Monday, August 03, 2009

On Batson and earrings

The VLW Blog has a post up about non-discriminatory reasons that have passed muster under a Batson challenge to the use of peremptory strikes.

I tried a case back in January before Judge Turk, where I represented a African-American claiming racial discrimination and retaliation. The only black man in the venire was a distinguished, well-dressed gentleman of about 60, wearing a big gold earring. He was probably the most distinguished-looking, best-dressed person in the building that day. I thought that striking that guy on account of his earring was surely a pretext for race. Unfortunately, Judge Turk had already addressed the issue in the Claytor case cited by VLW, and every other case I found goes the same way - an earring-based strike does not violate Batson. In Claytor, "[t]he prosecutor explained that the earrings suggested to him that the prospective juror had made a life-style choice that was not consistent with mainstream society."

I wanted to cite to Judge Turk this Ebony article from 1998, but I don't guess it would have been relevant to what the lawyer was thinking.

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