Monday, February 23, 2015

KYSC - Ross - Batson/Gender application

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