Jury Challenges Based on Race: Is a “Tone of Voice” Race-Neutral?

Jury Challenges Based on Race: Is a “Tone of Voice” Race-Neutral?

Defendants in criminal cases have a constitutional right to a jury of their peers. But courts have made it clear that they’re not entitled to a jury of their own race. So, when a prosecutor strikes a juror for their “tone of voice” is that one of the impermissible jury challenges based on race? At a minimum, the North Carolina Court of Appeals held last week, a court has to at least address it.

Law enforcement arrested Christopher Issac Alexander in Feb. 2017 on eight drug charges in Yadkin County. The prosecution alleged that Alexander sold cocaine to an undercover officer at least four times in Apr. and May 2015.

Yadkin County Superior Court Judge Lynn Gullett set defendant’s case for trial in Mar. 2019. Alexander is Black. Of the 34 potential jurors in his case, just one, “Mr. Robinson,” was Black.

The Prosecutor Struck Mr. Robinson from the Jury Based on (Among Other Things) His “Tone of Voice”

When the prosecutor questioned Robinson, he discussed his employment history, his wife’s online classes and a prior child-abuse charge against him that was dismissed. After that, the prosecutor used a peremptory strike to remove Robinson from the jury.

Peremptory challenges let the parties keep individuals from the jury without giving a reason. But, under the Sixth Amendment to the U.S. Constitution and Article I, Sections 24 and 25 of the North Carolina Constitution, a defendant in a criminal prosecution has the right to be tried by a jury of his or her peers. This constitutional guarantee prevents prosecutors from “systematically and arbitrarily” excluding jurors based on race.

Alexander’s attorney objected, arguing that the prosecution struck the only Black juror from the jury based on his race. This placed the burden on the prosecutor to offer “race neutral” reasons for the objection.

In response, the prosecutor cited Robinson’s “tone of voice,” his purported “reluctan[ce] to talk about” losing his job and his lack of current employment. The prosecutor also emphasized the fact that he apparently didn’t know which online school his wife’s classes were from as well as the dismissed child-abuse charge.

Was the Jury Challenge based on Race?
Image courtesy of Billy on Unsplash.

Alexander’s counsel responded that all of these reasons were pretextual. He pointed to the fact that another White juror was selected despite a criminal record. And Alexander’s attorney also took issue with the prosecutor’s emphasis on Robinson’s “tone of voice,” which may, he argued, “show some racial issues.”

Judge Gullett OK’d the Prosecutor’s Challenge, But the Court of Appeals Sent it Back for More Scrutiny to Determine Whether there was a Jury Challenge Based on Race

Judge Gullett ultimately found the prosecutor’s reasoning sufficient. “The Court does find the prosecutor to be credible,” she wrote. Taking all of the prosecution’s reason in “totality,” Judge Gullett ruled that the prosecutor properly struck the potential juror.

The jury ultimately convicted Alexander, and he appealed, arguing that the prosecutor’s objected violated the rule against jury challenges based on race. And, in a unanimous opinion, the Court of Appeals sent the case back to Judge Gullett.

In doing so, the Court criticized the trial-court judge for “failing to address Defendant’s argument that the prosecutor’s comments about ‘tone of voice and those types of issues … go to racial stereotypes also.’ ” Because Judge Gullett “did not mention Defendant’s specific assertion that this reason suggested racial bias,” the Court held, “[w]e … cannot discern how this contention factored into the totality of the circumstances under consideration by the trial court.”

Judge Gullett must not address that argument. If she rules in Alexander’s favor, he should get a new trial. If she doesn’t, the convictions will stand.

Stay current with NC appellate news by visiting our North Carolina Court of Appeals tag and our Law section!