Federal Corner: The Fifth Circuit Tells Us What We All Thought the Law Was – By F. R. Buck Files Jr.


On December 16, 2011, the United States Court of Appeals for the Fifth Circuit held, as a matter of first impression, that the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race. United States v. Bennett; ___ F.3d ___, 2011 WL 62755703 (5th Cir. 2011) [Panel: Circuit Judges Smith, Prado (who authored the opinion) and Elrod]. Was I surprised at the holding of the Court? Yes, because I thought that this issue had been decided years ago.

Lance Bennett, Dalton Bennett, and Danquell Miller were charged with conspiring to commit various drug trafficking and firearms offenses. At jury selection, their lawyers exercised their peremptory challenges against only white members of the venire. The jury would have been composed of one Hispanic male, five white males, two black males, three white females, and one black female.

When the government alleged that the defendants had exercised their peremptory challenges based on race, Judge Kurt D. Englehardt Jr. of the United States District Court for the Eastern District of Louisiana conducted a hearing on this issue. During this hearing, Judge Englehardt made some comments that were most interesting.

At the conclusion of the hearing, Judge Englehardt disallowed two of the defendants’ peremptory challenges and returned one white male and one white female to the jury and removed the last two seated jurors, who were both white. Interestingly, the gender and racial makeup of the jury remained the same as it had been after the parties had made their strikes.

The jury convicted all of the defendants. After they received lengthy terms of imprisonment, each defendant gave notice of appeal.

Judge Prado’s opinion reads, in part, as follows:

[Judge Engelhardt’s Comments]

The district court commented on a few of the Defendants’ proffered reasons. For example, Lance’s attorney stated that he struck a prospective juror because, among other reasons, of his “relation to the military.” The district court responded: “The fact that they have military members in their family, how does that make them somehow unfavorable[?] . . . [S]omebody who’s got relatives in the military shouldn’t sit on a jury? That’s no reason.” The district court continued: “I find that if someone is subject to a peremptory challenge because of their family members in law enforcement, that’s no reason at all.”


When Dalton’s attorney then stated that he struck the tenth prospective juror because she “lives in Covington,” the district court responded: “No, [y]ou guys are too much, man. You guys are too much. Jeezum Petes. Give me a reason. Don’t give me where they live. Give me a reason. They live in the Eastern District, okay.” (Emphasis added.)


The district court explained that Defendants had not “made th[e] case [that a prospective juror from a conservative area of the state ought to be struck] for each and every person[,] . . . [and,] as [the government] pointed out, you’ve had th[at] same factor for African-American jurors and you haven’t exercised a challenge.” The district court concluded: “I mean, I don’t think that you’ve been evenhanded at all in your peremptory challenges for at least three or four of these people.”

[The Reverse Batson Challenge]

“[T]he Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” McCollum, 505 U.S. at 59, 112 S.Ct. 2348. “[T]he prosecution has standing to assert the equal protection rights of excluded jurors.” United States v. Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir.1993). Because Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), involved a defendant challenging the prosecution’s use of peremptory challenges, the same type of challenge by the prosecution is called a “reverse-Batson” challenge. Whether a criminal defendant or the prosecution challenges the other’s use of peremptory challenges, the same three-step analytical process is applied by the district court:

    First, the claimant must make a prima facie showing that the peremptory challenges have been exercised on the basis of race. Second, if this requisite showing has been made, the burden shifts to the party accused of discrimination to articulate race-neutral explanations for the peremptory challenges. Finally, the trial court must determine whether the claimant has carried his burden of proving purposeful discrimination.

Bentley-Smith, 2 F.3d at 1373 (citing Batson, 476 U.S. at 93–98, 106 S.Ct. 1712; McCollum, 505 U.S. at 59, 112 S.Ct. 2348).

[The Defendants’ “Majority Race” Exception to Batson]

As a preliminary matter, Dalton and Miller argue that the Batson line of cases ought not even apply here. Their argument is that discrimination in violation of the Equal Protection Clause is impossible where black defendants strike white prospective jurors who are replaced by other white prospective jurors, because no race is favored over any other race. Dalton further argues that Batson should not apply to this case because a white prospective juror’s right to serve on a jury is outweighed by the “superior fair trial right of a minority class defendant to use his allotted share of peremptory challenges not only to increase the chance of obtaining more members of his or her race on the jury but to also select freely among the majority members that necessarily will serve on his or her jury.” Br. of Dalton Bennett at 18–19.

[The Court’s Response to the Defendants’ Argument]

In Batson, the Supreme Court held that the “Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 476 U.S. at 89, 106 S.Ct. 1712. The McCollum Court extended Batson’s prohibition on racially motivated peremptory challenges to defendants, explaining that “Batson was designed to serve multiple ends, only one of which was to protect individual defendants from discrimination in the selection of jurors.” 505 U.S. at 48, 112 S.Ct. 2348 (citation and internal quotation marks omitted). McCollum’s extension of Batson was “designed to remedy the harm done to the dignity of persons and to the integrity of the courts.” Id. (internal quotation marks omitted). McCollum vindicated the “dignity of persons” because “denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror.” Id. McCollum also vindicated the “integrity of the courts” because “[j]ust as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal.” Id. at 50, 112 S.Ct. 2348.

      Dalton and Miller correctly point out that Batson and McCollum both involved the use of peremptory strikes to exclude black jurors, and that neither the Supreme Court nor the Fifth Circuit has squarely held that Batson and its progeny prohibit a black defendant from striking a white prospective juror based on the juror’s race. This court has, however, assumed without raising the issue that black defendants’ attempts to remove white prospective jurors based on their race implicated Batson and McCollum. See United States v. Dillard, 354 Fed.Appx. 852, 856–57 (5th Cir.2009) (affirming district court’s use of the three-step Batson analysis to determine whether black defendant who had used eight of nine peremptory challenges on white jurors had violated Batson and McCollum ); United States v. Bailey, 92 Fed.Appx. 99, 99 (5th Cir.2004) (affirming district court’s conclusion that black defendant’s use of peremptory challenge on white juror was discriminatory); United States v. Duncan, 191 F.3d 569, 574 (5th Cir.1999) (same); United States v. Kelley, 140 F.3d 596, 606–07 (5th Cir.1998) (same). Moreover, the Second Circuit has held that the “argument that Batson does not apply where an African American defendant seeks to eliminate white jurors is entirely without merit.” United States v. Thompson, 528 F.3d 110, 118 (2d Cir.2008).

      Because the right to be free from discrimination is a right enjoyed by individual potential jurors, McCollum, 505 U.S. at 48, 112 S.Ct. 2348, we reject Dalton and Miller’s first argument that discrimination was impossible here, where white jurors were struck in favor of other white jurors. And because “[i]t is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race,” id. at 57, 112 S.Ct. 2348, we reject Dalton’s second argument that black defendants should be able to use peremptory challenges in a discriminatory fashion. We therefore hold that the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race.

[The Court’s Comments About Judge Englehardt’s Statements]

To be sure, the district court made comments that could be interpreted as betraying a misunderstanding of the minimal explanation required at the second step of the Batson analysis. Notwithstanding those unfortunate comments, in light of our deferential review of fact and credibility determinations and based on our review of the voir dire transcript, we affirm the district court.

[Judge Englehardt Guessed Right]

Finally, we note that the district court’s suspicion regarding Defendants’ true reason for dismissing particular jurors was seemingly confirmed at oral argument, when Dalton’s attorney stated, “Yes, we had a preference representing blacks, to get as many blacks as possible” on the jury. Oral Argument Recording at 48:37, available at http://www.ca5.uscourts.gov/OralArgRecordings/10/10-30920_11-8-2011.wma. We therefore affirm the district court’s determination that Defendants struck Mr. B and Ms. E for racially motivated reasons.

My Comments

Peremptory challenges are not ours as a matter of right. They are a creation of the various legislative bodies.

Several years ago, I sat as a member of then-justice Cornyn’s Jury Task Force. I was on the trial issues subcommittee with about 20 other lawyers from both the civil and criminal trial bars and three judges.

One of these judges was from Houston and wanted to eliminate or significantly limit the number of peremptory challenges in both civil and criminal cases. The lawyers were unanimous in opposing his proposals. Was his opposition philosophical in nature or based on his experience as a trial judge? No, it was more basic than that. He was concerned about how much money Harris County was spending on jury panels.

That judge may not have been respected by the lawyers on the Task Force but he was probably the darling of his county commissioners. It’s folks like him whom we should fear.

F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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