Batson challenge in Virginia

2024See Batson, 476 U.S. at 87 (“Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial.” (emphasis added)). 4 It is undisputed that Moorman satisfied the first step of a Batson challenge. - 11 - Finally, Moorman argues that the Commonwealth’s race-neutral reason was pretextual for the same reason he argues it was not race-neutral.

2024See Batson, 476 U.S. at 87 (“Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial.” (emphasis added)). 4 It is undisputed that Moorman satisfied the first step of a Batson challenge. - 11 - Finally, Moorman argues that the Commonwealth’s race-neutral reason was pretextual for the same reason he argues it was not race-neutral.

2019Step three of a Batson challenge ends the analysis on the ultimate question - "whether the opponent of the strike has carried his burden of proving purposeful discrimination." Id. ; see Hernandez v. New York , 500 U.S. 352 , 363, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion).

2019Step three of a Batson challenge ends the analysis on the ultimate question - "whether the opponent of the strike has carried his burden of proving purposeful discrimination." Id. ; see Hernandez v. New York , 500 U.S. 352 , 363, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion).

2025The Batson framework “presumes the good faith of prosecutors” and the opponent of the strike “ultimately carries the ‘burden of persuasion’ to ‘prove the existence of purposeful discrimination.’” Id. (quoting Johnson, 545 U.S. at 170-71 ).

2025The Batson framework “presumes the good faith of prosecutors” and the opponent of the strike “ultimately carries the ‘burden of persuasion’ to ‘prove the existence of purposeful discrimination.’” Id. (quoting Johnson, 545 U.S. at 170-71 ).

2007This means the defendant may not rely on “some magic number or percentage to trigger a Batson inquiry.” Jackson v. Commonwealth, 8 Va.App. 176, 182-84 , 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (“The Supreme Court’s mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to the specific numbers or percentages that will constitute or refute a prima facie case.”), cited with approval in Johnson, 259 Va. at 674 , 529 S.E.2d at 781 .

2007This means the defendant may not rely on “some magic number or percentage to trigger a Batson inquiry.” Jackson v. Commonwealth, 8 Va.App. 176, 182-84 , 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (“The Supreme Court’s mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to the specific numbers or percentages that will constitute or refute a prima facie case.”), cited with approval in Johnson, 259 Va. at 674 , 529 S.E.2d at 781 .

2002Trust, 221 Va. 134, 138 , 267 S.E.2d 149, 151 (1980) (citations omitted). 6 Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53 , 443 S.E.2d 414, 416 (1994) (issue not preserved where defendant gave different reason to support Batson claim on brief than at trial). 7 Norman v. Commonwealth, 2 Va. App. 518, 520 , 346 S.E.2d 44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352 , 218 S.E.2d 534, 537 (1975)). - 7 - minimum term shall not be suspended, in whole or in part.

2002Trust, 221 Va. 134, 138 , 267 S.E.2d 149, 151 (1980) (citations omitted). 6 Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53 , 443 S.E.2d 414, 416 (1994) (issue not preserved where defendant gave different reason to support Batson claim on brief than at trial). 7 Norman v. Commonwealth, 2 Va. App. 518, 520 , 346 S.E.2d 44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352 , 218 S.E.2d 534, 537 (1975)). - 7 - minimum term shall not be suspended, in whole or in part.

1997See Parker, 836 S.W.2d at 936 (“The error at issue in a Batson challenge is, of course, the state’s racially discriminatory use of peremptory strikes in violation of both the accused’s and the excluded venirepersons’ equal protection rights.”) (citing Powers v. Ohio, 499 U.S. 400, 409 , 111 S.Ct. 1364, 1369-70 , 113 L.Ed.2d 411 (1991)).

1997See Parker, 836 S.W.2d at 936 (“The error at issue in a Batson challenge is, of course, the state’s racially discriminatory use of peremptory strikes in violation of both the accused’s and the excluded venirepersons’ equal protection rights.”) (citing Powers v. Ohio, 499 U.S. 400, 409 , 111 S.Ct. 1364, 1369-70 , 113 L.Ed.2d 411 (1991)).

2006This Court explained the vital role of the trial court in the Batson challenge process in Jackson v. Commonwealth, 266 Va. 423 , 587 S.E.2d 532 (2003), where we stated: "Whether the defendant has carried his burden of proving purposeful discrimination in the selection of the jury is . . . a matter to be decided by the trial court." Id. at 436 , 587 S.E.2d at 542 .

2006This Court explained the vital role of the trial court in the Batson challenge process in Jackson v. Commonwealth, 266 Va. 423 , 587 S.E.2d 532 (2003), where we stated: "Whether the defendant has carried his burden of proving purposeful discrimination in the selection of the jury is . . . a matter to be decided by the trial court." Id. at 436 , 587 S.E.2d at 542 .

2025“The choice of remedy upon sustaining a Batson challenge lies within the discretion of the trial court.” Lewis v. Commonwealth, 25 Va. App. 745, 750-51 (1997).

2025“The choice of remedy upon sustaining a Batson challenge lies within the discretion of the trial court.” Lewis v. Commonwealth, 25 Va. App. 745, 750-51 (1997).

1996“In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.” If not, the “decisive question” before the trial judge in a Batson analysis becomes “whether counsel’s race-neutral explanation for a peremptory challenge should be believed,” and, “once that has been settled, there seems nothing left to review.” Barksdale, 17 Va.App. at 459-60 , 438 S.E.2d at 763 (citations omitted).

1996“In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.” If not, the “decisive question” before the trial judge in a Batson analysis becomes “whether counsel’s race-neutral explanation for a peremptory challenge should be believed,” and, “once that has been settled, there seems nothing left to review.” Barksdale, 17 Va.App. at 459-60 , 438 S.E.2d at 763 (citations omitted).

2009See Yarbrough v. Commonwealth, 262 Va. 388, 395 , 551 S.E.2d 306, 310 (2001). 4 *399 With regard to the second step in the Batson analysis, the Commonwealth explained it struck Kellam and Alston because those jurors had family members with drug-related charges.

2009See Yarbrough v. Commonwealth, 262 Va. 388, 395 , 551 S.E.2d 306, 310 (2001). 4 *399 With regard to the second step in the Batson analysis, the Commonwealth explained it struck Kellam and Alston because those jurors had family members with drug-related charges.

1997Subsequently, the Batson doctrine was extended to civil litigation, protecting both litigants and venirepersons alike from either race, Georgia v. McCollum, 505 U.S. 42 (1992); Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991); see generally Powers v. Ohio, 499 U.S. 400 (1991), or, gender-based discrimination in jury selection.

1997Subsequently, the Batson doctrine was extended to civil litigation, protecting both litigants and venirepersons alike from either race, Georgia v. McCollum, 505 U.S. 42 (1992); Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991); see generally Powers v. Ohio, 499 U.S. 400 (1991), or, gender-based discrimination in jury selection.

2025“A Batson challenge involves three sequential steps.” Id.

2025“A Batson challenge involves three sequential steps.” Id.

2019Tr. , 221 Va. 134 , 138, 267 S.E.2d 149 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court."); Floyd v. Commonwealth , 219 Va. 575 , 584, 249 S.E.2d 171 (1978) (holding that this Court will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue). 4 See also Ford v. Georgia , 498 U.S. 411 , 423, 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) ("[A] state court may adopt a gene

2019Tr. , 221 Va. 134 , 138, 267 S.E.2d 149 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court."); Floyd v. Commonwealth , 219 Va. 575 , 584, 249 S.E.2d 171 (1978) (holding that this Court will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue). 4 See also Ford v. Georgia , 498 U.S. 411 , 423, 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) ("[A] state court may adopt a gene

2019Tr. , 221 Va. 134 , 138, 267 S.E.2d 149 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court."); Floyd v. Commonwealth , 219 Va. 575 , 584, 249 S.E.2d 171 (1978) (holding that this Court will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue). 4 See also Ford v. Georgia , 498 U.S. 411 , 423, 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) ("[A] state court may adopt a gene

2019Tr. , 221 Va. 134 , 138, 267 S.E.2d 149 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court."); Floyd v. Commonwealth , 219 Va. 575 , 584, 249 S.E.2d 171 (1978) (holding that this Court will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue). 4 See also Ford v. Georgia , 498 U.S. 411 , 423, 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) ("[A] state court may adopt a gene

2018When a party makes a Batson challenge, the Supreme Court of Virginia has stated, “[T]he trial court must consider the basis of the challenges, the reasons proffered for the strikes, and any argument presented that such reasons, even if race-neutral, are pretextual, to determine whether the challenger has met his burden of proving purposeful discrimination in the selection of a jury panel.” Chandler v. Commonwealth, 249 Va. 270, 277 , 455 S.E.2d 219, 223 (1995).

2018When a party makes a Batson challenge, the Supreme Court of Virginia has stated, “[T]he trial court must consider the basis of the challenges, the reasons proffered for the strikes, and any argument presented that such reasons, even if race-neutral, are pretextual, to determine whether the challenger has met his burden of proving purposeful discrimination in the selection of a jury panel.” Chandler v. Commonwealth, 249 Va. 270, 277 , 455 S.E.2d 219, 223 (1995).

2007This means the defendant may not rely on “some magic number or percentage to trigger a Batson inquiry.” Jackson v. Commonwealth, 8 Va.App. 176, 182-84 , 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (“The Supreme Court’s mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to the specific numbers or percentages that will constitute or refute a prima facie case.”), cited with approval in Johnson, 259 Va. at 674 , 529 S.E.2d at 781 .

2007This means the defendant may not rely on “some magic number or percentage to trigger a Batson inquiry.” Jackson v. Commonwealth, 8 Va.App. 176, 182-84 , 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (“The Supreme Court’s mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to the specific numbers or percentages that will constitute or refute a prima facie case.”), cited with approval in Johnson, 259 Va. at 674 , 529 S.E.2d at 781 .

2024Addressing the requisite first step in a Batson challenge, the Supreme Court of Virginia has previously explained: When a defendant makes a Batson challenge to the use of a peremptory strike, he must show that the individual “is a member of a cognizable racial group,” and “make a prima facie showing that the peremptory strike was made on racial grounds.” Mere exclusion of members of a particular race by using peremptory strikes “does not itself establish such a prima facie case under Batson.” To establish a prima facie case, the defendant must also -4- “identify facts and circumstances that ra

2024Addressing the requisite first step in a Batson challenge, the Supreme Court of Virginia has previously explained: When a defendant makes a Batson challenge to the use of a peremptory strike, he must show that the individual “is a member of a cognizable racial group,” and “make a prima facie showing that the peremptory strike was made on racial grounds.” Mere exclusion of members of a particular race by using peremptory strikes “does not itself establish such a prima facie case under Batson.” To establish a prima facie case, the defendant must also -4- “identify facts and circumstances that ra

1997"A neutral explanation . . . means an explanation based on 1 Although the "actual sequence of events at trial" oftentimes "merges the separate procedural steps" in a Batson challenge, such "[c]onsolidation . . . does not invalidate the process as long as . . . [it] does not adversely impact the rights of any party." James v. Commonwealth, 247 Va. 459, 462 , 442 S.E.2d 396, 398 (1994). 2 something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360 (1991).

1997"A neutral explanation . . . means an explanation based on 1 Although the "actual sequence of events at trial" oftentimes "merges the separate procedural steps" in a Batson challenge, such "[c]onsolidation . . . does not invalidate the process as long as . . . [it] does not adversely impact the rights of any party." James v. Commonwealth, 247 Va. 459, 462 , 442 S.E.2d 396, 398 (1994). 2 something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360 (1991).

2019As the United States Supreme Court has explained, "in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted ." Snyder , 552 U.S. at 478 , 128 S.Ct. 1203 (emphasis added).

2019As the United States Supreme Court has explained, "in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted ." Snyder , 552 U.S. at 478 , 128 S.Ct. 1203 (emphasis added).

2019Instead, the Court has left to the lower courts the decision to adopt timeliness rules."). 5 See Ford , 498 U.S. at 423 , 111 S.Ct. 850 (stating that "[t]he requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule"); see also United States v. Williams , 819 F.3d 1026 , 1029 (7th Cir. 2016) ; United States v. Reid , 764 F.3d 528 , 533 (6th Cir. 2014) ; United States v. Brown , 634 F.3d 435 , 440 (8th Cir. 2011) ; Garraway v. Phillips , 591 F.3d 72 , 76 (2d Cir. 2010) ; Morni

1997See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir.1996); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir.1986); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1228 (D.C.App.1997); State v. Parker, 836 S.W.2d 930, 935 (Mo.1992); State v. Harris, 157 Ariz. 35 , 754 P.2d 1139,1140 (1988); see also Ford, 498 U.S. at 422 , 111 S.Ct. at 857 (“The requirement that any Batson claim be raised not

2019Instead, the Court has left to the lower courts the decision to adopt timeliness rules."). 5 See Ford , 498 U.S. at 423 , 111 S.Ct. 850 (stating that "[t]he requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule"); see also United States v. Williams , 819 F.3d 1026 , 1029 (7th Cir. 2016) ; United States v. Reid , 764 F.3d 528 , 533 (6th Cir. 2014) ; United States v. Brown , 634 F.3d 435 , 440 (8th Cir. 2011) ; Garraway v. Phillips , 591 F.3d 72 , 76 (2d Cir. 2010) ; Morni

1997See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir.1996); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir.1986); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1228 (D.C.App.1997); State v. Parker, 836 S.W.2d 930, 935 (Mo.1992); State v. Harris, 157 Ariz. 35 , 754 P.2d 1139,1140 (1988); see also Ford, 498 U.S. at 422 , 111 S.Ct. at 857 (“The requirement that any Batson claim be raised not

2019In this way, the Batson framework "comports" with Title VII cases "holding that determinations at steps one and two of the [burden-of-production] framework 'can involve no credibility assessment' because 'the burden-of-production determination necessarily precedes the credibility-assessment stage,' and that the burden-shifting framework triggered by a defendant's prima fac[i]e case is essentially just 'a means of "arranging the presentation of evidence." ' " Id. at 171 , 125 S.Ct. 2410 n.7 (quoting St.

2019In this way, the Batson framework "comports" with Title VII cases "holding that determinations at steps one and two of the [burden-of-production] framework 'can involve no credibility assessment' because 'the burden-of-production determination necessarily precedes the credibility-assessment stage,' and that the burden-shifting framework triggered by a defendant's prima fac[i]e case is essentially just 'a means of "arranging the presentation of evidence." ' " Id. at 171 , 125 S.Ct. 2410 n.7 (quoting St.

2019Bethea v. Commonwealth, ___ Va. ____, _____ (Aug. 28, 2019) (“[A] mere mistake, in and of itself, is not a pretext. . . . ‘Batson and its progeny direct trial judges to assess the honesty—not the accuracy—of a proffered race-neutral explanation.’ A Batson challenge based upon the ‘factual accuracy’ of the race-neutral explanation ‘aims at the wrong target.’ The right target is the ‘credibility of the prosecutor’s explanation’ because that credibility determination ‘goes to the heart of the equal protection analysis.’” (footnote omitted) (quoting Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Ci

2019Bethea v. Commonwealth, ___ Va. ____, _____ (Aug. 28, 2019) (“[A] mere mistake, in and of itself, is not a pretext. . . . ‘Batson and its progeny direct trial judges to assess the honesty—not the accuracy—of a proffered race-neutral explanation.’ A Batson challenge based upon the ‘factual accuracy’ of the race-neutral explanation ‘aims at the wrong target.’ The right target is the ‘credibility of the prosecutor’s explanation’ because that credibility determination ‘goes to the heart of the equal protection analysis.’” (footnote omitted) (quoting Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Ci

2019Instead, the Court has left to the lower courts the decision to adopt timeliness rules."). 5 See Ford , 498 U.S. at 423 , 111 S.Ct. 850 (stating that "[t]he requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule"); see also United States v. Williams , 819 F.3d 1026 , 1029 (7th Cir. 2016) ; United States v. Reid , 764 F.3d 528 , 533 (6th Cir. 2014) ; United States v. Brown , 634 F.3d 435 , 440 (8th Cir. 2011) ; Garraway v. Phillips , 591 F.3d 72 , 76 (2d Cir. 2010) ; Morni

1997See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir.1996); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir.1986); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1228 (D.C.App.1997); State v. Parker, 836 S.W.2d 930, 935 (Mo.1992); State v. Harris, 157 Ariz. 35 , 754 P.2d 1139,1140 (1988); see also Ford, 498 U.S. at 422 , 111 S.Ct. at 857 (“The requirement that any Batson claim be raised not

2019Instead, the Court has left to the lower courts the decision to adopt timeliness rules."). 5 See Ford , 498 U.S. at 423 , 111 S.Ct. 850 (stating that "[t]he requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule"); see also United States v. Williams , 819 F.3d 1026 , 1029 (7th Cir. 2016) ; United States v. Reid , 764 F.3d 528 , 533 (6th Cir. 2014) ; United States v. Brown , 634 F.3d 435 , 440 (8th Cir. 2011) ; Garraway v. Phillips , 591 F.3d 72 , 76 (2d Cir. 2010) ; Morni

1997See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir.1996); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir.1986); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1228 (D.C.App.1997); State v. Parker, 836 S.W.2d 930, 935 (Mo.1992); State v. Harris, 157 Ariz. 35 , 754 P.2d 1139,1140 (1988); see also Ford, 498 U.S. at 422 , 111 S.Ct. at 857 (“The requirement that any Batson claim be raised not

2019"It follows that Batson and its progeny direct trial judges to assess the honesty - not the accuracy - of a proffered race-neutral explanation." Lamon v. Boatwright , 467 F.3d 1097 , 1101 (7th Cir. 2006) (emphasis in original). 10 A Batson challenge based upon the "factual accuracy" of the race-neutral explanation "aims at the wrong target." Id.

2019"It follows that Batson and its progeny direct trial judges to assess the honesty - not the accuracy - of a proffered race-neutral explanation." Lamon v. Boatwright , 467 F.3d 1097 , 1101 (7th Cir. 2006) (emphasis in original). 10 A Batson challenge based upon the "factual accuracy" of the race-neutral explanation "aims at the wrong target." Id.

2019Instead, the Court has left to the lower courts the decision to adopt timeliness rules."). 5 See Ford , 498 U.S. at 423 , 111 S.Ct. 850 (stating that "[t]he requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule"); see also United States v. Williams , 819 F.3d 1026 , 1029 (7th Cir. 2016) ; United States v. Reid , 764 F.3d 528 , 533 (6th Cir. 2014) ; United States v. Brown , 634 F.3d 435 , 440 (8th Cir. 2011) ; Garraway v. Phillips , 591 F.3d 72 , 76 (2d Cir. 2010) ; Morni

1997See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir.1996); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir.1986); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1228 (D.C.App.1997); State v. Parker, 836 S.W.2d 930, 935 (Mo.1992); State v. Harris, 157 Ariz. 35 , 754 P.2d 1139,1140 (1988); see also Ford, 498 U.S. at 422 , 111 S.Ct. at 857 (“The requirement that any Batson claim be raised not