Davis v. Fisk Electric Co.(Tex 2008) Batson challenge should have been sustained, Supremes rule

PICKING AND ELIMINATING JURORS BASED ON RACE

Texas Supreme Court, in a majority opinion written by its first African-American chief justice, orders new trial in employment discrimination suit on finding that peremptory strikes in jury selection were based on (or at least correlated with) race.

Davis v. Fisk Electric Co.,
No. 06-0162 (Tex. Sep. 26, 2008)(Jefferson)(jury selection, failure to sustain Batson challenge to race-based juror strike was error, new trial ordered)

FROM THE OPINION BY WALLACE JEFFERSON, CHIEF JUSTICE:

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.

DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court . 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 wrote a concurring opinion, in which he faults the majority for not using the occasion to abolish peremptory challenges altogether, and concurs with the judgment only.