Bethea v. Commonwealth

PRESENT: All the Justices
JAMES WILLIE BETHEA
OPINION BY
v. Record No. 180527 JUSTICE D. ARTHUR KELSEY
AUGUST 28, 2019
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

A jury convicted James Willie Bethea of first-degree murder. On appeal, Bethea

challenges that conviction by claiming that the trial court violated the holding of Batson v.

Kentucky, 476 U.S. 79 (1986), by permitting the prosecutor to exercise a racially motivated

peremptory strike of an African-American juror. The trial court found that the strike was not

racially motivated, and the Court of Appeals affirmed, as do we.

I.

A grand jury indicted Bethea for the first-degree murder of Charles Adkins. Bethea’s

first trial ended in a mistrial because the jury could not reach a verdict. During the jury selection

for Bethea’s retrial, the trial court, the Commonwealth, and the defense asked a series of voir

dire questions of the jury panel.

Throughout the questioning by the Commonwealth, the transcript recorded several

different types of responses from the 23-member venire panel. The transcript sometimes

recorded what appears to be the panel’s collective verbal answers, particularly to the prosecutor’s

general questions that suggested a yes-or-no right answer. See J.A. at 12-13, 16-17, 27-29, 31-32

(“THE JURY PANEL: Yes.”); id. at 16-17, 20-21, 27-28, 30, 32, 34 (“THE JURY PANEL:

No.”). The transcript is unclear, however, whether the court reporter was verifying that she

personally had heard an audible “Yes” or “No” from each of the 23 venire members or, perhaps

just as likely, that she was simply noting her interpretation of an amalgam of their verbal and

non-verbal responses to questions that suggested a particular answer.
 The prosecutor indicated once that jurors had raised their hands to communicate an

affirmative answer to a question. See id. at 13 (“Has anyone here served on a jury before? A

couple of hands. Keep them up for me for a second.”). In several other places, the transcript

recorded a non-answer to questions by the prosecutor: “THE JURY PANEL: No response.” Id.

at 16, 18, 19, 20, 33. And, on several other occasions, no response at all is again recorded for a

pending question, but the prosecutor, apparently prompted by a nod or a raised hand, specifically

identified a juror who had offered a personal response to the question. See id. at 17, 18, 22, 32-

33. At one point during voir dire, the trial court called upon a specific juror by name and asked,

“you heard the questions that I asked earlier. I didn’t hear you raise your hand or see you raise

your hand. Do you have any issues at all that you need to bring forward to the Court?” Id. at 26-

27. The transcript thereafter stated, “(No audible response.).” Id. at 27.

After voir dire, both sides exercised their peremptory strikes. See generally 5 Ronald J.

Bacigal, Virginia Practice Series: Criminal Procedure § 16:6, at 479 (2018-2019 ed.) (“In felony

cases, the Commonwealth and the defendant have four peremptory challenges each . . . .”). The

Commonwealth used two of its four peremptory strikes on African-American jurors. Bethea’s

trial counsel made a Batson challenge to the Commonwealth’s exclusion of both African-

American jurors. He stated that he had become “aware of a conversation” between his law

partner, “Mr. Leahy,” and the prosecutor that had occurred after the first trial. Id. at 37. In this

conversation, the prosecutor reportedly relayed to Leahy that “the jury was nine-to-three to

convict, and the three people who voted to acquit were black and then something about the Black

Lives movement.” Id. 1

1
On appeal to this Court, Bethea corrected the description of this conversation in the
Court of Appeals opinion as between “former defense counsel” and the prosecutor, see Bethea v.

2
 In response, the prosecutor said that, with respect to the stricken juror at issue in this

appeal, 2 she had struck the juror because the juror “didn’t answer all the questions and she

appeared emotional at times.” Id. at 38. “And when I asked if everyone would promise to

consider all the evidence, and if they would raise their hand to do so,” the prosecutor explained,

“she didn’t raise her hand.” Id. Bethea’s counsel replied: “I don’t think that amounts to

anything, Your Honor. I mean, I was watching her. I didn’t see her getting particularly

emotional during the voir dire. I was scanning the jury for people to raise their hands. I don’t

know what that amounts to.” Id. Bethea’s counsel did not, however, contend that the prosecutor

was mistaken about the specific voir dire question that she had recalled asking or about the

response that she had remembered the juror making to that question.

During the colloquy with counsel, the trial court stated that it did “recall when [the

prosecutor] made the request, when the jury was to raise the hand.” Id. at 40. But the court

stated that it “did not scan the jury” and “did not see at that time that anybody did not raise their

hand.” Id. Based upon its own recollection and counsel’s arguments, the court denied the

Batson motion, holding that the prosecutor’s explanations “are race-neutral reason[s] for making

these particular peremptory strikes, and I’m going to allow them to go forward as stricken.” Id.

at 41. The court also observed that, even following the Commonwealth’s use of two of its four

Commonwealth, 68 Va. App. 487, 494, 502 n.7 (2018). In his opening brief, Bethea clarified
that the same defense counsel had represented him in both trials and that the prosecutor had
made the comments to his counsel’s law partner and not to his counsel directly. See Appellant’s
Br. at 4 n.1. While Bethea’s counsel did not refer to Leahy as his law partner at the time of the
Batson challenge, this fact could have been inferred from the title of counsel’s law firm, “Boyce,
Leahy & Francescon,” which was listed on documents filed in the trial court. See, e.g., R. at 14.
Notably, Bethea’s counsel never divulged the source of the information nor expressly told the
trial court that Leahy had relayed this conversation to him directly, only that he had become
“aware of a conversation.” J.A. at 37.
2
Bethea abandoned his Batson challenge to the prosecutor’s peremptory strike against
the other African-American juror.

3
peremptory strikes on African-American jurors, “[t]here are other African-Americans on the

jury.” Id. at 40.

The case proceeded to trial, with the Commonwealth presenting evidence of “Bethea’s

DNA” on the victim’s “fingernails,” the victim’s blood stain on the floor mat of “Bethea’s

vehicle,” and a pattern of “inconsistent statements” made by Bethea to an investigator.

Appellant’s Br. at 5. In his case-in-chief, Bethea only called his wife to the witness stand to

support his alibi defense. The jury found Bethea guilty of first-degree murder and sentenced him

to life imprisonment.

Nearly seven months after the trial, Bethea’s counsel moved the court to set aside the

verdict based upon his earlier Batson challenge. At a hearing on the motion, Bethea’s counsel

conceded that “[t]he Commonwealth gave a race-neutral reason, Your Honor.” J.A. at 60. The

problem, counsel argued, was that the prosecutor’s recollection was mistaken about the question

that she had asked and to which the juror had not responded: “The Commonwealth, at the time,

said, ‘And when I asked if everyone would promise to consider all the evidence and if they

would raise their hand to do so, she didn’t raise her hand.’” Id. “Now that question was not

asked,” Bethea’s counsel asserted, “and that response was not called for.” Id. at 60-61. Bethea’s

counsel acknowledged, however, that “during voir dire the Commonwealth did ask for a show of

hands but it was to a different question regarding motive.” Id. at 61. The question regarding

motive asked jurors to raise their hand if “anyone here . . . has a problem with th[e] law” that

does not require the Commonwealth to prove motive for murder. Id. The transcript reflected

“[n]o response” to that question. Id. at 20.

Bethea’s counsel affirmatively conceded that, at the time of his Batson motion, he had

not objected to the Commonwealth’s peremptory strike on the ground that the prosecutor’s

4
recollection was mistaken. “We the defense did not object to this at the time . . . . [W]e didn’t

stand up and say well, Your Honor, that question was never asked.” Id. at 66. As counsel

viewed it, “if the defense had objected and said Your Honor, that question was never asked,”

counsel “suspect[ed] the Commonwealth’s response would have been at that time yes, it was.”

Id. at 67.

Bethea’s counsel argued that “there are only two possibilities” for why the transcript did

not reflect the prosecutor’s proffered race-neutral reason — either the prosecutor had made a

mistake and “didn’t remember properly what happened,” or her proffered reason had

“deliberately misrepresented the facts to the [c]ourt.” Id. at 66-67. Bethea’s counsel then

emphatically stated: “I would like to state that in both the motion and in the argument today the

defense was very careful in the words it used, went out of the way with great lengths with the

way we phrased that, to avoid as much as possible implying any deliberate fraud.” Id. at 73. “In

the motion,” Bethea’s counsel told the trial court, “you will not see words like misrepresentation

or false[hood] even though misrepresentation or a falsehood could be innocently made just as

well as deliberately made. The defense didn’t even want to come anywhere close to implying

that.” Id.

In response, the Commonwealth argued that ambiguities in the transcript made it difficult

to respond to Bethea’s argument because it “ignores . . . the non-verbal context in which these

questions were asked.” Id. at 70. The transcript, the Commonwealth further argued, did not

refute the prosecutor’s recollection that the juror had not specifically responded to all of the

questions. In one of the questions from the prosecutor, she had asked the jurors for a show of

hands if they had a “problem” with their duty to “follow the law” and not to require the

Commonwealth to “prove something the law says we don’t have to prove.” Id. at 20. She

5
subsequently asked whether the jurors were “comfortable considering circumstantial evidence.”

Id. at 31. The Commonwealth, in response to Bethea’s motion to set aside the verdict, explained

what the transcript had not fully disclosed:

What is lost in this latter portion of the transcript is the context in
which the question was asked. The Commonwealth, having
already asked members of the panel to raise their hands in response
to a question, raised her own hand in a demonstrative way and the
jurors followed suit. There was more than one occasion during the
course of voir dire where the members raised their hand, despite
only one instance being clear through the transcript. And it was in
response to just such a question when all the panel members, save
for [the stricken juror], responded with raised hands. The
transcript does not and cannot reflect this fact.

Id. at 52-53 (emphases added).

The Commonwealth also placed great weight on the response that Bethea’s counsel had

given to the trial court at the time that the prosecutor had proffered a race-neutral reason for

striking the juror. Counsel’s response, the Commonwealth summarized, was not that the

prosecutor “didn’t ask her to raise her hand or she didn’t raise her hand” to a particular question.

Id. at 71. Counsel instead responded, “I don’t think that amounts to anything,” id. at 38, which

the Commonwealth interpreted as an implied concession to the prosecutor’s “assertion that the

juror didn’t raise her hand,” id. at 71. After hearing these arguments, the trial court succinctly

held that “the Commonwealth did give a race-neutral reason at that point. . . . [I]n the context of

a trial and from all that was offered and argued at that time, I decided to deny the [Batson

challenge to the] strike and I deny the motion in regard to that at this time as well.” Id. at 76.

Bethea appealed to the Court of Appeals on two separate grounds, one of which

addressed the Batson issue. The Court of Appeals observed that Bethea had “initially challenged

the peremptory strike in the trial court based on a proffer of a hearsay statement purportedly

made by the prosecutor to [defense counsel’s law partner].” Bethea v. Commonwealth, 68 Va.

6
App. 487, 502 n.7 (2018). The Court of Appeals did not analyze the issue, however, because

Bethea had “provided no evidence supporting this hearsay allegation and [did] not rely on it on

appeal.” Id. Instead, the Court of Appeals responded to Bethea’s argument

that the fact that the prosecutor did not actually ask the venire
members to “raise their hands” if they “promised to consider all of
the evidence,” in direct contradiction of her representation to the
trial court, plainly shows that the race-neutral reasons were
pretextual. He suggests that the reason given concerning the
question was pretextual and thus the other reasons given were by
extension also pretextual. However, the appellant’s argument
discounts the fact that a prosecutor may be both mistaken and
genuine. An inaccuracy such as the one in this case is relevant to
determining the prosecutor’s credibility but does not as a matter of
law compel the conclusion that the reason given is pretextual.

Id. at 501-02 (emphasis added) (alterations and footnotes omitted). The Court of Appeals further

explained:

The prosecutor’s representation that she instructed the venire
members to raise their hands if they promised to consider all the
evidence was inaccurate. The record shows that she had in fact
asked them to respond with a “yes” to the question of whether they
would focus on the evidence presented to them and asked them to
raise their hands in response to a different question. However, the
represented question was sufficiently similar to the question asked
and was race-neutral. In the context of these facts, the race-neutral
reasons given were not pretextual as a matter-of-law.

Additionally, the trial court’s implicit determinations, both
before and after the inaccuracy was discovered, that the prosecutor
was credible in giving the race-neutral reasons was not clear error.
No evidence in the record demonstrates that the trial court erred in
deciding that the prosecutor did not purposefully discriminate
based on race in striking the juror from the jury panel. The
prosecutor represented that the venire member did not raise her
hand when asked if she “promised to consider all of the evidence,”
but as was later discovered, the prosecutor actually asked similar
questions that involved how the prospective jurors would view the
evidence. The prosecutor also asked the prospective jurors to raise
their hands if they had “a problem” applying legal rules limiting
the amount of evidence that the Commonwealth was required to
present.

7
Id. at 502-03 (alteration omitted). The Court of Appeals affirmed Bethea’s conviction, and this

appeal followed.

II.

We granted this appeal on a single assignment of error:

The Court of Appeals erred when it found that, in response
to a timely Batson challenge, the Commonwealth’s proffered race-
neutral reason for striking a black juror was not pretextual as a
matter of law, and thus affirmed Appellant’s conviction.
Specifically, the Court of Appeals erred when it affirmed the trial
court’s denial of Appellant’s motion to set aside the verdict and
declare a mistrial because the Commonwealth’s reason for the
strike was the juror’s failure to respond in a manner never
requested to a question the Commonwealth never asked.

Appellant’s Br. at 2 (emphases added).

A.

We first address whether Bethea’s assignment of error properly frames the issue on

appeal. At the time of the Batson challenge, Bethea’s counsel stated that he was “watching” the

juror throughout voir dire. J.A. at 38. Despite this attention, Bethea’s counsel never suggested

that the prosecutor was mistaken about the juror failing to raise her hand in response to the

question that the prosecutor had recalled asking. During argument on his motion to set aside the

verdict, Bethea’s counsel conceded this waiver: “We the defense did not object to this at the

time . . . . [W]e didn’t stand up and say well, Your Honor, that question was never asked.” Id. at

66.

That is a crucial concession. If Bethea had made a specific and contemporaneous

objection to the prosecutor’s mistake, the trial court could have asked the court reporter to read

back the real-time transcription to determine whether, if at all, the reporter had recorded the

relevant non-verbal hand gestures and to clarify which, if any, of the questions linked up with the

8
prosecutor’s recollection of the juror’s failure to raise her hand. The trial court also could have

called the juror out for additional voir dire questioning to determine whether she had understood

the previous questions and had accurately communicated her responses. Any of these actions by

the trial court — if it had known that they were necessary — could have completely defeated or,

for that matter, conclusively proved, Bethea’s Batson challenge. Moreover, if the prosecutor had

been convinced during this process that her recollection was wrong, she might have simply

withdrawn the peremptory strike altogether. None of these actions were considered or taken,

however, because Bethea’s counsel never contemporaneously objected to the prosecutor’s

peremptory strike on the ground that the prosecutor had mistakenly recollected voir dire.

In Virginia, objections to the seating of jurors must be asserted “[p]rior to the jury being

sworn.” Code § 8.01-352(A). Untimely objections are generally waived. A trial court has the

authority to grant leave to make untimely objections, see id., but only if the court’s sound

discretion warrants doing so. The statute also emphasizes that either a timely objection or an

untimely objection permitted by leave of court is necessary for the court to grant a motion

“setting aside a verdict or granting a new trial.” Code § 8.01-352(B). Even then, however, the

objecting party must prove that the “irregularity was intentional” or that it would “probably

cause injustice” to one of the parties. Id.

Procedural-default principles require that the argument asserted on appeal be the same as

the contemporaneous argument at trial. See, e.g., Riner v. Commonwealth, 268 Va. 296, 325

(2004) (holding that an appellant waived a challenge to double-tiered hearsay by failing to

specifically object to the trial court’s incomplete ruling as to only one of the two tiers of

9
hearsay). 3 Specificity and timeliness undergird the contemporaneous-objection rule, animate its

highly practical purpose, and allow the rule to resonate with simplicity: “Not just any objection

will do. It must be both specific and timely — so that the trial judge would know the particular

point being made in time to do something about it.” Dickerson v. Commonwealth, 58 Va. App.

351, 356 (2011) (emphases in original) (citation omitted); see also Palmer v. Atlantic Coast

Pipeline, LLC, 293 Va. 573, 579 (2017) (stating that the contemporaneous-objection rule

requires “reasonable certainty at the time of the ruling” and “exists to protect the trial court from

appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the

trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials” (citations

omitted)).

Consequently, neither an appellant nor an appellate court should “put a different twist on

a question that is at odds with the question presented to the trial court.” Commonwealth v.

Shifflett, 257 Va. 34, 44 (1999). Specific, timely objections are required because they are often

resolved, either because the trial court intervenes with a corrective ruling that accommodates the

asserted interests of both sides or because opposing counsel gives a winning explanation that

moots the objection altogether. See Scialdone v. Commonwealth, 279 Va. 422, 437 (2010)

(explaining that a specific, contemporaneous objection “must be made at a point in the

proceeding when the trial court is in a position, not only to consider the asserted error, but also to

rectify the effect of the asserted error” and that “a specific, contemporaneous objection gives the

3
See also West Alexandria Props., Inc. v. First Va. Mortg. & Real Estate Inv. Tr., 221
Va. 134, 138 (1980) (“On appeal, though taking the same general position as in the trial court, an
appellant may not rely on reasons which could have been but were not raised for the benefit of
the lower court.”); Floyd v. Commonwealth, 219 Va. 575, 584 (1978) (holding that this Court
will not consider an argument that differs from the specific argument presented to the trial court,
even if it relates to the same general issue).

10
opposing party the opportunity to meet the objection at that stage of the proceeding” (emphases

added) (alteration and citations omitted)).

Virginia’s procedural-default principles apply to Batson challenges in the same way that

they apply to other trial objections. See Buck v. Commonwealth, 247 Va. 449, 452 (1994) (“At

trial, however, [the defendant] did not make the [Batson] arguments which he makes here.”). 4

To be sure, in the Batson context, federal courts applying their own contemporaneous-objection

rule have held that “a lawyer must challenge an adversary’s use of peremptory challenges before

the completion of jury selection, in part so that the court can (i) contemporaneously assess the

adversary’s conduct; and (ii) remedy any improper conduct without having to repeat the jury

selection process.” United States v. Franklyn, 157 F.3d 90, 97 (2d Cir. 1998) (emphasis in

original). This rule has a highly practical application:

Given the often subtle reasons for the exercise of peremptory
challenges, a court’s determination of whether a prosecutor has
used them in a discriminatory fashion will often turn on the judge’s
observations of prospective jurors and the attorneys during voir
dire and an assessment of their credibility. It is nearly impossible
for the judge to rule on such objections intelligently unless the
challenged juror either is still before the court or was very recently
observed.

Weeks v. New York, 273 F.3d 76, 90 (2d Cir. 2001) (emphasis in original) (citation omitted),

abrogated on other grounds by National R.R. Passenger v. Morgan, 536 U.S. 101, 107-13

4
See also Ford v. Georgia, 498 U.S. 411, 423 (1991) (“[A] state court may adopt a
general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the
jury is sworn, or before its members are selected.”); Batson, 476 U.S. at 99 n.24 (making “no
attempt to instruct [lower] courts how best to implement [the Batson ] holding”); Lewis v.
Commonwealth, 25 Va. App. 745, 747 (1997) (“The United States Supreme Court has not
specifically defined temporal parameters for the making of a Batson motion. Instead, the Court
has left to the lower courts the decision to adopt timeliness rules.”).

11
(2002). This reasoning closely parallels the views expressed by our Court of Appeals two

decades ago:

“The trial court is uniquely positioned to evaluate the
circumstances in each case and to exercise its discretion” in
deciding whether to reseat persons improperly struck from the jury
panel or to discharge the venire and select a jury from a new panel.
A trial court’s exercise of discretion may be improperly cabined,
however, if the challenge is made after the jury is sworn and the
remaining venirepersons are discharged. At that point, the court
cannot reseat a juror improperly stricken, and discharging the
venire and beginning the process of jury selection anew may be
compelled under the circumstances. Such a result will generally
serve neither the public policy Batson seeks to advance, nor the
fair administration of justice.

Lewis v. Commonwealth, 25 Va. App. 745, 751 (1997) (citation omitted). 5

In this case, at the time of the Batson challenge, the prosecutor recalled a specific voir

dire question (“if everyone would promise to consider all of the evidence”) producing a specific

response (a non-verbal “no”) from a noticeably emotional juror. J.A. at 38. Bethea’s counsel

argued that this explanation was pretextual by claiming that “I don’t think that amounts to

anything, Your Honor. I mean, I was watching her. I didn’t see her getting particularly

emotional during the voir dire. I was scanning the jury for people to raise their hands. I don’t

know what that amounts to.” Id.

5
See Ford, 498 U.S. at 423 (stating that “[t]he requirement that any Batson claim be
raised not only before trial, but in the period between the selection of the jurors and the
administration of their oaths, is a sensible rule”); see also United States v. Williams, 819 F.3d
1026, 1029 (7th Cir. 2016); United States v. Reid, 764 F.3d 528, 533 (6th Cir. 2014); United
States v. Brown, 634 F.3d 435, 440 (8th Cir. 2011); Garraway v. Phillips, 591 F.3d 72, 76 (2d
Cir. 2010); Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997); McCrory
v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996); United States v. Parham, 16 F.3d 844, 847
(8th Cir. 1994); United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993); Dias v. Sky Chefs,
Inc., 948 F.2d 532, 534 (9th Cir. 1991); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th
Cir. 1989); Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir. 1986). See generally 6 Wayne R.
LaFave et al., Criminal Procedure § 22.3(d), at 154 & n.227 (4th ed. 2015) (collecting cases).

12
 Hearing just this response, it would not have been clear to the trial court that it should

have sequestered this juror for further questioning. Accepting the prosecutor’s recollection as

true — a reasonable assumption absent a contest over its accuracy — there would be little reason

for the trial court to seat a juror who would not “promise to consider all of the evidence,” id. But

the opposite would be true if Bethea’s counsel had specifically asserted that the prosecutor’s

explanation was pretextual because she had not asked that question and because the juror had not

responded to that unasked question with a non-verbal “no.” If the trial court had heard this

assertion, it is likely that the court would have engaged the Batson challenge differently.

Defending his admitted failure to contemporaneously assert that the prosecutor had a

mistaken recollection of the voir dire, Bethea’s counsel contends on appeal that his response to

the prosecutor’s proffered race-neutral reason was merely “ambiguous” and that his statements

did not imply that he was “familiar with the question to which [the juror] failed to raise her

hand.” Reply Br. at 4-5 (quoting Appellee’s Br. at 19-20). “This is mere speculation on the part

of the Commonwealth,” Bethea’s counsel argues. Id. at 5. His “ambiguous statements,” counsel

maintains, did “not constitute [an] implicit acceptance that what the prosecutor said was true . . . .

To be conclusive, it must be unambiguous.” Id. at 7. Bethea’s counsel implicitly concludes that

we should consider the merits of his argument on appeal based upon not only his post-trial

argument in support of his Batson motion but also his contemporaneous argument at trial.

We are unpersuaded by Bethea’s attempt to combine his contemporaneous argument at

trial with his post-trial argument. He argued at trial that the Commonwealth’s race-neutral

explanation was irrelevant, but then, seven months after trial, he argued for the first time that the

prosecutor’s explanation was highly relevant because it was based upon a mistaken recollection

13
of the voir dire exchange. These arguments are quite different. If that conclusion were the sum

of the matter, we would not address his post-trial argument on appeal.

B.

During the post-trial hearing, the trial court did not state whether it was refusing to

consider Bethea’s newly asserted argument because it was untimely. Nor did the court expressly

grant Bethea leave under Code § 8.01-352(A) to make this argument. Yet Bethea did make the

belated argument, and without an express statement to the contrary, the trial court presumably

considered this argument in its decision on the merits. Given the uncertainty of the trial court’s

disposition on the timeliness of Bethea’s specific Batson argument, we will assume without

deciding that the trial court implicitly concluded that Bethea’s post-trial argument merely

amplified (rather than substantively changed) his contemporaneous argument at trial. Even with

that assumption, however, we find no error in the trial court’s denial of Bethea’s motion to set

aside the verdict based upon his Batson challenge.

1.

The Founders understood the citizen jury as “the ‘lower judicial bench’ in a bicameral

judiciary” 6 and “the democratic branch of the judiciary power.” 7 Protecting the integrity of this

“sacred” tradition, Va. Const. art. I, § 11, Batson stands as a watchtower over voir dire in

criminal cases to guard juries from being poisoned by racial bias whether injected by prosecutors

or by criminal defense attorneys. Batson does so by targeting “purposeful discrimination in

6
Akhil Reed Amar & Les Adams, The Bill of Rights Primer 138 (2002) (quoting John
Taylor, An Inquiry into the Principles and Policy of the Government of the United States 209
(W. Stark ed., 1950) (1814)).
7
Id. (quoting Essays by a Farmer (IV), reprinted in 5 The Complete Anti-Federalist 36,
38 (Herbert J. Storing ed., 1981)). See generally Akhil Reed Amar, The Bill of Rights: Creation
and Reconstruction 11, 81-118 (1998).

14
selection of the petit jury.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241 (2019) (emphasis

added).

A Batson challenge involves three sequential steps: (1) the opponent of the strike “must

make out a prima face case” of purposeful discrimination; (2) “the ‘burden shifts to the State to

explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the

strikes”; and (3) “if a race-neutral explanation is tendered, the trial court must then decide

whether the opponent of the strike has proved purposeful racial discrimination.” Johnson v.

California, 545 U.S. 162, 168 (2005) (alterations and citations omitted).

The three-step architecture of Batson presumes the good faith of prosecutors. “We have

no reason to believe that prosecutors will not fulfill their duty to exercise their challenges only

for legitimate purposes.” Batson, 476 U.S. at 99 n.22. In sync with this first premise, “Batson,

of course, explicitly stated that the defendant ultimately carries the ‘burden of persuasion’ to

‘prove the existence of purposeful discrimination.’” Johnson, 545 U.S. at 170-71 (quoting

Batson, 476 U.S. at 93).

“This burden of persuasion ‘rests with, and never shifts from, the opponent of the

strike.’” Id. at 171 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)); see also

Rice v. Collins, 546 U.S. 333, 338 (2006). “Thus, even if the State produces only a frivolous or

utterly nonsensical justification for its strike, the case does not end — it merely proceeds to step

three.” Johnson, 545 U.S. at 171. Step three of a Batson challenge ends the analysis on the

ultimate question — “whether the opponent of the strike has carried his burden of proving

purposeful discrimination.” Id.; see Hernandez v. New York, 500 U.S. 352, 363 (1991) (plurality

opinion).

15
 The burden of proof deserves emphasis, particularly given the contrary view advocated

by our dissenting colleagues. The burden-shifting paradigm of a Batson challenge has been

finely calibrated to define step one as a mere prima facie case of discrimination. If the trial judge

is unpersuaded by the prosecutor’s race-neutral explanation, which is required by step two, that

does not mean that the trial judge has no choice but to hold that the allegation of discrimination

in step one has been proved by a preponderance of the evidence. The reason why is because,

under step one of Batson, a prima facie case need not “show that it is more likely than not” that

the basis of the strike was purposeful racial discrimination. Johnson, 545 U.S. at 168. This is a

“narrow but important” point. Id. The “‘more likely than not’ standard is an inappropriate

yardstick” for a prima facie case under step one of a Batson challenge. Id. A fortiori, a mere

“inference of discrimination” provided at step one, id. at 169-70, by itself, cannot set an

immovable anchor for a later factual finding.

“The first two Batson steps,” the Supreme Court has explained, “govern the production

of evidence that allows the trial court to determine the persuasiveness of the defendant's

constitutional claim.” Id. at 171. “It is not until the third step that the persuasiveness of the

justification becomes relevant — the step in which the trial court determines whether the

opponent of the strike has carried his burden of proving purposeful discrimination.” Id.

(emphasis in original) (quoting Purkett, 514 U.S. at 768). In this way, the Batson framework

“comports” with Title VII cases “holding that determinations at steps one and two of the

[burden-of-production] framework ‘can involve no credibility assessment’ because ‘the burden-

of-production determination necessarily precedes the credibility-assessment stage,’ and that the

burden-shifting framework triggered by a defendant’s prima fac[i]e case is essentially just ‘a

means of ‘arranging the presentation of evidence.’” Id. at 171 n.7 (quoting St. Mary’s Honor

16
Ctr. v. Hicks, 509 U.S. 502, 509-10 & n.3 (1993)) (citing Furnco Constr. Corp. v. Waters, 438

U.S. 567, 577 (1978)).

The opposite view, adopted by the dissent, treats a prima facie case as irrefutable — so

much so that no trial judge could resist its persuasive force without first finding whether the

evidence of refutation overcomes it. The very definition of prima facie refutes this view. This

Latin phrase simply means “[a]t first sight” or “on first appearance,” not last sight or appearance.

Black’s Law Dictionary 1441 (11th ed. 2019) (defining “prima facie” further as “[s]ufficient to

establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be

true on first examination, even though it may later be proved to be untrue” (emphasis added)).

Finding that evidence satisfies the prima facie standard only means that a reasonable

factfinder could rationally accept the evidence (“[a]t first sight”, id.) as satisfying the applicable

burden of proof, and it does not mean the proponent of the prima facie case has in fact proven his

case. See Nance v. Commonwealth, 203 Va. 428, 432 (1962) (“The [prima facie]

presumption . . . cuts off no defense nor interposes any obstacle to a contest of the facts, and

‘relieves neither the court nor the jury of the duty to determine all of the questions of fact from

the weight of the whole evidence. “It is merely a rule of evidence and not the determination of a

fact.”’” (citation omitted)); Barton v. Camden, 147 Va. 263, 272-73 (1927) (acknowledging that

a prima facie presumption “is not conclusive”); cf. Gibson v. Commonwealth, 287 Va. 311, 320

n.3 (2014) (stating that “[t]he burden of proof is not to be confused with the burden of going

forward to produce evidence” and that the presentation of a prima facie case shifts only “the

burden of producing evidence to overcome that prima facie case,” not the burden of proof, which

“never shifts”). For example, when a civil defendant in a bench trial loses a motion to strike at

the end of the plaintiff’s case, that does not mean that the trial judge has no choice but to enter a

17
verdict against the defendant if he offers no evidence of his own. It only means that the judge

could find for the plaintiff but, before doing so, the judge must determine whether he — not

some hypothesized reasonable factfinder — truly believed the plaintiff’s evidence with the level

of confidence required by the applicable burden of proof.

2.

In this case, Bethea’s counsel conceded in the trial court that the prosecutor “gave a race-

neutral reason,” J.A. at 60, and thus, the Batson challenge could proceed to the third step. The

prosecutor’s reason was simple: She thought that she had seen an emotional juror who had failed

to raise her hand to a specific voir dire question. For the Batson process to continue, the trial

judge did not have to believe or disbelieve the factual accuracy of this assertion. Under Batson,

the “‘second step of this process does not demand an explanation that is persuasive, or even

plausible’; so long as the reason is not inherently discriminatory, it suffices.” Rice, 546 U.S. at

338 (quoting Purkett, 514 U.S. at 767-68).

Our colleagues in dissent, therefore, err by “combining Batson’s second and third steps

into one, requiring that the justification tendered at the second step be not just neutral but also at

least minimally persuasive, i.e., a ‘plausible’ basis” because “[i]t is not until the third step that

the persuasiveness of the justification becomes relevant — the step in which the trial court

determines whether the opponent of the strike has carried his burden of proving purposeful

discrimination.” Purkett, 514 U.S. at 768 (emphasis in original) (citation omitted). “Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be

deemed race neutral.” Hernandez, 500 U.S. at 360.

It is true that “implausible or fantastic justifications may (and probably will) be found to

be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768. “But to say that a trial

18
judge may choose to disbelieve a silly or superstitious reason at step three is quite different from

saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is

silly or superstitious.” Id. (emphases in original). To allow the rejection of the prosecutor’s

explanation in step two in order to render invincible the defendant’s prima facie inference in step

one “violates the principle that the ultimate burden of persuasion regarding racial motivation

rests with, and never shifts from, the opponent of the strike.” Id. 8

3.

In this case, after conceding that the prosecutor had offered a facially race-neutral reason

for the strike, Bethea’s counsel told the trial court at the post-trial hearing that the prosecutor’s

8
Openly taking a different view, the dissent begins with statement: “Once the
Commonwealth’s invalid reason for the strike is eliminated from consideration, all that remains
is Bethea’s assertion that the strike was racially motivated based on the prosecutor’s previous
‘Black Lives Matter’ comment.” Post at 28. This argument later becomes the sole basis of the
dissent’s conclusion:
In light of the Commonwealth’s failure to offer a plausible race-
neutral explanation, all that remained for the trial court to consider
in deciding the Batson challenge was Bethea’s assertion that the
strike of minority panel members was racially motivated which
was supported by the unchallenged proffer. This state of facts
leads me to the inevitable conclusion that Bethea’s Batson
challenge should have been granted.
Post at 37-38.
Embedded in this reasoning is the dissent’s emphasis on the fact that the prosecutor
“waived any argument regarding whether Bethea made a prima facie showing” of discrimination.
Post at 29. I agree that she waived this argument. The only relevance of this waiver, however, is
that the trial judge could not dismiss Bethea’s assertion in step one as insufficient as a matter of
law but instead had to proceed to step three. Then, and only then, could the trial judge consider
the assertion on the merits to determine whether he believed it was more likely than not true.
Moreover, even if the prosecutor had not waived any argument regarding Bethea’s prima facie
showing of discrimination, any such argument is moot. See Hernandez, 500 U.S. at 359 (“Once
a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial
court has ruled on the ultimate question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes moot.”).

19
stated reason for the strike was not supported by the transcript and that “there are only two

possibilities” for this conclusion — either the prosecutor had made a mistake and “didn’t

remember properly what happened,” or her proffered reason had “deliberately misrepresented the

facts to the [c]ourt.” J.A. at 66-67. After the Commonwealth challenged the assertion that the

prosecutor had misrepresented the facts, Bethea’s counsel emphatically clarified his position: “I

would like to state that in both the motion and in the argument today the defense was very

careful in the words it used, went out of the way with great lengths with the way we phrased that,

to avoid as much as possible implying any deliberate fraud.” Id. at 73. “In the motion,”

Bethea’s counsel told the trial court, “you will not see words like misrepresentation or

false[hood] even though misrepresentation or a falsehood could be innocently made just as well

as deliberately made. The defense didn’t even want to come anywhere close to implying that.”

Id. By process of elimination, therefore, this concession left only one remaining possibility: The

prosecutor simply had made a mistake. 9

9
Bethea has not asked to withdraw this concession, nor would we allow him to do so. A
litigant cannot be permitted to “approbate and reprobate” by “disavow[ing] on appeal the very
argument [he] made at trial” because “a litigant may not take ‘successive positions in the course
of litigation that are either inconsistent with each other or mutually contradictory.’” Babcock &
Wilcox Co. v. Areva NP, Inc., 292 Va. 165, 204 (2016) (citations omitted); see also Wooten v.
Bank of Am., N.A., 290 Va. 306, 310 & n.2 (2015) (describing the approbate-reprobate doctrine
as “protect[ing] a basic tenet of fair play: No one should be permitted, in the language of the
vernacular, to talk through both sides of his mouth”).
The dissent seeks to relieve Bethea of his concession by dissecting counsel’s statements
to conclude that counsel conceded only that the prosecutor’s race-neutral explanation was not a
“fraud on the court.” Post at 33-34. We think this interpretation is far too charitable. But, even
so, fraud on the court is merely making a deliberate misrepresentation to a court. If the
prosecutor did not deliberately misrepresent her reasons for the strike, as Bethea conceded, then
the prosecutor truly believed her reasons, and thus, they were not pretextual. If she truly
believed reasons that were factually inaccurate, then she simply made a mistake because she
“didn’t remember properly what happened.” J.A. at 66.

20
 In the Batson context, a “pretext” is a race-neutral explanation used to misrepresent and

conceal the prosecutor’s real motive — purposeful racial discrimination. Thus, a mere mistake,

in and of itself, is not a pretext. See Aleman v. Uribe, 723 F.3d 976, 982 (9th Cir. 2013) (“After

all, Batson prohibits purposeful discrimination, not honest, unintentional mistakes.”). “What

[Batson] means by a ‘legitimate reason’ is not a reason that makes sense, but a reason that does

not deny equal protection.” Purkett, 514 U.S. at 769. Put differently, Batson focuses not on the

“reasonableness of the asserted nonracial motive” but “rather . . . the genuineness of the

motive.” Id. (emphases in original).

“It follows that Batson and its progeny direct trial judges to assess the honesty — not the

accuracy — of a proffered race-neutral explanation.” Lamon v. Boatwright, 467 F.3d 1097, 1101

(7th Cir. 2006) (emphasis in original). 10 A Batson challenge based upon the “factual accuracy”

of the race-neutral explanation “aims at the wrong target.” Id. The right target is the “credibility

of the prosecutor’s explanation” because that credibility determination “goes to the heart of the

equal protection analysis.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (quoting Hernandez,

500 U.S. at 367). “[O]nce that has been settled, there seems nothing left to review.” Id. (quoting

Hernandez, 500 U.S. at 367).

In short, Bethea’s pretext argument collapses under its own weight. The logical flaw in

Bethea’s pretext argument is that the prosecutor’s race-neutral reason cannot at the same time be

10
See also Lee v. Commissioner, 726 F.3d 1172, 1226 (11th Cir. 2013) (“The conclusion
that an honestly mistaken but race-neutral reason for striking a black venire member did not
violate Batson was not unreasonable.”); United States v. George, 363 F.3d 666, 674 (7th Cir.
2004) (explaining that, under Batson, “the government’s proffered reason for the strike need not
be particularly persuasive, or even based on quantifiable data, so long as it is not pretextual”);
United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000) (“[T]he ultimate inquiry for the
judge is not whether counsel’s reason is suspect, or weak, or irrational, but whether counsel is
telling the truth in his or her assertion that the challenge is not race-based.”).

21
both an unintentional mistake and a pretextual, purposeful misrepresentation. Because Bethea

conceded the former and disclaimed the latter in his post-trial argument, the Batson analysis in

this case can and should stop there.

4.

On appeal, however, Bethea continues to press the pretext argument by circling back to

the proffer that his counsel had made in support of his prima facie challenge to the prosecutor’s

peremptory strike. We have two responses. First, the Court of Appeals ruled that Bethea

abandoned his argument that the hearsay remark proves the pretextual nature of the prosecutor’s

explanation. During oral argument before the Court of Appeals, Bethea was asked:

But your point is not — because you do not have any notes and
you never brought in any . . . evidence relating to the earlier
statements to [counsel’s law partner]. You didn’t do that. Your
point was that it had to be a pretext because the statement, the
question that the prosecutor said was asked was never asked, and
that the juror was never asked to raise their hand. I mean, that
was your whole argument.

CAV Oral Argument Audio at 6:59 to 7:27, Bethea, 68 Va. App. 487 (Record No. 2014-16-4)

(emphasis added). Bethea’s counsel responded: “Yes, on the motion to vacate, that was

essentially the argument. Yes, Your Honor.” Id. at 7:28 to 7:33. As a result, the Court of

Appeals held that Bethea had abandoned his argument that the pre-trial hearsay remark implied

pretext. See Bethea, 68 Va. App. at 502 n.7 (“The appellant initially challenged the peremptory

strike in the trial court based on a proffer of a hearsay statement purportedly made by the

prosecutor to [counsel’s law partner]. He provided no evidence supporting this hearsay

allegation and does not rely on it on appeal.”).

Bethea does not assign error to this holding on appeal to us or even challenge this holding

in his briefs before this Court. Rule 5:17(c)(1)(iii) requires an assignment of error to “address

22
the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an

appeal is taken.” See Parker v. Carilion Clinic, 296 Va. 319, 332 (2018). When an appellant

“fails to assign error to a particular holding,” we treat it as “binding on appeal.” See Egan v.

Butler, 290 Va. 62, 79 (2015). Therefore, this pretext argument is not before us on appeal. See

Lawlor v. Commonwealth, 285 Va. 187, 258 (2013) (“We consider only arguments within the

scope of the assignment of error.”). 11

Second, Bethea cannot overcome the combined effect of the burden of proof and the

appellate standard of review. From the beginning to the end of the Batson challenge, Bethea

bore the burden of proving that the prosecutor’s true motive was purposeful racial

discrimination. The only suggestion of such a motive was counsel’s initial proffer about an

alleged remark made by the prosecutor to defense counsel’s law partner, which, at a minimum,

was double-tiered hearsay. 12 Bethea provided no additional evidence concerning this hearsay

proffer, nor did he provide any context for the alleged statement.

11
The dissent agrees that Bethea did not challenge the holding of the Court of Appeals on
this point. See post at 35 n.7. The dissent nonetheless believes we should overlook Bethea’s
waiver because, when conducting a Batson analysis, courts should look at “all of the
circumstances” in the record. Post at 35 n.7 (emphasis omitted) (quoting Snyder v. Louisiana,
552 U.S. 472, 478 (2008)). This argument confounds the appellate standard of review and the
role of appellate procedural-default principles. Snyder held that a trial court reviewing a Batson
objection should examine all facts before the court that either support or refute the objection, but
that holding presupposes an objection was actually made in the trial court. Similarly, on appeal,
we review the entire record in a host of circumstances (e.g., evidentiary sufficiency, see
Commonwealth v. White, 293 Va. 411, 421 (2017), and suppression rulings, see id. at 414), but
those tasks also presuppose that the appellant has preserved the issue on appeal.
12
Because Bethea’s counsel never divulged the source of this information and never
expressly stated that his law partner had told him this information directly, see supra note 1, we
have no way of knowing the exact number of hearsay tiers. The remark could have come to the
attention of Bethea’s counsel through a string of hearsay statements.

23
 We must also view this hearsay remark from the trial court’s perspective. The court

heard the remark only one time from Bethea’s counsel. Counsel mentioned it at the very

beginning of his Batson challenge and never mentioned it again during his Batson argument at

trial. Over the course of 22 pages of transcript containing the parties’ Batson arguments,

Bethea’s counsel devoted only 6 lines of 1 page to the proffered remark. Given the remark’s

ambiguity, its (at best) double-tiered hearsay nature, and counsel’s tepid reliance upon the

remark, the trial court reasonably found that the remark did not prove that the prosecutor’s

mistaken recollection amounted to purposeful racial discrimination.

The dissent relies upon the unchallenged-proffer rule to imply that the trial court should

have accepted the proffer as “in fact, true.” Post at 30 n.2. 13 As we earlier observed, a trial court

advances to step two of the Batson analytical framework not based on any credibility findings

concerning the defendant’s prima facie assertion in step one. Supra at 15-17. In this case, the

transition from step one to step two simply meant the trial court found that the hearsay proffer, if

true, could demonstrate purposeful discrimination.

Finally, the appellate standard of review bookends our discussion on this case.

Explaining its denial of Bethea’s Batson motion, the trial court expressly held that the

prosecutor’s explanations were “race-neutral reason[s] for making these particular peremptory

13
Under settled principles, a “unilateral avowal of counsel of testimony that could be
presented constitutes a proper proffer, if unchallenged.” Bloom v. Commonwealth, 262 Va. 814,
821 (2001); Whittaker v. Commonwealth, 217 Va. 966, 969 (1977). Deeming this avowal a
“proper proffer,” however, merely renders admissible what would otherwise be an inadmissible
hearsay statement by a lawyer. Bloom, 262 Va. at 821-22 (concluding that an “unchallenged
pretrial proffer” allowed the proponent to forgo the requirement of proving “facts at trial to
establish the admissibility of the statements”). The rule says nothing about the evidentiary
weight the factfinder may or should give to the proffer. See id. at 821 (distinguishing that while
a trial court determines the “factual questions underlying the admissibility of evidence,”
including whether “a proper proffer” has been presented, the factfinder “determines the weight of
the evidence”).

24
strikes, and I’m going to allow them to go forward as stricken.” J.A. at 41. “Batson’s treatment

of intent to discriminate [i]s a pure issue of fact,” Hernandez, 500 U.S. at 364, and “a trial court

finding regarding the credibility of an attorney’s explanation of the ground for a peremptory

challenge is ‘entitled to “great deference,”’” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015)

(citation omitted). This deference is understandable because the judicial “evaluation of the

prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial

judge’s province.’” Hernandez, 500 U.S. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428

(1985)). “[I]n the absence of exceptional circumstances,” therefore, appellate courts should

“defer to the trial court” because “[a]ppellate judges cannot on the basis of a cold record easily

second-guess a trial judge’s decision about likely motivation.” Davis, 135 S. Ct. at 2201. As no

such exceptional circumstances exist in this case, we decline Bethea’s “invitation to erode the

proof burden of the defendant established in Batson.” Buck, 247 Va. at 453.

5.

To be clear, we are not suggesting that a prosecutor’s mistaken explanations may never

be challenged as pretextual. No doubt they can be. A recent example of a faux mistake that was

held to be pretextual appears in Flowers, in which the United States Supreme Court recognized:

To be sure, the back and forth of a Batson hearing can be hurried,
and prosecutors can make mistakes when providing explanations.
That is entirely understandable, and mistaken explanations should
not be confused with racial discrimination. But when considered
with other evidence of discrimination, a series of factually
inaccurate explanations for striking black prospective jurors can be
telling. So it is here.

139 S. Ct. at 2250 (emphasis added).

Flowers held that the proffered explanation in that case was not a mistake at all, but

rather a pretextual excuse camouflaging the prosecutor’s purposeful racial discrimination. See

25
id. Those facts included the same prosecutor subjecting the defendant to 6 successive trials for

the same murders, during which the prosecutor struck a combined 41 of 42 African-American

jurors. See id. at 2234-36. During the sixth trial, the prosecutor struck five of six African-

American jurors, discriminated between African-American and white jurors in the vigor and the

extent of voir dire questioning, and, tellingly, offered a supposed “misstatement” as to the reason

for striking one of the jurors, which provided yet “another clue showing discriminatory intent.”

Id. at 2250-51. Suffice it to say, Bethea’s case does not come close to the facts in Flowers. 14

III.

Assuming arguendo that Bethea’s assignment of error properly framed the issue on

appeal, we hold that the trial court did not err in denying his motion to set aside the verdict based

upon his Batson challenge. The record provides ample support for the trial court’s finding that

Bethea had not shouldered his burden of proving purposeful racial discrimination. Given the

“great deference” owed to the trial court’s factual findings, Batson, 476 U.S. at 98 n.21, we

affirm the judgment of the Court of Appeals.

Affirmed.

JUSTICE POWELL, with whom JUSTICE MIMS joins, dissenting.

14
Nor does Bethea’s case have any similarities with Foster v. Chatman, a habeas case in
which the “contents of the prosecution’s file . . . plainly belie[d] the State’s claim that it
exercised its strikes in a ‘color-blind’ manner.” 578 U.S. ___, ___, 136 S. Ct. 1737, 1755
(2016). “The sheer number of references to race in that file [was] arresting.” Id. The file
included the letter “N” next to the names of each of the African-American jurors, “definite
NO’s” noted next to several African-American jurors, and an emphatic “NO. NO Black
Church.” Id. at 1744 (emphases in original). The evidence plainly showed that the prosecutor’s
purported race-neutral reasons for the challenged peremptory strikes were “misrepresentations to
the trial court,” id. at 1749, intended to hide his true discriminatory motivation. See id. at 1754-
55.

26
 A horrific crime was perpetrated against a white male. The defendant, Bethea, is African

American. Bethea’s first trial ended in a mistrial, with three jurors voting to acquit him. During

juror selection for the retrial, the Commonwealth used two of its peremptory strikes to remove

two African American jurors. Counsel for Bethea then made a Batson challenge, stating:

I’m aware of a conversation between [the prosecutor] and . . . Mr.
Leahy where Mr. Leahy was told that the last time, the jury was
nine-to-three to convict, and the three people who voted to acquit
were black and then something about the Black Lives movement.

The trial court immediately requested that the Commonwealth provide a race-neutral

reason for the strikes. In response, the Commonwealth stated that the reason it struck one of the

jurors was because “[s]he didn’t answer all the questions and she appeared emotional at times.”

Specifically, the prosecutor explained “when I asked if everyone would promise to consider all

of the evidence, and if they would raise their hand to do so, she didn’t raise her hand.” The

prosecutor further insisted “I asked, will everyone promise to consider all of the evidence in this

case, circumstantial and otherwise, and everyone on the panel raised their hand except for her.”

In response, the trial court asked “[a]re you saying that she indicated that she would not listen to

all the evidence?” The prosecutor responded “[b]y not raising her hand when everyone else did.”

The trial court then stated:

I do recall when you made the request, when the jury was to raise
the hand. I did not scan the jury, but I did not see at that time that
anybody did not raise their hand. Did she nod and not raise her
hand?

To which the prosecutor again responded “[s]he didn’t raise her hand.”

A review of the record indicates that the question identified by the prosecutor was never

asked. The record further reveals that the Commonwealth explicitly asked for a show of hands

to a single question:

27
 Is everyone here willing to follow the law and absolutely make us
prove the things that we have to prove to you, but not make us
prove the things that the law says we don’t have to prove? Raise
your hand if you have a problem with that law; you won’t make us
prove something the law says we don't have to prove?

(Emphasis added.) There was no response from the jury panel.

In response to Bethea’s post-trial motion, the Commonwealth acknowledged that the

question was not asked. However, it asserted that the actual question that was not answered was

“Are you comfortable considering circumstantial evidence in terms of a criminal case?” The

Commonwealth concluded its argument by stating “[w]hether it was refusing to agree to 1)

follow the law; or 2) to consider all the evidence, the Commonwealth clearly proffered a race-

neutral and appropriate reason to exercise a preemptory strike.” Noticeably absent from the

Commonwealth’s post-trial explanation for the peremptory strike was the fact that the record

unequivocally demonstrates that the jury panel verbally responded “Yes” to the circumstantial

evidence question. Further, at no time did the Commonwealth ever claim that it may have been

mistaken as to what was asked or what answers were given by the juror.

The United States Supreme Court has recognized that peremptory strikes “are often

subjects of instinct . . . and it can sometimes be hard to say what the reason is.” Miller-El v.

Dretke, 545 U.S. 231, 252 (2005). However, when a Batson challenge is raised, “a prosecutor

simply has got to state his reasons as best he can and stand or fall on the plausibility of the

reasons he gives.” Id.

The majority’s decision in the present case would allow a prosecutor’s demonstrably

false reason to stand, notwithstanding the fact that, after all three steps of the Batson analysis

have been conducted, such a reason is necessarily implausible. Once the Commonwealth’s

invalid reason for the strike is eliminated from consideration, all that remains is Bethea’s

assertion that the strike was racially motivated based on the prosecutor’s previous “Black Lives

28
Matter” comment. As “excluding a potential juror solely on the basis of the juror’s race is

purposeful discrimination and a violation of the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution,” Jackson v. Commonwealth, 266 Va. 423, 435

(2003) (citing Batson v. Kentucky, 476 U.S. 79, 89 (1986)), I must respectfully dissent.

Adjudicating a Batson challenge involves a three-step process.

First, the defendant must make a prima facie showing that the
prosecutor has exercised peremptory challenges on the basis of
race. Second, if the requisite showing has been made, the burden
shifts to the prosecutor to articulate a race-neutral explanation for
striking the jurors in question. Finally, the trial court must
determine whether the defendant has carried his burden of proving
purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358–59 (1991) (citations omitted).

With regard to the first step, the Commonwealth has waived any argument regarding

whether Bethea made a prima facie showing that the Commonwealth made its peremptory strikes

on the basis of race by immediately offering purportedly race-neutral explanations for the strikes.

See id. at 359 (“Once a prosecutor has offered a race-neutral explanation for the peremptory

challenges and the trial court has ruled on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant had made a prima facie showing becomes moot.”);

Faison v. Hudson, 243 Va. 397, 402 (1992) (recognizing that offering a race-neutral explanation

for a strike without raising the procedural issue of whether a prima facie case of discrimination

was established waives any subsequent challenge on the issue).

Notwithstanding the Commonwealth’s waiver of any challenge to the truth of this

assertion, the majority discounts the proffered racial remarks made by the prosecutor. Notably,

the majority characterizes the allegation as an ambiguous, double-tiered hearsay statement

29
unsupported by any evidence. 1 This Court has recognized, however, that “a unilateral avowal of

counsel, if unchallenged, or a mutual stipulation of the testimony expected constitutes a proper

proffer.” Whittaker v. Commonwealth, 217 Va. 966, 969 (1977). Here, the Commonwealth did

not object or challenge the proffer in the trial court and the prosecutor who allegedly made the

comments never disputed 2 them. In the absence of any challenge by the Commonwealth, the

proffered remarks constituted a proper proffer that could be relied upon.

Having accepted the unchallenged proffer, the trial court proceeded to the second step of

the Batson analysis and required that the Commonwealth provide a race-neutral reason for

striking the juror. The Commonwealth offered two explanations for striking the juror at issue

here: she appeared emotional 3 and she did not answer all of the Commonwealth’s questions. 4

The Commonwealth specifically took issue with the juror’s alleged failure to answer whether she

would consider all the evidence. “At this step of the inquiry, the issue is the facial validity of the

1
The majority also notes “counsel’s tepid reliance upon the remark,” referring to the fact
that the remark was only briefly discussed during the Batson challenge. However, as I explain,
there was no need to continue to discuss the proffer at that time. Further, contrary to the
majority’s assertion, Bethea also relied on the remark in his motion to set aside the verdict, his
brief to the Court of Appeals and, albeit briefly, in oral argument before the Court of Appeals.
2
To me, it is the prosecutor’s silence on this matter that is most telling. Given the nature
of these remarks, I can think of no reason that any attorney, much less an assistant
Commonwealth’s Attorney, would remain silent in the face of such accusations, unless they
were, in fact, true.
3
Whether the juror actually appeared emotional was disputed by Bethea’s counsel and
there is no indication that the trial court based its ruling on this issue. In the absence of a specific
finding on whether the juror was emotional, the Court cannot presume that the trial court credited
the Commonwealth’s assertion on this issue. See Snyder v. Louisiana, 552 U.S. 472, 479 (2008).
4
The Court of Appeals stated that the Commonwealth offered three reasons, however, a
review of the record demonstrates that two of the reasons identified by the Court of Appeals
were actually the same reason with differing degrees of specificity. Indeed, the only question
that the Commonwealth asserts that the juror did not answer was whether she would consider all
the evidence.

30
prosecutor’s explanation.” Hernandez, 500 U.S. at 360 (emphasis added). Here, there is no

dispute that the offered explanations by the Commonwealth were facially race neutral.

The third step in adjudicating a Batson challenge requires the trial court to determine

whether the defendant carried his burden in light of the submissions by the parties. This step no

longer looks to the facial validity of the offered race-neutral explanation; rather, “the decisive

question will be whether counsel’s race-neutral explanation for a peremptory challenge should be

believed.” Id. at 365 (emphasis added). Stated another way, the credibility of the explanation

offered by the Commonwealth is at issue. See id. at 367 (“The credibility of the prosecutor’s

explanation goes to the heart of the equal protection analysis.”). It is here that the trial court

erred.

The record unequivocally demonstrates that the events that formed the main thrust of the

Commonwealth’s race-neutral explanation never happened. The transcript of the voir dire

reveals that the Commonwealth’s explanation had no factual basis because 1) it only asked one

question where the members of the venire were specifically told to raise their hands and none of

the jurors raised their hands in response 5 and 2) it never asked the question that it claimed that

the juror did not answer. Thus, the Commonwealth’s race-neutral explanation was simply not

true and, once the trial court became aware of this fact, that explanation necessarily lacked any

credibility.

5
The Commonwealth’s claim that the transcript does not properly convey the context of
its questions because it does not show that the prosecutor conducting the voir dire had “raised
her own hand in a demonstrative way and the jurors followed suit” is particularly unavailing.
Notably, the Commonwealth cannot point to which particular question the juror failed to respond
to, which is odd given that it has access to the transcript and all of the questions asked as voir
dire. What is clear, however, is that, because the Commonwealth cannot pinpoint the question at
issue, it cannot successfully argue the nature of the jurors’ response (i.e., whether it was verbal or
by raising hands).

31
 Moreover, a “stated reason that does not hold up” has “pretextual significance” that “does

not fade because a trial judge, or an appeals court, can imagine a reason that might not have been

shown up as false.” Miller-El, 545 U.S. at 252. See also Purkett v. Elem, 514 U.S. 765, 768

(1995) (per curiam) (“At [the third] stage, implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful discrimination.”). Thus, once it was

established that the Commonwealth’s stated race-neutral explanation had no basis in fact, it

became pretextually significant, especially in light of the fact that Bethea had already made a

prima facie showing that the Commonwealth’s strike was racially motivated. 6

The majority, however, takes the position that, at most, the Commonwealth simply made

a mistake and a mistake cannot be a pretext. Although I agree with the majority that an honest,

unintentional mistake cannot be a pretext, I cannot agree with the majority’s determination that

the record supports its supposition that such a mistake exists in the present case. Notably, there

is nothing to indicate that the prosecutor’s actions amounted to an honest, unintentional mistake.

Neither the majority nor the Commonwealth can point to any evidence in the record establishing

that the prosecutor simply misspoke or referenced the incorrect question. Indeed, a review of the

transcript demonstrates that there was no question asked where a juror’s failure to raise his or her

hand would have justified striking that juror. Rather, all of the disqualifying questions clearly

6
The majority asserts that, because at one point during his argument counsel for Bethea
stated that “[t]he Commonwealth gave a race-neutral reason,” he conceded that the
Commonwealth’s offered reason was not a pretext. The context in which this statement was
made, however, clearly indicates that Bethea’s counsel was not making such a concession. At
most, this statement merely acknowledged that the Commonwealth had met its burden in the
second step of the Batson challenge: it offered a facially race neutral explanation for the strike.
Notably, counsel followed this statement up by insisting that the Commonwealth’s facially race-
neutral reason was a pretext because it was not “a race-neutral reason that was true.” (Emphasis
added.)

32
received a verbal response (e.g., “Are you comfortable considering circumstantial evidence in

terms of a criminal case?” Jury response: “Yes.”).

Moreover, the Commonwealth never asserted that it made a mistake. At most, when

shown that its assertion was false, the Commonwealth merely posited that perhaps it was a

different question or a similar question, without pointing to a specific question with a

disqualifying response.

Rather than address the fact that the Commonwealth offered a demonstrably false reason

to justify the strike, the majority instead relies on a “concession” from Bethea’s counsel that

“[t]he prosecutor simply had made a mistake.” Ante at 16-17. By relying on this purported

“concession,” the majority never addresses the fact that the Commonwealth failed to offer a

legitimate race-neutral explanation for the strike. Moreover, I disagree with the majority’s

interpretation of the record to find this “concession.”

The language quoted by the majority to establish the “concession” was taken from

counsel’s arguments on two separate issues and combined to establish the alleged “concession.”

The first part of the “concession” was derived from counsel’s explanation to the trial court for

why he did not immediately object to the prosecutor’s initial explanation. While discussing why

he “didn’t stand up and say . . . Your Honor, that question was never asked,” counsel explained:

Your Honor, there are only two possibilities. The first is that
misrepresentation was not delivered, in which case the
Commonwealth’s argument appears to be, well, we didn't
remember properly what happened but the defense had the
obligation to remember, and the Court had the obligation to
remember.

....

Your Honor, as lawyers we must rely on what the [opposing]
counsel says to the tribunal to be true.

....

33
 The second possibility, is that it was deliberate, and then the
argument would be we deliberately misrepresented the facts to the
Court. We deliberately worked a fraud on the Court. But because
the defense did not catch it at the time it was committed. That of
course can not stand.

The Commonwealth responded by taking the position that counsel’s argument implied

that the prosecutor committed fraud on the court and was “unfair to the Commonwealth and [the

prosecutor].” It is from counsel’s response to this argument that the majority takes the second

part of its “concession.” Specifically, in response to the Commonwealth’s assertion that he was

making an “unfair” argument, counsel for Bethea stated:

I would like to state that in both the motion and in the argument
today the defense was very careful in the words it used, went out of
the way with great lengths with the way we phrased that, to avoid
as much as possible implying any deliberate fraud.

In the motion you will not see words like misrepresentation or
false even though misrepresentation or a falsehood could be
innocently made just as well as deliberately made. The defense
didn’t even want to come anywhere close to implying that.

In my opinion, when the entire record is considered, it is clear that counsel for Bethea did

not concede a mistake was made. Notably, counsel described the Commonwealth’s response to

the post-trial motion by stating: “Quite frankly, Your Honor, it is after the fact rationalization.”

While some of counsel’s statements could be read to indicate the possibility that the prosecutor

had made a mistake, the summation of his argument belies any claims that he conceded a

mistake was made. Specifically, counsel stated: “I would submit to the Court that the

Commonwealth’s response shifting the reason supports the defense argument, that the initial

reason was pretextual.” The totality of counsel’s arguments undermines the majority’s

conclusion that a concession was made, given that his entire argument was that the prosecutor

intentionally removed the juror on account of race.

34
 Furthermore, the notion that such a concession would be made by counsel for Bethea is

rather curious in light of the fact that neither the Commonwealth nor the prosecutor ever claimed

a mistake was made. Rather, the prosecutor repeatedly insisted that the juror failed to raise her

hand in response to the question that was never asked and the Commonwealth has consistently

taken the position that the proffered question or a similar one was asked. Tellingly, the record

does not support either assertion.

The fact that the Commonwealth has offered multiple explanations for the strike, none of

which is based in fact, is by far the most telling aspect of this case. At trial, the prosecutor stated

that the juror failed to raise her hand in response to the non-existent question; a claim that the

prosecutor repeated at least four times, even when the trial court indicated that it “did not see at

that time that anybody did not raise their hand.” As has been repeatedly explained, no such

question was asked and, therefore, the prosecutor’s emphatic assertion that the juror failed to

respond was demonstrably false. Then, in response to the motion to set aside the verdict, the

Commonwealth insisted that the question that the juror did not respond to was “Are you

comfortable considering circumstantial evidence in terms of a criminal case?” Again, a simple

review of the transcript reveals that this was also incorrect. Notably, the record demonstrates

that the entire jury panel answered “Yes,” which clearly undermines the Commonwealth’s newly

offered rationale.

When these different explanations are viewed in conjunction with the initial proffer, 7 it

leads to the inevitable conclusion that this was not an honest, unintentional mistake. See Flowers

7
The majority insists that Bethea has abandoned any reliance on the proffered statement
made by the prosecutor and, therefore, the proffered statement cannot be considered in
determining whether the Commonwealth’s false explanation was pretextual. It is true that
Bethea did not challenge the Court of Appeals’ ruling that “[h]e provided no evidence supporting

35
v. Mississippi, 139 S. Ct. 2228, 2250 (2019) (“[W]hen considered with other evidence of

discrimination, a series of factually inaccurate explanations for striking black prospective jurors

can be telling.”) 8 Rather, it appears that, having experienced a hung jury in the previous trial,

where all three jurors who voted to acquit were African American, the prosecutor was attempting

to avoid the possibility of another hung jury. As the Commonwealth failed to offer a valid race-

neutral explanation for striking the juror at issue here, the only remaining explanation is the one

supplied by Bethea’s counsel.

Finally, the majority’s reliance on the “great deference” that is afforded the trial court’s

finding with regard to the prosecutor’s credibility is misplaced. Ante at 26. Pointing to the trial

court’s initial ruling that the prosecutor gave a “race-neutral reason for making these particular

peremptory strikes,” the majority concludes that no “exceptional circumstances exist in this

case” that would permit the Court to disturb this finding. However, one such exceptional

this hearsay allegation and does not rely on it on appeal.” Bethea v. Commonwealth, 68 Va.
App. 487, 502 n.7 (2018). His failure to challenge that ruling, however, does not change the fact
that the proffer must still be considered as part of the overall Batson analysis. As the United
States Supreme Court has explained, “in considering a Batson objection, or in reviewing a ruling
claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity
must be consulted.” Snyder, 552 U.S. at 478 (emphasis added). Notably, the consideration of all
circumstances bearing upon the issue of racial animosity is not limited to the court conducting
the initial Batson analysis; the United States Supreme Court expressly required similar
consideration by appellate courts reviewing a lower court’s analysis. See id. The fact that no
objection was raised to the Court of Appeals’ ruling on the proffered statement does not
eliminate the statement as a circumstance bearing upon the issue of racial animosity. Thus, the
proffered statement, which was implicitly accepted as true by the trial court and never disputed
by the Commonwealth or the prosecutor, is a necessary factor that must be considered in
determining whether the Commonwealth’s implausible explanations were pretextual.
8
According to the majority, “[a] Batson challenge based upon the ‘factual accuracy’ of
the race-neutral explanation ‘aims at the wrong target.’” Ante at 17 (quoting Lamon v.
Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006)). Given the United States Supreme Court’s
recent recognition that “factually inaccurate explanations for striking black prospective jurors
can be telling,” Flowers 139 S. Ct. at 2250 (emphasis added), I find the majority’s reliance on
Lamon to be misplaced.

36
circumstance that has been recognized is where the factual findings of the lower court are

“clearly erroneous.” Foster v. Chatman, 578 U.S. ___, ___, 136 S. Ct. 1737, 1747 (2016) (citing

Snyder, 552 U.S. at 477). Here, the basis for the trial court’s initial ruling was subsequently

proven unequivocally false and, therefore, the ruling was clearly erroneous. In light of this

obvious “exceptional circumstance,” the appellate standard of review does not require this Court

to give any deference to the trial court’s ruling.

In summation, it is clear to me that the three-step Batson analysis weighs heavily in

Bethea’s favor. Bethea’s assertion that the strike was racially motivated was supported by

counsel’s unchallenged proffer of the prosecutor’s racially charged comments regarding Bethea’s

prior trial. When considered against the backdrop of the prior hung jury and the strike of

minority panel members, the Commonwealth’s lack of any attempt to rebut, disprove or even

challenge the proffered statement of the prosecutor sufficiently establishes the proffer as a fact.

Thus, Bethea met his burden of making a prima facie showing under the first step of the Batson

analysis. The Commonwealth, in turn, offered several facially race-neutral explanations for the

strike, thereby meeting its burden under the second step of the Batson analysis. At the same

time, however, the Commonwealth never claimed that the strikes were based on a mistake. The

third step of the Batson analysis turns on the plausibility of the Commonwealth’s explanations,

all of which proved to be invalid in the present case and were, therefore, implausible. In light of

the Commonwealth’s failure to offer a plausible race-neutral explanation, all that remained for

the trial court to consider in deciding the Batson challenge was Bethea’s assertion that the strike

of minority panel members was racially motivated, which was supported by the unchallenged

proffer. This state of facts leads me to the inevitable conclusion that Bethea’s Batson challenge

37
should have been granted. Accordingly, I would reverse the decisions of the Court of Appeals

and the trial court and remand the matter for a new trial.

38