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Sep 21, 2023

Texas Supreme Court Addresses Consequences of Admitted Race-Based Jury Selection

By: Michelle Robberson

In May of this year, the Texas Supreme Court addressed what it appeared to acknowledge was an issue of first impression:  whether the parties were entitled to a new trial because counsel stated a racial preference in jury selection, exercised the peremptory strikes of potential jurors consistent with that preference, and the trial court did not remedy the matter.  The Court answered “yes” in United Rentals North America, Inc. v. Evans, 668 S.W.3d 627 (Tex. 2023). 

Parties in jury trials are permitted to select members of the jury through questioning and exercise of “strikes” as to certain jurors.  Parties typically exercise challenges for cause, which are based on statutory reasons for disqualification (e.g., not speaking English, not living in the county, etc.), and peremptory challenges, which are made to strike a potential juror without assigning a reason.

The United States Supreme Court has for nearly 40 years recognized that a criminal defendant is denied equal protection under the United States Constitution if a prosecutor uses peremptory challenges to exclude members of the jury panel solely on the basis that their race is the same as the defendant’s. A challenge to racially motivated peremptory strikes is known as a “Batson challenge,” after the seminal case, Batson v. Kentucky.  A few years later, the Supreme Court decided that “race-based exclusion” of civil jurors violates the equal protection rights of the excluded juror.  The Texas Supreme Court followed the high court’s lead, extending restrictions on “the unconstitutional use of peremptory challenges in criminal actions to civil litigation.”

In the Evans case, the issue before the Texas Supreme Court was the “exceedingly rare” situation where counsel for one of the parties made an on-the-record statement of racial preference for potential jurors.  During the voir dire (i.e., the process of choosing jurors), the parties made competing Batson challenges.  During those arguments, counsel for the plaintiffs offered the following as a reason to believe that the defendant used a strike on a black female because of her race: “We know from our focus groups that the African-American female is the most favorable juror for this case for whatever reason.”

In the opinion, the Court stated it did not “impugn the integrity of the counsel involved in this case, who no doubt relied on conventional sources of insight into jury-selection strategy, such as the advice of jury consultants or feedback from focus groups.”  But, the Court said, consulting these sources for advice on the color of an ideal juror “cannot help but undermine our judicial system’s obligation to provide race-neutral proceedings.”  Jury selection “must be conducted without regard to race, to the greatest extent possible.”

In a 1991 opinion, Powers v. Palacios, the Texas Supreme Court had held that an admission on the record of race-based motivation in jury selection established that counsel had exercised a peremptory challenge discriminatorily.  But, the Court said, “it is not the mere expression of a racial preference in jury selection, standing alone, that requires reversal.”  Rather, it is “the actual strike of a juror on account of race.”  Thus, even when a party announces a racial preference, if the peremptory strikes are not consistent with the announced preference, the strikes will not be held unlawful.  

Here, however, the peremptory strikes were consistent with the plaintiffs’ counsel’s announced preference for African-American female jurors.  Plaintiffs’ counsel struck four white males and one Hispanic male, using five of his peremptory challenges.  The jury selected included four black women, one Asian woman, two Hispanic women, five Hispanic men, and no white jurors.

The Court said, “Judges bear the ultimate responsibility for administering race-neutral proceedings, but if our system of justice is ever to rid itself entirely of racial discrimination, lawyers and jury consultants must do their part as well.”  In this case, the trial court judge had an opportunity to remedy the jury composition issues but did not do so.

The Court concluded that the expression on the record of a race-based preference for jurors, coupled with peremptory strikes consistent with the stated preference and the trial court’s failure to remedy the situation, compelled the conclusion that “racial considerations impermissibly tainted the selection of this jury.”  Accordingly, “a new trial is required.”

The defendant, United Rentals, had raised several alternative arguments that, if accepted, would result in rendition of a take-nothing judgment in its favor, rather than a new trial.  The Court addressed and rejected those arguments, including arguments relating to whether United Rentals owed a legal duty to the decedent (it did) and to whether the evidence submitted at trial was legally sufficient to support the jury’s answers (it was). 

On the one issue decided in favor of United Rentals, the Court dismissed the survival claim brought by the decedent’s estate on grounds that the jury could not infer, from the plaintiffs’ expert’s “noncommittal testimony,” that the decedent actually was conscious after impact.  Therefore, the evidence supporting damages for post-impact pain and suffering was legally insufficient, and the Court rendered a take-nothing judgment on that claim.