In October 2012, I posted a blog entry discussing Batson challenges and persons with disabilities. Since that time I have attended many a networking event, CLE, or other law related event. At those events, if a person tells me they are a litigator, criminal or civil, I always ask them if they have ever seen Batson challenges exercised on behalf of a person with a disability. The answer I always receive is no. Some have never even considered the idea that it was possible. As I mentioned in that blog entry, there is no doubt in my mind that a Batson challenge can be exercised on behalf of a person with a disability as a result of Tennessee v. Lane. This blog entry makes the point that the dearth of Batson challenges, particularly in criminal matters, is likely to end imminently. In Hurst v. Florida, an 8 to 1 decision decided on January 12, 2016, the Supreme Court of the United States decided that the sixth amendment requires the jury, not a judge, to find each fact necessary to impose a sentence of death and such a decision cannot be subject to the judge’s fact-finding. Justice Breyer concurred saying that he believed the eighth amendment required a jury and not the judge to make the decision to sentence a defendant to death.

So what does this mean?

Operating on the assumption, a fair one IMO, that at least some criminal defendants being subject to the death penalty have a disability, perhaps mental illness, it would seem to make sense that a defense attorney would think that a juror with a disability, especially a juror with a history of mental health issues or one with a family that has mental health issues, might be particularly receptive to the defendant’s point of view and especially so when it comes to the penalty phase. If this is correct, it would seem the defense attorney would want people on the jury with such a history and the prosecution would not. If this analysis is correct, then I would expect to see more questions in voir dire being asked about sensitivity to persons with disabilities. I would also expect to see when jurors demonstrating a sensitivity to persons with disabilities were excluded from serving on the jury through peremptory challenges, that the attorney, presumably defense counsel, would exercise Batson challenges on their behalf. The attorney exercising the Batson challenge may need to get around this case, which held that persons with disabilities had no right for a Batson challenge to be exercised on their behalf. However, that case was based upon the premise that persons with disabilities were in the rational basis class and was decided some five years before the United States Supreme Court decided Tennessee v. Lane , where they held that sovereign immunity was waived with respect to those cases implicating: basic constitutional guarantees, basic rights, judicial services, and fundamental rights (fundamental rights include access to the court). Accordingly, I don’t believe it is reasonable to say that a person with a disability when it comes to serving on a jury would be in the rational basis class and therefore, ineligible to have a Batson challenge exercise on their behalf. Rather, it is clear, to me anyway, that a person with a disability with respect to serving on a jury would qualify for a Batson challenge because serving on a jury, which is part of accessing the courts, is arguably a fundamental right and subject to a higher level of scrutiny than rational basis.

So, let’s say that the judge denies the Batson challenge, is the attorney without any remedy? An approach an attorney might try in that eventuality is to seek a declaratory judgment that denial of the Batson challenge in essence is denying a person with a disability equal protection of the law, especially in light of the fact that title II of the ADA prohibits discrimination against persons with disabilities by public entities. The advantage of going with the declaratory judgment option in such a situation is that it would get around judicial immunity with respect to a later § 1983 action.

In short, Hurst v. Florida, is likely to Batson challenges on behalf of persons with disabilities increase, particularly when it comes to capital murder trials.