Batson challenge in Kentucky

2026“Challenging prospective jurors on the basis of race violates the Equal Protection Clause.” Washington, 34 S.W.3d at 378–79. “[A] Batson violation is structural error not subject to harmless error review.” Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), (abrogated on other grounds by, Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).

2026“The trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court, and so will not be disturbed unless clearly erroneous.” Id. (quoting Washington, 34 S.W.3d at 380 ) (internal quotation marks omitted). [T]he trial court has the duty to evaluate the credibility of the preferred reasons and determine if the defendant has established purposeful discrimination.

2024Since ruling on a Batson challenge “requires” the trial court “to take [the] credibility and demeanor of the attorneys into account, the trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman, 241 S.W.3d at 804 (footnotes and citations omitted).

2024Since ruling on a Batson challenge “requires” the trial court “to take [the] credibility and demeanor of the attorneys into account, the trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman, 241 S.W.3d at 804 (footnotes and citations omitted).

2021“Because the trial court’s decision on this point requires it to assess the credibility and demeanor of the attorneys before it, the trial court’s ultimate decision on a Batson challenge is like a finding of fact that must be given great deference by an appellate court.” Commonwealth v. Coker, 241 S.W.3d 305 , 308 -5- (Ky. 2007).

2021“Because the trial court’s decision on this point requires it to assess the credibility and demeanor of the attorneys before it, the trial court’s ultimate decision on a Batson challenge is like a finding of fact that must be given great deference by an appellate court.” Commonwealth v. Coker, 241 S.W.3d 305 , 308 -5- (Ky. 2007).

2022In considering Snell’s argument, the trial court determined that, “short [of] some actual Batson challenge[7] or other deficiency for the Court to examine, there is no presumptive bias based on race alone within a jury.” (Record (R.) at 341.) The trial court quoted both our Supreme Court and the Supreme Court of the United States in so ruling: “[d]efendants are not entitled to a jury of any particular composition, . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be r

2021When engaging in a Batson analysis, “the ultimate burden of showing unlawful discrimination rests with the challenger.” Rodgers v. Commonwealth, 285 S.W.3d 740, 758 (Ky. 2009) (citation omitted).

2021The third step of the Batson test is where “the persuasiveness of the justification becomes relevant.” Purkett v. Elem, 514 U.S. 765, 768 , 115 S. Ct. 1769 , 131 L.

2021The third step of the Batson test is where “the persuasiveness of the justification becomes relevant.” Purkett v. Elem, 514 U.S. 765, 768 , 115 S. Ct. 1769 , 131 L.

2026We note that “a Batson violation is a structural error not subject to harmless error review.” Johnson, 450 S.W.3d at 705 .

2026We note that “a Batson violation is a structural error not subject to harmless error review.” Johnson, 450 S.W.3d at 705 .

2024See Mash, 376 S.W.3d at 557 (listing as a permissible factor to support a trial court’s denial of a Batson challenge the fact that “the prosecutor had appeared frequently in front of the trial judge, and the judge believed that he had no history or pattern of excluding African Americans from juries.”).2 2 Williams v. Commonwealth, No. 2019-CA-0533-MR, 2020 WL 5868322 , at *6 (Ky. App. Oct. 2, 2020), relied upon by Harris, is materially distinguishable.

2024See Mash, 376 S.W.3d at 557 (listing as a permissible factor to support a trial court’s denial of a Batson challenge the fact that “the prosecutor had appeared frequently in front of the trial judge, and the judge believed that he had no history or pattern of excluding African Americans from juries.”).2 2 Williams v. Commonwealth, No. 2019-CA-0533-MR, 2020 WL 5868322 , at *6 (Ky. App. Oct. 2, 2020), relied upon by Harris, is materially distinguishable.

2021“On appellate review, a trial court’s denial of a Batson challenge will not be reversed unless clearly erroneous.” Id. (citations omitted).

2021“On appellate review, a trial court’s denial of a Batson challenge will not be reversed unless clearly erroneous.” Id. (citations omitted).

2021Thomas v. -9- Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004) (citing Purkett v. Elem, 514 U.S. 765 , 115 S. Ct. 1769 , 131 L.

2021Thomas v. -9- Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004) (citing Purkett v. Elem, 514 U.S. 765 , 115 S. Ct. 1769 , 131 L.

2024It is named for Batson v. Kentucky, 476 U.S. 79 , 106 S. Ct. 1712 (1986), a criminal case in which the prosecution struck potential jurors on the basis of race.” BLACK’S LAW DICTIONARY (11th ed. 2019) (defining Batson challenge as a specialized term within the broader definition of challenge). -2- Stilt under oath, and he clarified that the juror shared a name with a former Jail inmate, not a former Jail employee.

2024It is named for Batson v. Kentucky, 476 U.S. 79 , 106 S. Ct. 1712 (1986), a criminal case in which the prosecution struck potential jurors on the basis of race.” BLACK’S LAW DICTIONARY (11th ed. 2019) (defining Batson challenge as a specialized term within the broader definition of challenge). -2- Stilt under oath, and he clarified that the juror shared a name with a former Jail inmate, not a former Jail employee.

2019In the third step of the Batson analysis, the burden shifts back to the party challenging the strike to prove “purposeful discrimination.” Hernandez, 500 U.S. at 359 .

2019In the third step of the Batson analysis, the burden shifts back to the party challenging the strike to prove “purposeful discrimination.” Hernandez, 500 U.S. at 359 .

2006Simmons v. Commonwealth, 746 S.W.2d 393 (Ky.1988) ( Batson challenge is untimely where it is not raised before the swearing of the jury and the discharge of the remainder of the panel); Cf. Washington v. Commonwealth, 34 S.W.3d 376, 378 (Ky.2000) (preserving error where Commonwealth's failure to inform the trial court that it used a preemptory strike on a black juror denied defendant his opportunity to raise a timely Batson objection).

2006Simmons v. Commonwealth, 746 S.W.2d 393 (Ky.1988) ( Batson challenge is untimely where it is not raised before the swearing of the jury and the discharge of the remainder of the panel); Cf. Washington v. Commonwealth, 34 S.W.3d 376, 378 (Ky.2000) (preserving error where Commonwealth's failure to inform the trial court that it used a preemptory strike on a black juror denied defendant his opportunity to raise a timely Batson objection).

2026Ed. 2d 411 (1991), ‘modified the Batson prima facie case to allow a defendant to raise a Batson violation even if he is not of the same race as the excluded juror.’” Id. (quoting United States v. Odeneal, 517 F.3d 406, 419 (6th Cir. 2008)).

2026Ed. 2d 411 (1991), ‘modified the Batson prima facie case to allow a defendant to raise a Batson violation even if he is not of the same race as the excluded juror.’” Id. (quoting United States v. Odeneal, 517 F.3d 406, 419 (6th Cir. 2008)).

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2017The ^evaluation of the prosecutor’s state of mind, as well as the proffered reasons for the peremptory challenge, , lies ‘peculiarly within a trial judge’s province.’ ” Washington, 34 S.W.3d at 379 (quoting Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992)). “[T]he trial, court’s ultimate decision on a Batson challenge is like.a finding of fact that must be given great deference by an appellate court.” Coker, 241 S.W.3d at 308 .

2017The ^evaluation of the prosecutor’s state of mind, as well as the proffered reasons for the peremptory challenge, , lies ‘peculiarly within a trial judge’s province.’ ” Washington, 34 S.W.3d at 379 (quoting Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992)). “[T]he trial, court’s ultimate decision on a Batson challenge is like.a finding of fact that must be given great deference by an appellate court.” Coker, 241 S.W.3d at 308 .

2026“Challenging prospective jurors on the basis of race violates the Equal Protection Clause.” Washington, 34 S.W.3d at 378–79. “[A] Batson violation is structural error not subject to harmless error review.” Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), (abrogated on other grounds by, Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).

2021Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. -6- United States v. Atkins, 843 F.3d 625, 631 (6th Cir. 2016) (citations and internal quotation marks omitted); Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012). “[A] Batson violation is structural error not subject to harmless error review.” Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).

2021See Mitchell v. LaRose, 802 F. App’x 957 , 961 (6th Cir. 2020)10 (“[A] clear rejection of a Batson motion without explicit findings violates no clearly established federal law.”); compare Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir. 1999) (holding it was error for the trial court to deny a Batson motion without explicitly adjudicating the credibility of the non-moving party’s race neutral explanations for its peremptory strikes) with McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir. 2003) (“Although reviewing courts might have preferred the trial court to provide express reasons for each credi

2021See Mitchell v. LaRose, 802 F. App’x 957 , 961 (6th Cir. 2020)10 (“[A] clear rejection of a Batson motion without explicit findings violates no clearly established federal law.”); compare Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir. 1999) (holding it was error for the trial court to deny a Batson motion without explicitly adjudicating the credibility of the non-moving party’s race neutral explanations for its peremptory strikes) with McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir. 2003) (“Although reviewing courts might have preferred the trial court to provide express reasons for each credi

2023“A trial court’s denial of a Batson challenge is reviewed for clear error.” Abukar v. Commonwealth, 530 S.W.3d 915, 917 (Ky. App. 2017) (citing Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000)).

2023“A trial court’s denial of a Batson challenge is reviewed for clear error.” Abukar v. Commonwealth, 530 S.W.3d 915, 917 (Ky. App. 2017) (citing Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000)).

2021United States v. Mahbub, 818 F.3d 213, 224 (6th Cir. 2016).

2021United States v. Mahbub, 818 F.3d 213, 224 (6th Cir. 2016).

2021As to whether the Clapps established a prima facie case under the first Batson step, we recognize that there are several elements that must be proven before the burden shifts to the other party: To prevail on a Batson claim, the defendant must first “make a prima facie showing of discriminatory use of peremptory challenges.” United States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999).

2021As to whether the Clapps established a prima facie case under the first Batson step, we recognize that there are several elements that must be proven before the burden shifts to the other party: To prevail on a Batson claim, the defendant must first “make a prima facie showing of discriminatory use of peremptory challenges.” United States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999).

2007See, e.g., United States v. Jackson, 347 F.3d 598, 605-06 (6th Cir.2003) (holding that defendant bears burden to rebut prosecution’s stated reasons for exercising peremptory challenges and that if a defendant fails to rebut the facially race-neutral reasons offered by the prosecution, an appellate court may re *805 view the trial court’s decision to deny the Batson objection only for plain error.).

2007All concur. 20 See, e.g., United States v. Jackson , 347 F.3d 598, 605-06 (6th Cir. 2003) (holding that defendant bears burden to rebut prosecution's stated reasons for exercising peremptory challenges and that if a defendant fails to rebut the facially race-netural reasons offered by the prosecution, an appellate court may review the trial court's decision to deny the Batson objection only for plain error.).

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2019See also Snyder v. Louisiana, 552 U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003); McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v. Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2 “[T]he trial court’s ultimate decision on a Batson challenge is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of course, does not mean that the appellate court is powerless to provide ind

2026A trial court’s [ultimate] ruling on a Batson challenge will not be disturbed unless clearly erroneous.” Ross v. Commonwealth, 455 S.W.3d 899, 906 (Ky. 2015) (internal quotation marks and footnotes omitted).

2026A trial court’s [ultimate] ruling on a Batson challenge will not be disturbed unless clearly erroneous.” Ross v. Commonwealth, 455 S.W.3d 899, 906 (Ky. 2015) (internal quotation marks and footnotes omitted).

2024Some of the factors the trial court should consider are “side-by- side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case” and if a prosecutor misrepresents “the record when defending the strikes during the Batson hearing[.]” Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019).

2021Here, the trial court made no ruling at all—in spite of the fact that “trial judges possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2243 , 204 L.

2026See Bell v. Commonwealth, 473 S.W.2d 820 (Ky. 1971).

2026See Bell v. Commonwealth, 473 S.W.2d 820 (Ky. 1971).