Cole Douglas Ross v. Commonwealth, 2012-SC-000775, rendered
February 19, 2015, TO BE PUBLISHED, Reversing and Remanding
The Supreme Court reversed Ross’ convictions for Murder and
Arson because the trial court improperly applied the holding in Batson v.
Kentucky. After a challenge was made by the defense to the
prosecution’s use of peremptory strikes against two African-American venire
members, the prosecution confessed that the only reason it had used a
peremptory against the African-American female juror was because she was a
woman. The defense then challenged the prosecution’s discriminatory use
of peremptory strikes to remove women from the venire. The Commonwealth’s
star witness was the accused’s ex-girlfriend, a woman of questionable credibility
and morals. Fearing that women on the jury might judge the witness
harshly, the prosecution confessed, their plan was to remove as many female
jurors as possible. The trial court held that the use of strikes was
permissible.
On appellate review, the Kentucky Supreme Court held that
the use of peremptory strikes to remove jurors of one gender was
discriminatory. The Court held that the prima facie showing of
discriminatory basis of the strikes was established “on a silver platter” when
the prosecutor frankly admitted that he was using strikes to remove women from
the panel, apparently unaware that such practice was discriminatory.
Further, the Court held, that the prosecutor’s discussion with the venire
during voir dire clearly buttressed the finding of discriminatory intent when
the prosecutor questioned whether the women on the panel would be quick to
judge the witness because it had been his experience that “women are sometimes
harder on women.” Because of the candid admission of attempting to remove
women with the strikes, the line of questioning displaying bias and the fact
that the prosecution used seven of their nine peremptory strikes to remove
women from the panel, the Court was satisfied that a prima facie case of
discriminatory use of strikes had been established.
Moving on to the second part of the Batson analysis,
the Court was unpersuaded by the prosecution’s “gender neutral” reasons for the
exercise of the strikes. Undoubtedly tainted by the clearly sexist
questioning of the venire and the admitted use of strikes in a gender-biased
manner, the Court was unpersuaded by the “demeanor-based reasons” for the use
of strikes against female jurors. The prosecution candidly told the trial
court that instead of choosing which jurors to strike, he had chosen which he
wanted to remain on the panel and then used his peremptory strikes to remove as
many of the remaining jurors as he could. The Court held that such
practice is not acceptable as they are too vague and are not capable of adequate
review. Continuing the Court’s recent line of cases wherein some insight
into the reason for the strike must be articulable, that “gut instinct” strikes
are not allowable and some justification for the use of the strike must be able
to be articulated when challenged, the Court held that such vague reasons for
the exercise of strikes can cloud discriminatory reasons and should not be
found to be sufficiently neutral to survive a challenge. The Court stated
that stated reasons for use of strikes "must be clear and reasonably
specific such that the
opponent of the challenge has a full and fair opportunity to
demonstrate pretext in the reason given and the trial court to fulfill its duty
to assess the plausibility of the reason in light of all the evidence."
Contributed by Linda Horsman
