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• Title: Angelo Dewell Branch v. State Texas
• Author : Supreme Court Of Utah
• Release Date : January 12, 1989
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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Point of Error No. One alleges an impermissible use of peremptory challenges by the State in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The issue was properly preserved in the trial court by timely objection and hearing. The Appellant is a black male. There were six (perhaps seven) black panel members who were within range of potential service on the petit jury. All were subjected to peremptory challenge by the State. The trial judge ruled that the defense had established a prima facie case under Batson and conducted a hearing at which the prosecutor presented neutral explanations of his strikes. The judge accepted the explanations and overruled the defense objection. We have examined the evidence in a light most favorable to the judges ruling to determine if there was sufficient evidence upon which he could base his conclusion that the States strikes were not racially motivated. Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App. 1988). We note that both the threshold and ultimate burdens of proof are upon the defendant to demonstrate a Batson violation. We are mindful that apparently neutral explanations are not to be automatically accepted at face value. The opinion in Keeton provides a variety of criteria for evaluating the credibility of such explanations. Of primary concern to any trial or appellate court in these situations are those explanations which are least susceptible to objective evaluation and which are, therefore, most ripe for abuse and subterfuge. Within this category are "bad vibration" explanations, attitudinal evaluations based in whole or in part upon non-verbal behavior which the trial judge may or may not observe, but which may rarely be confirmed or refuted in an appellate record. At the same time, we point out that anyone who has ever participated in jury selection knows full well the significant extent to which intangibles and non-verbal behavior contribute to the attorneys decisions. The process falls somewhere between science and superstition and it is a rare jury which is selected without the influence of the lawyers highly personalized notions of good and bad luck, their "seat of the pants" psychological insights, and their favorable and unfavorable anecdotal experiences. Not every strike based on such explanation can be summarily disbelieved; they simply merit closer scrutiny under the criteria suggested in Keeton. Even more than the trial judge who is at least an eye and ear witness to the process, the appellate court is relegated to watching for tell-tale patterns of explanation which dove-tail suspiciously with an objective pattern of strikes. For example, greater suspicion is cast when all six minority panel members are struck and the only explanations offered are of the intangible, "bad vibration" type. On the other hand, there is less justification for discrediting the explanations when objective rationales are offered in a majority of the strikes and only isolated resort is had to intangible explanations. This is particularly true when, under Keeton, the same balance is reflected in the treatment of the non-minority panel members. Each case, of course, must be evaluated on its own record, and it is not the direct credibility assessment of the appellate court which prevails. The question on appeal is the sufficiency of the evidence to support the trial judges credibility assessment.

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