Present: All the Justices
MARGARET COLEMAN
v. Record No. 961736 OPINION BY JUSTICE ELIZABETH B. LACY
June 6, 1997
THOMAS J. HOGAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we consider the proper remedy for the
unconstitutional exercise of a peremptory strike, specifically
whether a juror, reseated on the panel after having been
improperly stricken, may be stricken from the panel a second
time by the same party.
The defendant in this personal injury action, Thomas J.
Hogan, used two of his peremptory challenges to strike two
females, one of whom, Nayamka Thomas, was the only black female
on the jury panel. The plaintiff, Margaret Coleman, challenged
the strike, asserting that Hogan struck Thomas based on racial
grounds in violation of the Equal Protection Clause of the
United States Constitution. Batson v. Kentucky, 476 U.S. 79,
89 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614, 628 (1991).
When asked by the trial court to provide his rationale
for the strikes, Hogan's counsel explained that the women were
students, and he wanted to strike all three students who were
on the panel. However, because he only had two strikes
remaining, he struck the two women students, leaving the
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remaining male student on the panel, "basically on the
supposition that [the women] may be more sympathetic to the
female plaintiff." The trial court concluded that these two
strikes were based on the gender of the panel members and,
therefore, constituted purposeful gender-based discrimination
in violation of the Fourteenth Amendment of the United States
Constitution. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
145 (1994).
The trial court then reseated the two women, stated that
"student" was a valid basis for striking a potential juror, and
told Hogan he could "strike one of them, but [not] both of
them." Hogan struck the male student and Thomas, the black
female student. When Coleman again challenged the strike of
the black female, Hogan explained that he decided not to strike
the other student, the white female, because "she was extremely
soft-spoken and meek and . . . between the two women, we think
she'll have less of an [e]ffect on the jury."
The trial court allowed Hogan's second strike of Thomas,
holding that Hogan gave a "racially-neutral reason" for his
second strike of Thomas. Following a jury verdict in favor of
Hogan, Coleman filed a motion to set aside the verdict and for
a new trial, again challenging Hogan's use of his peremptory
strikes to remove Thomas from the jury panel a second time.
After briefing and argument by counsel, the trial court denied
Coleman's motion, reaffirming its holding that Hogan's second
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strike of Thomas was based on a racially neutral reason. We
awarded Coleman an appeal to determine whether the trial court
properly allowed Hogan to exercise a second peremptory strike
against Thomas.
Hogan does not challenge the trial court's ruling that his
initial peremptory strikes on the basis of gender violated the
Equal Protection Clause. The issue before us is whether the
remedy chosen by the trial court, allowing Hogan the
opportunity to strike a reseated juror a second time, is
consistent with the principles of Batson and its progeny,
namely, whether this remedy provides sufficient assurance that
an individual will not be prevented from serving as a juror for
unconstitutional reasons.
The positions of the parties on this issue are clear.
Hogan asserts that, following the reseating of the jurors, the
process begins anew. The trial court's decision should be
affirmed in this case, Hogan contends, because the reasons he
advanced for striking Thomas a second time - she was a student
and was not as "soft-spoken and meek" as the other woman juror
- were facially neutral and, thus, subject only to the
challenge that the reasons were pretextual. Here, Hogan
asserts, the trial court found that Hogan's reasons were not
pretextual, and, Hogan argues, the trial court's determination
on this factual issue should be given great deference and
overturned only if the trial court abused its discretion or
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committed manifest error. Hernandez v. New York, 500 U.S. 352,
364 (1991).
Coleman argues that in cases such as this, where the
reason for the initial strike was constitutionally infirm, any
subsequent reason given for the strike, even if neutral on its
face, cannot be separated from the original offensive basis for
the strike. "[C]ounsel cannot qualify or lessen the
discriminatory effect of a peremptory strike based on gender by
relying on the explanation of the juror's 'student' status."
Once a gender-based reason was articulated for a peremptory
strike, Coleman argues, "any additional neutral reasons are
suspect" and "that strike must be disallowed in toto."
The Supreme Court of the United States, in leaving the
task of prescribing the appropriate remedy for the
unconstitutional exercise of a peremptory strike to the states,
identified two possible remedies: reseating persons improperly
struck from the jury panel and discharging the venire and
selecting a new jury from a new panel. Batson, 476 U.S. at 100
n.24. Some states have required that the venire be discharged
and a new panel chosen. See, e.g., People v. Wheeler, 583 P.2d
748, 765 (Cal. 1978); State v. McCollum, 433 S.E.2d 144, 159
(N.C. 1993); State v. Franklin, 456 S.E.2d 357, 360 (S.C.
1995). Other jurisdictions have required that an improperly
stricken juror be reinstated on the panel. See, e.g., State v.
Grim, 854 S.W.2d 403, 416 (Mo. 1993)(en banc). A third and
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largest group has allowed the trial court to exercise its
discretion in selecting the appropriate remedy. See, e.g.,
Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992); Jones v.
State, 683 A.2d 520, 529 (Md. 1996); Commonwealth v. Fruchtman,
633 N.E.2d 369, 373 (Mass. 1994); Ezell v. State, 909 P.2d 68,
72 (Okla. Crim. App. 1995); State ex rel. Curry v. Bowman, 885
S.W.2d 421, 425 (Tex. Crim. App. 1993).
We agree with the majority of states that the choice of
remedy should be within the discretion of the trial court. A
number of factors, such as the point at which the challenge to
the strike is sustained and the knowledge of the jurors
regarding the improper strike, affect the determination of
which remedy to choose. The trial court is uniquely positioned
to evaluate the circumstances in each case and to exercise its
discretion in selecting the appropriate remedy.
The parties in this case do not suggest that the trial
court's decision to reseat the juror was improper. Rather, the
dispute centers around the status of the juror, once reseated.
Few cases address this issue because the majority of cases
addressing challenges to peremptory strikes involve review of
decisions holding that the use of a peremptory strike did not
violate the Equal Protection Clause. See, e.g., Buck v.
Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994); James v.
Commonwealth, 247 Va. 459, 442 S.E.2d 396 (1994); Faison v.
Hudson, 243 Va. 397, 417 S.E.2d 305 (1992). When an appellate
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court reverses the trial court's decision, the remedy of
"reseating" the improperly stricken juror is impossible; the
only remedy available at that point is a new trial with an
entirely new jury panel.
In the few cases of which we are aware involving the issue
in the instant case, the trial court refused to allow the
striking party to challenge the reseated juror a second time.
See United States v. Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir.
1993); State v. Franklin, 456 S.E.2d 357, 360 (S.C. 1995).
These cases do not provide extended discussion of the rationale
supporting this restriction on the use of peremptory strikes.
Nevertheless, we conclude that such a restriction is proper
because a litigant should not be entitled to a new Batson
analysis for every subsequent explanation he offers to justify
striking a previously challenged juror. Once the trial court
determines that the basis for a peremptory strike is
unconstitutional, any other reasons proffered at the same time,
or subsequently, cannot erase the discriminatory motivation
underlying the original challenge.
As the trial court recognized in this case, the initial
rationale which included both "student" and "female" was
tainted because one of the two proffered reasons was improper.
Hogan does not suggest that, at this point, the trial court
should have held that the strikes were proper because one of
the reasons was not constitutionally infirm. Hogan's position,
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however, would allow a constitutionally proper reason to
override a constitutionally infirm reason if the acceptable
reason is given at a later point in time. To adopt the
procedure suggested by Hogan invites a litigant to engage in
creating successive rationales, hoping one will ultimately
qualify as both facially neutral and not pretextual. Such a
manipulation of the jury selection process would erode the
constitutional protections enunciated in Batson and its
progeny. Furthermore, it requires the trial court to ignore
its prior determination and the prior explanations and conduct
each successive evaluation of a newly proffered rationale as if
on a "blank slate." Such a process improperly restricts the
ability of the trial court to make the required evaluation.
With the exception of one 1989 case from the United
States Court of Appeals for the Eighth Circuit, peremptory
strikes have not been upheld because one proffered reason was
constitutionally acceptable even though another reason for the
strike was constitutionally infirm. Compare United States v.
Iron Moccasin, 878 F.2d 226, 229 (8th Cir. 1989)(where one
explanation was race neutral, no need to consider other
reasons) with Faison v. Hudson, 243 Va. at 402-03, 417 S.E.2d
at 308 (strike disallowed although age, demeanor, and
occupation also given as basis for strike); Riley v.
Commonwealth, 21 Va. App. 330, 335-36, 464 S.E.2d 508, 510
(1995)(strikes exercised for age and gender reasons); Johnson
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v. Love, 40 F.3d 658, 668 (3d Cir. 1994)(evidence must show
that invidious discrimination "played no role" in strike);
United States v. Greene, 36 M.J. 274, 280-81 (C.M.A.
1993)(explanation which includes "in part" a racially
discriminatory reason is not neutral); Powers v. Palacios, 813
S.W.2d 489, 490 n.1 (Tex. 1991)(race "not the sole reason" for
improper strike).
We conclude that once a juror has been unconstitutionally
stricken, the jury selection process relative to that juror is
tainted. The remedy provided by the trial court must cure that
taint. Therefore, when the trial court chooses to reseat the
improperly stricken juror, the striking party may not use a
peremptory strike to remove that juror from the panel a second
time.
Accordingly, the judgment of the trial court will be
reversed and the case remanded for a new trial.
Reversed and remanded.
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