been exercised against 

two white jurors.8 The probability of two random strikes being exercised against 

one white and one African-American juror was 36%. There was only a 4% chance 

that two random strikes would have both been exercised against African-American 

jurors.9 Simply put, the racial composition of the prospective jurors made it more 

likely than not that if plaintiffs exercised two peremptory challenges, they would 

strike two white prospective jurors. In the context of the number of whites among 

the prospective jurors, plaintiffs’ striking of two white jurors is thus unremarkable.

Third, even if striking two white jurors from the predominantly white venire 

could raise an inference of discrimination, that inference was substantially undercut 

by plaintiffs’ decision not to utilize all of their strikes. Plaintiffs were entitled to

8 The probability of striking white jurors was calculated in the following 
manner: the probability of the first strike being against a white juror is equal to the 
number of white jurors on the panel divided by the total number of jurors in the 
panel-eleven divided by fourteen. The probability of the second strike being 
exercised against a white juror is equal to the number of white jurors on the panel 
after the first strike has been exercised divided by the total number of jurors on the 
panel after the first strike has been exercised-ten divided by thirteen. The 
probability of both strikes being exercised against whites is the product of the two 
probabilities.

9 Defendants, of course, did strike two African-American jurors. Accordingly, 
their strikes, which only had a 4% probability of occurring, stand in stark contrast 
to plaintiffs’ strikes, which were more likely than not to occur.

14



three peremptory strikes but only utilized two, despite the continued presence of 

prospective white jurors. When plaintiffs passed on their third strike, nine white 

prospective jurors remained, any one of whom plaintiffs could have struck with 

their remaining peremptory. Furthermore, plaintiffs accepted several prospective 

white jurors before striking two jurors. Plaintiffs passed over four prospective 

white jurors, Jurors ##1-4, before exercising their strike against Juror #5. Again, 

plaintiffs passed over prospective another white juror, Juror #6, before striking 

Donaldson, Juror #9.10

The unchallenged presence of jurors of a particular race on a jury 

substantially weakens the basis for a prima facie case of discrimination in the 

peremptory striking of jurors of that race. United States v. Puentes, 50 F.3d 1567, 

1578 (11th Cir. 1995) (“Although the presence of African-American jurors does 

not dispose of an allegation of race-based peremptory challenges, it is a significant 

factor tending to prove the paucity of the claim.”); United States v. Jiminez, 983 

F.2d 1020, 1023 (11th Cir. 1993) (noting that the presence of African Americans

10 This sequence is quite different from the manner in which defendants struck 
African-xAmerican jurors. Defendants struck the first two African Americans on 
the venire. Consequently, defendants did not pass over any African-American 
veniremembers before making their strikes. Further, because defendants did not 
use their third strike, defendants increased the likelihood that the third African- 
American juror, who was the twelfth of the fourteen prospective jurors, would not 
be reached.

15



on jury was “significant” in review of district court’s denial of Batson motion); 

Allison, 908 F.2d at 1537 (finding that the unchallenged presence of African 

Americans on jury undercuts inference of impermissible discrimination that might 

arise solely from striking of other black prospective jurors); United States v. 

Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986) (“[T]he unchallenged presence of 

two blacks on the jury undercuts any inference of impermissible discrimination that 

might be argued to arise from the fact that the prosecutor used three of the four 

peremptory challenges he exercised to strike blacks from the panel of potential 

jurors and alternates.”); Roberts v. Singletary, 794 F. Supp. 1106, 1125-26 (S.D.

Fla. 1992) (upholding state trial judge’s denial of Batson motion where trial judge 

accorded weight to fact that some of jurors empaneled were black), aff'd 29 F.3d 

1474 (11th Cir. 1994); Woods v. Dugger, 71 IF . Supp. 586, 595 (M.D. Fla. 1989) 

(noting that courts in the Eleventh Circuit have identified “a prosecutor’s leaving 

black jurors unchallenged on the final jury” as a circumstance relevant to 

determining whether an inference of discrimination has been established), aff'd 923 

F.2d 1454 (11th Cir. 1991).

In erroneously finding a prima facie case, the district court failed to credit 

the fact that plaintiffs did not use all of their strikes and that a significant number of 

whites remained on the jury. The district court merely noted that defendants also

16



failed to use all of their strikes and left an African American on the jury. R15-75. 

Whether defendants themselves discriminated in their use of peremptory strikes is 

not relevant to plaintiffs’ motivations for exercising their own peremptory 

challenges. Any inference of discriminatory intent in plaintiffs’ use of peremptory 

challenges must rest on plaintiffs’ actions and not on a comparison to defendants’ 

use of peremptory challenges.11

Defendants utterly failed to meet the requirements for raising an inference of 

racial discrimination by plaintiffs in the use of their peremptory challenges. 

Furthermore, the record does not reveal any other relevant circumstances that could 

have been presented to support a prima facie case of discrimination. Plaintiffs’ 

voir dire questions did not indicate a discriminatory preference and plaintiffs 

questioned African-American and white jurors equally. R15-10 to 50 and 59-61. 

See e.g., Arch, 824 F. Supp. at 1043-44 (noting that one of the relevant 

circumstances supporting a finding of discriminatory striking of African-American

11 Even if the district court erred in finding racial discrimination by defendants 
in their striking of two African-American jurors, it has no legal consequence here. 
First, defendants have not raised the issue by cross-appealing. Second, plaintiffs’ 
assertion that the district court erred in rejecting plaintiffs’ attempted peremptory 
strike is not offset or otherwise affected by any possible error in the court’s rulings 
on defendants’ peremptories. See Stewart, 65 F.3d at 925-26 (“As we have 
explained, the prima facie case determination is the self-contained, first step in a 
one-direction process, which is not affected by events or determinations that occur 
thereafter.”).

17



jurors was that “[djefense counsel failed to ask any questions of the black juror 

sought to be excluded.”).

The district court’s finding of a prima facie case of racial discrimination and 

its subsequent request for race-neutral reasons for the strikes does not moot the 

issue of whether defendants established a prima facie case of discrimination. This 

Court has held that “unless [an appellate court] concludes that a prima facie 

showing was made, an appellate court should neither reverse a trial court’s action 

refusing to disallow challenged strikes, nor should it affirm a trial court’s action 

disallowing strikes.” Stewart, 65 F.3d at 925. As a result, the appellate court may 

not uphold a trial court’s disallowal of a peremptory strike without reviewing the 

trial court’s prima facie determination. Id. The district court’s erroneous 

determination that defendants established a prima facie case of discrimination 

simply by plaintiffs’ striking of two white jurors is therefore reversible error.

B. Plaintiffs Offered Five Race-Neutral Reasons For Their 
Attempted Peremptory Strike.

Once a trial court finds that the opponent of a peremptory strike has 

established a prima facie case of racial discrimination, “the burden of production 

shifts to the proponent of the strike to come forward with a race neutral 

explanation” for the strike. Purkett, 514 U.S. at 767. This Court has not addressed 

the issue, but the Tenth Circuit has stated that the appellate court reviews de novo

18



whether proffered reasons are race neutral. See, e.g., Hurd v. Pittsburg State 

University’, 109 F.3d 1540, 1546 (10th Cir. 1997); United States v. Sneed, 34 F.3d 

1570, 1580 (10th Cir. 1994).

The party exercising the strike does not face the burden of persuading the 

court of the legitimacy of the strikes. Instead, “the ultimate burden of persuasion 

regarding racial motivation rests with, and never shifts from, the opponent of the 

strike.” Purkett, 514 U.S. at 768. In fact, a district court must be reversed if it 

requires the party exercising the strike to persuade the court that the proffered 

explanation is legitimate and nondiscriminatory. Id. Only at the third step of the 

Batson analysis, when the burden is on the opponent of the strike, is the credibility 

of the proffered reason tested. Id. at 768.

The burden of production that is appropriately placed on the striking party at 

the second Batson step is minimal. The proponent of the strike need not proffer an 

“explanation that is persuasive, or even plausible.” Id. at 767-68. The reason 

presented for striking a juror need only be race neutral, and “‘[ujnless a 

discriminatory intent is inherent in the [party’s] explanation, the reason offered will 

be deemed race neutral.’” Id. at 768 (quoting Hernandez v. New York, 500 U.S. 

352, 360 (1991)); see? United States v. Tokars, 95 F.3d 1520, 1533 (11th Cir. 1996) 

(“The Supreme Court [in Purkett] clarified that in order to satisfy step two, ‘a

19



legitimate reason is not a reason that makes sense, but a reason that does not deny 

equal protection”’), cert, denied, 520 U.S. 1151 (1997).

The striking party need not even offer a reason that has any connection to the 

case being tried. The Supreme Court in Purkett concluded that despite the 

language in Batson suggesting otherwise, there is no requirement that the proffered 

explanation be related to the case. Purkett, 514 U.S. at 768-69. The Court 

explained that the statement in Batson that the proffered reason must be “related to 

the particular case to be tried” was merely a warning “meant to refute the notion 

that a [party] could satisfy his burden of production by merely denying that he had 

a discriminatory motive or by merely affirming his good faith.” Id. Consequently, 

a district court must accept any explanation for a peremptory strike that is not 

discriminatory on its face or based on a characteristic that is peculiar to a particular 

race. Id. at 769 (quoting EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190 n.3 

(3rd Cir. 1980)). In Purkett itself, for example, the Supreme Court held that the 

prosecutor’s proffered explanation that he struck a juror “because he had long, 

unkempt hair, a mustache, and a beard—is race neutral and satisfies the 

prosecution’s step two burden of articulating a nondiscriminatory reason for the 

strike.” Purkett, 514 U.S. at 769. Courts following Purkett have therefore been 

required to uphold as acceptable reasons that are entirely subjective and have little

20



or no connection to the case to be tried, so long as they are facially neutral.12

Moreover, the asserted reason need not be factually correct. Courts have 

found that a party striking a juror meets its burden under the second Batson step by 

offering a race-neutral reason that is actually erroneous. See, e.g., Hurd, 109 F.3d 

at 1547. In Hurd, an employment discrimination case, the defendant stated that he 

challenged an African-American juror because the juror “revealed that he was 

previously involved injury service where a jury found...for an employee in a 

railroads benefits matter.” Id. at 1546-47. The district court clarified that the juror 

had not stated that the jury had rendered a verdict for the plaintiff. Id. at 1547. The 

district court, however, “went on to conclude that ‘even if wrong’ in recalling what 

[the juror] had stated, [the defendant] had proffered a satisfactorily race neutral 

explanation for its strike.” Id. The Tenth Circuit agreed “with the district court 

that the reason proffered by [defendant], although mistaken, was race neutral.” Id.

In this case, plaintiffs amply met the light burden required by the second step 

of the Batson analysis. Plaintiffs offered five separate legitimate and

12 Even where an explanation is quite susceptible to impermissible use as a 
proxy for race-based use of peremptories, if it falls within the broad definition of 
“race neutral,” it must be accepted at the second step of the Batson analysis. See, 
e.g., United States v. Perez, 35 F.3d 632, 635 (1st Cir. 1994) (accepting as race 
neutral prosecutor’s reason that he struck prospective juror because juror’s 
“employment as a receptionist at the Boston Housing Authority in the ‘inner city’ 
may have exposed her to drugs.”).

21



nondiscriminatory reasons for striking Donaldson. First, Donaldson held a bank 

account with Colonial Bank, a company within the same corporate family as 

several of the defendant corporations.13 Second, Donaldson owned rental property. 

Third, Donaldson’s close family members belonged to clubs that had historically 

maintained exclusive policies. Fourth, Donaldson was a recovering alcoholic. 

Fifth, Donaldson lived eighty or ninety miles from the courthouse.

There can be no assertion that any of plaintiffs’ proffered reasons are 

discriminatory on their face. None of the characteristics identified by plaintiffs for 

striking Donaldson are even arguably peculiar to one racial group. Further, 

defendants did not show, or even attempt to show, that any one of the reasons 

asserted by plaintiffs disproportionately affect a particular race. Each of the five 

reasons articulated by plaintiffs was well-supported by the record, deriving either 

from the jury questionnaire Donaldson completed or from answers Donaldson gave

13 The Colonial Company, and its subsidiaries, Lowder Realty Co., Inc., Lowder 
New Flomes, Inc., and Lowder New Homes Sales, Inc., are all defendants in this 
case. The “Colonial” and ‘Lowder” names derive from businesses established by 
Edward Lowder. Pursuant to a reorganization and sale of various subsidiaries, the 
three sons of Edward Lowder—James, Thomas, and Robert—are currently 
responsible for three separate branches of the Lowder family businesses. James 
Lowder is President, Treasurer and Chief Executive Officer of the Colonial 
Company. Thomas Lowder is President and Chief Executive Officer of Colonial 
Properties Trust, which deals primarily in commercial real estate. Robert Lowder 
is involved with Colonial Bancgroup, the holding company for Colonial Bank. R5- 
83-11 to 12.

11



during voir dire: Donaldson identified himself on the jury questionnaire as an 

alcoholic and a resident of Opp, Alabama, R15-75 to 77; and stated during voir dire 

that he maintains an account at Colonial Bank, R15-33; has rental property, R15- 

33; and has several immediate family members who are or were members of the 

Masons, Eastern Star and country clubs, in Dothan and Opp, Alabama. R15-43 and 

46.

Plaintiffs’ five reasons for striking Donaldson individually and jointly met 

plaintiffs’ light burden of advancing race-neutral reasons for the strike. As a result, 

the trial judge was under an obligation to proceed to the third step of the Batson 

inquiry and determine whether defendants met their burden of persuading the court 

that the race-neutral reasons offered by plaintiffs were in fact pretexts for 

intentional racial discrimination.

C. Defendants Did Not Meet Their Burden of Proving That
Plaintiffs’ Exercise of Their Peremptory Strike Was Motivated by 
Discriminatory Intent.

The district court erred by rejecting plaintiffs’ explanations for their strike 

without defendants meeting their burden of proving that plaintiffs’ reasons were 

pretexts for discrimination. Once plaintiffs presented at least one race-neutral 

reason, the district court was obligated to determine whether defendants proved that 

plaintiffs intentionally discriminated on the basis of race when striking Donaldson.



Under step three of the Batson analysis, the party opposing a strike has the ultimate 

burden of persuading the court that the strike was motivated by discriminatory 

intent.14 Batson, 476 U.S. at 93-94 (stating that the burden is on the “defendant 

who alleges discriminatory selection of the venire to prove the existence of 

purposeful discrimination.”); see also Hernandez, 500 U.S. at 359-60 (noting the 

fundamental principle that proof of racially discriminatory intent or purpose is 

required to show a violation of the Equal Protection Clause). Defendants did not 

and could not have proven that plaintiffs’ strike of Donaldson was motivated by 

racially discriminatory intent.13

14 The district court would have to find that the defendants persuaded it that all 
of plaintiffs’ reasons for striking Donaldson were pretexts for racial discrimination. 
As this Court has made clear, a strike based in part on a race- or gender-conscious 
reason and in part on a neutral reason does not violate the Equal Protection Clause. 
The dispositive question is whether the party would have exercised the challenged 
peremptory strike solely on the basis of his proffered race-neutral reasons. Wallace 
v. Morrison, 87 F.3d 1271, 1275 (11th Cir. 1996).

13 Defendants’ failure to present any facts that can even be construed as 
supporting their assertion that plaintiffs’ strike was discriminatory (other than the 
bare fact that plaintiffs exercised two strikes against whites, one of which was 
upheld by the district court) is sufficient to mandate the conclusion that defendants 
failed to meet their burden of proving intentional discrimination. On multiple 
occasions, courts have found that an opponent of a peremptory strike who has 
failed to make any argument or offer of proof on the issue of pretext did not carry 
its burden of persuasion to show purposeful discrimination. See, e.g., McKeel v. 
City of Pine Bluff, 73 F.3d 207, 210-11 (8th Cir. 1996) (citing cases and holding 
that “[without any showing by [the party opposing the peremptories] that the 
proffered reasons in this case were a mere pretext for racial discrimination, given 
the reasons and their context, we conclude that [the party] failed to establish

24



1. Defendants Presented No Evidence Showing That Plaintiffs’ 
Five Race-Neutral Reasons Were Pretexts for Race 
Discrimination.

Defendants did not argue or present any proof regarding pretext. Indeed; 

defendants did not even address three of plaintiffs’ reasons regarding Donaldson’s 

maintaining an account at Colonial Bank, his family’s membership in historically 

exclusive clubs, or the distance he had to travel to attend trial. Thus, defendants 

failed to prove, as was their burden, that these three reasons were instead pretexts 

for racial discrimination.

Further, defendants’ responses to plaintiffs’ other two race-neutral reasons 

were merely clarifications in how they understood the record regarding minor 

issues related to the two reasons. First, defendants stated that they read 

Donaldson’s juror questionnaire as saying that his last alcoholic drink was in 1991, 

while plaintiffs read it to say that the last drink was in 1997. This different reading 

of Donaldson’s handwriting on the juror questionnaire is immaterial. When 

Donaldson had his last drink does not affect any of the concerns plaintiffs had with 

Donaldson serving on the jury. Second, defendants noted that Donaldson’s rental

purposeful discrimination in the use of his opponents’ peremptory challenges.”); 
United States v. Cure, 996 F.2d 1136, 1139 (11th Cir. 1993) (“In the absence of 
any proof offered by the defense [at the time of the objection], we hold that the 
court's findings were not clearly erroneous and affirm the decision to allow the 
strike.”)

25



property was commercial and not residential. Again, this fact does nothing to 

alleviate the concerns plaintiffs had identified with allowing a landlord to serve on 

this jury empaneled to hear a discrimination claim against property owners. While 

the commercial/residential distinction could potentially be relevant to determining 

whether a juror in a fair housing case should be struck for cause, it does not change 

the increased likelihood that a landlord, whether commercial or residential, might 

be partial to other landlords. This likelihood is clearly sufficient to justify a party’s 

decision to exercise a peremptory challenge against such a juror.

Defendants’ only other reference to any of plaintiffs’ reasons was the 

suggestion that striking a juror on the basis of his status as an alcoholic violates that 

person’s civil rights. First, this suggestion reveals that defendants believed that 

plaintiffs struck Donaldson on the basis of his disability and not on the basis of his 

race. Second, this suggestion has no basis in law. The Supreme Court has never 

held that alcoholism or any other disability is a prohibited basis for striking a juror. 

See e.g., Batson, 476 U.S. at 79; J.E.B. v. Alabama, 511 U.S. 127 (1994) (applying 

Batson to gender). While courts have interpreted federal anti-disability 

discrimination statutes to prohibit certain decisions from being made on the basis of 

a person’s status as an alcoholic, see, e.g., Duda v. Board o f Educ. o f Franklin Park 

School Dist. No. 84, 133 F.3d 1054, 1059 n.10 (7th Cir. 1998) (collecting cases), no

26



court has even suggested that it is improper to strike a person from a jury on the 

basis of his/her disability. Similarly, federal statutes provide substantial protections 

against age discrimination, see e.g., Age Discrimination in Employment Act, 29 

U.S.C. §§621 etseq., but those protections do not prohibit a person from being 

struck from a jury solely based on his/her age. See, e.g., United States v. Maxwell, 

160 F.3d 1071, 1075 (6th Cir. 1998) (collecting cases); United States v. Byse, 28 

F.3d 1165, 1167 n.2 (11th Cir. 1994) (upholding peremptory strike based in part on 

age of juror’s child). There is simply no basis for concluding that striking a juror 

on the basis of his status as an alcoholic violates the Equal Protection Clause, and 

this was not the announced ground of the district court for overruling this strike.

Defendants’ related assertion that it is improper to draw inferences regarding 

a person’s potential partiality from his status as an alcoholic is similarly unfounded. 

The peremptory challenge process necessarily involves drawing inferences 

regarding a person’s likely reaction to a party’s case from the limited amount of 

information gathered through voir dire. “By its very nature, the peremptory 

challenge is a tool that may be wielded in a highly subjective and seemingly 

arbitrary fashion, based upon mere impressions and hunches.” United States v. 

Annigoni, 96 F.3d 1132, 1144 (9th Cir. 1996). The process inevitably leads to 

parties’ drawing conclusions from limited information about a juror’s potential

27



partiality.16 Such conclusions are not legally objectionable unless they are based on 

stereotypes that implicate race or gender.

The district court committed clear error by summarily rejecting plaintiffs’ 

proffered reasons despite defendants’ failure to present any evidence to undermine 

the sufficiency of any one of plaintiffs’ five reasons. Defendants should have been 

required to prove that the five asserted reasons were pretexts for discrimination.

The court relieved defendants of that burden and, instead, examined whether 

plaintiffs had persuaded the court that the reasons were non-discriminatory.

Further, the court erroneously rejected plaintiffs’ reasons when it found merely that 

they could cover race-based reasons. R15-79.

Plaintiffs should not have been obligated to prove that their reasons were in 

fact race neutral or that their reasons could never be a cover for discrimination in 

any case. As clearly stated by the Supreme Court, a trial court commits reversible

16 The jury selection process is designed to allow parties to remove jurors who 
they believe may have some potential of not being impartial. See, e.g., Swain v. 
Alabama, 380 U.S. 202, 219-20 (1965) (“[Tjhe very availability of peremptories 
allows counsel to ascertain the possibility of bias through probing questions on the 
voir dire and facilitates the exercise of challenges for cause by removing the fear of 
incurring a juror’s hostility through examination and challenge for cause.”), 
overruled on other grounds by Batson v. Kentucky, 476 U.S. 79 (1986). Such 
perceived hostility need not have any concrete basis in fact. U.S. v. Annigoni, 96 
F.3d 1132, 1 138-39 (9th Cir. 1996) (“[Peremptories] may be used to strike those 
‘against whom [the party] has conceived a prejudice, even without being able to 
assign a reason for such dislike.’”) (quoting Blackstone, 4 Commentaries 353 (1st 
ed. 1769).

28



error if it requires a plaintiff to show that the justification tendered be not only 

neutral, but also “at least minimally persuasive.” Purkett, 514 U.S. at 768 (“It is 

not until the third step that the persuasiveness of the justification becomes 

relevant-the step in which the trial court determines whether the opponent of the 

strike has carried his burden of proving purposeful discrimination.”).

The district court not only erroneously required plaintiffs to show that their 

explanations were minimally persuasive but also required plaintiffs to show that the 

reasons were fully persuasive and to prove that they were not pretexts for 

discrimination. Defendants should have been required to prove that plaintiffs’ five 

reasons were discriminatory, but presented no evidence to meet their burden.

2. The Record Contains No Evidence Supporting a Finding 
That Plaintiffs’ Reasons for Exercising Their Strike Were 
Pretexts for Race Discrimination.

Defendants failed to meet their burden of demonstrating that plaintiffs’ 

attempted strike of Donaldson was motivated by a discriminatory intent, not merely 

because they failed to advance any facts to make such a showing, but because no 

facts exist in the record to support a finding of discriminatory motive. In fact, the 

record reveals that the characteristics that caused plaintiffs to attempt to strike 

Donaldson were legitimate, supported by the record, and not shared by any non­

white jurors.

29



One of plaintiffs’ proffered reasons for striking Donaldson was that he 

maintained a checking account at Colonial Bank. R15-33. This bank shares a 

name with one of the corporate defendants and is in the same corporate family as 

the corporate defendants: the Colonial Company, Lowder Realty, Lowder New 

Homes, and Lowder New Homes Sales. Plaintiffs could, and did, legitimately fear 

that a juror with a consumer relationship with a corporation related to, and sharing 

a name with, the defendants could have a partiality toward those defendants. The 

potential of partiality when a prospective juror has a business relationship with a 

party is so great that the relationship is nearly sufficient to justify a challenge for 

cause. See, e.g., Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1467-68 (10th Cir. 

1994) (considering in an employment discrimination case whether district court 

abused its discretion in failing to excuse for cause a potential juror who was 

employed by company that had a consulting contract with the defendant), cert, 

denied, 520 U.S. 1213 (1997). It follows that a peremptory challenge based on a 

juror’s business relationship with the defendant corporation’s family is reasonable.

Plaintiffs also stated that they struck Donaldson because he owned rental 

property. R15-76. Plaintiffs explained to the court that owning rental property 

may cause a juror to identify with the defendants in a housing discrimination case. 

R15-76. Plaintiffs noted that many people recognize that the Fair Housing Act is

30



often enforced against landlords. R15-76. Where a juror recognizes that the law 

which he/she is being asked to enforce may be used against him/her, that juror may 

be more likely to align himself with the defendant and take efforts to minimize the 

occasions in which that law is used to impose liability. As a result, plaintiffs feared 

the possibility that Donaldson’s ownership of rental property would increase the 

likelihood of a heightened identification with defendants.

This Court has upheld, as race neutral, reasons based on characteristics that 

may tend to show that a prospective juror could identify with a particular party.

For example, in Byse, this Court upheld a prosecutor’s strike that was based on 

three reasons that arguably could lead the juror to identify with the defendant in a 

drug prosecution: (1) the prospective juror had a son near the age of the defendant, 

(2) the prospective juror had a daughter employed in drug counseling, and (3) the 

prospective juror was a teacher and the defendant was a student. Byse, 28 F.3d at 

1167 n.2. None of these factors would inexorably lead the prospective juror to 

identify with the defendant, but this Court’s acceptance of such reasons 

demonstrates that the mere possibility of such identification is sufficient to justify a 

strike.

Similarly, in drug prosecutions, district courts have regularly allowed strikes 

based on the juror’s or the juror’s relatives’ involvement with drugs or drug

31



treatment and such rulings have been consistently upheld by this Court. See e.g., 

United States v. Mathis, 96 F.3d 1577, 1582 (11th Cir. 1996) (holding that there 

was no error where prosecutor stuck juror because a close family member had a 

drug conviction); Byse, 28 F.3d at 1167 n.2 (affirming district court’s finding that 

peremptory strike was race neutral in drug prosecution where prosecutor stated that 

he struck one juror in part because the juror had a daughter employed in drug 

counseling); United States v. Bennet, 928 F.2d 1548, 1551 (11th Cir. 1991) 

(upholding strike where district court found that prosecutor’s striking juror on 

grounds that he had an uncle who had been convicted on drug charges was 

especially persuasive). Again, the perceived potential of a juror’s identification 

with a party based simply on the grounds that the juror and the party engaged in 

similar behavior has been held to be sufficient to justify a peremptory strike.

Another reason cited by plaintiffs for striking Donaldson was his answers to 

two separate categories of questions about his, or his family members’, association 

with the Eastern Star, the Masons, and country clubs. In response to the district 

court’s question about whether jurors or their immediate family members were 

affiliated with these organizations, Donaldson indicated that his father was a Mason 

and his mother was an Eastern Star. R15-43. Also in response to the court’s 

questions about country club membership, Donaldson stated that he had two sisters



and two brothers-in-law who belonged to country clubs. R15-45 to 46.

Plaintiffs’ counsel reasonably believed that Donaldson’s relatively close 

association with these historically exclusive clubs could possibly indicate an 

approval of exclusionary policies. The possibility of a prospective juror advocating 

or even acquiescing to exclusive policies is especially relevant in this case where 

the plaintiffs alleged that defendants were purposefully excluding plaintiffs from 

certain neighborhoods on the basis of race.17 Plaintiffs could reasonably believe 

that such a juror could be sympathetic to defendants’ arguments for escaping or 

limiting liability or damage exposure. The district court’s decision to question 

jurors about these organizational affiliations confirms that the affiliations warranted 

some level of inquiry and that affirmative answers could be relevant to jury service 

in this case.

17 The fact that only Donaldson’s family and not Donaldson himself was a 
member of these clubs does not undermine the legitimacy of plaintiffs’ reason. 
First, the court’s questions about affiliations with these organizations included 
membership of immediate family members. R15-43 to 46. Second, courts 
regularly allow peremptory challenges based on a relationship between the 
prospective juror’s relatives and the parties. See e.g., United States v. Mathis, 96 
F.3d 1577, 1582 (11th Cir. 1996) (holding that there was no error where juror was 
struck because of a characteristic of the juror’s close family member); Byse, 28 
F.3d at 1167 n.2 (affirming district court’s finding that peremptory strike was race 
neutral where prosecutor based strike in part on employment of juror’s daughter); 
United States v. Bennet, 928 F.2d 1548, 1551 (11th Cir. 1991) (upholding strike 
based on characteristic of juror’s uncle). The conclusion that a personal 
relationship with a party or their relatives may affect a juror’s partiality in a case 
applies with similar force in the context of a business relationship.



Plaintiffs provided two reasons for striking Donaldson that were based on the 

possibility that Donaldson might be subject to an increased amount of stress and 

anxiety if he were to serve as a juror on a two-week race discrimination trial in 

Montgomery, Alabama. R15-74. Plaintiffs noted that, in response to the Middle 

District’s jury questionnaire, Donaldson indicated that he was a recovering 

alcoholic and that he lived eighty or ninety miles from the courthouse. R 15-74, 

R15-78. Both of these factors led plaintiffs to conclude that the trial could cause 

more stress for Donaldson than other jurors on the panel. Plaintiffs believed that 

such stress could potentially affect his impression of the plaintiffs who brought the 

case.

At least three courts have found that alcoholism is a race-neutral reason for 

striking a juror. In United States v. Banks, 10 F.3d 1044, 1049 (4th Cir. 1993), the 

Fourth Circuit upheld a prosecutor’s reasons for striking four black jurors, 

including the reason that one juror was a “suspected alcoholic.” The court held that 

the reasons were not “intrinsically suspect,” were “adequately supported by 

observable fact” and were “properly determined by the court to be race-neutral.”

Id. at 1049. Similarly, the Supreme Court of Mississippi concluded that a strike, 

based in part on the fact that the juror was an alcoholic, was supported by a 

legitimate, race-neutral explanation. Foster v. State, 639 So.2d 1263, 1279-80

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(Miss. 1994). In State v. Vang, No. Cl-96-1205, 1997 WL 207597 (Minn. App. 

April 29, 1997), the Minnesota Court of Appeals upheld two strikes, each based in 

part on the fact that the juror was a recovering alcoholic.

The relevance of a juror being an alcoholic to his/her service on a jury is 

highlighted by the fact that this information is elicited by questions contained in the 

Middle District of Alabama’s standard jury questionnaire. By including a question 

regarding each venireperson’s history of alcohol or drug addictions on the standard 

jury questionnaire, the district court demonstrates a recognition that responsive 

information may bear on a person’s capacity for service as a juror.

Another factor that led plaintiffs to conclude that Donaldson may be 

subjected to more stress than other jurors was the distance he lived from the 

courthouse. R15-78. As plaintiffs explained to the district court, making a nearly 

two-hundred mile round-trip each day to attend court would add to the stress and 

inconvenience of sitting on the jury. Id. Plaintiffs were concerned that this 

additional stress and inconvenience could engender a hostility to plaintiffs who 

brought the case.18 Plaintiffs, in particular, must always be sensitive to ensuring

18 The substantial distance that a prospective juror would have to travel has 
even satisfied the stringent standards for an excusal for cause. See, e.g., United 
States v. Martinez-Nava, 838 F.2d 411, 412-13 (10th Cir. 1988). Furthermore, 
when such an excusal was challenged under the Equal Protection Clause as having 
a disproportionate impact on Indian jurors, the Tenth Circuit concluded that travel 
distance and possible inclement weather were sufficient race-neutral explanations



that jurors selected to hear their cases have a positive experience, because of the 

possibility that any negative feelings will be projected to plaintiffs who typically 

are considered “responsible” for bringing the case and causing the trial.

The district court’s practice of compensating jurors who choose to stay in 

Montgomery for the duration of the trial, R15-78, does not undermine the 

sufficiency of plaintiffs’ reason. The same concerns of the stress and 

inconvenience and resulting negative feelings that could be occasioned by the 

juror’s driving nearly two hundred miles a day are also likely to occur if the juror 

was forced to live away from home for the duration of the expected two-week trial.

Each of the five reasons advanced by plaintiffs for striking Donaldson was 

substantial, raised important concerns and was related to the case. Furthermore, 

each of the five reasons was concrete and easily confirmed by the record. United 

States v. Alston, 895 F.2d 1362, 1374 (11th Cir. 1990) (Hatchett, J. concurring) 

(noting that an appellate court can “better review a Batson claim based on pretext 

where the underlying claim involves ‘concrete’ evidence (e.g., old age, prior 

criminal history, knowledge of witnesses, etc.), rather than subjective evidence.”). 

As a result, plaintiffs’ reasons are clearly more significant than the few reasons that 

have been rejected by courts in this Circuit. For example, this Court found

to defeat the challenge. Id.

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inadequate under Batson, a prosecutor’s explanation of a challenged strike that “I 

don’t have a particular reason. I just got a feeling about the juror....” United 

States v. Horsley, 864 F.2d 1543, 1544, 1546 (11th Cir. 1989).

Plaintiffs’ reasons are also at least as weighty as reasons historically 

accepted by this Court as sufficient to justify a strike. For example, this Court has 

upheld a strike based on the explanation that a juror looked at defendant and 

defendant’s table “‘with an expression that conveyed to me some hostility’ and it 

was counsel’s ‘gut feeling based on [the juror’s] facial expression’ that she was 

likely to ‘not be fair and impartial to the [defendant].’” Barfield v. Orange County, 

911 F.2d 644, 648 (11th Cir. 1990); see also United States v. Cure, 996 F.2d 1136, 

1139 (11th Cir. 1993)(upholding strike based on prosecutor’s interpretation of 

juror’s facial expressions and demeanor); United States v. Henderieth, 922 F.2d 

748, 749-50 (11th Cir. 1991) (upholding strike of juror made because prosecutor 

thought she was “inattentive and rubbing and rolling her eyes during voir dire.”).

Not only were the reasons proffered by plaintiffs amply supported by the 

record, weighty, and related to the case, but the record demonstrates that the 

African-American prospective jurors not struck by plaintiffs did not share any of 

the characteristics that prompted plaintiffs to strike Donaldson. Courts analyzing 

the third Batson step often examine whether unchallenged jurors of the other race

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shared the characteristics that formed the basis for the exercise of the challenged 

peremptories. See, e.g., Stewart, 65 F.3d at 926 (approving of district court’s 

skepticism of defendants’ proffered reason for strike of black juror based on 

residence in a metropolitan area where court found that several unstruck white 

jurors were also from metropolitan areas); Alston, 895 F.2d at 1374 (Hatchett, J. 

concurring) (“when an allegation of pretext is raised the [opposing party] bears the 

burden of convincing the district court that the proffered reasons are pretextual by 

introducing evidence of comparability.”).

A court may find pretext based on inconsistent striking of jurors of different 

races only where the characteristics between the struck and non-struck jurors are 

explicitly and precisely identified by the party objecting to the strike. See, e.g., 

United States v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991) (finding that “the 

defendants have failed to present a sufficiently detailed comparison between white 

and black venire members who allegedly have similar traits but who were treated 

differently by the prosecution to warrant a finding of pretext.”). Not only did 

defendants fail to make a specific showing, but they failed to make any showing 

that African-American prospective jurors shared even one of the traits that formed 

the basis for plaintiffs’ strike of Donaldson. See, e.g., Dudley, 166 F.3d at 1321 

(noting that issues regarding consistency of strikes should be raised at the time of

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the Batson challenge); Hollingsworth v. Burton, 30 F.3d 109, 113 n.4. (11th Cir. 

1994) (affirmance of trial judge’s denial of Batson motion is bolstered by fact that, 

while counsel “did indicate that there were white jurors possessing characteristics 

similar to stricken black jurors, this point was made in a way that was neither fact 

specific nor otherwise calculated to command the attention of the trial judge.”). 

Defendants did not identify a single juror-black or white-who shared any of the 

characteristics that motivated plaintiffs’ strike of Donaldson.19

Defendants could not have pointed to any non-whites similarly situated to 

Donaldson. First, no member of the entire venire had all of the characteristics that 

formed the basis for plaintiffs’ strike of Donaldson. It is self-evident that a party 

may favor a prospective juror with one or some of the objectionable characteristics 

over a prospective juror with all of the characteristics. See, e.g., United States v. 

Lewis, 837 F.2d 415, 417 n.5 (9th Cir. 1988) (“We recognize, however, that the 

decision whether to strike a venireman hinges upon the interplay of various factors 

and that no unchallenged juror possessed all the cited characteristics.”). Second, 

none of the three African-American jurors whom plaintiffs declined to strike shared 

any of the traits that caused plaintiffs to strike Donaldson. None of the prospective

19 Notably, even where it is shown that a party struck jurors of different races in 
an inconsistent manner, discrimination is not automatically proven. Dudley, 166 
F.3d at 1321.

39



African-American jurors responded to the court’s questions about having business 

dealings with Colonial companies, owning rental property, or membership in the 

Masons, Eastern Star, or country clubs.20 Furthermore, the prospective African- 

American jurors did not reveal any former or present addictions or live at a 

distance similar to Donaldson. Consequently, even if defendants had attempted to 

show pretext, the evidence would not have demonstrated that plaintiffs failed to 

strike any African American for any one of the reasons they struck Donaldson.

Despite the complete absence of evidence that could undermine the 

sufficiency of plaintiffs’ proffered reasons, the district court disallowed plaintiffs’ 

strike. When addressing plaintiffs’ explanations, the court did not even address 

two of the five proffered reasons. The court never even referred to plaintiffs’ 

concerns about Donaldson’s bank account at a bank in defendants’ corporate 

family or to Donaldson’s two answers regarding his family’s membership at 

historically exclusive clubs. R15-79. See Stewart, 65 F.3d at 926 (noting that 

district court conducted a “thorough examination of the proffered reasons” when 

holding that district court did not commit clear error in finding strike was based on 

race). The record would have demonstrated that each of these reasons was 

sufficient to justify plaintiffs’ strike.

20 Defendants presented no evidence of any relevant information that may have 
been revealed on the African-American jurors’ questionnaires.

40



The district court summarily rejected the other reasons relied upon by 

plaintiffs. The court concluded that Donaldson’s ownership of a warehouse had 

nothing to do with the case. As demonstrated above, Donaldson’s ownership of a 

warehouse that he rented-thus making him a landlord-was in fact closely related to 

the case. Further, there is no requirement that a party strike a juror on the basis of 

some factor that is related to the case. The court also summarily concluded that 

being a recovering alcoholic and living ninety miles from the courthouse is not a 

legitimate reason for striking someone and could be a cover for race-based reasons. 

Plaintiffs have amply shown that their concern that Donaldson’s alcoholism and 

distance from the courthouse could lead to additional stressors imposed on him by 

plaintiffs’ prosecution of their case was a legitimate and acceptable basis for 

striking him. Alcoholism is simply not a reason that is inherently susceptible to use 

as a pretext for race discrimination. Finally, concluding that an asserted reason 

could cover for race-based reasons is not sufficient to establish discriminatory 

intent or otherwise justify rejecting a reason. The district court could only find 

discriminatory intent if it concluded that all of plaintiffs’ reasons were covers for 

race-based reasons-a conclusion that is not supported by the record.

Defendants presented no evidence in support of their assertion that plaintiffs’ 

peremptory strike was motivated by racially discriminatory intent. Further, no

41



evidence exists that could support a finding of the alleged intentional 

discrimination by plaintiffs. The district court’s rejection of plaintiffs’ reasons, 

therefore, was clearly erroneous.

II. The District Court’s Erroneous Denial of Plaintiffs’ Peremptory
Challenge Mandates Remand to the District Court for a New Trial.

This Court can conclude that the district court erred in denying plaintiffs’ 

peremptory challenge without remand for further findings by the district court. The 

court’s conclusions regarding the prima facie case and the sufficiency of plaintiffs’ 

reasons were made based solely on the information that was elicited by the jury 

questionnaires and during voir dire. Further, this is also the only information upon 

which plaintiffs could have based their peremptory strikes. Consequently, no 

further information regarding the prospective jurors would be relevant to plaintiffs’ 

motivation in making strikes. Similarly, no further information need be elicited 

from plaintiffs or plaintiffs’ counsel, who articulated their reasons for striking 

Donaldson on the record.

It is also clear that defendants are not entitled to a remand for the purpose of 

having an opportunity to rebut plaintiffs’ reasons. This Court has clearly stated 

that, even at the time of the peremptory strikes, a court need not “allow the 

challenging party a chance to rebut the proffered rationale of the striking party.” 

Dudley, 166 F.3d at 1321. Furthermore, defendants could base their rebuttal only

42



on the evidentiary record developed during voir dire—a record that, as 

demonstrated above, contains no evidence that could prove plaintiffs’ 

discriminatory intent. Finally, defendants were given ample opportunity to present 

evidence of discriminatory intent at the time of their objection but failed to present 

any such evidence.

This Court should therefore determine without remand, that the district court 

erroneously deprived plaintiffs of their right to a peremptory challenge. Upon a 

finding that a trial court erroneously deprived a party of a peremptory challenge, 

the sole appropriate remedy is reversal and remand for a new trial. See Swain v. 

Alabama, 380 U.S. 202, 219 (1965) (“The denial or impairment of the right of 

peremptory challenge is reversible error....”), overruled on other grounds by 

Batson v. Kentucky, 476 U.S. 79 (1986); see also Annigoni, 96 F.3d at 1141 (after 

extensive examination of law surrounding peremptory challenges, holding that the 

erroneous denial of a peremptory challenge requires reversal); United States v. 

Broussard, 987 F.2d 215, 221 (5th Cir. 1993) (“The denial or impairment of the 

right to exercise peremptory challenges is reversible error without a showing of 

prejudice.”), abrogated on other grounds by J.E.B. v. Alabama, 511 U.S. 127 

(1994); Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369 

(7th Cir. 1990) (“It is reversible error to deny a party to a jury trial the peremptory

43



challenges to which the rules of procedure entitle h i m . United States v. 

Ruuska, 883 F.2d 262, 268 (3rd Cir. 1989) (affirming the automatic reversal rule of 

Swain).

This Court has not addressed whether a harmless error test may be applied to 

the jury selection process; however, all courts that have examined the issue have 

concluded that a harmless error test can have no application to an erroneous 

deprivation of a peremptory challenge. See United States v. McFerron, 163 F.3d 

952, 955 (6th Cir. 1998) (noting that the suggestion that the erroneous denial of a 

peremptory challenge should be subjected to a harmless error test has been 

“resoundingly rejected by every circuit court that has considered the issue.”).21 The 

impracticality of applying a harmless error test to the jury context has been 

recognized by several courts. McFerron, 163 F.3d at 956 (6th Cir. 1998) 

(“Moreover, on a practical note, it would be virtually impossible to determine 

whether the erroneous denial of a peremptory challenge was harmless enough to 

warrant affirming a conviction.”); Annigoni, 96 F.3d at 1144 (“It would be virtually 

impossible to determine whether the denial of a peremptory challenge was

21 The decisions are based on the Supreme Court’s distinction between “trial 
errors” which are subject to harmless error review and “structural errors” which are 
not. Arizona v. Fulimante, 499 U.S. 279, 309-311 (1991). Structural errors are 
those that affect the “entire conduct of the trial from beginning to end.” Id. at 309. 
The erroneous denial of a peremptory challenge is a “structural error” and, as such, 
is not subject to the harmless error analysis. McFerron, 163 F.3d at 956.

44



harmless enough to warrant affirming the conviction.”).

There is no need for an evidentiary hearing to determine that the district 

court clearly erred in depriving plaintiffs of their peremptory challenge. That 

erroneous deprivation of the peremptory challenge mandates reversal for a new 

trial.

CONCLUSION

The Supreme Court has long recognized that the exercise of peremptory 

challenges is an essential part of any trial. See, e.g., Lewis v. United States, 146 

U.S. 370, 376 (1892); Swain v. Alabama, 380 U.S. at 219 (“[t]he persistence of 

peremptories and their extensive use demonstrate the long and widely held belief 

that the peremptory challenge is a necessary part of trial by jury.”).

The district court denied plaintiffs this important right by erroneously 

upholding defendants’ Batson challenge to plaintiffs’ peremptory strike of Juror 

Donaldson. The district court erred by finding, solely on the basis that plaintiffs 

struck two of the eleven white prospective jurors, aprima facie case of 

discriminatory use of peremptory strikes by plaintiffs. Plaintiffs presented five 

distinct race-neutral reasons for striking Donaldson. The court’s rejection of these 

reasons was clearly erroneous as defendants did not present evidence to meet their 

burden of proving discriminatory intent and the record contained no evidence that



even tended to show that plaintiffs’ strike was discriminatory.

This Court can determine that the district court erred in sustaining 

defendants’ Batson challenge without remanding this case for further findings by 

the district court because the record was fully developed below. The erroneous 

denial of plaintiffs’ peremptory challenge mandates that this matter be remanded to 

the district court for a new trial.

46



Respectfully Submitted,

Elaine R. Jones 
Director-Counsel

Leslie M/ProlL " (
Reed N. Qalfax 
NAACP Legal Defense & 

Educational Fund, Inc.
1444 Eye Street, N.W., 10th Floor 
Washington, D.C. 20005 
(202)682-1300

COUNSEL FOR APPELLANTS FOSTER, 
FRAZIER, GILL-SMITH, B. SMITH, AND 
E. SMITH

47



I certify that this brief complies with the type-volume limitation set forth in

CERTIFICATE OF COMPLIANCE

Federal Rule of Appellate Procedure 32(a)(7)(B). This brief contains 11,093 

words.

Dated: July 6, 1999.

48



CERTIFICATE OF SERVICE

of record by First-Class IJ S Mail nn + ., uP°n the following counsely irsi <~iass u.b. Mail, postage prepaid on July 6, 1999;

Fem Singer 
Frances Heidt 
E. Barry Johnson 
SIROTE & PERMUTT, P.C. 
2222 Arlington Avenue South 
P.O. Box 55727 
Birmingham, AL 35255-5727

Pamela Sumners 
P.O. Box 370862
Birmingham, Alabama 35237-0862

David R. Boyd 
Robin G. Laurie 
Balch & Bingham, LLP 
P.O. Box 78
Montgomery, Alabama 36101

Dated: July 6, 1999.

.Counsel for Appellants

49