The Plaintiff appealed, but only asserted one assignment of error, as follows:
“THE TRIAL COURT ERRED WHEN IT PERMITTED DEFENDANT TO
USE A PEREMPTORY CHALLENGE TO EXCUSE JUROR NO. 14, THE ONLY
PROSPECTIVE AFRICAN AMERICAN JUROR.”
discrimination “[a] judge should make clear, on the record, that he or she understands
and has applied the precise Batson test when racial discrimination has been alleged in
opposition to a peremptory challenge.” Hicks v. Westinghouse Materials Co., 78 Ohio
St.3d 95, 99, 1997–Ohio–227, 676 N.E.2d 872.
{¶8} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:
First, a party opposing a peremptory challenge must demonstrate a
prima-facie case of racial discrimination in the use of the strike .[ ]. To
establish a prima-facie case, a litigant must show he or she is a member of
a cognizable racial group and that the peremptory challenge will remove a
member of the litigant’s race from the venire. The peremptory-challenge
opponent is entitled to rely on the fact that the strike is an inherently
‘discriminating’ device, permitting ‘those to discriminate who are of a mind
to discriminate’ .[ ]. The litigant must then show an inference of racial
discrimination by the striking party. The trial court should consider all
relevant circumstances in determining whether a prima-facie case exists,
including all statements by counsel exercising the peremptory challenge,
counsel’s questions during voir dire, and whether a pattern of strikes against
minority venire members is present. [ ]. Assuming a prima-facie case exists,
the striking party must then articulate a race-neutral explanation ‘related to
the particular case to be tried.’ [ ]. A simple affirmation of general good faith
will not suffice. However, the explanation ‘need not rise to the level justifying
exercise of a challenge for cause.’ [ ]. The critical issue is whether a discriminatory intent is inherent in counsel’s explanation for use of the strike;
intent is present if the explanation is merely pretext for exclusion based on
race. [ ]. (Internal citations omitted.) Hicks v. Westinghouse Materials Co.,
78 Ohio St.3d 95, 98–99, 1997–Ohio–227, 676 N.E.2d 872.
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. Purkett v.
Elem, 514 U.S. 765, 767–768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Rice
v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973–74, 163 L.Ed.2d 824 (2006).
peremptory strike has proved purposeful discrimination. Purkett, supra, 514 U.S. at 766–
768. It is at this stage that the persuasiveness, and credibility, of the justification offered
by the striking party becomes relevant. Id. at 768. The critical question, which the trial
judge must resolve, is whether counsel’s race-neutral explanation should be believed.
Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991);
State v. Nash, 5th Dist. Stark No.1995CA00024, 1995 WL 498950, 2 (August 14, 1995).
This final step involves considering “the persuasiveness of the justification” proffered by
the striking party, but “the ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768.
could not be gainfully employed for the remainder of his life. Appellant was seeking in
excess of $2 million in damages.
hurt her back at work while working as a nurse’s aide and that she had been out of work
for 15-20 years. When asked, she stated that she was on disability and that her disability
was the reason for her unemployment. The following discussion took place on the record
when appellee’s counsel stated that he was using his second peremptory challenge on
Hill:
disability?
I’m doing it because she’s unemployed (sic) and on disability. That’s why I’m doing it. I’ll
put that on the record.
picking base on some criteria.
objecting to his peremptory challenge of an African American juror?
race. It has to do with her – – the fact that she testified that she’s been disabled, and that’s
she not unemployed (sic), and it doesn’t sound like she would be a good juror. I’m using
a peremptory challenge.
disability.
overrule the objection. So, this is all on the record.
Brenda Hill as a juror. Assuming, arguendo, appellant had met his prima facie burden to
go forward on the challenge, appellee’s counsel gave a race neutral reason for using a
peremptory challenge against Brenda Hill. Appellee’s counsel indicated that he was
concerned that Hill, who on disability and was unemployed, would not be a “good juror”
in a personal injury case in which the plaintiff was alleging permanent injuries that
rendered him unable to work. We are mindful that only the trial court observed first-hand
“the demeanor of the attorney who exercise[d] the challenge, along with whether [each
stricken panelist’s] demeanor can credibly be said to have exhibited the basis for the strike.” United States v. Mensah, 737 F.3d 789, 796 (1st Cir.2013) (internal quotation
marks omitted). On direct appeal, the trial court’s findings may be reversed only if the trial
judge is shown to have committed clear error. Rice v. Collins, 546 U.S. 333, 338, 126
S.Ct. 969, 163 L.Ed.2d 824 (2006). We find no such error here.
Written by Alex J. Durst, a Cincinnati, Ohio-based employment attorney, civil litigation attorney, appellate attorney and divorce attorney with Croskery Law offices. He is licensed to practice in Ohio state courts and the United States District Court for the Southern District of Ohio, as well as other state and federal courts by permission on a case-by-case basis (most recently, Kentucky, the United States District Court for the Southern District of Indiana, California, Nevada, Massachusetts and Florida). Alex can be contacted by phone at (513) 338-1947 or by email at adurst@croskerylaw.com.