Under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), race cannot be used for the basis of a peremptory challenge. While Rhone didn’t object to the striking of the only African American on the panel, he did verbally make what amounted to a Batson challenge:
I don’t mean to be facetious or disrespectful or a burden to the Court. However, I do want a jury of my peers. And I notice that [the prosecutor] took away the black, African-American, man off the jury.
Also, if I can’t have — I would like to have someone that represents my culture as well as your culture. To have this the way it is to me seems unfair to me. It’s not a jury of my peers. I’m — I mean, I am an African-American black male, 48 years old. I would like someone of culture, of color, that has — perhaps may have had to deal with improperties [sic] and so forth, to understand what’s going on and what could be happening in this trial.
To get to a prima facie case of discrimination, the Supreme Court requires evidence of “relevant circumstances that ‘raise an inference’ that a peremptory challenge was used to exclude a venire member from the jury on account of the venire member’s race.”
Unfortunately, Rhone did not provide those relevant facts. The court rejected to impose a bright line rule on striking venire members of color. The court instead maintained its previous rule that striking the only panel member of color does not require the trial court to find a prima facie case, but the trial court may at its discretion do so.
Does that seem at all muddy to you? The waters definitely aren’t clear.
Of course, that is four for the lead opinion and four in the dissent. The law is only established to the level within Chief Justice Madsen’s Concurrence. Oh man…so she only agrees with the majority in THIS case, and adopts the dissent going forward. This means that the dissent is ACTUALLY the law. So what did the dissent say?
Well, the dissent said the exact opposite. A bright line rule is officially established: I would have this court adopt a bright line rule that a defendant establishes a prima facie case of discrimination when, as here, the record shows that the State exercised a peremptory challenge against the sole remaining venire member of the defendant’s constitutionally cognizable racial group.