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Coleman v. Hogan6/6/1997
o 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, 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 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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