Donald Davis v. Fisk Electric Company, Fisk Technologies & Fisk Management, Inc.

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 06-0162

════════════

Donald Davis,

Petitioner,

v.

Fisk Electric Company, Fisk

Technologies &

Fisk Management

Inc . , Respondents

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourteenth District of

Texas

════════════════════════════════════════════════════

Argued April 10,

2007

Chief Justice

Jefferson delivered the

opinion of the Court, joined by Justice

Hecht, Justice O’Neill, Justice Wainwright, Justice Medina, Justice Green,

Justice Johnson, and Justice Willett .

Justice Brister delivered a concurring opinion, in

which Justice Medina joined as to Part

III.

Our rules generally permit each party in a civil action to exercise six

peremptory strikes, which are challenges “made to a juror without assigning any

reason therefor .” Tex. R. Civ. P. 232, 233. But peremptories exercised for an improper reason, like race or

gender, are unconstitutional. In this case, the African American petitioner

asserted that he was terminated based on his race. The respondents used

peremptory challenges at trial to exclude five of six African Americans from the

venire but contend that their reasons for doing so had nothing to do with the

potential jurors’ race. The stated reasons, however, when viewed in conjunction

with the 83% removal rate and a comparative juror analysis, defy neutral

explanation. Because we conclude that at least two of the strikes were based on

race, we reverse in part the court of appeals’ judgment and remand the case for a new trial.

I

Factual

Background

Donald Davis, an African American, worked for Fisk Electric Company as an

assistant project manager. In February 2001, Fisk was awarded the contract to

install cables at Goodson

Middle School, in the Cypress Fairbanks School

District. After problems arose on the Goodson

project, Fisk terminated Davis. Davis

asserts that his termination was based on his race, as evidenced in part by his

supervisor’s alleged use of the “n-word” when planning Davis’s termination.

Davis

sued Fisk, [1] claiming violations of 42 U.S.C. § 1981

and the Texas Labor Code. Fisk denied liability. The case was called for trial,

and at the conclusion of voir dire, Fisk peremptorily

struck six venire members, five of whom were African American and all of whom

were minorities. Davis objected, citing Batson v.

Kentucky , 476 U.S. 79 (1986), [2] and the trial court, after a hearing,

overruled the objection. The jury returned a defense verdict, the trial court

signed a take-nothing judgment, and the court of appeals affirmed. 187 S.W.3d 570, 577 . We granted Davis’s petition for

review to apply the United States Supreme Court’s most recent guidance on

peremptory challenges that are allegedly race-based. 50

Tex.

Sup. Ct. J. 446 (Feb. 23, 2007).

II

Batson

Challenge

Davis

raises a single complaint: that Fisk struck prospective jurors based on race, in

violation of Batson . We last wrote on Batson challenges in

Goode v. Shoukfeh , 943 S.W.2d 441 (Tex. 1997), and in the

intervening years, the landscape has evolved. Significantly, after the trial in

this case, the Supreme Court decided Miller-El v. Dretke , 545 U.S. 231 (2005) (“ Miller-El II ”), a

case in which the Court concluded that a habeas petitioner was entitled to

relief because prosecutors in his criminal trial peremptorily struck potential

jurors based on race. Although Miller-El II is a criminal case, it

involves many of the same factors at issue here, and we examine it in some

detail.

The case began with Miller-El’s 1986 capital murder trial in a Texas trial court. During

jury selection, prosecutors used peremptory strikes to remove ten African

Americans from the venire. Miller-El objected that the strikes were improperly

based on race, given the Dallas County District Attorney’s Office’s historic

practice of excluding blacks from criminal juries. The trial court concluded

that, under Swain v. Alabama , which was then the governing standard for

complaints of racially based jury selection, there had been no “systematic

exclusion of blacks as a matter of policy” by that office and thus no

entitlement to a new jury. Miller-El II , 545 U.S. at 236

(quoting Swain v. Alabama , 380 U.S. 202 (1965)). Miller-El was convicted

and sentenced to death. Id .

While his appeal was pending, the Supreme Court decided Batson ,

“ which replaced Swain ’s threshold requirement to

prove systemic discrimination under a Fourteenth Amendment jury claim, with the

rule that discrimination by the prosecutor in selecting the defendant’s jury

sufficed to establish the constitutional violation.” Id . The Court of

Criminal Appeals remanded the case to the trial court to determine whether

Miller-El could prove a Batson violation. Miller-El

v. State , 748 S.W.2d 459 (Tex. Crim . App. 1988)

(en banc).

The trial court reviewed the voir dire record,

and one of the prosecutors provided his rationale for previously unexplained

strikes. The trial court deemed the explanations “completely credible [and]

sufficient” and found there was “no purposeful discrimination.” Miller-El

II , 545 U.S. at 236 . The Court of Criminal

Appeals affirmed, stating that the voir dire record

provided “ample support” for the prosecutor’s race-neutral explanations.

Miller-El v. State , No. 69,677 (Tex. Crim . App.

Sept 16, 1993) (per curiam ), p. 2.

Miller-El then sought habeas relief under 28 U.S.C. § 2254 , again raising

his Batson claim. Miller-El II , 545 U.S. at 237 . The

federal district court denied relief, and the Fifth Circuit refused to certify

appealability . Miller-El v.

Johnson , 261 F.3d 445 (5th Cir. 2001). The Supreme Court granted

certiorari to consider whether Miller-El was entitled to review of his

Batson claim and, determining that “the merits of the Batson claim

were, at the least, debatable by jurists of reason,” held that Miller-El was

entitled to a certificate of appealability .

Miller-El II , 545 U.S. at 237 (citing Miller-El v.

Cockrell , 537 U.S. 322 (2003) (“ Miller-El I ”)). After granting that

certificate, the Fifth Circuit rejected Miller-El’s Batson claim. Miller-El v. Dretke , 361 F.3d 849

(5th Cir. 2004). The Supreme Court again granted certiorari, Miller-El

v. Dretke , 542 U.S. 936 (2004), and again

reversed, Miller-El II , 545 U.S. at 237 , this time on the merits of

Miller-El’s Batson challenge.

Noting that a Batson challenge requires an examination of “‘all

relevant circumstances,’” the Court examined five factors in determining that

jury selection in Miller-El’s criminal trial violated the Equal Protection

Clause. Miller-El II , 545 U.S. at 240 (quoting Batson , 476

U.S. at 96-97 ). The first

involved an analysis of the statistical data pertaining to the prosecution’s

peremptory strikes. The Court noted that prosecutors used peremptory strikes to

exclude 91% of the eligible African-American venire members—a percentage too

great to attribute merely to “[h] appenstance .”

Id . at

241.

The Court then conducted a comparative juror analysis, noting that

“[m]ore powerful than these bare statistics, however, are side-by-side

comparisons of some black venire panelists who were struck and white panelists

who were allowed to serve.” Id. The Court explained that “[ i ]f a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending

to prove purposeful discrimination to be considered at Batson ’s third

step.” Id. In conducting this analysis, the

Court rejected the notion that struck venire members must be compared only to

jurors who are identical in all respects (save race): “A per se rule that

a defendant cannot win a Batson claim unless there is an exactly

identical white juror would leave Batson inoperable; potential jurors are

not products of a set of cookie cutters.” Id . at 247

n.6 . The Court focused on the prosecution’s questioning of two black

venire members—Billy Jean Fields and Joe Warren—and compared their answers to

those given by whites. With regard to Fields, the Court determined that:

nonblack jurors whose remarks on rehabilitation could well

have signaled a limit on their willingness to impose a death sentence were not

questioned further and drew no objection, but the prosecution expressed

apprehension about a black juror’s belief in the possibility of reformation even

though he repeatedly stated his approval of the death penalty and testified that

he could impose it according to state legal standards even when the alternative

sentence of life imprisonment would give a defendant (like everyone else in the

world) the opportunity to reform.

Id . at

245.

As for Warren, the Court noted that the State’s proffered reason—that

Warren’s voir dire answers were inconsistent—seemed

plausible, but “its plausibility [was] severely undercut by the prosecution’s

failure to object to other panel members who expressed views much like

Warren’s.” Id . at

248. After comparing his answers to panel members who expressed similar

conclusions, the Court decided that race was significant in determining who was

challenged and who was not. Id . at

252. The Court also rejected the court of appeals’ independent conclusion

that Warren expressed general ambivalence about

the death penalty, because the prosecutor’s stated reasons for striking

Warren did not

allude to any such ambivalence. Id. at

250. The Court then noted:

[T]he rule

in Batson provides an opportunity to the prosecutor to give the reason

for striking the juror, and it requires the judge to assess the plausibility of

that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct, and it can

sometimes be hard to say what the reason is. But when illegitimate grounds like

race are in issue, a prosecutor simply has got to state his reasons as best he

can and stand or fall on the plausibility of the reasons he gives. A

Batson challenge does not call for a mere exercise in thinking up any rational

basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge,

or an appeals court, can imagine a reason that might not have been shown up as

false. The Court of Appeals’s and the dissent’s

substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors’

burden of stating a racially neutral explanation for their own actions.

Id. at 251-52

(citations omitted) (emphasis added).

A third factor the Court considered was the prosecution’s use of the jury

shuffle, a practice unique to Texas, [3] and one that the Court held could

“indicate decisions probably based on race.” Id . at 253. The Miller-El jury was shuffled some eight

times, at the request of both the prosecution (three times) and the defense

(five times) . Miller-El II , 545 U.S. at 255

n.14 . The Court noted that “‘the prosecution’s decision to seek a jury

shuffle when a predominant number of African-Americans were seated in the front

of the panel, along with its decision to delay a formal objection to the

defense’s shuffle until after the racial composition was revealed, raise a

suspicion that the State sought to exclude African-Americans from the jury.’”

Id . at 254 (quoting Miller-El I , 537 U.S. at

346 ). This was amplified by testimony that the Dallas County District

Attorney’s Office had previously admitted to using the shuffle to manipulate the

racial makeup of juries. Id . The Court concluded:

The State

notes in its brief that there might be racially neutral reasons for shuffling

the jury, and we suppose there might be. But no racially neutral reason has ever

been offered in this case, and nothing stops the suspicion of discriminatory

intent from rising to an inference.

Id . at

254-55 (citation omitted).

A fourth factor the Court relied on was the “contrasting voir dire questions posed respectively to black and nonblack panel members.” Id . at 255. Prosecutors gave black panel members a vivid,

graphic account of the death penalty before asking about the member’s feelings

on the subject, while it gave nonblacks a “bland

description.” Id . While the State conceded that

disparate questioning occurred, it asserted that the disparity was based on

panel members’ differing views of the death penalty—those who expressed

ambivalence received the “graphic script,” while those who did not received the

watered-down version. Id . at

256-57. Based on the record, however, the Court concluded that black

venire members were more likely to receive the graphic script regardless of

their expressions of ambivalence, and the State’s explanation failed for four of

the eight black panel members who received that script. Id. at

258. Additionally, four out of five nonblacks

who were given the graphic script were not those who had expressed ambivalence

but were instead unambiguously in favor of, or vehemently opposed to, the death

penalty. Id . at

259. The Court also noted that the State disparately used manipulative

questioning regarding minimum punishments. Id. at 261. The State conceded that practice but argued that it

was premised on opposition to or ambivalence regarding the death penalty, rather

than race. Id. at

261-62. The Court disagreed, noting that “only 27% of nonblacks questioned on the subject who expressed these

views were subjected to the trick question, as against 100% of black members.

Once again, the implication of race in the prosecutors’ choice of questioning

cannot be explained away.” Id . at

263.

Finally, the Court considered the Dallas County District Attorney’s

Office’s history of “systematically excluding blacks from juries.” Id .

Specifically, the defense presented evidence that the DA’s office had adopted a

formal policy to exclude minorities from jury service, and that policy was

summarized in a “‘manual entitled ‘Jury Selection in a Criminal Case’ [sometimes

known as the Sparling Manual]’” that was distributed

to prosecutors. Id. (quoting

Miller-El I , 537 U.S. at 335 ). Although the

manual was written in 1968, the evidence showed it was available to at least one

of Miller-El’s prosecutors. Id . The Court also observed that

prosecutors had noted the race of each prospective juror on their juror cards.

Id .

Considering the totality of the circumstances, the Court held:

It blinks

reality to deny that the State struck Fields and Warren, included in [the] 91%

[of black venire members who were struck], because they were black. The strikes

correlate with no fact as well as they correlate with race, and they occurred

during a selection infected by shuffling and disparate questioning that race

explains better than any race-neutral reason advanced by the State. The State’s

pretextual positions confirm Miller-El’s claim, and

the prosecutors’ own notes proclaim that the Sparling

Manual’s emphasis on race was on their minds when they considered every

potential juror.

Id. at

266. Holding that the state court’s conclusion about the prosecutors’

strikes of those two jurors was wrong “to a clear and convincing degree,” the

Court reversed the court of appeals’ judgment and remanded the case for entry of

judgment for Miller-El, “together with orders of appropriate relief.” Id.

III

Batson

Procedure

With this context in mind, we turn to the Batson challenge at

issue in this case, but first address a procedural matter. Davis presented his

Batson objection at the conclusion of voir

dire, after both sides exercised their peremptory challenges. Fisk then defended

its strikes, beginning with Juror No. 5, Michael Pickett. The trial court

immediately overruled the Batson objection upon hearing Fisk’s

explanation. Davis’s counsel asked to address Fisk’s

reasons, “to preserve the record here.” The trial court answered: “You’ve raised

the objection. That burden shifts. The burden has shifted. I overruled the

objection. No. 9. Let’s move on. If you want to put

something on the record at the conclusion of this, we can do so. No. 9?” A similar procedure was followed for Fisk’s

justification for each of the remaining strikes.

By overruling the objection before permitting Davis to rebut Fisk’s

explanations, the trial court overlooked part of Batson’s third step. [4] See Goode , 943

S.W.2d at 445 -46 . We do not doubt the trial court’s full engagement in

the voir dire and Batson proceedings, but it

nonetheless should have permitted Davis’s counsel to rebut Fisk’s explanations,

rather than ruling before she had the opportunity to do so. Id. at 452

(“Because the party challenging the peremptory strikes has the ultimate burden

of persuasion, we conclude that the trial court should provide the party

challenging the strikes . . . a reasonable opportunity to rebut the race-neutral

explanations.”) ( citation omitted). Davis complains of the trial court’s evading the third

step, and the court of appeals held that Davis waived the objection by not raising it in

the trial court. 187 S.W.3d at 581 . To the contrary,

Davis’s counsel

specifically asked the trial court to address Fisk’s explanations for the

strikes. The trial court refused her request but said that she could “put

something on the record at the conclusion of this.” We conclude that Davis’s request was sufficient to advise the trial court of

the complaint, and Davis did not waive the objection.

Nonetheless, the error in failing to follow proper procedure was harmless

in this case. The trial court permitted Davis to

make a bill after the Batson hearing, and Davis’s counsel addressed Fisk’s strikes and

the explanations given. After listening to this argument, the trial court again

overruled the Batson objection, “find[ ing ] that

the Defense has articulated reasons, at least for their decisions on particular

jurors on a nonrace basis for striking them.”

IV

Standard of

Review

In contrast to the federal system, which employs a “clearly erroneous”

standard of review, we review a trial court’s Batson ruling for abuse of

discretion. Goode , 943 S.W.2d at 446 (noting that “[a] trial court abuses

its discretion if its decision ‘is arbitrary, unreasonable, and without

reference to guiding principles’” and observing that standard is “similar,

although not identical to,” federal “clearly erroneous” standard); cf.

Hernandez v. New York , 500 U.S. 352, 369 (1991) (holding that a trial

court's finding will not be disturbed unless the appellate court is “‘left with

a definite and firm conviction that a mistake has been committed’”) (quoting

United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948));

Young v. State , 826 S.W.2d 141, 144 (Tex. Crim .

App. 1991) (noting that “[a] reviewing court should reverse [trial court’s]

findings only when they are not supported by sufficient evidence or, as we often

say, for an ‘abuse of discretion’”). In Miller-El II , a habeas proceeding

governed by the standard of review set forth in the Antiterrorism and Effective

Death Penalty Act of 1996, the Supreme Court noted that it would “presume the

Texas court's

factual findings to be sound unless Miller-El rebut[ ted ] the ‘presumption of

correctness by clear and convincing evidence.’” Miller-El II , 545

U.S. at 240 (citing 28 U.S.C. §

2254 (e )( 1)). Like our abuse of discretion standard,

see Goode , 943 S.W.2d at 447 , the standard applied in Miller-El II

was “demanding but not insatiable,” and “‘[d] eference does not by definition preclude relief.’”

Miller-El II , 545 U.S. at 240 (quoting Miller-El v.

Cockrell , 537 U.S. at 340 ); see also United States v. Williamson ,

533 F.3d 269, 274 (5th Cir. 2008) (noting that, although “‘[t]he trial court has

a pivotal role in evaluating Batson claims,’ . . . we are also cognizant

that the Supreme Court has made plain that appellate review of alleged

Batson errors is not a hollow act”) (quoting Snyder v. Louisiana ,

552 U.S. ___ , ___, (2008)). We now turn to an analysis of “all relevant

circumstances.”

V

Analysis

A

Statistical

Disparity

Here, as in Miller-El , the statistics are “remarkable.” Miller-El II , 545 U.S. at 240 (noting that prosecutors

used peremptory strikes to exclude 91% of eligible black venire members).

Jurors were chosen from the first twenty-eight members of the venire. At the

conclusion of the parties’ questioning, four panelists were struck for cause or

by agreement, and the parties then submitted their peremptory challenges. Fisk

struck five of the six African Americans (83%) but only one (5.5%) of the

eligible nonblack prospective jurors, [5] and “[h] appenstance is unlikely to produce this disparity.” [6] Miller-El I , 537

U.S. at 342 .

B

Comparative Juror

Analysis

Beyond the raw statistics, a comparative juror analysis is similarly

troubling. Fisk struck Juror No. 12, Patrick Daigle, and provided the following

explanation:

Of all the

jurors, juror No. 12, who initially I thought would be good a good [sic] juror

for us, reacted that corporations should be punished with the use of punitive

damages. He was the most clear on that subject. In

addition, I attempted to draw out of him a discussion from him about his

involvement in this management-employee committee thing at Continental,

something that would make me think he recognized that many of the discrimination

claims that they deal with — I know he said he didn’t have any personal

involvement with race discrimination cases; but he seemed to be too ready to

believe that Continental has discriminatory employment practices; which, you

know, I could be totally wrong about this, Your Honor; but my belief is that I

tend to have a high degree of skepticism about that, about Continental and the

fact that he didn’t have that same skepticism caused me to believe they we

should exercise a challenge on him.

The trial

court then immediately overruled Davis’s Batson objection to the strike.

Davis’s

counsel conducted the only questioning on punitive damages, and, as is evident

from the colloquy, [7] Daigle never verbally responded to the

questions about punitive damages. Fisk nonetheless asserted in the trial court

that Daigle nonverbally “reacted that corporations should be punished with the

use of punitive damages.” Fisk did not elaborate on the type of nonverbal

conduct that Daigle manifested, other than to say Daigle was “most clear ” on the subject. Davis’s counsel objected that “the nonverbal

cues that Defense Counsel has cited throughout are not supported by the record”

and also noted that Fisk never attempted to question Daigle about any alleged

“nonverbal cues.” [8]

Last term, the Supreme Court decided a Batson case involving

nonverbal conduct. In Snyder v. Louisiana , the Court held that the

prosecution improperly struck a potential juror. Snyder , 552

U.S. at ___. The prosecution gave two

reasons for its strike, one of which was that Brooks, the potential juror,

looked “very nervous” throughout the questioning. Id . at

___. The Court noted that the “record [did] not show that the trial judge

actually made a determination concerning Mr. Brooks' demeanor.” Id . at

___. Absent such a finding, the Court concluded that it could not

“presume that the trial judge credited the prosecutor's assertion that Mr.

Brooks was nervous.” Id. Thus, while “deference [to the

trial court] is especially appropriate where a trial judge has made a finding

that an attorney credibly relied on demeanor in exercising a strike,” id .

at ___, here there was no such finding, and we cannot

presume the trial court credited Fisk’s explanation.

Additionally, the lack of further detail about Daigle’s purported

reaction, Fisk’s failure to question Daigle about it, and the failure to strike

a white juror who expressed verbally what Daigle purportedly did nonverbally,

give us pause. Peremptory strikes may legitimately be based on nonverbal

conduct, but permitting strikes based on an assertion that nefarious conduct

“happened,” without identifying its nature and without any additional record

support, would strip Batson of meaning. Opposing counsel must have an

opportunity to rebut the accusation, the trial court must be enabled to decide

whether the charge accurately describes what happened during voir dire, and the appellate court must have a record on

which to base its analysis. Verification of the occurrence may come from the

bench if the court observed it; it may be proved by the juror’s acknowledgement;

or, it may be otherwise borne out by the record as, for example, by the detailed

explanations of counsel. We do not think Snyder excludes sources of

verification other than an explicit trial court finding. See, e.g., People v.

Davis , 78 Cal. Rptr.3d 809, 817 (Cal. Ct. App. 2008) ( Snyder did not

require reversal based on demeanor-related strike even though trial court did

not make an explicit finding as to demeanor, as juror’s “demeanor [was] shown on

the record from her lateness and inability to follow the court's instructions”

and thus “[n]o further finding was needed”). The point, instead, is that the

communication be proved and reflected in an appellate record, and counsel must,

therefore, identify that conduct with some specificity.

Nonverbal conduct or demeanor, often elusive and always subject to

interpretation, may well mask a race-based strike. For that reason, trial courts

must carefully examine such rationales. Our sister court which, as we have

noted, has a much more developed Batson jurisprudence than we do, see

Goode , 943 S.W.2d at 450 , [9] has held that a prosecutor’s statements

that he didn’t like a venireman’s “attitude, his

demeanor” were pretextual when his verbal answers

failed to show hostility, and the prosecutor “never mentioned any specific body

language, or any other non-verbal actions which led him to believe the venireman was biased against his case.” [10] Hill v. State , 827 S.W.2d 860,

869-70 (Tex. Crim . App. 1992) (noting that “the record

speaks for itself”); accord Brown v. Kelly , 973 F.2d 116, 121 (2d Cir.

1992) (noting that demeanor-related reasons may be legitimate basis for

peremptory challenge “if they are sufficiently specific to provide a basis upon

which to evaluate their legitimacy”); Mack v. Anderson , 861 N.E.2d 280,

297 (Ill. App. Ct. 2006) (noting that “conduct and demeanor must be given close

scrutiny because such perceptions may easily be used as a pretext for

discrimination” and, because attorney “did not make a record by providing a

clear and reasonably specific explanation of what he perceived to be” the struck

juror’s “disinterest,” the record failed to support the race neutral explanation

given); Zakour v. UT Med. Group, Inc .,

215 S.W.3d 763, 774-75 (Tenn. 2007) (holding that “to avoid a Batson

violation, it is important that counsel specifically state the particular body

language that forms the basis for the peremptory challenge”; lawyer’s

identification of body language must be “sufficiently specific to provide a

basis upon which to evaluate [its] legitimacy,” and “body mechanics” was not

detailed enough to survive Batson objection) (citation omitted); see

also Blades v. Miller , 261 F. App’x 314, 315-16

(2d Cir. 2008) (affirming trial court’s acceptance of specific body language,

including crossed arms, as a race-neutral explanation, as well as trial court’s

rejection of strike based on “body language in a formulaic, non-specific way”),

cert. denied , ___ U.S. ___ (2008). Batson requires a “clear and

reasonably specific explanation” of the legitimate reasons for a strike,

Batson , 476 U.S. at 98

n.20 (quoting Tex. Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 258 (1981)), and merely

stating that a juror nonverbally “reacted” is insufficient.

Fisk’s failure to question Daigle about his purported reaction also

suggests that Daigle’s reaction had little to do with Fisk’s strike.

Miller-El II , 545 U.S. at 246 (noting that the prosecution’s failure to

question prospective juror about reason given for strike suggested pretext;

prosecutor “probably would have [questioned him] if the family history had

actually mattered”) (citing Ex parte Travis ,

776 So.2d 874, 881 (Ala. 2000) (“[T]he State’s failure to engage in any

meaningful voir dire examination on a subject the

State alleges it is concerned about is evidence suggesting that the explanation

is a sham and a pretext for discrimination.”)); Alex v. Rayne Concrete Serv ., 951 So.2d 138, 154 (La. 2007) (noting that “the

lack of questioning or mere cursory questioning before excluding a juror

peremptorily is evidence” of pretext). Moreover, Fisk did not strike Vinzant , a white juror who stated that he would not have a

problem awarding punitive damages. See Miller-El II ,

545 U.S. at 248 (holding that evidence of

pretext exists if a reason applies equally to other panel members, who were not

minorities and not struck). These factors suggest that

the stated reason—Daigle’s “reaction” to punitive damages—was pretextual .

Thus, we turn to the remaining reason offered for striking Daigle: that

he seemed too eager to believe that his employer, Continental Airlines,

discriminated against employees and that he did not express sufficient

skepticism about discrimination claims. Daigle, a seventeen-year employee of

Continental, listed his occupation as “customer service manager” and explained

his job as follows:

Daigle:

It’s called aide-of-counsel. It’s just like having a union without

the union. We’re the representative between management and the person. But every

time we hear a case we don’t hear it from our office. We have to judge the case

from someone else’s office. So like in this case, I don’t know either party,

which is what we do over there; so it doesn’t give us a bias about somebody that

we work with. We have to judge their performance and have that bias about,

“Well, I know this individual. Can I judge fairly?” We deal with different

offices. We have three offices, Tampa,

Salt Lake, and Houston. So they’ll send us a case from another

office versus here at home.

Fisk

counsel: And by separating it out so that you don’t know

the people, that way they’re limiting the bias that somebody might have from

knowing the party?

Daigle:

Yes.

Fisk

counsel: Then you know exactly what we’re doing with

this voir dire process?

Daigle:

Yes.

Fisk

counsel: Do you deal with the cases sometimes where an

employee says they’re being discriminated against because of race?

Daigle:

We deal with all of it.

Fisk

counsel: Race?

Daigle:

Race discrimination, everything.

Fisk

counsel: And are there times when employees have said,

“Something happened to me because of race” at Continental where the panel you

were on agreed with that?

Daigle:

That we agreed on it?

Fisk

counsel: Right.

Daigle:

I’ve never been on a case of race myself.

Fisk

counsel: You’ve never been on a case of race

yourself?

Daigle:

No.

Fisk

counsel: But what you do in these cases though is listen to both sides and try to determine whether there is a

basis in fact for the belief that an adverse job determination was

discriminatory.

Daigle:

Yes, well, have to decide whether management was right or the

employee was right.

Fisk

counsel: Okay.

Daigle:

Either management right [sic] on their decision or the employee

has a right to come back.

Fisk

counsel: And I do understand correctly what you’re

telling us is there’s nothing about either that or your feelings with regard to

a prior employment situation that makes you feel inclined to start this case,

giving the Plaintiff a little bit of a head start?

Daigle:

No.

The court of appeals held that Fisk’s explanation for striking Daigle

sufficed, because even though Daigle stated he could be fair, “counsel is not

required to take all voir dire answers at face value.”

187 S.W.3d at 585 . While that is true, there is nothing

in the voir dire record to support counsel’s

explanation that Daigle believed Continental discriminated against

employees—indeed, Daigle, a longtime employee, stated that leaving his old job

for Continental was “a better move for [him],” and the only thing he said about

race discrimination cases was that he had never been involved with one. At best,

the record shows that Daigle was neutral about employment discrimination issues,

providing no support for Fisk’s asserted reason for striking him. Even if Fisk were concerned about Daigle’s description of his

aide-of-counsel position as “like having a union without the union” (a concern

that was never expressed at trial), it does not explain why Fisk failed to

strike (or even question) juror 27, a white woman, about her membership in a

union.

On appeal, Fisk cites Daigle’s voir dire

responses about past personal experiences with discrimination as a basis for the

strike. [11] This reason—never advanced in the trial

court—may not now be used to justify the strike. See, e.g., Miller-El

II , 545 U.S. at 252 (noting that, “when illegitimate grounds like race are

in issue, a prosecutor simply has got to state his reasons as best he can and

stand or fall on the plausibility of the reasons he gives”); see also id.

( noting that reason given during Batson

hearing but after State’s initial reasons were shown to be incorrect “reeks of

afterthought” and showed “ pretextual timing”). On

balance, we conclude that Fisk’s reasons for striking Daigle “cannot reasonably

be accepted.” Miller-El II , 545 U.S. at 247 (citing Miller-El I , 537

U.S. at 339 (noting that the

credibility of reasons given can be measured by "how reasonable, or how

improbable, the explanations are; and by whether the proffered rationale has

some basis in accepted trial strategy")).

Although the improper exclusion of even one juror is unconstitutional,

Snyder , 552 U.S. at ___, we also find troubling

Fisk’s strike of Michael Pickett, juror no. 5. Fisk explained its reasons for

striking Pickett as follows:

Before I

ever came to court today, I had a problem with Juror No. 5 because he is a

musician. And the fact that that is his only employment causes me to believe

that he would not be a very good Defense juror in any case and certainly in this

case where the issue is people getting laid off over job performance and things

of that nature. Also when Juror 29 made a — I don’t remember whether it was a

solicited or unsolicited comment about having friends of African-American race,

he was one of the jurors who noticeably laughed at that; and it was clear from

his reaction he did not believe that. And there were two or three other people

who were challenged on that same basis. He also is one of the people who

appeared to us to have the strongest reaction to this whole “N” word issue. And

whether or not his feelings about the company, if there is testimony that one of

the people in the company used the “N” word — you want me to keep going?

We note that Fisk never questioned Pickett about his job but instead

relied on Pickett’s juror information card, which stated that Pickett was a

musician employed by Pleasant

Hill Baptist

Church. Miller-El

II , 545 U.S. at 244 . Moreover, while facially race-neutral, this reason becomes less so

when Pickett is compared to other jurors who were not struck. Juror No. 2

was unemployed; Juror No. 26 had been terminated and then sued his employer to

enforce an employment contract; Juror No. 4's husband had been laid off

repeatedly from construction jobs, and she stated that in the last two years he

had experienced “really bad” problems in finding new employment; Juror No. 10

had been terminated. It is difficult to imagine that Pickett, who was employed

and who did not respond affirmatively when Fisk inquired whether anyone had been

terminated or when Fisk asked the panel whether, if they were involved in

industries in which there were layoffs, they could not be fair and impartial,

was less desirable than these jurors because of his musical career. Instead, it

seems that the strike was “based on a group bias where the group trait is not

shown to apply to the challenged juror specifically,” Whitsey v. State , 796 S.W.2d 707 , 716 (Tex. Crim . App. 1989) (holding that prosecutor’s strike of black

female juror because she was a teacher and teachers were “liberal,” when nothing

in the record bore out that characterization, was “insufficient as a matter of

law”), and suggests pretext.

Another proffered reason for striking Pickett was that he reacted

strongly when asked about the “n-word.” The anticipated trial evidence included

testimony that Davis’s supervisor had referred to him using

“the n-word.” Davis’s counsel mentioned this during voir dire, and Fisk’s attorney conducted follow-up

questioning on the matter. Fisk explained its strikes of three African-American

jurors (Pickett, Euline Edmund, and Mary Harts) in

part based on their verbal and nonverbal responses to the n-word questioning.

Counsel stated that Pickett was “one of the people who appeared to us to have

the strongest reaction to this whole ‘N’ word issue”; Edmund “[o]f all of the

people on the panel, . . . appeared to us to have the strongest feelings on the

subject of the ‘N’ word”; and Harts was “also one of the jurors who had the

strongest reactions to the subject use of the ‘N’ word.”

But an examination of the voir dire on the

n-word issue shows that Pickett, Edmund, and Harts were no more offended by the

n-word than Martha Ann Stehling , Clara Reynaga , and John David Vinzant ,

three nonblack venire members who were not struck and

who were seated on the jury. [12] While Edmund stated that she had “a real

hard time with” Davis’s supervisor’s use of the n-word, Reynaga immediately agreed, stating “I also feel the same

way, and we all know that words are preceded by thoughts. So even before he said

it, those thoughts were there.” The remainder of Fisk’s questioning on the

n-word follows:

Fisk

counsel: Okay. Anybody else who feels that way? Juror No. 5?

Pickett:

Well, I have to qualify that. Depending on what the evidence was, just

because he said that didn’t necessarily mean that was the reason he was

terminated; but the fact that he said that is a real big problem.

Fisk

counsel: But the fact is you don’t like it, right? If he said

it, you don’t like it?

Pickett:

It’s not whether or not I like him or not.

Fisk

counsel: No, I’m not talking about him, it. You don’t like

it, that he said it, right? Is that what you’re saying?

Pickett:

Correct.

Fisk

counsel: But you would say that that’s a different question

from how the decision was made and why the Plaintiff was discharged, and you

would listen to that evidence?

Pickett:

If the evidence pointed to that, it is possible to make that kind of a

decision.

Fisk

counsel: And Juror No. 3., Ms. Reynaga , do you agree with that?

Reynaga :

Yes.

Fisk

counsel: Anybody else who feels like they couldn’t, based on

what they’ve heard so far, listen to the Court’s instructions, follow the

Court’s instructions? Juror No. 26, you were raising your card there?

Vinzant :

I mean, I agree. I can listen and follow the Court’s instructions, but

the way you’ve been saying it, that the company has a problem with people using

that word, to me that’s a cultural management company problem. I don’t know that

people’s roles — and I’m sure that will come out in evidence. But if it’s a

systemic cultural problem with the company, am I going to be predisposed one way

or the other? I am.

Fisk

counsel: If you find out that that is a cultural systemic

problem in the company and that there are a bunch of people besides Mr. Blanton

who are alleged to have said that and you hear that evidence, that’s going to be

important evidence to you, is what you’re saying?

Vinzant :

Extremely important.

Fisk

counsel: Number one, y’all know I’m not and neither is

counsel for the Plaintiff, giving you the evidence in this case. You’ll hear the

evidence from the witness stand. Everybody understands that, right? And then,

number two, I think it’s significant at this point for me to say that Mr.

Blanton doesn’t work for this company anymore. He’s going to testify. But I want

to get it back on track here a second, okay, because I said this a minute ago: I

don’t think whether — now, listen to me here. I’m going to remind you of this:

In closing arguments I’ll say this again. I don’t think whether Mr. Blanton is a

raving racist or not — and I don’t think he is — but if he is, I don’t think it

has anything to do with the discharge decision in this case. And that’s because

I think when you hear all of the evidence — in fact, things I’m not sure Ms.

Jain even knows right now — you’ll realize when you hear how the decision was

made and now just how, who made the decision, then you’re going to realize we’re

in a smoke screen here. Okay. Juror No. 25?

Stehling :

I think you’ve already prejudiced — you’re making us question the

credibility of your witness already.

Fisk

counsel: You’re talking about Mr. Blanton?

Stehling :

Yes.

Fisk

counsel: Well, that’s a fair comment. Why do you feel that

way?

Stehling :

Because you’ve already presented this information about what’s happened.

It’s inappropriate.

Fisk

counsel: It was inappropriate to say that he said the “N”

word?

Stehling :

Well, we’re going to have to keep hearing about someone using the “N”

word.

Fisk

counsel: Well, actually what I believe the testimony was

was that after the discharge decision was made Mr.

Blanton was having a conversation with someone where he said basically, “We’re

going to do this. We’re going to have to be careful how we do it because he’s an

‘N’ person.” Now, that’s based on testimony that was given.

Stehling :

I don’t think you made a good impression of the credibility of your

witness.

Fisk struck the three African-American venire members who participated in

this colloquy but not their white and Hispanic counterparts, who responded at

least as strongly to the n-word issue. Fisk’s stated reasons for the strikes

included the venire members’ reactions to the n-word issue. “The fact that [a

given] reason also applied to these other panel members, most of them white,

none of them struck, is evidence of pretext.” [13] Miller-El II , 545 U.S. at 248 ;

see also United States v. Huey , 76 F.3d 638, 641-42 (5th Cir. 1996)

(holding that defendant’s assumption that minority jurors would be biased after

hearing racial slurs on tape recordings was “nothing more than an assumption of

partiality based on race and a form of racial stereotyping, both of which have

been repeatedly condemned”; excluding minority venire members on that basis

violated Batson ). Pickett’s “strong reaction” in the form of his verbal

responses to Fisk’s questions was no stronger than some of his nonblack counterparts, and Fisk’s strike on this basis

suggests pretext.

The final reason given for striking Pickett was that he laughed when

Juror 29 said he had African American friends. Davis disagrees that Pickett’s laughter was

based on that statement but instead asserts that it was in response to Juror

29's joke about a friend who was more successful than he. Even assuming Fisk’s

explanation was correct, Fisk also claimed to have challenged two or three other

venire members for the same reason. But, in fact, Fisk cited laughter as a basis

for striking only one other venire member, also African American. And Fisk never

questioned Pickett about his laughter, another indication that this reason may

be pretextual , as more fully explained above. While

Pickett’s laughter appears at first blush to be a plausible, race-neutral reason

for striking him, when we examine the totality of the circumstances (including

Fisk’s strike of Daigle), [14] we cannot agree that Pickett’s race was

irrelevant. Powers , 813 S.W.2d at 491 (holding that equal protection is

denied if “race is a factor” in a peremptory challenge).

In concluding that Fisk’s reasons for striking Pickett were non- pretextual , the court of appeals erroneously relied on

Pickett’s statements during voir dire that he had been

the victim of racial discrimination. 187 S.W.3d at

582-83 . While Pickett did make such an assertion, Fisk did not cite

Pickett’s experience with discrimination as a basis for the strike. Thus, the

court of appeals should not have relied upon these statements as supporting

Pickett’s strike. See Miller-El II , 545 U.S. at 252 (lawyer must “state

his reasons as best he can and stand or fall on the plausibility of the reasons

he gives”; if stated reason does not hold up, it is immaterial that “an appeals

court can imagine a reason that might not have shown up as false”). In sum, none

of Fisk’s reasons for striking Pickett can “reasonably be accepted.”

Miller-El II , 545 U.S. at 247 .

VI

Conclusion

Despite its laudable goal, Batson has been difficult to enforce.

In Miller-El II , decided a year after this case was tried, the Supreme

Court noted that Batson ’s “individualized focus came with a weakness of

its own owing to its very emphasis on the particular reasons a prosecutor might

give.” Miller-El II , 545 U.S. at 239-40 .

If any

facially neutral reason sufficed to answer a Batson challenge, then

Batson would not amount to much more than Swain . Some stated

reasons are false, and although some false reasons are shown up within the four

corners of a given case, sometimes a court may not be sure unless it looks

beyond the case at hand. Hence, Batson ’s explanation

that a defendant may rely on ‘all relevant circumstances’ to raise an inference

of purposeful discrimination.

Id . at

240 (quoting Batson , 476 U.S. at 96-97 ). Miller-El

II ’s

“totality of the circumstances” analysis places a heavy burden on trial courts,

and we acknowledge that some of the factors that Court examined—most especially

the comparative juror analysis—are perhaps more easily reviewed on appeal, with

the benefit of a transcript from which such comparisons may most accurately be

drawn. But without Miller-El II ’s searching inquiry into the basis

of the challenged strikes, Batson would become a “mere exercise in

thinking up any rational basis.” Id . at

25.

Unlike Miller-El II , there is no evidence here of a historical

pattern of excluding blacks from juries. But Miller-El II made it clear

that the five factors it considered were neither exhaustive nor mandatory;

courts must consider “all relevant circumstances” when reviewing Batson

challenges. Miller-El II , 545 U.S. at 240 (quoting Batson , 476

U.S. at 96-97 ); see also Snyder , 552 U.S. at ___ (“In Miller-El v.

Dretke , the Court made it clear that in

considering a Batson objection, or in reviewing a ruling claimed to be

Batson error, all of the circumstances . . . must be consulted.”). And

here, the relevant circumstances include many of those pertinent in

Miller-El II , including a statistical disparity and unequal

treatment of comparable jurors.

We acknowledge that peremptory strikes, often based on instinct rather

than reason, can be difficult to justify. Miller-El II , 545

U.S. at 252 . The trial lawyer’s

failure to do so here does not suggest personal racial animosity on his part.

See, e.g., Antony Page, Batson ’s Blind Spot:

Unconscious Stereotyping and the Peremptory Challenge , 85 B.U. L. Rev . 155, 160-61, 184 (2005)

(noting that “research has compellingly demonstrated the existence of

unconscious race- and gender-based stereotyping”). A zealous advocate will seek

jurors favorably inclined to his client’s position, and race may even serve as a

rough proxy for partiality. See, e.g., Batson v. Kentucky , 476

U.S. 79, 139 (1986) (Rehnquist, J.,

dissenting) (noting that factors like race are often a “proxy” for potential

juror bias). But whatever the strategic advantages of that practice, the

Constitution forbids it.

The concurrence suggests that we ascribe sinister motives to Fisk’s

counsel. The question presented, however, is not whether this particular

advocate harbors ill will, but whether the record explains, on neutral grounds,

a statistically significant exclusion of black jurors. It is not enough, under

the Supreme Court precedent we examine here, that the lawyer be pure of heart.

We assume that he is. Our holding depends not on the personal sentiments of the

advocate but on the state of the record. Miller-El II and Snyder

emphasize that Batson ’s promise cannot be fulfilled if its requirements

may be satisfied merely by ticking off a race-neutral explanation from a

checklist.

After examining the totality of the circumstances, we conclude that race

explains Fisk’s strikes of Daigle and Pickett better than any other reason, and

the trial court abused its discretion in failing to sustain Davis’s Batson

challenge. Miller-El II , 545 U.S. at 266 ; Powers , 813 S.W.2d at 491 . We reverse in part [15] the court of appeals’ judgment and

remand the case to the trial court for a new trial. Tex. R. App. P. 60.2(d).

___________________________

Wallace B. Jefferson

Chief Justice

OPINION

DELIVERED: September 26, 2008

[1]

Davis sued Fisk

Electric Company, Fisk Technologies, and Fisk Management Inc. For simplicity, we

refer to respondents simply as “Fisk.”

[2]

In Edmonson v. Leesville Concrete Co ., Inc. , 500

U.S. 614, 616 (1991), the Supreme

Court extended Batson ’s prohibition on race-based strikes to civil cases.

In Powers v. Palacios , 813 S.W.2d 489, 491 (Tex. 1991), we followed

Edmonson and held that “equal protection is denied when race is a factor

in counsel's exercise of a peremptory challenge to a prospective juror.” For

ease of reference, we will refer to the challenge raised in this case as simply

a Batson challenge.

[3]

See Elaine A. Carlson, Batson , J.E.B. , and Beyond: The

Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection

Process , 46 Baylor L. Rev .

947, 981 (1994).

[4]

As we have noted:

At the first step of the process, the opponent of the

peremptory challenge must establish a prima facie case of racial discrimination.

. . . During the second step of the process, the burden shifts to the party who

has exercised the strike to come forward with a race-neutral explanation. . . .

It is not until the third step that the persuasiveness of the justification for

the challenge becomes relevant. At the third step of the process, the trial

court must determine if the party challenging the strike has proven purposeful

racial discrimination, and the trial court may believe or not believe the

explanation offered by the party who exercised the peremptory challenge. It is

at this stage that implausible justifications for striking potential jurors “may

(and probably will) be found [by the trial court] to be pretexts for purposeful

discrimination.” Nevertheless, the Supreme Court has emphasized that “the

ultimate burden of persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the [peremptory] strike.”

Goode , 943 S.W.2d at 445-46 (citations

omitted).

[5]

Fisk used its sixth strike to remove a venire member of Asian descent. Davis initially included

this juror within the Batson challenge but later abandoned the claim. We

note, however, that Davis could have challenged this juror’s

exclusion as well, even though he and the venire member were not the same race.

Powers v. Ohio , 499 U.S. 400, 402 (1991) (holding that a

defendant may object to race-based peremptory challenges whether or not he and

the excluded juror share the same race).

[6]

The concurrence’s focus on Davis ’s strikes misses the mark,

as they do not answer whether Fisk’s strikes were improperly based on

race. Cf. Miller-El II , 545 U.S. at 255 n.14 (criticizing the

Fifth Circuit for declining to give much weight to the evidence of racially

motivated jury shuffles because Miller-El had shuffled the jury five times and

prosecutors shuffled only twice: “Miller-El’s shuffles are flatly irrelevant to

whether prosecutors’ shuffles revealed a desire to exclude blacks.”).

[7]

The entire exchange consisted of the following:

Davis counsel: Does anybody

here feel that punitive damages do what they’re meant to do, punish the person

and stop the person from doing the same thing again? That’s what punitive

damages are. Do people think that in certain cases punitive damages should be

awarded? Do you think that punitive damages is

something that always compensates a victim? You feel that? Let’s have you hold

up your card, and I want everybody who feels that punitive damages always

compensates a victim. Juror No. 26 [ Vinzant ], 13 [Parker], 7 [Johnson].

Donaldson:

I have to qualify

that.

Prescott :

I’ll qualify my answer.

Davis counsel: I’d like your

qualifications.

Donaldson:

It depends on the

amount.

Davis counsel: I can’t see. Can you

hold it up, please? 47? My eyes are getting bad with old age. 44. All right.

Juror No. 35, what’s your qualification?

Donaldson:

I’m just saying that there is a dollar limit. I mean, we’re talking reasonable

sums of money here.

Davis counsel: Yes.

Donaldson:

That’s fine. If we’re

talking about $80 million, okay, that’s absurd.

Davis counsel: Would the

reasonableness of the sum, would you agree with me, depends upon the

facts?

Donaldson:

Yes.

Davis counsel: And y’all understand

that with every question I’m asking you the judge is going to give you the

instructions very specifically on every aspect of the question that I’ve asked

in this case; and all you’ll have to do is follow the law, right? Juror No. 26,

will you have a problem with awarding punitive damages?

Vinzant : No, but I think the amount of punitive damages

required to punish a company is often not the same as should be awarded to the

individual. It’s a different scale.

Davis counsel: Juror No. 13, you’re

opposed to punitive damages?

Parker:

Yes.

Davis counsel: Juror No. 26? I’ve

already talked to you, sorry. 47? What was your opinion on the punitive damage

question? You said that they overcompensated—

Prescott :

If it’s an absurd amount, it would be

overcompensated.

Davis counsel: And Juror No. 44, you

said you would qualify your answer too, correct? And does the qualification

depend on the facts, depends on the amount?

Prescott :

Yes.

[8]

The concurrence’s statement that “no one denied at trial, or denies even today,

that the struck jurors reacted just as Fisk’s counsel said they did” unfairly

narrows Davis’s

objection that the nonverbal conduct was “not supported by the

record.”

[9]

Some research suggests that over 94% of Batson complaints occur in

criminal cases. See Kenneth J. Melilli , Batson in

Practice: What We Have Learned About Batson and Peremptory

Challenges , 71 Notre Dame L. Rev.

447 , 458 (1995).

[10] In a later case, the Court of Criminal

Appeals found the following “demeanor” explanation to be sufficiently specific

to survive a Batson challenge:

Prosecutor:

Mr. Martinez, quite frankly, Judge, the notes I put down when I got

through talking to him was he has poor facial expressions. He's very

inattentive, looks unhappy to be here, body language, posture was such that just

made him feel he was uncomfortable. The only way I can characterize it is he had

a very long, unhappy face, mouth down-turned at the corners, eyes downcast. And

he was, quite frankly, that way not only to the State, but when being addressed

by Defense Counsel.

My feelings were is that [sic] he just wasn't -- didn't

want to be here, wasn't happy to be here, and I just felt like he was an unknown

quantity rather than risk having an unhappy person on the jury or somebody that

didn't respond readily to questions that were asked, would be to strike him,

Judge.

Yarborough v. State , 947 S.W.2d 892, 893, 896 (Tex. Crim . App. 1997).

[11] The court of appeals noted this “completely

new” reason but did not reach the question of whether Fisk could rely on that

reason, as that court concluded that the reasons advanced at trial justified the

strike. 187 S.W.3d at 585 n.3 .

[12] Indeed, it would be surprising if venire

members did not react to what is, particularly in this day and age, a

universally offensive epithet.

[13] This is nowhere more obvious than in Fisk’s

strike of Harts, based in part on Fisk’s claim that she was “one of the jurors

who had the strongest reactions to the subject of the use of the ‘N’ word.” In

fact, Harts never verbally responded to any of the questions regarding the

n-word, including Fisk’s direct questions about whether Blanton’s use of the

n-word would impact the venire’s consideration of the evidence. To the extent

Fisk is relying on nonverbal conduct, merely stating that Harts had a strong

“reaction” to the n-word is insufficient, for the reasons outlined above.

[14] S ee Snyder , 552 U.S. at ___

(noting that “all of the circumstances that bear upon the issue of racial

animosity must be consulted,” and “if there [are] persisting doubts as to the

outcome, a court would be required to consider the strike of [one challenged

juror] for the bearing it might have upon the strike of [another]”)

[15] In the trial court, Davis unsuccessfully moved

for sanctions against Fisk, and the court of appeals affirmed the trial court’s

order. Davis

does not challenge that portion of the court of appeals’ judgment.