1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986). 

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 DefendantAppellee Dixie Insurance Company. Concluding that the findings of
 

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

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
 

5 U.S. , 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991).

 

6 943 F.2d 553 (5th Cir. 1991). 

3

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
 

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

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 
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

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 thencontrolling 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
 

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 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
 

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

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
 

17 889 F.2d at 562. 

8

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.