The Fellowship of the Twelve: One Challenge to Rule Them All

By Michael Tarrant

State v. Bol, 2011 VT 99

Ah, the fun of jury draw day.  The sights!  The smells!  The Court Carnies!  It is a most festive time indeed, where certain fortunate members of the community lucky enough to have received their notice of jury duty joyfully file into the courtroom—each one full of hope and anticipation that the lawyers will pick them to serve.  Unfortunately for wannabe jurors, the journey to joining the Fellowship of the Twelve is fraught with peremptory peril.  Lawyers on each side can each eliminate up to six of them on nothing more than a hunch.  As the Eagles would say, “No reasons asked.  No reasons told.” 

Well, that is unless you’re cut solely for your race.

Defendant in today’s case appeals his conviction for giving false information to a police officer and for possession of cocaine.  How Defendant ended up in this situation is an interesting tale involving fights, baggies, and droopy drawers, but his appeal to the SCOV has absolutely nothing to do with the underlying facts of his arrest and trial, and everything to do with jury selection.

In other words, forget the juicy details and buckle up.  We are in for a procedural challenge

During the jury draw, Defendant’s counsel attempted to use a “peremptory challenge” to remove a juror without having to give cause.  This should not have been a problem.  After all, Vermont law and the Vermont Rules of Criminal Procedure specifically allow for the “peremptory challenge” of up to six jurors per side.  The word “peremptory” has a very clear meaning—it means final, absolute, not open for debate.  Moreover, such challenges are limited to six per side.  After that the challenge of any juror would require that “cause” be given. 

But there was a problem—the trial court denied Defendant’s peremptory challenge to a specific juror.  Defendant’s counsel still had peremptory challenges left, so what happened?  Well, the juror to be peremptorily challenged just happened to be the sole black member of the jury pool.  But if the law says that no cause need be given, why did the judge demand Defendant’s counsel give cause before he would allow the juror to be cut?  Well, it all goes back to a 1986 United States Supreme Court decision, Batson v. Kentucky, and its progeny.

Defendant argues that the trial court misstated the holding in Batson and thus erred in preventing his counsel from using a preemptory challenge to strike the sole black member of the jury pool.  He argues that this error was serious enough that he should be granted a new trial.  The SCOV agrees with Defendant, and reverses and remands.

The SCOV starts its inquiry by looking at Batson itself for guidance.  Batson did in fact establish that under the Fourteenth Amendment a peremptory challenge cannot be exercised on the basis race.  But as we know, peremptory challenges don’t require the lawyer to give cause.  Well, sorry, Mr. Too-Clever-For-Your-Own-Good, Esq., the United States Supreme Court has out thought you again, to the tune of a three-prong test.  In order to determine whether an attorney has impermissibly discriminated on the basis of race, first, the opposing counsel (or the court sua sponte, as in this case) must establish a prima facie case that discrimination has in fact occurred.  Once this has been established, the attorney wishing to exercise the peremptory challenge must provide a race-neutral explanation.  Finally, the trial court must weigh the explanation in light of all the relevant circumstances to determine whether in fact the cause given is legitimate, or if it is “merely a pretext for discrimination.”

In applying the Batson test in this case, the SCOV looked at this without deference to the trial court (a de novo standard of review), rejecting the traditional deferential standard for reviewing trial court jury selection decisions.  The SCOV concluded that no deference was required here, because the trial court’s prima facie determination was based solely on the fact that Defendant’s counsel wished to strike the sole black member of the jury without any other reason cited.

And for the same reason that the SCOV elected to review de novo, the SCOV concludes that the trial court’s implicit finding of a prima facie case of discrimination is an error and fails to meet the first prong of the Batson test.  While the federal trial courts enjoy wide latitude in deciding whether a peremptory challenge creates a prima facie case of discrimination, here, the SCOV elects to establish a minimum prima facie standard for Vermont.  SCOV declares that from here on out, “[t]he act of excluding the sole minority juror from a jury panel need be accompanied, at the least, by some surrounding fact or circumstance from which a motive to strike based on bias or prejudice toward a person of that race can reasonably be suspected.”  This reasonable suspicion does not need to be certain, and doesn’t even need to be probable.  But it does require that the opposing attorney—or the court sua sponte—be able to point to more than the mere fact of race in raising a challenge to a peremptory challenge.

Looking to the record, the SCOV could find only one fact that could support the trial court’s inference of discrimination—the juror selected was the sole black juror.  Minus some other fact or circumstance, this simply is not enough under the shiny new Bol-minimum-prima-facie standard for determining peremptory challenge discrimination. 

So, yes, Defendant, does pass go, does collect $200 (figuratively speaking, of course), and does not go directly to jail (yet).  Not only does Defendant get a new day in court, but he gets his own legal standard.  Not too shabby, not too shabby indeed.