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The red bow tie problem: Pitchford, Batson step three, and the civil lawyer’s job at jury selection

6/29/26

By: Juliana Sleeper

A Batson challenge is made. The courtroom tightens. The juror chart suddenly looks more important than it did five minutes ago. Someone flips through notes. Someone else pretends not to.

Then the lawyer defending the strike stands and says, “Your Honor, I struck Juror 12 because he wore a red bow tie. It reminded me of my brother-in-law, and that man has never agreed with me once in his life.” It is an odd reason. Maybe even a silly one.

But under Purkett v. Elem, 514 U.S. 765 (1995), silly is not the same as unlawful. At Batson step two, the explanation does not have to be persuasive, plausible, or wise. It only has to be race-neutral on its face. That is the red bow tie problem.

For years, that is also where too many Batson hearings effectively ended. The strike was challenged. The lawyer gave a race-neutral explanation. The court accepted it as race-neutral. Everyone moved on to the next juror, the next strike, the next small emergency of trial.

But step two is not the end of Batson. That is the point of Pitchford v. Cain, 608 U.S. ___, 146 S. Ct. 1345 (2026). Batson v. Kentucky, 476 U.S. 79 (1986), created a three-step inquiry, not a two-step shortcut. Step one asks whether there is enough to raise an inference of discrimination. Step two asks whether the striking party can offer a race-neutral explanation. Step three asks the question that matters most: was that explanation the real reason?

A reason can be neutral and still be suspect. Neutral and convenient. Neutral and incomplete. Neutral and newly assembled in the hallway outside the courtroom. Pitchford makes clear that trial courts cannot stop at facial neutrality. Once the striking party gives a race-neutral explanation, the opposing party must have a meaningful opportunity to argue pretext. Then the court must decide whether the stated reason was genuine.

That is a procedural clarification with practical consequences. It means trial lawyers cannot treat Batson step three as the court’s problem alone. The trial court has the duty to conduct the inquiry, but counsel has the duty to protect the record. And sometimes protecting the record means slowing the process down at the exact moment everyone wants to speed it up.

That may feel counterintuitive, especially if you are the lawyer defending the strike. A quick ruling feels good. The court asks for your reason. You give it. The court says, “Race-neutral.” The juror is gone. The client exhales. The trial moves forward.

But after Pitchford, a quick ruling may not be a safe ruling. A Batson ruling that stops at step two is like putting chicken in the oven, pulling it out because the outside looks done, and serving it before checking the center. It may look fine. It may smell fine. It may even sit beautifully on the plate. But if the middle is raw, no one is safe.

The same is true of a verdict built on an incomplete Batson record. It may appear safe. The trial is over; the jury returned a favorable verdict; and the judgment entered. The client is told the war is over. But… Then comes the appeal.

On appeal, the transcript has no memory of how tired everyone was. It does not remember that jury selection was running long, that the judge wanted to move on, that counsel thought the issue had been handled. The transcript only shows what happened and what did not.

If step three is missing, that missing step may become the issue. And if that issue requires a new trial, the victory everyone thought was finished becomes a dress rehearsal no one wanted. That is why Pitchford should change how trial lawyers handle Batson in real time.

If you are making the Batson challenge, ask to be heard on pretext. Say clearly that you are addressing step three. Compare the struck juror to jurors the other side accepted. Point to the questionnaire. Point to voir dire answers. Point to the follow-up question that was asked, or the one that was not.

If you are defending the strike, do not be afraid of a complete inquiry. You should want the opposing party to have an opportunity to respond. Not because you are handing over the microphone out of kindness, but because a complete record protects the verdict.

The request to the court may sound like this: “Your Honor, for purposes of protecting the record, we ask that opposing counsel be given an opportunity to address pretext and that the Court make a step-three finding.” That sentence can feel unnatural. Trial lawyers do not usually invite the other side to speak longer. But sometimes the extra minute at sidebar will safeguard the verdict.

After Pitchford, voir dire notes are not just for picking a jury. They are for protecting the verdict. Every peremptory strike now comes with a question: if challenged, can I explain exactly why I made it? Every Batson objection comes with another: can I show why the stated reason is not the real reason? And every Batson ruling comes with the question that may matter most on appeal: did the court actually complete step three?

The red bow tie may get a lawyer past step two under Purkett v. Elem, 514 U.S. 765 (1995). But after Pitchford v. Cain, 608 U.S. ___, 146 S. Ct. 1345 (2026), it still has to survive step three. And step three is where Batson finally asks not whether the explanation sounds neutral, but whether it is true.

For more information, please contact Juliana Sleeper at juliana.sleeper@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.