State v. McWoods

728

Argued and submitted December 2, 2021, reversed and remanded July 13, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

DARIAN LEE McWOODS,

Defendant-Appellant.

Multnomah County Circuit Court

16CR78185; A169710

514 P3d 1151

Defendant, a Black man, appeals from a judgment of conviction entered after

a jury found him guilty of murder by abuse, first-degree criminal mistreatment,

and witness tampering. Those summoned as potential trial jurors completed

lengthy questionnaires (174 questions each) and were present for several hours

of voir dire. Juror number 6 and juror number 9 were the only prospective jurors

who were Black. After the prosecutor passed each of those two jurors for cause,

he struck both of them by exercise of peremptory challenges. Defendant objected

under Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986), argu-

ing that the race-neutral reasons given by the prosecutor for those strikes were

a pretext for race and that it was inferable that the strikes were the product

of purposeful discrimination. Held: Considering all the relevant circumstances,

including discrepancies in the prosecutor’s characterization of answers given by

jurors 6 and 9, as well as pretext identified by comparing the answers of jurors

6 and 9 with those of non-Black jurors who were not stricken, defendant met his

burden to show purposeful discrimination. The race-neutral reasons given by the

prosecutor were not plausible, and the trial court erred in overruling defendant’s

Batson objections and dismissing jurors 6 and 9. The court need not, and did

not, reach defendant’s assignments of error directed to the nonunanimous jury

instruction and receipt of the nonunanimous verdict on the witness tampering

count.

Reversed and remanded.

Christopher J. Marshall, Judge.

Marc D. Brown, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Jonathan N. Schildt, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Cite as 320 Or App 728 (2022) 729

Before Mooney, Presiding Judge, and Pagán, Judge, and

DeVore, Senior Judge.*

MOONEY, P. J.

Reversed and remanded.

______________

* Pagán, J., vice DeHoog, J. pro tempore.

730 State v. McWoods

MOONEY, P. J.

Defendant, a Black man, was charged with crimes

related to the death of his 15-month-old daughter. Following

a trial, the jury returned its verdict finding defendant guilty

of murder by abuse, first-degree criminal mistreatment,

and witness tampering. Defendant appeals from the result-

ing judgment of conviction. Relying on the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution and a series of cases beginning with Batson v.

Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986),

defendant assigns error to the trial court’s decision to excuse

the only two Black persons on the panel of prospective jurors,

jurors number 6 and number 9, upon the state’s use of two

of its peremptory strikes against those jurors. Defendant

also assigns error to the court’s giving of a nonunanimous

jury instruction and to the court’s receipt of a nonunan-

imous verdict on the witness tampering count. We reject

without discussion the state’s argument that defendant did

not adequately preserve his Batson challenges, and we con-

clude that the trial court committed reversible error when it

excused juror number 6 and juror number 9, upon the state’s

peremptory strikes. Our conclusion on that assignment of

error obviates the need for us to address the remaining two

assignments.

We begin with the axiom, no longer subject to rea-

sonable debate, that racial discrimination in the selection

of jurors is harmful. Racial discrimination harms litigants

because it carries with it the risk that “prejudice * * * will

infect the entire proceeding[.]” J. E. B. v. Alabama, 511 US

127, 140, 114 S Ct 1419, 128 L Ed 2d 89 (1994). Racial dis-

crimination harms the individuals who are excluded from

serving as jurors because it prevents them from partici-

pating in our justice system. Id. And racial discrimination

harms the community “by the State’s participation in the

perpetuation of invidious group stereotypes and the inevita-

ble loss of confidence” in the justice system that follows. Id.

American jurisprudence has developed slowly to

combat racial discrimination in criminal proceedings,

including jury (grand and petit) selection processes, and

is based in large part on the constitutional right to an

Cite as 320 Or App 728 (2022) 731

“impartial jury”1 and the requirement that every defendant

be afforded “equal protection of the laws.”2 Under the Sixth

Amendment, a person who has been charged with a serious

offense has a fundamental right to trial by a jury that is

drawn from “a fair cross-section of the community.” State

v. Compton, 333 Or 274, 288, 39 P3d 833 (2002). Defendant

does not raise a “fair cross-section” challenge to the jury

pool itself. He does, however, argue that he is entitled to

a jury of his “peers.” The federal constitution does not use

the word “peers.” The Oregon constitution likewise does not

use the word “peers.” Instead, both documents use the word

“impartial” to describe the type of jury to which a criminal

defendant is entitled. We do not understand defendant to

argue that he was entitled to have his race represented on

the trial jury. We understand his argument to instead focus

on the state’s use of peremptory strikes to exclude the only

two Black persons from the jury panel after having already

concluded that they were qualified to serve on the jury in

this case and having, thus, passed those jurors for cause.

Those challenges are examined using the framework estab-

lished by Batson, as developed through subsequent case law.

As we have explained, “[t]o bring a Batson chal-

lenge,” defendant must first “make a prima facie showing

that a peremptory strike was based on race or gender.” State

v. Curry, 298 Or App 377, 381, 447 P3d 7 (2019), adh’d to on

recons, 302 Or App 640, 461 P3d 1106 (2020). “ ‘Once the

defendant makes a prima facie showing, the burden shifts

to the State to come forward with a neutral explanation for

challenging * * * jurors within an arguably targeted class.’ ”

1

The Sixth Amendment to the United States Constitution provides, in rele-

vant part:

“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed[.]”

Article I, section 11, of the Oregon Constitution similarly provides:

“In all criminal prosecutions, the accused shall have the right to public

trial by an impartial jury in the county in which the offense shall have been

committed[.]”

2

The Fourteenth Amendment to the United States Constitution provides, in

relevant part:

“No State shall * * * deny to any person within its jurisdiction the equal

protection of the laws.”

732 State v. McWoods

Id. at 382 (quoting Batson, 476 US at 97). If the state offers

such an explanation, “then the trial court must, after con-

sulting ‘all of the circumstances that bear on racial ani-

mosity,’ determine whether the defendant has shown pur-

poseful racial discrimination by the state.” Id. (quoting

Snyder v. Louisiana, 552 US 472, 478, 128 S Ct 1203, 170

L Ed 2nd 175 (2008). We are to assess the plausibility of

the state’s race-neutral explanation as we consider all the

circumstances present and discern whether the defendant

has shown purposeful discrimination. Miller-El v. Dretke,

545 US 231, 252, 125 S Ct 2317, 162 L Ed 2d 196 (2005)

(“[W]hen illegitimate grounds like race are in issue, a prose-

cutor simply has got to state his reasons as best he can and

stand or fall on the plausibility of the reasons he gives. A

Batson challenge does not call for a mere exercise in think-

ing up any rational basis.”).

The state does not dispute that defendant made a

prima facie showing that the peremptory challenges in ques-

tion were race-based. And defendant does not dispute that

the reasons given by the state for using those peremptory

challenges are race-neutral. We are likewise satisfied that

those first two showings under Batson were made. We, thus,

turn our attention to the key issue, the third Batson step:

whether the state’s use of two of its peremptory strikes to

remove the only two Black persons on the panel of prospective

jurors was the product of purposeful racial discrimination.

We review the trial court’s ruling that a peremptory chal-

lenge was not the product of purposeful discrimination as a

question of fact. Curry, 298 Or App at 389. A court review-

ing a Batson challenge is to consider “all relevant circum-

stances,” id. at 382, which may include a comparative juror

analysis where the record allows for it, State v. Vandyke, 318

Or App 235, 238, 507 P3d 339 (2022).3 We remain mindful

3

The comparative juror analysis is a tool to identify pretext through circum-

stantial evidence of differential treatment. When a Black juror gives the same

answers as a non-Black juror but is struck for those answers, then it gives rise

to the inference of pretext because similarly situated persons have been treated

differently. But it is important to remember that the analysis is just a tool and,

even more importantly, that it does not stand for the proposition that striking a

Black juror who answers questions differently from non-Black jurors necessarily

is a race-neutral strike. Indeed, striking a Black juror for answers that differ

from those of non-Black jurors could, itself, be evidence that the strike is based

Cite as 320 Or App 728 (2022) 733

that, at Batson’s third step, defendant bears the burden of

persuasion. We are to affirm the trial court’s ruling unless

it is “clearly erroneous.” Snyder, 552 US at 477.

We look to the record to determine whether the

trial court’s rejection of defendant’s Batson challenges was

clearly in error. Vandyke, 318 Or App at 238. We begin by

noting that the usual process of jury selection pursuant to

ORS 136.210 through 136.270 was followed. The prospec-

tive jurors completed written questionnaires containing 174

questions, and they participated in the oral process of voir

dire that spanned a period of four to five hours in the court-

room. A number of prospective jurors were excused by the

court, for cause—that is to say, for reasons ranging from

inadequate qualifications to conflicts to bias. The state did

not challenge juror number 6 or juror number 9 for cause

and, in fact, affirmatively passed each for cause. Both jurors

were, thus, seated in the jury box when the state’s prose-

cutor used two of her available peremptory challenges to

strike them from the jury as provided in ORS 136.230 and

ORCP 57 D.

When the state exercised one of its available

peremptory strikes on juror number 6, this dialogue took

place:

“[PROSECUTOR]: So Number 6, * * *.

“THE COURT: Okay.

“[DEFENSE COUNSEL]: We would make a Batson objec-

tion to that, Your Honor.

“THE COURT: Okay. Is there any further argument on

that?

“* * * * *

“[DEFENSE COUNSEL]: Just that he’s entitled to a jury

of his peers. We only have a total of two Black individuals,

potentially, on this jury, and we believe that it would be a

Batson violation to eliminate him.

“THE COURT: And for the State?

on race. Here, defendant does not argue that any of the reasons given by the state

were not race-neutral.

734 State v. McWoods

“[PROSECUTOR]: Judge, so there are numerous con-

cerns that the State has regarding this individual’s abil-

ity to be fair and impartial in this case. Referencing just

his questionnaire, he indicated on the very last page that,

‘Being a father with two daughters myself, I can’t imagine

what he’s going through,’ in reference to [defendant]. He

didn’t believe police officers to be honest. In fact, he agreed,

rated it a two, that police officers often lie. He indicated

agreement with the notion that he will be uncomfortable

deciding guilt or innocence—or guilt or not guilt [sic]. He

agreed that doctors often get it wrong. He indicated that

he would be more likely to require evidence of motive, for

needing to know all the facts or circumstances surrounding

a murder before being able to make a determination. And

he indicated agreement that DNA evidence is not reliable.

“Here in court, he indicated that he would need more

information or more evidence given that this is a murder

case rather than if this were some sort of other trial, which

of course, the Court knows, is not the—does not comport

with the burden of proof. There’s no higher burden of proof

in a murder case than in a theft case, for example. And,

frankly, he—he showed up to jury service wearing a shirt

that says I have issues. I don’t know what that means, but

that, in and of itself, is also concerning to the State.

“So, for all of those reasons, we believe that he would be

bias[ed] to the State, and a Batson challenge—no showing

has been made to support a Batson challenge.

“[DEFENSE COUNSEL]: I think that it mischaracterizes

both what’s in the questionnaire and what he testified—or

what he said here. He indicated that he was beaten as a

child. That’s no longer socially acceptable. He indicated

that he would have to know all of the facts, but that he

would follow the standard of proof that was provided. He

also indicated that it would be very difficult to presume

my client innocent given that he’s a father. So he indicated,

very clearly, issues for both sides. And again, given all of

the answers that he did give, I don’t think that you can

judge somebody.

“He wasn’t brought back down for additional question-

ing by the Prosecution about these concerns. And they

didn’t make a for-cause challenge for him. My client is enti-

tled to a jury of his peers, and we believe it is clearly—

comes under Batson.

Cite as 320 Or App 728 (2022) 735

“THE COURT: Okay. All right. So, based on the entire

record that we have here, the Court is going to allow the

State’s challenge. There’s no Batson violation, then.”

The trial court made no findings beyond those quoted above

when it overruled defendant’s Batson objection, accepted the

state’s peremptory challenge to juror number 6, and excused

that juror from further service. But that lack of findings does

not render review impossible. If it is clear from the “entire

record” that the trial court’s rejection of defendant’s Batson

objections was in error, then it is our obligation to say so and

to correct that error.

Defendant argues that the prosecutor misinter-

preted the record when it described for the trial court the

answers given by juror number 6 and that, in doing so, she

misrepresented the record to the court, a factor that we

should consider, citing Flowers v. Mississippi, ___ US ___,

___, 139 S Ct 2228, 2243, 204 L Ed 2d 638 (2019). The state

agrees that under Flowers, a “series of factually inaccurate

explanations for striking black prospective jurors” can sup-

ply evidence of “discriminatory intent,” Flowers, 139 S Ct at

2250, but it does not agree that such a series of inaccura-

cies exists here. We agree with defendant that there were,

in fact, discrepancies between the state’s characterization

of juror number 6’s answers to certain questions and the

answers actually given by that juror. For example, the state

advised the court that in the questionnaire, “[juror num-

ber 6] didn’t believe police officers to be honest. In fact, he

agreed, rated it a two, that police officers often lie.” In fact,

juror number 6 rated police officers at a “4” for honesty on

a scale of “1” (dishonest) to “5” (honest). He also rated his

belief that police officers are more likely to testify truthfully

than other witnesses with a “2,” on a scale of “1” (strongly

agree) to “4” (strongly disagree). There are other discrepan-

cies between the answers given by juror number 6 and how

the state characterized those answers for the court, none of

which, separately, or together, clearly establish purposeful

racial discrimination. And yet, those discrepancies are cir-

cumstances relevant to the overall Batson analysis.

Defendant also argues that other jurors “provided

the same or, in the prosecutor’s perspective, worse answers

736 State v. McWoods

to the questions relied on by the prosecutor,” to strike juror

number 6 and that that is evidence of purposeful discrimi-

nation. The state responds that “to the extent the record is

even adequate for a comparative-juror analysis, defendant

fails to identify any comparison that reveals purposeful

discrimination.” Defendant did not ask the trial court to

engage in a comparative-juror analysis, but where, as here,

the record allows us to do so, we will undertake such an

analysis. Vandyke, 318 Or App at 238; Curry, 298 Or App

at 382. In doing so, we begin by focusing on the questions

and the two “main areas of concern” that the state identified

about juror number 6. See Appendix A, Juror Comparison

Table for Juror Number 6.

First, the state points to the prosecutor’s concern

that juror number 6 might expect the state to prove motive

in order to convict the defendant of murder. Juror number 6

“strongly agreed” that the state must prove motive to con-

vict someone of murder. He also “strongly disagreed” that, if

convinced by the evidence that someone is guilty of murder,

he could find them guilty even if he does not know all the

facts that led to the murder, and he “strongly disagreed”

that “murder is murder, and understanding motives and

circumstances are not necessary in determining guilt.”

A review of the questionnaires completed by the non-

Black jurors who were not stricken from the jury reveals

that three also strongly agreed that the state must prove

motive to convict someone of murder. Four non-Black jurors

strongly disagreed that, if convinced by the evidence that

someone is guilty of murder, they could find him guilty even

if they do not know all of the facts that led to the murder.

Six non-Black jurors “strongly disagreed” that “murder is

murder, and understanding motives and circumstances

are not necessary in determining guilt.” While none of

the non-Black jurors answered each of those three ques-

tions exactly the same as juror number 6, two of them

answered two of the three questions just as juror number

6 did. Juror number 6 and 13 other non-Black jurors who

were not excluded “strongly agreed” that a defendant is

innocent unless the state proves otherwise; one non-Black

juror “agreed” with that statement; and one non-Black juror

“disagreed.”

Cite as 320 Or App 728 (2022) 737

Next, the state was concerned that juror number 6

did not regard police officers to be honest. As noted earlier,

there were some discrepancies between the juror’s responses

to questions bearing on his view of police officers and the

way in which those answers were characterized for the trial

court. Juror number 6 agreed that police officers are hon-

est, and six non-Black jurors who were not excused from the

jury also rated their view of police officer honesty at a “4”—

meaning that they agreed that police officers are honest.

Juror number 6 and seven non-Black jurors who were not

excused from the jury agreed that police officers are more

likely to testify truthfully than other witnesses. More

important to our Batson analysis, two of those seven non-

Black jurors who remained on the jury agreed, along with

juror number 6, that police officers often lie.

Finally, the state expressed concern about juror

number 6’s “skepticism regarding scientific evidence.” In

particular, the state noted that juror number 6 agreed that

“DNA evidence is not reliable,” and he agreed that “doctors

often get it wrong.” It is accurate that no non-Black juror

agreed that DNA evidence is unreliable, but this was not a

case that involved DNA as evidence of identity or any other

key issue. And one non-Black juror also agreed that doctors

often get it wrong. Defendant points out that juror number

6 and six other jurors who were not removed from the jury

strongly agreed with the statements that doctors are hon-

est, and that forensic evidence is more persuasive than eye-

witness testimony. Three jurors who rated DNA evidence as

reliable also disagreed with the statement that forensic evi-

dence is more persuasive than eyewitness testimony. Three

others strongly disagreed with that statement. Thus, juror

number 6 gave answers that reflect both skepticism and

trust regarding scientific evidence as did some non-Black

jurors who were not stricken by the state through use of its

peremptories.

The answers relied on by the state as race-neutral

reasons for using one of its peremptory strikes against juror

number 6 reflect that the juror’s personal views on police

officers and doctors, and his views on the type of evidence

and level of proof needed for a conviction in a murder case

738 State v. McWoods

are similar to the answers given by non-Black jurors who

were not stricken from the jury. It is certainly challenging

to understand why the state would strike juror number 6

but not, for example, juror number 32, who strongly agreed

that the state must prove motive in a murder case, and who

strongly disagreed that he would be able to find someone

guilty of murder without knowing the facts that led up to

the murder—even with convincing evidence of murder. It

is likewise difficult to understand why juror number 6 was

stricken but juror number 31 was not stricken even though

juror number 31 agreed that the state had to prove motive,

disagreed that he could find someone guilty of murder

despite convincing evidence if he did not know all the facts

leading up to the murder, disagreed that forensic evidence

is more persuasive than eyewitness testimony, and agreed

that doctors often “get it wrong.”

To summarize, when consulting the record before

it at the point when the Batson challenge to juror number 6

was made, the following basic information had been brought

to the attention of, and was available to, the trial court:

• Defendant is Black;

• Juror number 6 is Black;

• There are two jury panel members who are Black;

• The state passed juror number 6 for cause;

• Of the 10 questions and answers highlighted by the

state as providing race-neutral reasons to remove

juror number 6 from the jury, there were other jurors

who were not Black and who were not stricken from

the jury who had answered eight of those questions

the same way as juror number 6;

• Juror number 6 was the only juror to agree with the

statement that DNA evidence is unreliable;

• Juror number 6 answered questions relating gen-

erally to forensic and medical evidence the same as

some non-Black jurors who were not stricken from

the jury;

Cite as 320 Or App 728 (2022) 739

• The exhibit list included photos, medical records,

an autopsy report, and forensic lab reports; DNA

evidence is not mentioned;

• Juror number 6 “strongly agreed” that every defen-

dant is innocent unless the state proves otherwise,

while one non-Black juror disagreed with that

statement and one non-Black juror strongly dis-

agreed with it;

• Juror number 6 was the only juror to answer “very

difficult” to the question about how difficult it would

be to presume a person is innocent who is charged

with killing his daughter;

• The state mischaracterized some of the answers

given by juror number 6 in its argument to the trial

court;

• Juror number 6 acknowledged during voir dire that

it was “possible” he might “self-impose” a higher

standard in a case like this; and

• Juror number 6 wore a shirt with the words “I have

issues” written on it.

On answers for which the state criticized juror number 6,

other jurors gave similar answers. And as to the two ques-

tions on which juror number 6 gave unique answers—

(1) DNA evidence was not material and other answers that

reflected views more generally about scientific evidence

were similar to answers given by non-Black jurors, and

(2) this juror’s difficulty in presuming the innocence of a

father accused of killing his daughter would seem to favor

the state. To be sure, the state could have objected that a

juror biased toward conviction is still improperly biased,

but that was not a reason the state offered to explain its

challenge to the juror, so we do not consider it. Given that

the state characterized some of the answers of juror number

6 inaccurately and given that the state criticizes answers

given by juror number 6 that are the very same answers

given by some other non-Black jurors, we are not persuaded

that the record is sufficient to support the plausibility of the

state’s justification for its challenge to juror number 6. And

740 State v. McWoods

in this instance, “all the circumstances” as to juror number 6

includes the state’s challenge to juror number 9. Ultimately,

the “plausibility” of the state’s justifications as to both jurors

determines the issue of purposeful discrimination.

We move to the state’s use of an available peremp-

tory challenge to strike juror number 9 from the jury. See

Appendix B, Juror Comparison Table for Juror Number 9.

This is the dialogue that took place with respect to

defendant’s Batson challenge:

“[PROSECUTOR]: Thank you, Judge. The State would

move to excuse Number 9, * * *.

“THE COURT: Okay. And then for the Defense?

“[DEFENSE COUNSEL]: Again, we’re making a Batson

challenge. [Juror number 9] is the only other Black person

on this jury, Your Honor.

“[PROSECUTOR]: So, Judge, I think there has to be more

of a showing from the Defense. But regardless, [juror num-

ber 9], in his jury questionnaire indicated he had no expe-

rience with children. He leaned towards strongly agreeing

that he believes that in our criminal justice system that

innocent people are routinely being found guilty. He indi-

cated yesterday that he would have concerns about police

investigation if there were the notion that they just sim-

ply didn’t do their job, or they were too busy to do their

job. He indicated he would, on the questionnaire, need to

know about particular facts or circumstances leading up to

a murder in order to find someone guilty. Or if he otherwise

believes them to be guilty, he would still want to know the

facts or circumstances leading up to that.

“And then yesterday, he indicated that he was more

likely to excuse behavior if the child was injured due to

reckless conduct as opposed to intentional. There was quite

a long discussion about that issue. And he was one of the few

that actually volunteered and commented on a distinction

in his mind between looking more—less concerned about

conduct that’s—that occurred recklessly versus intention-

ally to injuring this child.

“The Court’s aware that the State—the State believes

a juror could be bias[ed] one way or another. The State’s

not obligated to make a for-cause challenge. I don’t think

Cite as 320 Or App 728 (2022) 741

anything he said would rise to the level of a for-cause chal-

lenge, which is why we did not make that motion for [juror

number 9] or for [juror number 6]. But, nonetheless, given

those reasons, the State has concerns about his ability to

be fair and impartial on this particular case, given the

information the Court knows about the nature of this case.

“[DEFENSE COUNSEL]: I think that the selection by the

State to eliminate the only two Black potential jurors in

the jury pool is clearly a Batson issue for this Court. It does

violate my client’s constitutional right to have a jury of his

peers. There was nothing in his answers to indicate that

he would not follow the law or that he had a particular bias

one way or the other.

“With regards to his specific answers on the question-

naire, he works for the U.S. Postal Service, has trust for

both the police and for the justice system. He did indicate

that sometimes innocent people can be found guilty, but it

is not okay to use corporal punishment. He indicated, very

clearly, that he would understand the reasonable doubt

that has to be shown by the Court—or by the Prosecution.

And it would eliminate the only other Black juror.

“THE COURT: Okay. So based on the entire record that

we have here, again, the State has articulated reasons for

their challenges to the particular juror that indicate there

is not a Batson violation here. And so we’ll allow the State’s

challenge here.”

Of the non-Black jurors who had been passed for

cause, five answered that they had no experience with

children. One other juror indicated that they agreed that

innocent people are frequently found guilty in our justice

system, and one wrote that “[i]t does happen, but I don’t

know how frequently.” Juror number 9 and three non-Black

jurors “disagreed” that if they are convinced by the evidence

that someone is guilty of murder, they could find that per-

son guilty if they did not know all of the facts that led to

the murder; and four non-Black jurors “strongly disagreed”

with that statement. With respect to concerns about state-

ments made by juror number 9 during the voir dire process

in the courtroom, we cannot conclude based on the record

that juror number 9 responded as the prosecutor argued

he did. The record does reflect discussion among counsel

and various jurors about differences between accidents and

742 State v. McWoods

intentional acts and about whether police sometimes get too

busy to conduct adequate investigations.

To summarize, when consulting the record before

it at the point when the Batson challenge to juror number 9

was made, the following basic information had been brought

to the attention of, and was available to, the trial court:

• Defendant is Black;

• Juror number 9 is Black;

• Juror number 6, who is Black, had been excused on

the state’s peremptory strike, leaving juror number

9 as the only Black panel member left;

• The state passed juror number 9 for cause; and

• At least one non-Black juror answered each of the

questions highlighted by the state the same way as

juror number 9 did.

Like juror number 6, some non-Black jurors gave answers

that were the same or similar to answers given by juror num-

ber 9. And, as the state correctly notes, no “single answer

can[ ] be viewed in isolation.” The answers to some questions

provide context for the answers to other questions; some-

times answers appear to be consistent with other answers

and yet some seem to be in direct conflict with others. But

that was predictable just given the sheer volume of questions

included in the questionnaire. Considering, as we must, the

race-neutral reasons given by the state in support of its

use of a peremptory strike against juror number 9, there

were two important factors present at that point in the jury

selection process that had not been present when the state

explained its use of a peremptory strike against juror num-

ber 6: (1) no answer given by juror number 9 was his alone—

in other words, no one answer caused him to stand out from

the other jurors, and (2) the state had already stricken the

only other Black juror from the panel. And while one might

debate whether it takes two, three, or more of anything to

create a pattern, the use of a peremptory challenge to strike

the second and only remaining Black juror from the jury

completes the pattern here.

Cite as 320 Or App 728 (2022) 743

Peremptory strikes are a tool entrusted to trial law-

yers by statute; they are not a matter of constitutional right.

Chief Justice Rehnquist agreed that “prosecutors’ perempto-

ries are based on their ‘seat-of-the-pants instincts’ as to how

particular jurors will vote”; instincts that Justice Thurgood

Marshall warned “may often be just another term for racial

prejudice.” Batson, 476 US at 106 (Marshall, J., concurring).

As Justice O’Connor described it,

“In both criminal and civil trials, the peremptory challenge

is a mechanism for the exercise of private choice in the pur-

suit of fairness. The peremptory is, by design, an enclave of

private action in a government-managed proceeding.”

Edmonson v. Leesville Concrete Co., 500 US 614, 633-34, 111

S Ct 2077, 114 L Ed 2d 660 (1991) (O’Connor, J., dissent-

ing). That “private choice” may just as certainly be based

upon the color of a juror’s skin when it is the product of a

“seat-of-the-pants” judgment call as when it is the product

of a deliberate thought process. In either case, and in the

absence of an admission to racial discrimination by the

prosecutor, proof that the state’s race-neutral explanation

is pretextual is a matter of “circumstantial evidence that

is probative of intentional discrimination, and it may be

quite persuasive.” Miller-El, 545 US at 241 (quoting Reeves

v. Sanderson Plumbing Products, Inc., 530 US 133, 147, 120

S Ct 2097, 147 L Ed 2d 105 (2005) (internal quotation marks

omitted). In fact, circumstantial evidence that is probative

of the lawyer’s intent may well be the best evidence of the

lawyer’s purpose that we have.

By the time the trial court was considering defen-

dant’s Batson objection to the state’s peremptory strike

against juror number 9, juror number 6—the only other

Black juror on the panel—had been excused at the state’s

request. And although the state articulated legitimate,

race-neutral reasons for striking juror number 9, those

reasons were not “plausible” because there were other non-

Black jurors that the state did not seek to strike who gave

the same answers that the state relied on to strike juror

number 9. And under Miller-El, it is the plausibility of the

state’s reasons that provides insight into whether those rea-

sons are a pretext for race. This case is like Curry, where we

744 State v. McWoods

engaged in a comparative-juror analysis and concluded that

the state’s stated reasons for using a peremptory challenge

against the only Black juror on the panel were a pretext

for race because the state did not also seek to strike simi-

larly situated jurors who were not Black. As we have already

described, there were non-Black jurors who provided the

same answers that the state offered as reasons to excuse

juror number 9. That was true of juror number 6 as well.

The plausibility of the state’s race-neutral reasons for excus-

ing an otherwise qualified Black juror decreased with the

second strike. That implausibility is evidence of purposeful

discrimination which, in light of “all of the circumstances

that bear on racial animosity,” leads us to the conclusion

that the trial court clearly erred in excusing jurors number 6

and number 9 from the trial jury.

Reversed and remanded.

Cite as 320 Or App 728 (2022) 745

APPENDIX A

746 State v. McWoods

Cite as 320 Or App 728 (2022) 747

748 State v. McWoods

Cite as 320 Or App 728 (2022) 749

750 State v. McWoods

Cite as 320 Or App 728 (2022) 751

752 State v. McWoods

APPENDIX B