Coleman v. Hogan

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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