In Avery v. State, 545 So. 2d 123 (Ala. Crim. App. 1988), the prosecution used all of its strikes to remove blacks from the jury venire. Because the trial court had not had the guidance of this Court's decision in Ex parte Branch, 526 So. 2d 609 (Ala. 1987), the Court of Criminal Appeals initially remanded the case to allow the prosecution to show the trial court, if it could, why it had used its 12 peremptory strikes to remove blacks from the venire, the court noting that no black had served on the jury.
In Avery, the Court of Criminal Appeals, based on the record before it, stated:
"We have considered the reasons given by the prosecutor for the peremptory striking of all blacks. We conclude that sufficient race-neutral reasons were given for striking black venirepersons number 2, 4, 43, 46, and 74. Number 2 knows the appellant and is about his age, number 4 lives next door to appellant, number 43 is related to appellant, number 46 has difficulty hearing, and number 74 is a defendant in a pending criminal case. As to the remaining venirepersons, number 33, 42, 108, 125, 104, 122, and 118, we are troubled by the reasons given and have grave doubts as to their legitimacy. Venirepersons number 33, 42, 108, and 125 were struck for the same alleged reason, i.e., that his or her demeanor, attitude, and body language indicated a negative attitude toward the prosecutor and the state's case. The reasons given for striking number 104 were that the venireperson is the same age as appellant and that a family with a similar name is under investigation. Number 122 was struck because he has the same last name as defendants in prior cases, and number 118 was struck because he is the same age as appellant.
"An examination of the voir dire questioning shows a complete lack of meaningful questions directed to the black venirepersons and related to the reasons given for striking them. 'A prosecutor's failure to engage black prospective jurors "in more than desultory voir dire, or indeed to ask them any questions at all," before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias.'" People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 111, 230 Cal. Rptr. 656 (1986). Our supreme court in Ex parte Branch observed that 'a lack of questioning to the challenged juror, or a lack of meaningful questions' is a consideration to support the finding that the proffered explanations are a 'sham or pretext.' 526 So. 2d at 623, 624." 545 So. 2d at 126-27.