IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 92-7094 (Summary Calendar)
JAMES L. POLK and MATTIE B. POLK,
Plaintiffs-Appellants,
versus
DIXIE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Mississippi
(August 4, 1992)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
In this Mississippi diversity case, the Plaintiffs-Appellants
James L. and Mattie B. Polk, who are black, appeal the district
court's overruling of their Batson1 objection to the purported
discriminatory exercise of peremptory jury challenges by Defendant-
Appellee Dixie Insurance Company. Concluding that the findings of
1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). the district court were not clearly erroneous, we affirm.
I
FACTS AND PROCEEDINGS
The Polks sued Dixie Insurance Company (Dixie) for insurance
policy proceeds claimed for loss of their car and for bad faith
denial of their claim. The district court granted summary judgment
for Dixie on the Polks' bad faith denial claim. The policy claim
was tried to a jury, which likewise found for Dixie.
During voir dire, Dixie exercised two of its three peremptory
challenges to remove the only two black persons on the tendered
panel, resulting in an all-white jury. The Polks moved the court
to require Dixie's counsel to provide a non-racial reason for her
exercise of these two challenges. Before Dixie responded, the
court denied the motion on the grounds that Batson's prohibition of
racial use of peremptory challenges did not extend to private
parties. On appeal,2 we affirmed on the basis of our en banc
opinion in Edmonson v. Leesville Concrete Co., Inc.3 The United
States Supreme Court subsequently reversed our en banc opinion in
Edmonson to hold that Batson did apply to civil suits between
private parties.4 In the Polks' case, the Court granted
certiorari, vacated our judgment, and remanded the case for further
2 Polk v. Dixie Ins. Co., 897 F.2d 1346 (5th Cir. 1990). (Polk I) 3 895 F.2d 218 (5th Cir. 1990). 4 U.S. , 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).
2 consideration in light of Edmonson.5 On remand, we directed the
district court to determine whether the Polks had made a prima
facie case of racial discrimination and if so, to allow Dixie the
opportunity to show nonracial reasons for its exercise of the
peremptories.6
Pursuant to our instructions, the district court held a
hearing. After the court found that the Polks had made a prima
facie case, Dixie's counsel stated that she could not remember why
she had struck the two black jurors, noting that three to four
years had elapsed since the 1988 trial of the case. She asserted,
however, that eyeball contact must have been the reason because "I
can tell the Court for sure that the element of eyeball contact is
the turning factor in every decision I make in every case I try."
Eyeball contact, she elaborated on cross-examination by the Polks'
counsel, "is not just looking at me; it is the expression on their
face [sic] when they are looking at me, whether there is a smirk or
smile or rolling their eyes; it is the impact of the eyeball
contact, if any."
Relying on the trial notes of her assistant, Dixie's counsel
proffered secondary reasons. One black member of the venire was an
unemployed housewife; Dixie's counsel stated that she generally
dismissed unemployed persons and indeed had used her third
peremptory in the Polks' case to strike an unemployed white
5 U.S. , 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991).
6 943 F.2d 553 (5th Cir. 1991).
3 housewife. The other black stricken peremptorily by Dixie worked
as an insurance company clerk; defense counsel averred that she
always struck persons employed in her client's industry to prevent
such person from unduly influencing the jury with their
extrajudicial knowledge.
In rebuttal, the Polks presented one of the blacks who had
been excluded from the jury, who testified, "I usually look at
people when they are talking to me to make sure I can hear what
they are saying." At the conclusion of the hearing, the court
found that the two black persons had been stricken for non-racial
reasons. This appeal followed.
II
ANALYSIS
At trial, proof of a Batson claim is a three-step process.
First, the complaining party must make a prima facie showing that
opposing counsel exercised a peremptory challenge on the basis of
race. If that party is successful, the burden shifts to the
striking party to articulate a race-neutral explanation for the
strike. If the striking party articulates such a reason, the
complaining party must show that the reason proffered is pretextual
or otherwise inadequate; and the trial court then must determine
whether the complaining party has shown the articulated rationale
to be pretextual or has otherwise carried the ultimate burden of
proving purposeful discrimination.7
7 Hernandez v. New York, U.S. , 111 S.Ct. 1859, 1865-66 (1991) (plurality), citing Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24; Moore v. Keller Industries, Inc., 948 F.2d 199,
4 On appeal, we turn directly to the ultimate finding of
discrimination vel non when the striking party has proffered a
race-neutral explanation and the trial court has ruled.8 We review
that finding for clear error, according deference to the
credibility evaluations which usually inhere.9 So doing here, we
conclude that the district court's finding of no discrimination was
not clearly erroneous.
The Polks contend that the confluence of two circumstances
precludes a finding that Dixie articulated a race-neutral
explanation. One such circumstance is that Dixie's counsel
admitted that she had no specific memory of the strikes in dispute.
The other is that she offered a subjective explanation -- eye
contact -- as the most likely reason for her strikes.
That a lawyer would forget why he or she had struck particular
jurors years earlier is not surprising, especially when the then-
controlling law required no reasons. Nonetheless, when an attorney
offered virtually nothing beyond "I do not remember," the Third
Circuit in Harrison v. Ryan10 found that the striking party failed
to carry its burden. That is not the situation here. Dixie's
counsel maintains that she must have relied on eyeball contact
201-202 (5th Cir. 1991), cert. denied, U.S. , 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992); United States v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991). 8 Hernandez, 111 S.Ct. at 1866; United States v.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 92-7094 (Summary Calendar)
JAMES L. POLK and MATTIE B. POLK,
Plaintiffs-Appellants,
versus
DIXIE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Mississippi
(August 4, 1992)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
In this Mississippi diversity case, the Plaintiffs-Appellants
James L. and Mattie B. Polk, who are black, appeal the district
court's overruling of their Batson1 objection to the purported
discriminatory exercise of peremptory jury challenges by Defendant-
Appellee Dixie Insurance Company. Concluding that the findings of
1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). the district court were not clearly erroneous, we affirm.
I
FACTS AND PROCEEDINGS
The Polks sued Dixie Insurance Company (Dixie) for insurance
policy proceeds claimed for loss of their car and for bad faith
denial of their claim. The district court granted summary judgment
for Dixie on the Polks' bad faith denial claim. The policy claim
was tried to a jury, which likewise found for Dixie.
During voir dire, Dixie exercised two of its three peremptory
challenges to remove the only two black persons on the tendered
panel, resulting in an all-white jury. The Polks moved the court
to require Dixie's counsel to provide a non-racial reason for her
exercise of these two challenges. Before Dixie responded, the
court denied the motion on the grounds that Batson's prohibition of
racial use of peremptory challenges did not extend to private
parties. On appeal,2 we affirmed on the basis of our en banc
opinion in Edmonson v. Leesville Concrete Co., Inc.3 The United
States Supreme Court subsequently reversed our en banc opinion in
Edmonson to hold that Batson did apply to civil suits between
private parties.4 In the Polks' case, the Court granted
certiorari, vacated our judgment, and remanded the case for further
2 Polk v. Dixie Ins. Co., 897 F.2d 1346 (5th Cir. 1990). (Polk I) 3 895 F.2d 218 (5th Cir. 1990). 4 U.S. , 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).
2 consideration in light of Edmonson.5 On remand, we directed the
district court to determine whether the Polks had made a prima
facie case of racial discrimination and if so, to allow Dixie the
opportunity to show nonracial reasons for its exercise of the
peremptories.6
Pursuant to our instructions, the district court held a
hearing. After the court found that the Polks had made a prima
facie case, Dixie's counsel stated that she could not remember why
she had struck the two black jurors, noting that three to four
years had elapsed since the 1988 trial of the case. She asserted,
however, that eyeball contact must have been the reason because "I
can tell the Court for sure that the element of eyeball contact is
the turning factor in every decision I make in every case I try."
Eyeball contact, she elaborated on cross-examination by the Polks'
counsel, "is not just looking at me; it is the expression on their
face [sic] when they are looking at me, whether there is a smirk or
smile or rolling their eyes; it is the impact of the eyeball
contact, if any."
Relying on the trial notes of her assistant, Dixie's counsel
proffered secondary reasons. One black member of the venire was an
unemployed housewife; Dixie's counsel stated that she generally
dismissed unemployed persons and indeed had used her third
peremptory in the Polks' case to strike an unemployed white
5 U.S. , 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991).
6 943 F.2d 553 (5th Cir. 1991).
3 housewife. The other black stricken peremptorily by Dixie worked
as an insurance company clerk; defense counsel averred that she
always struck persons employed in her client's industry to prevent
such person from unduly influencing the jury with their
extrajudicial knowledge.
In rebuttal, the Polks presented one of the blacks who had
been excluded from the jury, who testified, "I usually look at
people when they are talking to me to make sure I can hear what
they are saying." At the conclusion of the hearing, the court
found that the two black persons had been stricken for non-racial
reasons. This appeal followed.
II
ANALYSIS
At trial, proof of a Batson claim is a three-step process.
First, the complaining party must make a prima facie showing that
opposing counsel exercised a peremptory challenge on the basis of
race. If that party is successful, the burden shifts to the
striking party to articulate a race-neutral explanation for the
strike. If the striking party articulates such a reason, the
complaining party must show that the reason proffered is pretextual
or otherwise inadequate; and the trial court then must determine
whether the complaining party has shown the articulated rationale
to be pretextual or has otherwise carried the ultimate burden of
proving purposeful discrimination.7
7 Hernandez v. New York, U.S. , 111 S.Ct. 1859, 1865-66 (1991) (plurality), citing Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24; Moore v. Keller Industries, Inc., 948 F.2d 199,
4 On appeal, we turn directly to the ultimate finding of
discrimination vel non when the striking party has proffered a
race-neutral explanation and the trial court has ruled.8 We review
that finding for clear error, according deference to the
credibility evaluations which usually inhere.9 So doing here, we
conclude that the district court's finding of no discrimination was
not clearly erroneous.
The Polks contend that the confluence of two circumstances
precludes a finding that Dixie articulated a race-neutral
explanation. One such circumstance is that Dixie's counsel
admitted that she had no specific memory of the strikes in dispute.
The other is that she offered a subjective explanation -- eye
contact -- as the most likely reason for her strikes.
That a lawyer would forget why he or she had struck particular
jurors years earlier is not surprising, especially when the then-
controlling law required no reasons. Nonetheless, when an attorney
offered virtually nothing beyond "I do not remember," the Third
Circuit in Harrison v. Ryan10 found that the striking party failed
to carry its burden. That is not the situation here. Dixie's
counsel maintains that she must have relied on eyeball contact
201-202 (5th Cir. 1991), cert. denied, U.S. , 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992); United States v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991). 8 Hernandez, 111 S.Ct. at 1866; United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987). 9 Clemons, 941 F.2d at 325. 10 909 F.2d 84, 87 (3rd Cir.), cert. denied, U.S. , 111 S.Ct. 568, 112 L.Ed.2d 574 (1990).
5 because she always does and may have relied on other race-neutral
factors in line with guidelines she generally follows. Under
similar circumstances, the Eighth Circuit has found the striking
party's burden satisfied.11 We see no reason to take a contrary
position in light of the time lapse between juror selection and the
Batson hearing. When the applicability of Batson is clear at trial
and contemporaneous explanation is required, lapse of memory would
trigger more serious concerns.
Nevertheless, the Polks argue that Dixie's reliance on an
unverifiable subjective consideration such as eye contact casts
further doubt on its justification. We disagree.
Jurisprudentially, it is too late in the day to contend that eye
contact fails to satisfy the striking party's burden of
articulating a neutral explanation. Recognizing that "the decision
to exercise a peremptory challenge . . . is subjective"12 and often
"influenced by intuitive assumptions,"13 we have explicitly accepted
eye contact (or lack thereof) as a legitimate rationale.14 In the
Batson context, subjective considerations might not be susceptible
to objective rebuttal or verification. We nonetheless permit them
11 See United States v. Nicholson, 885 F.2d 481 (8th Cir. 1989); United States v. Wilson, 867 F.2d 486 (8th Cir.), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989). 12 Thomas v. Moore, 866 F.2d 803, 805 (5th Cir.), cert. denied, U.S. , 110 S.Ct. 124, 107 L.Ed.2d 85 (1989). 13 United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988). 14 Id.; United States v. Terrazas-Carrasco, 861 F.2d 93, 94- 95, n. 1 (5th Cir. 1988); United States v. Cartlidge, 808 F.2d 1064, 1071 (5th Cir. 1987).
6 because of the inherent nature of peremptory challenges, with the
understanding that ultimate Batson findings "largely will turn on
evaluation of credibility"15 of counsel's explanation.
The Polks attempt to distinguish our cases accepting eye
contact as a neutral explanation by arguing that some black persons
remained on the jury in those cases but all were dismissed here.
We understand this as an argument that a subjective consideration
like eye contact is inadequate to counter the heightened inference
of discrimination arising when the striking party accepts no black
jurors. We decline to establish such a per se rule. Whether the
striking party was or was not motivated by its proffered
explanation is a fact-intensive question which must be decided case
by case in light of the totality of circumstances. We cannot say
that eye contact necessarily is a phony reason when it is proffered
as justification for removal of all black jurors. On the record in
this case, the trial court's conclusion that Dixie's counsel was
not motivated by racial consideration is a permissible view of the
evidence.
Finally, the Polks point to an explanation for the strikes
presented by Dixie in an earlier appeal and object to the expansion
on that explanation introduced at the Batson hearing. United
States v. Romero-Reyna16 involved an analogous situation. At a
Batson hearing conducted on remand, the prosecutor "essentially
15 Batson, 476 U.S. at 98, n. 21. 16 889 F.2d 559 (5th Cir. 1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990).
7 repeated a fuller version of the explanation offered at the sidebar
conference, which had immediately followed completion of jury
selection, plus an additional reason for excluding the pipeline
operator."17 There, we deferred to the trial court's assessment of
whether the added reason was legitimate and credible. Finding no
inconsistency between Dixie's earlier and later explanations, we do
the same here.
AFFIRMED.
17 889 F.2d at 562.