State v. Leron Porter

Opinion

Supreme Court

No. 2023-237-C.A. (P1/11-2541AG)

(Concurrence begins on Page 23) (Concurrence begins on Page 39)

State :

v. :

Leron Porter. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

(Concurrence begins on Page 23) (Concurrence begins on Page 39)

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. The defendant, Leron Porter

(defendant), appeals from a Superior Court judgment of conviction for murder in the

second degree and two related firearms offenses. The defendant contends that the

trial justice erred in numerous respects and that, as a result, his convictions should

be reversed. Principally, the defendant contends that the prosecutor’s peremptory

strike of the sole African-American venireperson during voir dire violated the

defendant’s equal protection rights as guaranteed by the United States Supreme

Court’s ruling in Batson v. Kentucky, 476 U.S. 79 (1986).1 For the reasons set forth

1 In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that “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

-1- herein, we vacate the judgment of conviction and remand to the Superior Court for

a new trial.

Facts and Procedural History

A full recitation of the facts in this case is not necessary in deciding the matter

before the Court. However, a full recitation of the travel and procedural history is

necessary to understand the current posture of the case. Therefore, we will state only

the material facts as needed for our analysis. The defendant’s convictions stem from

the fatal shooting of seventeen-year-old Tiphany Tallo. On May 9, 2011, the

victim’s sister, Ashley Tallo, and defendant’s sister, Daneesa “Mooky” Porter, were

engaged in a street fight in Providence, Rhode Island. Tiphany left her apartment

building, located across the street, and advanced toward the fight. As she

approached, witnesses saw defendant fire a gun in Tiphany’s direction. Immediately

after, witnesses saw Tiphany place her hand on her chest and collapse. Tiphany was

pronounced dead at a local hospital. Shortly thereafter, defendant was apprehended

and charged with second-degree murder, two related firearms offenses, and assault

with a dangerous weapon.

be unable impartially to consider the [s]tate’s case against a black defendant.” Batson, 476 U.S. at 89.

-2- The First Trial

A jury trial on the charges commenced in November 2013. Porter v.

Coyne-Fague, 35 F.4th 68, 72 (1st Cir. 2022) (Porter III). During jury enpanelment,

Juror 103, the sole prospective African-American juror in the venire, requested to

speak with the trial justice at sidebar. Id. At sidebar, Juror 103 expressed concerns

about facing potential retaliation at his workplace if he served on the jury panel. Id.

Specifically, Juror 103 explained that in the course of his employment at a local

hospital, he interacted with many patients who “follow these cases.” Id. Juror 103

expressed that, given the chatter about the case, “chances are, regardless which way

the verdict goes, I can find myself subject of either allegations or hostile treatment

either from the staff or from patients.” Id. (brackets omitted). Juror 103 affirmed

that he was “‘not at all’ biased or prejudiced in resolving the matter.” Id.

Shortly thereafter, the prosecutor exercised a peremptory strike against Juror

103 and, without prompting by the court, volunteered his basis for Juror 103’s

dismissal. Porter III, 35 F.4th at 72-73. The prosecutor explained that, in his view,

Juror 103 “ha[d] a feeling and [was] under the belief that as a consequence of his

verdict, he may face repercussions * * * [b]low-back and concern, based on his

verdict.” Id. at 72. The prosecutor continued,

“Essentially, what [Juror 103] is saying is that * * * he’s a member of the African-American community, the defendant at bar is a member of the African-American community, [Juror 103]’s the only one on the panel who

-3- is, and if he were to vote guilty there could be consequences to it. * * * [B]ut if he were to vote not guilty, I don’t think he would have any consequence.” Id. at 72-73.

The trial justice granted the peremptory strike, and excused Juror 103. Id. at 73.

Consequently, a jury absent African Americans was seated. Id.

At the conclusion of trial, the jury found defendant guilty of second-degree

murder and the two firearms offenses. Porter III, 35 F.4th at 73. He was sentenced

to two separate terms of life imprisonment for murder and discharging a firearm

while committing a crime of violence. Id. He was also sentenced to shorter terms

for possession of a firearm and for being a habitual offender. Id. The defendant was

acquitted of the count for assault with a dangerous weapon. State v. Porter, 179 A.3d

1218, 1223 (R.I. 2018) (Porter I). The defendant appealed his conviction to this

Court. Id.

On appeal to this Court in March of 2018, defendant argued that the trial

justice erred in allowing the state to strike two minority jurors in violation of Batson.

Porter I, 179 A.3d at 1223. With respect to the striking of Juror 103, this Court held

that the prosecutor’s rationale for striking Juror 103 was “race-neutral and

nonpretextual.” Id. at 1226. We reasoned that, because the prosecutor challenged

Juror 103 based on the concerns Juror 103 raised at the outset—possible workplace

retaliation resulting from his jury service—the challenge was based upon grounds

other than the juror’s race. Id. Therefore, we concluded that the trial justice did not

-4- err in his decision to excuse Juror 103 and upheld defendant’s conviction. Id. at

1226-27, 1231.

Habeas Petition

In September of 2019, after the United States Supreme Court denied his

petition for certiorari, defendant filed a petition for writ of habeas corpus in the

United States District Court for the District of Rhode Island. Porter v. Coyne-Fague,

528 F. Supp. 3d 2, 4 (D.R.I. 2021) (Porter II). In considering defendant’s habeas

petition, the district court found that “[b]ased on the record before the [Rhode Island]

Supreme Court, Mr. Porter’s rights under Batson appear to have been violated during

jury selection.” Id. at 9. Despite the district court’s finding, however, it determined

that this Court’s decision in Porter I “[met] th[e] low threshold for what constitute[d]

a reasonable application of Batson * * *.” Id. at 8. The district court reasoned that,

under a habeas review standard, “[i]t [wa]s not inconceivable for a court, in light of

the total circumstances surrounding Juror 103’s empanelment, to believe that the

[s]tate was motivated by factors other than race in its decision to strike.” Id.

Accordingly, the court deferred to our ruling in Porter I and denied defendant’s

habeas petition. Id. at 9-10.

First Circuit Court of Appeals

The defendant appealed the district court’s decision to the United States Court

of Appeals for the First Circuit, which issued its decision in 2022. Porter III, 35

-5- F.4th at 71. The First Circuit concluded that this Court’s holding in Porter I—that

the state’s rationale for striking the sole African-American juror from the venire was

“race-neutral and nonpretextual”—was unreasonable. Id. at 77; Porter I, 179 A.3d

at 1226. The First Circuit quoted the prosecutor’s stated reason, that Juror 103 was

“a member of the African-American community, the defendant at bar is a member

of the African-American community, Juror 103 is the only one on the panel who is,

and if he were to vote guilty there could be consequences to it[,]” and explained that

a basis which “assumes a prospective juror’s bias in favor of a defendant because

both are members of the same race is not race-neutral under clearly-established

Supreme Court precedent.” Porter III, 35 F.4th at 77, 78 (brackets omitted). The

First Circuit ruled that this Court had either “assembled its own rationale for the

strike rather than examining the one put forth by the prosecutor” and therefore

“unreasonably applied the Batson rule,” or had “elided the prosecutor’s race-explicit

comment because it considered that isolated sentence unimportant or ancillary

within the context of the prosecutor’s somewhat circuitous speech.” Id. at 78-79.

Because this Court overlooked that “[t]he prosecutor’s reason * * * echoe[d] the

discredited justification for striking ‘jurors of the defendant’s race on the

assumption—or the intuitive judgment—that [the prospective juror] would be partial

to the defendant because of their shared race[,]’” the First Circuit held that this Court

had unreasonably construed the prosecutor’s stated reason for the strike. Id. at 81

-6- (brackets omitted) (quoting Batson, 476 U.S. at 97). Consequently, the First Circuit

reversed the decision of the district court and remanded the case with instructions to

grant defendant’s habeas writ. Id. at 83. The court further ordered “the state courts

to vacate the [defendant’s] convictions and, unless he [was] tried anew within ninety

days of the district court’s order, to release him.” Id.

The Second Trial

As a result of Porter III, a second trial for defendant commenced in the fall of

2022. During voir dire, Juror 90, again the sole African-American venireperson,

requested to address the court. At sidebar, Juror 90 disclosed he had a “pending

legal case.” With both the prosecutor and defense counsel present, Juror 90 divulged

to the trial justice that he had a pending DUI refusal in Coventry, Rhode Island.

When asked by the court whether he could be fair and impartial sitting as a juror in

the case, Juror 90 averred that he could. Juror 90 also admitted that “[he] was in the

wrong for what [he] did. So, [he did not] have any harsh feelings towards the

police.” In the same discussion at sidebar, the prosecutor asked Juror 90 whether

the pending case in Coventry was his only interaction with police and if it was his

only criminal case. Juror 90 answered affirmatively both times. After requesting

Juror 90’s date of birth, the prosecutor asked Juror 90 whether he had two pending

-7- cases, rather than one. Juror 90 confirmed that he did have two pending DUI cases—

the second of which was pending in East Providence, Rhode Island.2

After some questioning from both the prosecutor and defense counsel, the

prosecutor then moved to strike Juror 90 for cause, reasoning that he had not been

“forthcoming about [his] second criminal case, [and] that they happened back to

back.” Defense counsel timely objected. The trial justice denied the state’s request,

finding that there were no grounds to dismiss the juror for cause. The trial justice

then asked the prosecutor if he wished to exercise a peremptory strike, which the

prosecutor answered in the affirmative. The trial justice explained that they must

abide by particular rules in assessing the strike “relative to Batson” and emphasized

that this was the reason the court was “retrying this case * * *.” Ultimately, after

hearing from both sides, the trial justice did not allow the peremptory strike, stating

that he did not “buy” the prosecutor’s proffered race-neutral explanation.

Later, after a court recess, the trial justice commenced a sidebar and inquired

whether defense counsel or the prosecution would like to renew the discussion about

Juror 90. In response, the prosecutor renewed his request to strike Juror 90 for cause

and reiterated that his reason for striking Juror 90 was his two pending criminal

2 Juror 90 informed the trial justice that he had retained counsel for both cases. Likewise, he stated that he understood that he was potentially facing incarceration for his pending charges, but that it would not affect his ability to be fair and impartial as a juror in the trial.

-8- cases. The prosecutor then referenced police reports which detailed Juror 90’s

interactions with police, during which Juror 90 allegedly screamed at police officers,

directing several expletives towards them. Additionally, the prosecutor represented

that Juror 90 was taking heroin-dependency medication, which he argued may affect

Juror 90’s attentiveness during trial. In response, defense counsel argued that Juror

90 had admitted wrongdoing in his interactions with the police and was presumably

undergoing drug monitoring through pretrial services. Defense counsel underscored

the importance of retaining Juror 90 because he was the only African-American

venireperson present.

The trial justice stated that dismissing Juror 90 for cause was “a very close

call” because it required further inquiry into Juror 90’s prior interactions with police.

According to the trial justice, that inquiry was inappropriate because it required an

examination of issues relative to Juror 90’s pending criminal charges. Therefore,

the trial justice denied the state’s challenge for cause.3 However, the trial justice

granted the prosecutor’s peremptory challenge, simply stating that “there [were]

absolute strong grounds for a peremptory without any racial undercurrent

whatsoever.” At that time, defense counsel renewed his objection. Over defendant’s

3 “[A] Batson challenge does not apply to a trial justice’s decision to excuse a juror for cause.” State v. Montero, 339 A.3d 1055, 1083 (R.I. 2025).

-9- objection, Juror 90 was struck and a jury absent African Americans was empaneled.

The resulting jury ultimately found defendant guilty.

The defendant filed a motion for new trial, and at a subsequent hearing on that

motion, the trial justice returned to the Batson issue. The trial justice articulated that

he was at first hesitant to allow the dismissal but that, after the court recess, he had

changed his mind. The trial justice explained that Juror 90 was not forthright about

his second pending case in East Providence until the state confronted him with that

information. The trial justice further declared that “there had been no Batson

interplay anyway, because the defense did not establish a prima facie basis to invoke

the rule. * * * I saw none of that, but nonetheless I invited the [s]tate to offer its

reasons for excusal so that the record was clear and complete.” The trial justice

found “without reservation, that the prosecutor’s explanation was credible, sensible

and without a hint of racial bias. * * * [T]here was no Batson infringement in this

instance.” The motion for new trial was denied. The defendant timely appealed.

Standard of Review

“This Court has held that, ‘because of the nature of the inquiry in a Batson

analysis, a trial justice’s decision is accorded great deference.’” State v. Garcia, 316

A.3d 1223, 1242 (R.I. 2024) (brackets omitted) (quoting State v. Gallop, 89 A.3d

795, 804 (R.I. 2014)). Accordingly, “the ruling on the issue of discriminatory intent

must be sustained unless it is clearly erroneous.” Garcia, 316 A.3d at 1242 (quoting

- 10 - Gallop, 89 A.3d at 804); see Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (“On

appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained

unless it is clearly erroneous.”).

Discussion

Batson Challenge

On appeal, defendant argues that the trial justice erred in allowing the state to

strike Juror 90, the sole prospective African-American venireperson, in violation of

his equal protection rights established in Batson. Batson, 476 U.S. at 89. The

defendant argues that “the trial justice was obligated to look beyond the face of the

[state’s] race-neutral reason and consider ‘all the circumstances’ to determine if

discrimination was at play.” The defendant contends that, in this instance, all

circumstances “pointed toward a Batson problem, yet the trial justice failed to

confront it adequately.” Specifically, defendant asserts that the trial justice erred by

not engaging in the proper “probing inquiry” required by step three of the Batson

tripartite framework to determine whether the state’s race-neutral explanation for

striking Juror 90 was genuine and nonpretextual. In support of his argument,

defendant relies on this Court’s ruling in Garcia, to argue that the trial justice did

not adhere to the credibility determination required under Batson in determining

whether the state’s race-neutral explanation should be believed. See Garcia, 316

A.3d at 1242-43. The defendant further contends that “a completed Batson violation

- 11 - is a ‘structural error’ that defies harmless-error analysis[,]” requiring “automatic

reversal” and entitling him to a new trial. (Quoting Porter III, 35 F.4th at 82.)

In opposition, the state disputes defendant’s equal protection argument, and

asserts that the trial justice correctly found that the prosecutor’s peremptory strike

of Juror 90 was constitutional. First, the state argues that the trial justice correctly

determined that defendant failed to clear the initial hurdle of Batson—to establish a

prima facie case of purposeful discrimination by the prosecutor in striking Juror 90.

Second, the state argues that, consistent with Batson, the trial justice correctly

“recognized that the [s]tate genuinely possessed a plausible concern that Juror 90’s

pending cases and previous attitude toward law enforcement might cause him to be

biased against the [s]tate, even subconsciously.” The state cites to this Court’s ruling

in Gallop to assert that “[a]n attorney’s genuine belief that a juror’s experience might

cause him or her to favor the opposing party would certainly qualify as race neutral.”

(Quoting Gallop, 89 A.3d at 805.) Accordingly, the state argues that defendant’s

Batson argument is without merit because the state’s rationale for excusing Juror 90

was not race-based and thus not pretextual. Third, with respect to step three of

Batson, the state argues that the trial justice “carefully considered the [s]tate’s

justifications and correctly determined that the [s]tate provided credible, race-neutral

reasons for the peremptory challenge at issue.”

- 12 - Analysis

“Equal justice under law requires a criminal trial free of racial discrimination

in the jury selection process.” Flowers v. Mississippi, 588 U.S. 284, 301 (2019).

“The Constitution forbids striking even a single prospective juror for a

discriminatory purpose.” Id. at 303. Therefore, a prosecutor is prohibited from

challenging “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 [s]tate’s case

against a black defendant.” Batson, 476 U.S. at 89; see Flowers, 588 U.S. at 299.

“[T]he Batson Court delineated a tripartite test for determining whether a

criminal defendant has been denied equal protection of the laws by the state’s use of

a peremptory challenge.” State v. Pona, 926 A.2d 592, 601 (R.I. 2007) (Pona I)

(citing Batson, 476 U.S. at 96-98). Under Batson, the defendant first bears the

burden of establishing a prima facie showing of purposeful discrimination. See

Garcia, 316 A.3d at 1242. If the defendant makes that showing, then the “burden

shifts to the prosecution to articulate its race-neutral reason(s) for challenging that

particular juror.” Id. (quoting State v. Pona, 66 A.3d 454, 472 (R.I. 2013) (Pona II)).

“Finally, at the third step, the trial justice is required ‘to determine whether the

defendant has carried his or her burden of proving purposeful racial discrimination.’”

Id. (quoting Pona II, 66 A.3d at 472).

- 13 - Step One

Under the first step of the Batson analysis, the defendant has the burden of

“establish[ing] a prima facie case of purposeful discrimination in selection of the

petit jury * * *.” Pona I, 926 A.2d at 601 (quoting Batson, 476 U.S. at 96). This

Court has noted, however, that “[t]his [first] step of the analysis will become moot

if the trial justice moves beyond it to consider the second and third steps.” Gallop,

89 A.3d at 805; see Garcia, 316 A.3d at 1242; see also Hernandez v. New York, 500

U.S. 352, 359 (1991) (plurality opinion) (“Once a prosecutor has offered a race-

neutral explanation for the peremptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the preliminary issue of whether the

defendant had made a prima facie showing becomes moot.”).

In this instance we may assume that defendant made such a showing because,

although the trial justice did not articulate whether defendant satisfied his burden,

the trial justice advanced to step two. See Pona II, 66 A.3d at 472-73 (“[W]e will

assume that defendant satisfied Batson’s first step. Although the trial justice did not

state explicitly whether defendant satisfied the first prong, * * * he inquired of the

prosecutor whether a race-neutral reason existed for the strike. The trial justice next

proceeded to rule on the ultimate question of discrimination.”). Specifically, the trial

justice stated, “I have not seen * * * a deliberate, purposeful discrimination effort,

but I’m going to skip that part and go right to a race-neutral reason that you would

- 14 - offer, because I’m assuming that [defense counsel] is going to object.” Therefore,

because the trial justice went straight to step two, precedent dictates that step one

became moot. See id. at 473; see also Garcia, 316 A.3d at 1242. Accordingly, we

need not address the state’s argument that there was no prima facie showing of

discrimination.

Step Two

At the second step, the “burden shifts to the prosecution to articulate its

race-neutral reason(s) for challenging that particular juror.” Garcia, 316 A.3d at

1242 (quoting Pona II, 66 A.3d at 472). The prosecutor must “give a clear and

reasonably specific explanation of his or her legitimate reasons for exercising the

challenge.” Id. (brackets omitted) (quoting Miller-El v. Dretke, 545 U.S. 231, 239

(2005) (Miller-El II)). At this step, the decisive inquiry is whether the prosecutor’s

explanation is facially valid. See Pona I, 926 A.2d at 602. “[U]nless a discriminatory

intent is inherent in the prosecutor’s explanation, the reason offered will be deemed

race neutral.” Garcia, 316 A.3d at 1242 (quoting Pona I, 926 A.2d at 602). “In order

to satisfy the burden, the prosecutor cannot simply deny that he or she had a

discriminatory motive or simply assert that he or she acted in good faith in carrying

out the peremptory strike.” Id.

Here, the prosecutor stated his race-neutral reason, that Juror 90 had “two

pending criminal cases in which the [s]tate is prosecuting him and he wasn’t

- 15 - forthcoming about the second criminal case.” During the initial sidebar, the trial

justice denied the state’s peremptory strike, stating, “I don’t buy the excuse that you

offer. There may be other reasons, you didn’t articulate them, but I’m not going to

let you do it.” However, after a court recess, the trial justice reinitiated the

conversation about Juror 90, asking the prosecutor if he wanted to “renew [the]

conversation about Juror No. 90 * * *.” The prosecutor then restated his race-neutral

justifications for the peremptory strike, specifying that Juror 90 had upcoming

pretrial conference dates for his pending cases. The prosecutor also referenced Juror

90’s verbal abuse toward law enforcement officers detailed in the police reports.

Moreover, the prosecutor stated that Juror 90 had dependency issues which could

affect his focus at trial. The trial justice accepted those race-neutral reasons and

allowed the peremptory strike.

Given that the prosecutor’s stated reasons for challenging Juror 90 were not

on account of his race, we are satisfied that the state met its low burden to provide a

clear and reasonably specific explanation of legitimate reasons for the peremptory

strike. See Gallop, 89 A.3d at 806 (“While the reason offered by the prosecutor for

a peremptory strike need not rise to the level of a challenge for cause, the fact that it

corresponds to a valid for-cause challenge will demonstrate its race-neutral

character.”) (deletion omitted) (quoting Hernandez, 500 U.S. at 362-63); see also

Porter III, 35 F.4th at 76 (“[A race-neutral] explanation will satisfy step two even if

- 16 - it is downright implausible or fantastic.”) (quoting Purkett v. Elem, 514 U.S. 765,

768 (1995) (per curiam)).

Step Three

The critical question for the trial justice at this stage is determining “whether

counsel’s race-neutral explanation for a peremptory challenge should be believed.”

Gallop, 89 A.3d at 805 (quoting Pona II, 66 A.3d at 472). Accordingly, “a trial

justice must undertake a sensitive inquiry into such circumstantial and direct

evidence of [discriminatory] intent as may be available.” Garcia, 316 A.3d at

1242-43 (quoting Pona I, 926 A.2d at 602). A trial justice is required to “conduct a

probing inquiry into the proffered race-neutral reason(s) and assess the veracity and

credibility of the prosecutor’s reasons.” Id. at 1243. “[T]here will seldom be much

evidence bearing on that issue, and the best evidence often will be the demeanor of

the attorney who exercises the challenge.” Id. (quoting Pona I, 926 A.2d at 602).

This Court has directed that a trial justice must clearly and unequivocally

place on the record his or her findings of fact, credibility determinations, and reasons

for accepting or rejecting a defendant’s Batson challenge. See Pona I, 926 A.2d at

608. This foundation is necessary to ensure a complete record for appellate review.

See id. (“If this Court is to ensure that a trial justice has properly considered the

credibility of each proffered race-neutral reason and has addressed each of a

- 17 - defendant’s arguments that a peremptory strike actually was a pretext for purposeful

discrimination, we must be presented with an adequate record to review on appeal.”).

Accordingly, because a trial justice has the vantage point of gleaning the facts to

make credibility determinations for a Batson analysis, the trial justice’s evaluation

of the prosecutor’s state of mind is accorded great deference. See id. at 602 (“It is

because a trial justice’s finding of purposeful discrimination at this third step ‘largely

will turn on evaluation of credibility, a reviewing court ordinarily should give those

findings great deference.’”) (quoting Batson, 476 U.S. at 98 n.21); see Flowers, 588

U.S. at 303 (noting that determinations of credibility and demeanor of the prosecutor

exercising a peremptory strike “lie peculiarly within a trial judge’s province”)

(quoting Snyder, 552 U.S. at 477).

Here, however, the trial justice failed to undertake the requisite analysis under

Batson’s critical third step. See Garcia, 316 A.3d at 1242-43. As the United States

Supreme Court stated, “the job of enforcing Batson rests first and foremost with trial

judges. * * * In criminal trials, trial judges possess the primary responsibility to

enforce Batson and prevent racial discrimination from seeping into the jury selection

process.” Flowers, 588 U.S. at 302. Doing so necessitates not just the raising of

Batson, but meaningful engagement with all three of its well-established

requirements. See Batson, 476 U.S. at 96-98; see also Pitchford v. Cain, 146 S. Ct.

1345, 1351-52 (2026) (“[T]he * * * trial court erroneously omitted Batson’s third

- 18 - step: In particular, the trial court * * * never determined whether the prosecutor’s

stated reasons were pretextual.”).

Seemingly out of an abundance of caution, the trial justice raised Batson sua

sponte and explicitly acknowledged that defendant’s initial conviction had been

reversed on Batson grounds, indicating the basis for a retrial. Notwithstanding the

trial justice’s intention to ensure defendant a fair trial, the trial justice failed to

adequately consider whether the state’s proffered justification for striking Juror 90

was pretextual. While we do not suggest that the prosecutor’s stated reason—Juror

90’s pending criminal charges—was pretextual, the trial court failed to properly

assess whether the prosecutor should be believed. See Pona I, 926 A.2d at 602.

The trial justice initially articulated that he did not “buy” the prosecutor’s

excuse for the strike and suggested that the prosecutor possibly had other reasons

but did not articulate them. Yet, later, the trial justice stated that “there [were]

absolute strong grounds for a peremptory without any racial undercurrent

whatsoever.” From the record before us, we are unable to discern the trial justice’s

reasons for changing his mind about the prosecutor’s credibility or why he found

that Juror 90 could not be an impartial member of the jury. The trial justice did not

articulate his perception of the prosecutor’s demeanor in light of the circumstances,

nor did he evaluate the circumstantial and direct evidence of purposeful

discrimination as was available. See Garcia, 316 A.3d at 1245 (“A trial justice

- 19 - should consider all the evidence presented both in support of and in contravention

to a purported race-neutral reason and should search beyond the face of a proffered

justification to ensure that * * * a peremptory challenge was not, in fact, racially

motivated.”) (brackets omitted) (quoting Pona I, 926 A.2d at 610). Batson and its

progeny have cautioned about inherent ways discrimination may invade the jury

selection process, thus, amplifying the role of the trial justice in assessing whether a

peremptory strike is, indeed, racially motivated. See Flowers, 588 U.S. at 310 (“[A]

prosecutor’s dramatically disparate questioning of black and white prospective

jurors * * * can supply a clue that the prosecutor may have been seeking to paper

the record and disguise a discriminatory intent.”).

In the present case, the record reveals that Juror 90 voluntarily requested to

speak with the trial justice and counsel at sidebar, where he provided information

about his pending criminal case. However, it is the trial justice’s lack of analysis

with respect to the prosecutor’s disparate investigation and probing that concerns us.

During a recess, the prosecutor conducted additional research into Juror 90’s

background, a fact that the trial justice failed to consider at all. See Flowers, 588

U.S. at 310 (“Disparity in questioning and investigation can produce a record that

says little about white prospective jurors and is therefore resistant to

characteristic-by-characteristic comparisons of struck black prospective jurors and

seated white jurors. Prosecutors can decline to seek what they do not want to find

- 20 - about white prospective jurors.”). “[B]y asking a lot of questions of the black

prospective jurors or conducting additional inquiry into their backgrounds, a

prosecutor can try to find some pretextual reason—any reason—that the prosecutor

can later articulate to justify what is in reality a racially motivated strike.” Id. Thus,

underscoring why “[a] court confronting [disparate investigation and questioning]

cannot ignore it.” Id.

While “disparate questioning or investigation alone does not constitute a

Batson violation[,]” “disparate questioning and investigation of prospective jurors

on the basis of race can arm a prosecutor with seemingly race-neutral reasons to

strike the prospective jurors of a particular race.” Flowers, 588 U.S. at 310.

Therefore, absent factual findings as to Batson’s essential third step, we are unable

to properly review the trial justice’s analysis, and thus cannot affirm his decision.

See Pitchford, 146 S. Ct. at 1353 (stating that “whether due to confusion, oversight,

an overly hurried jury selection process, or some other cause, things broke down,

and the ordinary trial-court procedure for resolving Batson claims at step three never

occurred[,]” constituting error).

In sum, the trial justice skipped step one, accepted the prosecutor’s

race-neutral reasons articulated under step two, then skipped step three altogether.

In furtherance of our ruling in Pona I, we hold that to safeguard a criminal

defendant’s inalienable right to a fair trial, a trial justice must engage in a meaningful

- 21 - Batson analysis, in which the trial justice must address, delineate, and explain his or

her rationale as to all three steps of the tripartite test on the record. We recognize

that, in the present case, this is the second jury pool for defendant wherein there was

only one African-American venireperson. Both times, the state’s use of peremptory

strikes resulted in defendant being tried by a jury absent African Americans. That

embarrassing reality highlights why the Batson analysis was critical. As the

Supreme Court has noted,

“[a] structural defect affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).

Therefore, we conclude that a Batson error is a structural error defying harmless-

error analysis. See id.; see also Porter III, 35 F.4th at 82 (“Reversal of the conviction

is automatic because * * * a completed Batson violation is a ‘structural error’ that

defies harmless-error analysis.”) (quoting Sanchez v. Roden, 753 F.3d 279, 307 (1st

Cir. 2014)). While we acknowledge that the trial justice attempted to remedy this

error during the hearing on a motion for a new trial, at that stage, the error was

incurable. Thus, vacation of defendant’s conviction and a new trial is the appropriate

remedy.

- 22 - The defendant also raises evidentiary arguments in support of his position that

the trial court erred in denying his motion for a new trial. However, given our above

ruling on the Batson issue, we need not address the defendant’s other arguments.

Conclusion

For the foregoing reasons, we vacate the judgment of the Superior Court and

remand the matter for a new trial. The papers may be returned to the Superior Court.

Justice Goldberg participated in the decision and authored a concurring

opinion but retired prior to its publication.

Justice Goldberg, concurring. I agree with the Court’s opinion but write

separately to emphasize the importance of adhering to the tripartite test articulated

in Batson v. Kentucky, 476 U.S. 79 (1986).

Let there be no mistake; this Court is resolute in its opinion that discrimination

has no place in any aspect of the judicial system, including jury selection. Our shared

values recognize that such intolerance is abhorrent, and the Court is unanimous and

unwavering in this conclusion. It is also beyond peradventure that in Batson the

United States Supreme Court articulated the tripartite test to evaluate whether a

prosecutor’s invocation of a peremptory challenge was based upon race or other

impermissible considerations. See Pitchford v. Cain, 146 S. Ct. 1345, 1349 (2026).

- 23 - Because the tripartite test emanates from the Equal Protection Clause of the

Fourteenth Amendment, it is binding upon state and federal courts. Thus, “the job

of enforcing Batson rests first and foremost with trial judges.” Id. at 1351 (quoting

Flowers v. Mississippi, 588 U.S. 284, 302 (2019)).

In many respects, this matter represents a case study in Batson. Before trial,

prospective jurors were asked to complete a jury questionnaire. When voir dire

began, the prosecutor expressed that the parties had the opportunity to review those

questionnaires and that he had “some follow-up questions based on different

people’s answers.” Included in the questionnaire was interrogatory number

eighteen, which asked whether the prospective juror had a pending criminal case or

knew someone that had a pending criminal case. Although the questionnaires do not

appear in the record, it is uncontroverted that Juror 90, who was apparently a person

of color, answered question eighteen in the affirmative; and, when the prosecutor

inquired, Juror 90 requested to approach the bench, which the trial justice permitted.1

Initially, Juror 90 was forthcoming; he acknowledged that he had a pending

case involving driving under the influence/refusal out of Coventry, Rhode Island.

Juror 90 further indicated that the Coventry incident had occurred a couple of months

previously and would have no bearing on his deliberations; he added that he had no

1 Because the questionnaires are not included in the record, it is unclear whether any other prospective juror answered question eighteen affirmatively.

- 24 - negative feelings toward the police. When discussion arose concerning whether

defendant’s trial dates might interfere with Juror 90’s own court dates, the trial

justice—in an obvious effort to seat Juror 90—proactively declared that, if any

scheduling conflicts arose, he would “take care of that.”

The prosecutor continued voir dire and soon asked whether the Coventry case

was “your only interaction with the police?” Juror 90 responded, “Yes, sir.”

Moments later, the prosecutor asked again, “So the only criminal case you have is

the Coventry DUI and refusal[?]” Once again, Juror 90 answered affirmatively.

Thereafter, the following ensued:

“[PROSECUTOR]: Is your date of birth * * * [19]85?

“JUROR NO. 90: That’s correct.

“THE COURT: Do you have two cases pending?

“JUROR NO. 90: No. I have one. I have the DUI and refusal. No. Yeah, I do have two cases pending, actually. One from --

“[PROSECUTOR]: East Providence?

“JUROR NO. 90: Yes. East Providence and Coventry. Yes, I do.

“[PROSECUTOR]: So you were arrested by two different departments?

“JUROR NO. 90: Yes. That’s correct.

“THE COURT: What’s the East Providence case?

- 25 - “JUROR NO. 90: Same thing as the Coventry case.”

While the foregoing might have been attributable to forgetfulness or another

innocent explanation, defense counsel’s ensuing colloquy elicited additional

answers suggesting that Juror 90’s previous responses were less than truthful:

“[DEFENSE COUNSEL]: Yes. So which is first, Coventry or East Providence?

“JUROR NO. 90: East Providence was first.

“[DEFENSE COUNSEL]: And roughly how long ago? Six months, eight months, a year?

“JUROR NO. 90: A few months ago. Less than six.

“[DEFENSE COUNSEL]: Do you know whether or not you’re being charged with a second refusal within a five-year period?

“JUROR NO. 90: I am.

“[DEFENSE COUNSEL]: And do you know that that could result in incarceration?

“JUROR NO. 90: I’m aware, yes.”

At this juncture, Juror 90 reiterated that he could be fair and bore no “hard

feelings” toward the police. Nonetheless, the prosecutor moved to strike Juror 90

for cause, noting the pending criminal cases as well as the less than forthcoming

responses concerning the East Providence case. After the trial justice denied the

for-cause dismissal request, the prosecutor sought to exercise a peremptory

- 26 - challenge, further indicating that the Coventry and East Providence charges occurred

within a span of approximately eight days, “[a]nd he failed to disclose the second

one.” The trial justice denied the peremptory challenge.

The record evinces that court proceedings paused for a recess, during which

the prosecutor availed himself of the opportunity to review the police reports from

the Coventry and East Providence incidents. When court resumed, the prosecutor

reported his findings to the trial justice and conveyed that those accounts were

“different than how [Juror 90] indicated he interacted with police.” Specifically, the

Coventry police report indicated that Juror 90 was passed out and revived through

the administration of Narcan. The prosecutor further detailed Juror 90’s hostility

toward the police and noted certain exclamations that he directed at the officer:

“F*** you b***h a**” and “Suck my d***, you n***er b***h.” According to the

prosecutor, the East Providence police report indicated similar behavior and further

revealed that Juror 90 was a past heroin user who was on medication to suppress his

drug dependency cravings. These reasons, the prosecutor argued, represented “very

red big red flags” and he further expressed doubt concerning Juror 90’s ability to sit

through an expected three-week jury trial. The trial justice again rejected the

prosecutor’s request to dismiss Juror 90 for cause, expressing that it was a “very

- 27 - close call,”2 but he permitted the prosecutor to exercise a peremptory challenge,

declaring that he had no “problem with it whatsoever.”

Despite the clear record demonstrating Juror 90’s unsuitability (again, I note

that the jury questionnaires are not part of the record), this Court correctly concludes

that the trial justice neglected to address Batson’s third prong. This error mandates

vacating defendant’s conviction for a second time.

Batson’s third prong requires a trial justice to conduct a probing inquiry into

the proffered race-neutral reason(s) and assess the veracity and credibility of the

prosecutor’s reasons. See State v. Pona, 926 A.2d 592, 602 (R.I. 2007) (Pona I).

“Credibility can be measured by, among other factors, the prosecutor’s demeanor;

by how reasonable, or how improbable, the explanations are; and by whether the

proffered rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell,

537 U.S. 322, 339 (2003) (Miller-El I). “[I]f a prosecutor’s proffered reason for

striking a black panelist applies just as well to an otherwise-similar nonblack who is

permitted to serve, that is evidence tending to prove purposeful discrimination to be

2 In my opinion, this was not a “very close call” and Juror 90 should have been excused for cause because of his manifest unsuitability to serve in this case, viz., his lack of candor to the trial justice, his demonstrated hostility to the police, and his recent dependency on illicit drugs necessitating medication. It is difficult to conceive of a person less suitable to sit on a jury during an expected three-week murder trial whose scheduled court dates would necessitate interaction with the court.

- 28 - considered at Batson’s third step.” Pona I, 926 A.2d at 603 (quoting Miller-El v.

Dretke, 545 U.S. 231, 241 (2005) (Miller-El II)).

Thus, after Miller-El II:

“[T]he question at Batson’s third step no longer simply is whether a trial justice believes a prosecutor’s facially race-neutral reason for exercising a peremptory strike. Instead, a trial justice should consider all the evidence presented both in support of and in contravention to a purported race-neutral reason and should search beyond the face of a proffered justification to ensure that, as applied to the facts of the particular case and with due regard to a comparison of stricken minority venire members to those nonminority members allowed to serve, a peremptory challenge was not, in fact, racially motivated.” Pona I, 926 A.2d at 610.

Regrettably, in the case at bar, “whether due to confusion, oversight, an overly

hurried jury selection process, or some other cause, things broke down, and the

ordinary trial-court procedure for resolving Batson claims at step three never

occurred * * *.” Pitchford, 146 S. Ct. at 1353.

Interspersed with the tripartite inquiry, the United States Supreme Court has

also recognized that “Batson’s holding raised several important evidentiary and

procedural issues * * *.” Flowers, 588 U.S. at 301. Three evidentiary and procedural

issues warranted extended discussion by the United States Supreme Court, and I

likewise conclude that these considerations merit discussion while cautioning that

some factors, specifically those suggesting historical or statistical comparisons, may

have little utility in Rhode Island.

- 29 - “First, what factors does the trial judge consider in evaluating whether racial

discrimination occurred?” Flowers, 588 U.S. at 301 (emphasis omitted). For

example, a defendant may present:

“• statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;

“• evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;

“• side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;

“• a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;

“• relevant history of the State’s peremptory strikes in past cases; or

“• other relevant circumstances that bear upon the issue of racial discrimination.” Id. at 301-02.3

3 Contrast these considerations with cases in which the prospective juror presents questions ab initio about his or her suitability or willingness to serve based upon personal circumstances. See State v. Montero, 339 A.3d 1055, 1082-83 (R.I. 2025) (affirming dismissal of Hispanic panel member for cause after prospective juror alerted court staff that family members had tested positive for COVID-19 and she was the primary caregiver); State v. Garcia, 316 A.3d 1223, 1244-46 (R.I. 2024) (affirming trial justice’s denial of challenge to peremptory strike when prospective juror expressed hesitation about sitting in judgment and applying the beyond a reasonable doubt standard).

- 30 - Another relevant circumstance may be whether an issue of racial discrimination will

be raised at trial.

As Batson recognized with respect to the disparate questioning consideration,

“the prosecutor’s questions and statements during voir dire examination and in

exercising his [or her] challenges may support or refute an inference of

discriminatory purpose.” Batson, 476 U.S. at 97. For example, in this case, the

record reveals that Juror 90 was the only prospective juror subjected to voir dire

concerning question eighteen, and the prosecutor reviewed police reports concerning

only one prospective juror, Juror 90. Whether Juror 90 was subjected to this

questioning because he was the only venireperson who affirmatively disclosed he

had a pending criminal case or whether Juror 90 was subjected to this questioning

despite other venirepersons responding affirmatively to question eighteen is unclear

because the questionnaires are not included in the record nor in the trial transcript.

For our present circumstances, however, it suffices that such an inquiry would have

been required as part of the third prong searching inquiry.

Trial justices must remain vigilant and continue to distinguish disparate

questioning that is “motivated in substantial part by discriminatory intent,” from

disparate questioning “reflect[ing] ordinary race-neutral considerations.” Flowers,

588 U.S. at 303, 310 (quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)). As

suggested, supra, “disparate questioning or investigation alone does not constitute a

- 31 - Batson violation”; nonetheless, “the disparate questioning or investigation can * * *

along with other evidence, inform the trial court’s evaluation of whether

discrimination occurred.”4 Id. at 310-11 (emphasis added).

“Comparing prosecutive jurors who were struck and not struck can [also] be

an important step in determining whether a Batson violation occurred.” Flowers, 588

U.S. at 311. If “a prosecutor’s ‘proffered reason for striking a black panelist applies

just as well to an otherwise-similar nonblack panelist who is permitted to serve, that

is evidence tending to prove purposeful discrimination.’” Id. (quoting Foster, 578

U.S. at 512); see also Pitchford, 146 S. Ct. at 1350 (noting the defendant’s argument

that the prosecutor “deselected black people from the jury panel who had the same

familial, living, social or marital circumstances as whites who were not deselected”).

Moreover, a prosecutor’s “failure to engage in any meaningful voir dire examination

on a subject the State alleges it is concerned about is evidence suggesting that the

explanation is a sham and a pretext for discrimination.” Flowers, 588 U.S. at 312

4 In explaining this consideration, the United States Supreme Court observed that “disparate questioning and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race.” Flowers v. Mississippi, 588 U.S. 284, 310 (2019). “In other words, by asking a lot of questions of the black prosecutive jurors or conducting additional inquiry into their backgrounds, a prosecutor can try to find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike.” Id. By not subjecting a prospective white juror to the same scrutiny and the same questions, “the prosecutor can try to distort the record so as to thereby avoid being accused of treating black and white jurors differently.” Id.

- 32 - (quoting Miller-El II, 545 U.S. at 246). When examining this factor, “a defendant is

not required to identify an identical white juror for the side-by-side comparison to

be suggestive of discriminatory intent.” Id. at 311-12.

The second evidentiary or procedural issue recognized in Flowers is “who

enforces Batson?” Flowers, 588 U.S. at 302. “In criminal trials, trial judges possess

the primary responsibility to enforce Batson and prevent racial discrimination from

seeping into the jury selection process.” Id. As such, when considering a Batson

challenge, a trial court must consider the parties’ arguments and assess “the

prosecutor’s race-neutral explanations in light of all of the relevant facts and

circumstances * * *.” Id. The “ultimate inquiry” focuses on whether a prosecutor’s

preemptory challenge “was ‘motivated in substantial part by discriminatory intent.’”

Id. at 303 (quoting Foster, 578 U.S. at 513). The trial justice’s “assessment of the

prosecutor’s credibility is often important” and “the best evidence of discriminatory

intent often will be the demeanor of the attorney who exercises the challenge.” Id. at

302-03 (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).

“Third, what is the role of appellate review?” Flowers, 588 U.S. at 303

(emphasis omitted). Because this Court must necessarily review the lower court’s

record, it is imperative that a trial justice make clear and unequivocal findings of fact

and set forth his or her reasons for either accepting or rejecting the state’s arguments

with respect to each Batson prong and the applicable evidentiary issues outlined

- 33 - above. If a trial justice does so, this Court ordinarily will “give those [factual]

findings [and credibility determinations] great deference.” Id. (quoting Batson, 476

U.S. at 98 n.21); see also Snyder, 552 U.S. at 477 (“[D]eterminations of credibility

and demeanor lie ‘peculiarly within a trial judge’s province’ * * *.”) (quoting

Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion)).

I pause to emphasize, however, that despite adhering to the Batson framework

and the evidentiary considerations discussed in Flowers, some considerations may

be an imprecise fit here in Rhode Island. Our prior Batson cases have not evidenced

the pervasive discrimination found in some other parts of the country where multiple

prospective minority jurors (and all or nearly all minority venire members) have

faced different questioning, treatment, or exclusion. See, e.g., Flowers, 588 U.S. at

308 (noting that the state asked five prospective black jurors (all were eventually

struck) a total of 145 questions; by contrast, the state asked the eleven seated white

jurors a total of twelve questions); Snyder, 552 U.S. at 476 (“[A]ll 5 of the

prospective black jurors were eliminated by the prosecution through the use of

peremptory strikes.”); Batson, 476 U.S. at 83 (“The prosecutor used his peremptory

challenges to strike all four black persons on the venire, and a jury composed only

of white persons was selected.”).

By comparing Rhode Island to other jurisdictions, I do not suggest that Rhode

Island is immune to the issues raised in Batson. Even isolated incidents of

- 34 - discrimination are intolerable. Rather, I simply recognize the unfortunate

circumstance that there is frequently a dearth of potential minority jurors in the

venire, which may render certain Flowers considerations less useful, such as

comparison and statistical evidence. Why are there not more jurors of color? A

more fulsome discussion of this failing—while critical in the appropriate forum—is

far beyond the scope of this judicial opinion. Rather, we are confronted with a case

in which a single minority juror was selected from the venire and dismissed in light

of his less than truthful voir dire answers, recent history of hostility to the police,

drug dependency issues necessitating medication, and pending criminal charges that

could result in incarceration. Based upon this information, it is difficult to imagine

a less suitable person sitting in judgment of a defendant charged with murder and

facing life imprisonment. The state—which bears the burden of proving defendant’s

guilt beyond a reasonable doubt—should not be required to ignore such clearly

disqualifying conduct.5 Although the trial justice dropped the ball on Batson, he

declared that he had no “problem * * * whatsoever” with the preemptory challenge.

Neither do I.

While no suggestion has been made that Juror 90’s disqualifying conduct

should have been overlooked in an effort to ensure that at least one minority member

5 I note that even defense counsel expressed that striking Juror 90 for cause was a “close” call.

- 35 - serve on the jury, eliminating peremptory challenges as a means to ensure a

defendant’s right to a fair trial is horrifying. When a trial justice declines to dismiss

for cause a panel member who has exhibited disqualifying conduct—such as Juror

90—the result is the same, the panel member must be seated in spite of the

unsuitability. In other circumstances, a panel member may demonstrate no

disqualifying conduct—and thus, not be subject to a dismissal for cause—yet a

defendant may not wish this prospective juror seated on his or her jury. Imagine a

defendant facing life imprisonment and whose fate will be decided by a jury

comprised of law enforcement officers or their family members. In a system without

peremptory challenges, would this defendant believe they received a fair trial? All

agree that a defendant is constitutionally entitled to a trial free from racial

discrimination, but the answer should focus on rigorous enforcement of the tripartite

test and, critically, increasing the diversity of the venire; eliminating the use of

peremptory challenges where there is but one person of color is not the answer. I

emphasize that, when conducting the Batson analysis, trial justices must perform the

tripartite test with deliberation, not in haste.

To be sure, a trial justice must also consider whether a prospective minority

juror was disproportionally subject to race-neutral questioning “to find some

pretextual reason—any reason—that the prosecutor can later articulate to justify

what is in reality a racially motivated strike.” Flowers, 588 U.S. at 310. Myriad

- 36 - other race-neutral circumstances may justify or require disparate questioning in

order to assess the suitability of the juror, but a trial justice can and should consider

the totality of the circumstances, and at Batson’s third prong, distinguish a

peremptory strike that is “motivated in substantial part by discriminatory intent”

from a peremptory strike motivated by race-neutral reasons. Id. at 303 (quoting

Foster, 578 U.S. at 513). Because race-based peremptory challenges undermine the

integrity and confidence in the judicial process, trial justices should consider

additional procedures and safeguards.

In the absence of extraordinary circumstances, a trial justice faced with a

Batson challenge should hear the issue in open court, not at side bar, and without the

presence of the venire or the panel. Because a Batson objection raises an issue

regarding the integrity of the judicial process, such a challenge should not be

dispatched with haste or summarily.

This procedure undoubtedly presents challenges to preserve and protect the

dignity of the prospective juror, frequently the only person of color in the courtroom.

Does the juror remain in the courtroom while the seated prospective jurors and the

venire are excused? Or should the challenged juror retire to the jury room only to

be singled out and summoned back to the courtroom to be sent away? While time

consuming, rather than eliminating peremptory challenges, mandating an individual

- 37 - voir dire would avoid the Hobson’s choice of singling out a minority juror in order

to preserve the racial integrity of the jury.

As we have noted, “prosecutors must thoroughly explicate their race-neutral

reasons * * *.” Pona I, 926 A.2d at 610. The trial justice presiding over the Batson

challenge must clearly and unequivocally set forth his or her findings of fact on the

record as to the first two prongs of the Batson tripartite test. With respect to the third

Batson prong—where a trial justice “must ‘undertake a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available’”—the trial justice

must further state on the record, clearly and unequivocally, his or her findings of

fact, credibility determinations, and reasons for accepting or rejecting the Batson

challenge. See id. at 602 (quoting Batson, 476 U.S. at 93). A trial justice’s

on-the-record findings and decision should clearly delineate the three Batson prongs

separately.

“In addition, race-neutral reasons for peremptory challenges often invoke a

juror’s demeanor (e.g., nervousness, inattention), making the trial court’s firsthand

observations of even greater importance.” Snyder, 552 U.S. at 477. In these

circumstances, “the trial court must evaluate not only whether the prosecutor’s

demeanor belies a discriminatory intent, but also whether the juror’s demeanor can

credibly be said to have exhibited the basis for the strike attributed to the juror by

the prosecutor.” Id. Because a juror’s demeanor is typically either not part of the

- 38 - court record or, if part of the court record, is subject to the interpretation of a

non-judicial officer, when assessing a demeanor-related reason for a peremptory

strike, a trial justice should make a particular effort to set forth his or her

observations regarding the juror’s demeanor as part of the trial court’s record.

Accordingly, I concur.

Justice Long, concurring. Nineteen years ago this Court explained in State

v. Pona, 926 A.2d 592 (R.I. 2007), that Batson v. Kentucky, 476 U.S. 79 (1986), and

its progeny should focus “a trial justice’s inquiry into the credibility of a prosecutor’s

race-neutral reasons” when evaluating a prosecutor’s attempt to strike a prospective

juror by use of a peremptory challenge. Pona, 926 A.2d at 610. The Court further

clarified that, in light of that line of cases,

“the question at Batson’s third step no longer simply is whether a trial justice believes a prosecutor’s facially race-neutral reason for exercising a peremptory strike. Instead, a trial justice should consider all the evidence presented both in support of and in contravention to a purported race-neutral reason and should search beyond the face of a proffered justification to ensure that, as applied to the facts of the particular case and with due regard to a comparison of stricken minority venire members to those nonminority members allowed to serve, a peremptory challenge was not, in fact, racially motivated. * * * [T]rial justices and this Court must be more vigilant to ensure that racial animus does not infect jury selection by applying the more potent standards set forth in Miller-El [v. Cockrell], [537 U.S. 322 (2003),]

- 39 - Miller-El [v. Dretke], [545 U.S. 231 (2005),] and Johnson [v. California, 545 U.S. 162 (2005)].” Id.

Almost two decades after our decision in Pona, the tripartite test required by Batson

and its progeny continues to confound those tasked with maintaining the vigilance

required to ensure that prosecutors are not using peremptory challenges on racial

grounds.1

The tripartite test is flawed. In Flowers v. Mississippi, 588 U.S. 284 (2019),

the United States Supreme Court explained that the trial justice’s “ultimate inquiry

1 That trial justices repeatedly struggle so mightily with Batson’s tripartite test is troubling, particularly in light of the remarkably flimsy yet constitutionally permissible justifications that this Court has said that prosecutors may offer when seeking to strike a minority from the venire. See State v. Pona, 926 A.2d 592, 606 (R.I. 2007) (outlining “numerous race-neutral reasons” including a perceived “lack of intelligence necessary to comprehend complex trial concepts as indicated by [a venire member’s] questionnaire answers,” “mere acquaintance with defense counsel,” “advanced age,” and perceived “demeanor”). A prosecutor does not face a high bar at step two of the Batson test, but they certainly cannot state a race-explicit reason. See Porter v. Coyne-Fague, 35 F.4th 68, 78 (1st Cir. 2022). And if they do, a court cannot substitute a more palatable reason in its stead when conducting the appropriate review. Id. Furthermore, it is imperative that at step three trial justices “undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Pona, 926 A.2d at 602 (quoting Batson, 476 U.S. at 93). The intent at issue in step three is the prosecutor’s intent, and thus the sensitive inquiry at that stage includes an evaluation of the prosecutor’s demeanor. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008). Of course, it may be that trial justices believe that Batson objections are insulting to prosecutors; but defendants have a constitutionally protected right to a criminal trial that is free from racial discrimination during the jury selection process. When they seek to effectuate that right by raising a challenge under Batson, trial justices must evaluate all three steps according to long-standing precedent. See Pitchford v. Cain, 146 S. Ct. 1345, 1353 (2026).

- 40 - is whether the State was ‘motivated in substantial part by discriminatory intent.’”

Flowers, 588 U.S. at 303 (quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)).

Not only does the test leave room for unconscious bias, see Rice v. Collins, 546 U.S.

333, 343 (2006) (Breyer, J., concurring) (“How can trial judges second-guess an

instinctive judgment the underlying basis for which may be a form of stereotyping

invisible even to the prosecutor?”), but it also begs the question: what if

discriminatory intent motivates the prosecutor in some less-than-substantial part? It

is my firm conviction that discriminatory intent—conscious or not; in substantial

part, or to a minor degree—should play no role in the jury selection process. Neither

the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution, nor the Equal Protection Clause of article 1, section 2 of the Rhode

Island Constitution allows such discriminatory intent. And in fact, article 1, section

10 of the Rhode Island Constitution affirmatively guarantees that defendants have

the right to an impartial jury.

I concur in the decision vacating the judgment of conviction and remanding

the papers to the Superior Court for a third trial. Although the tripartite test is flawed,

it nevertheless governs this Court’s review into whether the prosecutor’s use of a

peremptory challenge to strike Juror 90 violated Mr. Porter’s rights under the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution;

- 41 - it is clear that the trial justice erred in applying step three during the second trial of

Mr. Porter.

Notwithstanding my agreement with the disposition of the appeal, I write

separately to renew my call for the Court to “exercise its general supervisory

authority to correct errors and abuses in the jury-selection process by promulgating

a rule that eliminates the use of peremptory strikes in jury trials * * * .” State v.

Garcia, 316 A.3d 1223, 1261 (R.I. 2024) (Long, J., concurring). After all, the United

States Constitution does not require that any party be granted the privilege of using

peremptory strikes in criminal jury trials. See Ross v. Oklahoma, 487 U.S. 81, 89

(1988) (“[P]eremptory challenges are a creature of statute and are not required by

the Constitution, * * * it is for the State to determine the number of peremptory

challenges allowed and to define their purpose and the manner of their exercise.”);

Seth Coven, Striking the Peremptory Strike: Why There is No Freestanding

Constitutional Entitlement to Peremptory Challenges, 111 Va. L. Rev. 1771, 1777

(2025). When the privilege of arbitrarily removing venire members who are

otherwise qualified to sit as jurors undermines a defendant’s right to have a criminal

trial that is free from racial discrimination during the jury selection process, I believe

we must rethink the wisdom of granting that privilege.

In fact, Rhode Island at one time disallowed peremptory challenges in

criminal trials for defendants accused of treason, murder, robbery, rape, arson, or

- 42 - burglary; and the state was an outlier for not granting such a privilege. See G.L. 1938

ch. 625 §§ 17, 67; Comments, The Right of Peremptory Challenge, 24 U. Chi. L.

Rev. 751, 751 n.1 (1957) (“Rhode Island is exceptional in not allowing peremptory

challenges in criminal proceedings in which the defendant is charged with treason,

murder, robbery, rape, arson, or burglary.”). It is within the Court’s authority to

convene stakeholders to consider a return to this forward-thinking position and

thereby truly work toward ensuring that “racial animus does not infect jury selection

* * *.”2 Pona, 926 A.2d at 610.

I also renew my admonition to scrutinize critically the justifications offered

for for-cause strikes. See Garcia, 316 A.3d at 1261 (Long, J., concurring). Rule

24(a) of the Superior Court Rules of Criminal Procedure states that “examination of

prospective jurors shall be for the purpose of determining whether a prospective

juror is related to a party, or has any interest in a case, or has expressed or formed

an opinion or is sensible of any bias or prejudice therein.” It is imperative that courts

2 The Arizona Supreme Court eliminated peremptory challenges by court rule in 2021, and the rule became effective in 2022. See Paul J. McMurdie et al., Arizona’s Elimination of Peremptory Challenges: A First Look, 56 Ariz. St. L.J. 1793, 1812 (2024). Initial studies reveal that the change has led to a noticeable increase in jury diversity in Maricopa County without an incurable negative impact on defendants’ right to a fair trial. Id. at 1814-22; see also Hailey Badger Gordon, Evaluating the Elimination of Peremptory Challenges in Arizona, 58 Univ. Mich. J.L. Reform 229, 247-56 (2024) (describing Arizona’s trial court rule changes following elimination of preemptory strikes that safeguarded trial fairness by ensuring that the challenge-for-cause system functioned effectively).

- 43 - remain vigilant and always guard against discrimination in whatever way it tries to

find its way into our courtrooms.

- 44 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Leron Porter.

No. 2023-237-C.A. Case Number (P1/11-2541AG)

Date Opinion Filed July 9, 2026

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

Sean P. Malloy Attorney(s) on Appeal Department of Attorney General For Defendant:

George J. West, Esq.

SU-CMS-02A (revised November 2022)