# Bosquet v. State > Court of Appeals of Arkansas · October 8, 1997 · 59 Ark. App. 54 URL: https://www.frixlaw.com/law-library/cases/6552682 ## Case - **Full name:** Mary BOSQUET v. STATE of Arkansas - **Court:** Court of Appeals of Arkansas - **Decided:** October 8, 1997 - **Citations:** 59 Ark. App. 54; 953 S.W.2d 894 - **Precedential status:** Published - **Opinion:** Dissent by Griffen - **Judges:** Agree, Arey, Crabtree, Griffen, Neal, Pittman, Rogers - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6552682 ## How later opinions describe it (automated extraction) - stating that leaving minority members on the jury by waiving peremptory challenges is “cogent evidence indicating the absence of discriminatory motivation” in striking of other minority jurors - holding that juror’s age, demeanor, and employment background are acceptable as race-neutral explanations ## Opinion text Wendell L. Griffen, Judge, dissenting. PRETEXT (n.) A reason put forward to conceal one’s true reason. TRUE (adj.) 1. In accordance with fact. 2. In accordance with correct principles or an accepted standard, rightly so called, genuine and not false. Oxford American Dictionary 528, 738 (1980) pfjhe trial court in this case had a duty to do more than accept without comment, inquiry, or finding of fact the prosecutor’s explanation. To say that such an explanation, or any other explanation, may he regarded as sufficient without any judicial inquiry makes a mockery of the Batson decision .... Surely any prosecutor can offer neutral reasons Colbert v. State, 304 Ark. 250, 257 , 801 S.W.2d 643 (1990) (Newbern, J., concurring). The majority opinion shows that trial courts in Arkansas are not obligated to conduct any inquiry concerning the genuineness of racially neutral explanations offered after people of color have been peremptorily excluded from jury service. Arkansas follows this approach despite the promise in Batson v. Kentucky, 476 U.S. 79 (1986), that, in deciding if a party has carried her burden of persuasion of intentional race discrimination by the way that an opponent peremptorily excludes minority group members from jury service, “a court must undertake a ‘sensitive inquiry’ into such circumstantial and direct evidence of intent as may be available.” Id. 476 U.S. at 93 (emphasis added). I respectfully dissent. The State exercised peremptory challenges to exclude four African-Americans in appellant’s trial. John Johnson and Peter A. Ware were struck without questioning. Ruth King and James Bledsoe were excluded after being questioned. The prosecutor used four of his five peremptory challenges to strike African-Americans. Three other African-Americans were part of the jury. The prosecutor contended that John Johnson was “fidgety,” and that Johnson did not make eye contact during voir dire. He asserted that Peter Ware’s answer on a juror questionnaire was unresponsive when it indicated that his education was “general, plus 41 hours,” and that Ware’s answer was unresponsive concerning whether he had children when it contained a zero with a “smiley face.” The prosecutor also stated concerning Ware: The fact that his occupation being waiter and cook at Shug’s Paver House, and he a (sic) 25 year-old person, indicates to me, Your Honor, that this juror does not take this particular exercise very seriously, nor is he the type of person who, when asked questions, responds in a reasonable manner. . . . Secondly, when I sat down and 1 began to tell Ms. Fowler, who is a deputy prosecuting attorney, about this questionnaire which I saw, Ms. Fowler looked at me and said, “You know, because all during your voir dire this juror stared at me and never quit staring.” The prosecutor explained that he peremptorily challenged King and Bledsoe because King had been the foreperson and Bledsoe had served in another drug case that resulted in a hung jury (six votes for conviction and six votes to acquit). The trial judge simply “accepted” the prosecutor’s reasons for exercising the peremptory challenges as racially neutral. Despite argument by appellant’s trial counsel (appellant is represented by different counsel on appeal) that the prosecutor’s reasons were “simply a pretext for the impermissible use of the peremptory challenge,” the trial court made no effort to determine the genuineness of the racially neutral explanations, and it made no findings for us to review on that critical issue. Rather, the trial judge stated as to John Johnson: All right. The State has stated a racially neutral reason, which this Court accepts based upon the overall circumstances of this case, including the fact that there was — that the State did not strike a black juror for which it had an opportunity to strike, namely Mrs. Geneva Higgins. I notice that Mrs. Higgins has been here on several other occasions. But, based upon that, the overall circumstances of the case, I accept that as a racially neutral reason as has been previously accepted in other cases, even other cases out of this Court. So not regarding the untimeliness of the motion, this Court would not — would have overruled the Batson objection in any event. As to Ware, the trial judge stated: The Court accepts the State’s explanation as being racially neutral, and based in (sic) the obvious evidence in this case, I would note that also at this point the State has several challenges left. . . . There are now two black jurors seated on this jury that the defense, I mean that the State could have struck because they had peremptory challenges available to them, and so motion, your objection based upon Batson v. Kentucky is denied. As to Ruth King, the trial court stated concerning appellant’s Batson objection: The Court finds that [King’s vote to acquit in a different case] to be a racially neutral and acceptable reason in this matter, and so your motion is overruled, Sir. The court’s ruling as to James Bledsoe was as follows: The fact that the State has stated that Mr. Bledsoe sat on the same jury with Mrs. King and Mrs. Bolán [a white person also peremptorily challenged], which they have also struck, Mrs. Bolán being white, and Mrs. King and Mr. Bledsoe being black, that is a racially neutral reason that has been accepted in other cases, the fact that they have sat on hung juries. They have also struck a white for the same reason that they say was on the same jury, and it is their information that these folks also voted against them somehow. But, they say that other reasons against Mr. Bledsoe, the statement that they have previously sat on juries which did not reach a verdict, and feeling that they were a cause of it, and because it is a similar case involving narcotics, and it was undercover agents versus other persons. In other words, the same or similar circumstances the Court feels that that’s a racially neutral reason, and your motion will be overruled. However, Batson v. Kentucky and other cases clearly require that trial courts do more than “accept” a prosecutor’s racially-neutral explanations for using peremptory challenges to exclude persons of color from jury service. The Supreme Court observed in Batson that trial courts must undertake a “sensitive inquiry” into available circumstantial and direct evidence of discriminatory intent in deciding if a criminal defendant has carried the burden of persuasion on the discrimination claim. Batson, 476 U.S. at 93 . The Court recognized that using peremptory challenges to exclude persons of color from jury service violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. As Justice Powell stated in the majority opinion: Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant. Batson, supra, 476 U.S. at 89 (citations omitted). The decisions in Ward v. State, 293 Ark. 88 , 733 S.W.2d 728 (1987), and Mitchell v. State, 295 Ark. 341 , 750 S.W.2d 936 (1988), show that the Arkansas Supreme Court once followed the Batson standard by requiring that trial judges conduct a “sensitive inquiry” aimed at evaluating the genuineness and sufficiency of a prosecutor’s racially neutral explanations for using peremptory challenges to exclude persons of color from jury service. In Ward, the supreme court reversed and remanded Ronald Ward’s convictions and death sentences for murdering three people. The prosecutor exercised all eight of his peremptory challenges to strike African-Americans from the jury, but the trial court failed to rule on the prosecutor’s race-neutral explanations. Our supreme court relied on Batson v. Kentucky and the requirement that a trial judge undertake a “sensitive inquiry” into the direct and circumstantial evidence available to decide if the prosecutor’s racially neutral explanations were genuine. Ward, at 93, 733 S.W.2d at 730 . A year later the supreme court reversed and remanded Lonnie Mitchell’s convictions for kidnapping, rape, and battery for which he had received separate life sentences on the kidnapping and rape convictions, and thirty years’ imprisonment on the battery conviction. Mitchell, supra. In that case the prosecutor peremptorily struck the only African-American from the jury and explained that the black juror was struck because the prosecutor doubted his truthfulness and candor in responding to direct questions during voir dire. Writing for the court, Justice Newbern stated: Mitchell made a prima facie case of discrimination in the prosecution’s use of its peremptory challenge to remove the only black prospective juror after questioning him closely on whether his race would affect his vote. Absent inquiry by the court, we have before us no factual determination whether the prosecutor was assuming Mr. Petty could not withstand the racial pressures and thus assuming he could not have been answering truthfully on that subject. The court has a duty to go beyond the prosecutor’s explanation and make a sincere and reasoned” effort to evaluate its genuineness and sufficiency “in the light of all the circumstances of the trial. ” Because the trial court accepted the prosecutor’s explanation at face value and made no inquiry, we need not consider the explanation’s validity to decide this case. We must note, however, that the explanation was one which could have been given ivith respect to any venire person and could be used to screen improper motive. Mitchell v. State, 295 Ark. at 348-49 , 750 S.W.2d at 940 (emphasis added, citations omitted). However, since 1990, Arkansas has followed the procedure that when a racially neutral explanation is offered (step 2), the trial court must then merely determine from all relevant circumstances whether the racially neutral explanation is sufficient. Colbert v. State, 304 Ark. 250 , 801 S.W.2d 643 (1990). In Colbert, our supreme court reversed and remanded a conviction for delivery of a controlled substance —• rock cocaine — and a sentence of life imprisonment and fine of $25,000, because a trial judge failed to rule on the sufficiency or insufficiency of racially neutral explanations offered by a prosecutor who struck two black members of the venire, leaving the defendant to be tried by an all-white jury. The court focused on whether the trial judge should have ruled on whether the prosecutor’s explanation for excluding the black venire persons was sufficient to be racially neutral, as the following excerpt from the majority opinion demonstrates: We could infer from the fact that the trial proceeded without any action being taken that the court accepted as sufficient the prosecutor’s “racially neutral” explanation, and we could then discuss whether we agree or disagree with the trial court that the reasons given by the state were sufficient to satisfy the issue raised by the appellant. Under our previous holdings, however, even if the state’s explanation satisfied the trial court, the court was still required to make a sensitive inquiry to eliminate any possibility of racial bias. See Mitchell v. State, 295 Ark. 341 , 750 S.W.2d 936 (1988). We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the State to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the State’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the State. The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objection, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the State. Colbert at 254-55 , 801 S.W.2d at 645-46 (emphasis added). In a separate concurring opinion, joined by Justices Dudley and Glaze, Justice Newbern agreed that the racially neutral explanations given by the prosecutor were “thin,” and that reversal was justified because the trial court did not conduct the “sensitive inquiry” prescribed in Batson. However, Justice Newbern objected that the majority opinion had gone “out of its way to strike with crippling blows” the opinions in Ward and Mitchell, stating: This case is a good example of the kind in which the requirement for a sensitive inquiry by the trial court is proper, and it is a good example to show why it is required. While the defendant may have an overall burden of proof on the issue of discrimination in the selection of jurors, I believe it is clear, and the majority opinion here recognizes, that once the prima facie display has been brought to the court’s attention, the burden of going forward with the evidence clearly shifts to the prosecution. When a pattern or other evidence of discrimination, either in the case at hand, or historically, appears, the defendant has demonstrated the need for a factual inquiry . . . The majority opinion recognizes that the trial court in this case had a duty to do more than accept without comment, inquiry, or finding of fact the prosecutor’s explanation. To say that such an explanation, or any other explanation, may be regarded as sufficient without any judicial inquiry makes a mockery of the essence of the Batson decision. Had the trial court inquired behind the prosecution’s racially neutral explanations, we would probably not have this issue before us. While I agree with the majority opinion that the explanations appear to be “thin,” given other factors in the record, I am not certain that they might not have been wholly racially neutral. The problem is that the trial court, despite his much better position than ours for doing so, did not attempt to find out. Surely any prosecutor can offer neutral reasons .... Colbert at 257 , 801 S.W.2d at 647 (emphasis added). Since Colbert, our supreme court has held that Batson challenges do not require a trial court to undertake a “sensitive inquiry” into the genuineness of racially neutral explanations offered when black members of a venire .are peremptorily excluded where it has found the racially neutral explanations “sufficient.” See Sonny v. Balch Motor Co., 328 Ark. 321 , 944 S.W.2d 87 (1997); Wooten v. State, 325 Ark. 510 , 931 S.W.2d 408 (1996); Prowell v. State, 324 Ark. 335 , 921 S.W.2d 585 (1996); and Hollamon v. State, 312 Ark. 48 , 846 S.W.2d 663 (1993). However, in Purkett v. Elem, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995), the United States Supreme Court issued a per curiam opinion that explains when the plausibility of racially neutral explanations should be examined: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forth with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. . . . The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. . . . It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. Id., 131 L.Ed.2d at 839 (citations omitted, emphasis added). Thus, Batson and Purkett show that trial judges must make explicit findings about the sufficiency and genuineness of the racially neutral explanations given by parties whose peremptory challenges raise prima facie claims of race discrimination. Purkett shows that trial courts are obligated to scrutinize racially neutral explanations for genuineness — not mere sufficiency — as part of the third step of the Batson analytical process, and before deciding if the Batson movant has met her burden of proving intentional race discrimination by a preponderance of the evidence. That position is simply consistent with the Supreme Court’s requirement in Batson that trial courts undertake a “sensitive inquiry” into the available evidence regarding a prosecutor’s allegedly discriminatory intent before deciding if a Batson movant has carried her burden of persuasion. The Effect of Failing to Undertake a "Sensitive Inquiry ’’ Regarding Genuineness of Racially Neutral Explanations Here the trial court undertook no inquiry, sensitive or otherwise, designed to assess the genuineness of the prosecutor’s racially neutral explanations. It made no findings about the genuineness of the racially neutral explanations. Had the trial court conducted the required “sensitive inquiry” and made findings, then we could review the totality of the circumstances surrounding each challenge and the racially neutral explanations to decide appellant’s claim that the trial court’s Batson rulings are clearly against the preponderance of the evidence. But without the requisite inquiry and findings mandated by Batson and Purkett, we have nothing to review on the crucial pretext question that is central to deciding whether discriminatory purpose has been established under equal protection analysis. See Washington v. Davis, 426 U.S. 229 (1976). Like the situations in Ward and Mitchell, the trial court in this case “accepted” the prosecutor’s explanations for peremptorily challenging Johnson, Ware, King, and Bledsoe at face value, did not “go beyond the prosecutor’s explanation,” and failed to make “a ‘sincere and reasoned’ effort to evaluate [their] genuineness and sufficiency ‘in the light of all the circumstances of the trial.’” Mitchell v. State, supra, 295 Ark. at 348 , 750 S.W.2d at 940 . As in Mitchell, the prosecutor’s racially neutral explanations for excluding Johnson, Ware, King, and Bledsoe could have been given to screen a discriminatory motive. But without the “sensitive inquiry” mentioned in Batson that Purkett held proper at the third step of the Batson process, the trial court could not possibly have found that the prosecutor’s explanations withstood pretext scrutiny and were genuine. Merely because a jury includes one or more members of a racial minority does not mean that racially neutral explanations for excluding others are genuine. Yet, in ruling on appellant’s Batson objections, the trial court repeatedly mentioned that the prosecutor had not struck other African-Americans. The Fourteenth Amendment’s equal protection guarantee, as Batson and Purkett show, means that whenever a prosecutor presents a race-neutral explanation for peremptorily excluding a person of color from the jury within the context of a Batson challenge, then a trial judge must make findings concerning the explanation based upon a “sensitive inquiry” into its genuineness. That duty does not depend on whether there are other persons of color seated on the jury. The United States Supreme Court recognized this truth in Batson when it stated: “A single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.” For evidentiary requirements to dictate that “several must suffer discrimination” before one could object would be inconsistent with the promise of equal protection to all. Id. at 95-96 (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977), and McCray v. New York, 461 U.S. 961 , 965 (1983)) (Marshall, J., dissenting from denial of cer-tiorari). Equal protection for all requires equal protection for everyone. Justice Newbern was right in Colbert, supra, that “any prosecutor can offer neutral reasons” for exercising peremptory challenges. That is why trial judges must, under Batson and Purkett, “distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of [race] discrimination.” People v. Wheeler, 22 Cal.3d 258, 282 , 148 Cal. Rptr. 890 , 583 P.2d 748 (1978). The “sensitive inquiry” required by Batson and Purkett obligates trial courts to inspect racially neutral explanations and determine if they are genuine, or simply shams offered to conceal discriminatory intent contrary to the constitutional guarantee of equal protection for every litigant and every potential juror. Race discrimination in the “venerable” practice of peremptory challenges was legal for almost 370 years before Batson was decided in 1986. It has hidden behind racially neutral explanations for barely more than a decade. Given the widespread and longstanding practice of peremptorily eliminating persons of color from juries, it is both unrealistic and unreasonable to expect that prosecutors who articulate racially neutral explanations for exercising peremptory challenges will not do so to conceal discriminatory intent. Justice Thurgood Marshall addressed this reality in his concurring opinion in Batson as follows: Any prosecutor can easily assert facially neutral reasons for striking a juror . . . Nor is outright prevarication by prosecutors the only danger here. “ [I]t is even possible that an attorney may he to himself in an effort to convince himself that his motives are legal.” A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported .... [Prosecutors’ per-emptories are based on their “seat-of-the-pants instincts” as to how particular jurors will vote. Yet “seat-of-the-pants instincts” may often be just another term for racial prejudice. Batson, supra, 476 U.S. at 106 (quoting King v. County of Nassau, 581 F.Supp. 493, 502 (E.D. NY. 1984)(citations omitted). Discriminatory intent will seldom be apparent. Trial judges are not clairvoyant. Therefore, the “sensitive inquiry” that Batson and Purkett command is vital to ensure that equal protection is provided every litigant and venire person. When trial judges “go beyond the prosecutor’s explanation and make a sincere and reasoned effort to evaluate its genuineness and sufficiency in the light of all the circumstances of the trial,” Mitchell v. State, supra, they are more likely to uncover a sham than by blindly accepting the prosecutor’s explanation at face value. “[S]eek and ye shall find,” (Luke 9:11) is as valid regarding discriminatory intent and pretext as it is for moral truth. Likewise, those who look for nothing usually find it. Had the trial judge conducted a “sensitive inquiry” aimed at evaluating the genuineness of the prosecutor’s racially neutral reasons for peremptorily challenging Johnson, Ware, King, and Bled-soe, he could have asked the prosecutor to explain why he determined Ware to be “unresponsive” about his education and parental status, especially after failing to question Ware during voir dire. The prosecutor could have been asked why Ware’s occupation as a restaurant cook and waiter suggested that he did not consider jury service “seriously,” particularly when the prosecutor did not challenge John Yates, a white man who worked as a stocker for Sam’s Wholesale. Why was the way that Ware looked at the deputy prosecutor so different from the way that other persons in the venire looked at her that Ware was unlikely to be fair and impartial? If Ware was “staring” at the deputy prosecutor rather than paying attention, why didn’t the lead prosecutor notice it? Why were King and Bledsoe deemed unfit to fairly and impartially weigh the evidence and apply jury instructions based on their service on an evenly divided jury that had disagreed on whether the prosecution met its burden of proof in a previous and unrelated drug case? The trial judge could have compared his assessment of Johnson’s attentiveness during voir dire with the prosecutor’s claim that Johnson was “fidgety” and inattentive. These questions, by no means exhaustive, illustrate the type of inquiry that the trial court should have undertaken under the Bat-son and Purkett holdings to decide whether the prosecutor’s racially neutral explanations were genuine or merely pretexts made to mask discriminatory intent. The prosecutor’s responses to these questions would have not only provided the trial judge with the information needed to determine if the racially neutral explanations were pretextual, but they would have also been part of the total record for appellate review of the trial court’s findings on the pretext issue. It is regrettable that this type of inquiry is no longer deemed necessary or worthwhile in Arkansas. Frederick Douglass once said, “There is no Negro problem. The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own Constitution . . . .” His words ring painfully true as one considers the references to the “venerable” practice of peremptory challenges in the majority opinion. Judging from those references, one would think that the peremptory challenge is part of our fundamental rights and equal protection a lesser thing. When one considers that the reverse is the case, then Douglass’s words not only ring true, they bring to mind the words of Stephen Vincent Benét, who wrote, “The loves we had were far too small.” Despite Batson’s requirement for a “sensitive inquiry,” peremptory challenges in Arkansas can now exclude persons of color from jury service, and Batson objections will be overruled, .without inquiries and findings concerning whether implausible, fantastic, superstitious or otherwise racially neutral explanations are merely pretexts for discriminatory intent. Batson and Purkett show that the equal protection guarantee demands much more than that. At a minimum, the equal protection guarantee, forged into our fundamental notion of rights after 250 years of slavery and another 120 years of legalized discrimination, demands that claims of discriminatory motive in exercising peremptory challenges not be trivialized. I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6552682. Public record. Not legal advice.