Mitchell v. State

Jack Holt, Jr., Chief Justice, dissenting. Though the Supreme Court’s decision in Batson and this court’s opinion in Ward lend some support to the majority’s holding that Mitchell made a prima facie case of discrimination after the prosecution questioned Petty closely on whether his race would affect his vote, I find myself unable to accept the majority’s subsequent conclusion that, standing alone:

where the use of a peremptory challenge results in exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus invoke the “sensitive inquiry” requirement. [Emphasis mine.]

I feel today’s decision is in direct conflict with our recent decision in Smith v. State, 294 Ark. 357 , 742 S.W.2d 936 (1988), and places an unwarranted burden upon the prosecution never contemplated by either Batson or Ward. Therefore, I dissent.

In one fell swoop, and without saying so, this court has overruled our decision in Smith, supra, in which we held that the striking of two jurors, standing alone, is not sufficient to constitute a Batson “pattern” which would give rise to the inference of discrimination necessary to establish a prima facie case. The result of today’s decision is to ignore the delicate balance struck by the United States Supreme Court between “the prosecutor’s historical privilege of peremptory challenge free of judicial control . . . and the constitutional prohibition on exclusion of persons from jury service on account of race . . . .” Batson v. Kentucky, 476 U.S. 79, 91 (1986).

What the majority holds is that in cases where there is only one juror of the same minority race as the defendant on a panel of perhaps fifty potential jurors, absent any other factors the striking of that particular juror automatically creates a prima facie case of purposeful discrimination by the State which shifts the burden to the prosecution to give a sufficiently neutral explanation for the strike, all in the context of a “sensitive inquiry” by the court. Our comments in cases on this issue which have come before us vividly demonstrate the likelihood of success judges and prosecutors will have in clearly meeting their respective obligations in that regard. Today’s decision will do more than merely chill the use of peremptory challenges by the prosecution, it effectively shackles the ability to exercise a method of challenge traditionally “viewed as one means of assuring the selection of a qualified and unbiased jury . . . .” Id.

While I wholeheartedly support the proposition set forth in Batson that the State’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause and that the prosecutor therefore cannot challenge potential jurors solely on account of their race on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant, the majority’s holding that a prima facie case of discrimination can be made by the striking of a single juror of the same minority race as the defendant, without more, flatly contradicts the notion that it is a “ ‘pattern’ of strikes against black jurors included in the particular venire [which] might give rise to an inference of discrimination.” Id. at 97 .

I cannot accept the fact that Mitchell made a prima facie case of discrimination based solely on the strike of venireman Petty. Likewise, I cannot agree that a prima facie case was made out simply by virtue of the fact that two of the prosecutor’s eighteen questions were race related, unless the evidence was convincing that the prosecutor’s subsequent explanation concerning Petty’s honesty was linked to Petty’s responses on the issue of race. This, however, is not the case.

The record clearly shows what can best be described as “dissatisfaction” on the part of the prosecutor with Petty’s demeanor when answering other questions, particularly whether Petty would find Mitchell guilty if satisfied beyond a reasonable doubt that Mitchell had committed the offenses charged, and whether Petty would consider sending Mitchell to the penitentiary. Pursuant to AMCI 104, jurors are instructed that in determining the credibility of any witness, it is proper to take into consideration the demeanor of the witness while on the stand. I find nothing in the law indicating that prospective jurors cannot be judged in like manner.

Although capable of dual interpretation, I attach little significance to the prosecutor’s side bar remark that it was his prerogative to be harder on Petty in his questioning than on other jurors. At no time during the questioning of Petty did Mitchell’s counsel object to the manner in which the prosecutor was questioning Petty, and the remark by the prosecutor is at most indicative of his dissatisfaction with Petty’s demeanor in responding to the prosecutor’s other questions.

Even if I were convinced that Mitchell established a prima facie case of purposeful discrimination, I find that while the trial court can only barely be said to have conducted the “sensitive inquiry” discussed in Ward, the prosecutor’s explanation for the challenge satisfied the State’s burden that it “articulate a neutral explanation related to the particular case to be tried.” I therefore respectfully dissent. Hays, J., joins in the dissent.