United States v. Enrique Alvarado-Sandoval

BRIGHT, Senior Circuit Judge,

concurring separately.

I concur in the opinion and add these comments.

The record is just inadequate for me to say the district judge erred in his rulings. Nevertheless, to ensure the premise of Batson and its progeny retains its real meaning— that prospective jurors are not stricken because of their race — I believe we should not simply accept as fact any old excuse offered by a “striking” attorney.

In this ease, the Government’s strike of the black venireperson because she works as a cosmetologist reflects, at best, a flimsy reason, and, in my opinion, may have served to mask some racial animus. But, as noted in the opinion, the district judge accepted this explanation, without challenge from the defendant.

I believe district judges should exercise care in ascertaining the true facts and mo*494tives relating to a questioned peremptory-strike.

How can this be done?

In many instances, a trial judge seating minority venirepersons can and should anticipate peremptory strikes. I suggest in those circumstances the court provide the lawyers an opportunity to demonstrate the validity of prospective peremptory strikes by permitting the lawyers to question the venire panel, as provided under Fed.R.Crim.P. 24 (criminal prosecution) and Fed.R.Civ.P. 47a (civil case). Where the questioning discloses no valid reason for the attorney to doubt the ability, integrity and fairness of a juror, a subsequent peremptory strike may be considered pretextual unless the “striking” lawyer can otherwise articulate a sound nonracial reason for excusing the minority person. Permitting attorneys ample opportunity to question prospective jurors might deter lawyers from making strikes on thin grounds that mask racial motivations.