State v. McWoods

514 P.3d 1151, 320 Or. App. 728

• Court: Court of Appeals of Oregon
• Decided: July 13, 2022
• Docket: A169710
• Status: Published

Opinion

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

STATE OF OREGON, Plaintiff-Respondent, v. DARIAN LEE McWOODS, Defendant-Appellant. Multnomah County Circuit Court 16CR78185; A169710 514 P3d 1151

Defendant, a Black man, appeals from a judgment of conviction entered after a jury found him guilty of murder by abuse, first-degree criminal mistreatment, and witness tampering. Those summoned as potential trial jurors completed lengthy questionnaires (174 questions each) and were present for several hours of voir dire. Juror number 6 and juror number 9 were the only prospective jurors who were Black. After the prosecutor passed each of those two jurors for cause, he struck both of them by exercise of peremptory challenges. Defendant objected under Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986), argu- ing that the race-neutral reasons given by the prosecutor for those strikes were a pretext for race and that it was inferable that the strikes were the product of purposeful discrimination. Held: Considering all the relevant circumstances, including discrepancies in the prosecutor’s characterization of answers given by jurors 6 and 9, as well as pretext identified by comparing the answers of jurors 6 and 9 with those of non-Black jurors who were not stricken, defendant met his burden to show purposeful discrimination. The race-neutral reasons given by the prosecutor were not plausible, and the trial court erred in overruling defendant’s Batson objections and dismissing jurors 6 and 9. The court need not, and did not, reach defendant’s assignments of error directed to the nonunanimous jury instruction and receipt of the nonunanimous verdict on the witness tampering count. Reversed and remanded.

Christopher J. Marshall, Judge. Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Cite as 320 Or App 728 (2022) 729

Before Mooney, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.* MOONEY, P. J. Reversed and remanded.

______________ * Pagán, J., vice DeHoog, J. pro tempore. 730 State v. McWoods

MOONEY, P. J. Defendant, a Black man, was charged with crimes related to the death of his 15-month-old daughter. Following a trial, the jury returned its verdict finding defendant guilty of murder by abuse, first-degree criminal mistreatment, and witness tampering. Defendant appeals from the result- ing judgment of conviction. Relying on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and a series of cases beginning with Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986), defendant assigns error to the trial court’s decision to excuse the only two Black persons on the panel of prospective jurors, jurors number 6 and number 9, upon the state’s use of two of its peremptory strikes against those jurors. Defendant also assigns error to the court’s giving of a nonunanimous jury instruction and to the court’s receipt of a nonunan- imous verdict on the witness tampering count. We reject without discussion the state’s argument that defendant did not adequately preserve his Batson challenges, and we con- clude that the trial court committed reversible error when it excused juror number 6 and juror number 9, upon the state’s peremptory strikes. Our conclusion on that assignment of error obviates the need for us to address the remaining two assignments. We begin with the axiom, no longer subject to rea- sonable debate, that racial discrimination in the selection of jurors is harmful. Racial discrimination harms litigants because it carries with it the risk that “prejudice * * * will infect the entire proceeding[.]” J. E. B. v. Alabama, 511 US 127, 140, 114 S Ct 1419, 128 L Ed 2d 89 (1994). Racial dis- crimination harms the individuals who are excluded from serving as jurors because it prevents them from partici- pating in our justice system. Id. And racial discrimination harms the community “by the State’s participation in the perpetuation of invidious group stereotypes and the inevita- ble loss of confidence” in the justice system that follows. Id. American jurisprudence has developed slowly to combat racial discrimination in criminal proceedings, including jury (grand and petit) selection processes, and is based in large part on the constitutional right to an Cite as 320 Or App 728 (2022) 731

“impartial jury”1 and the requirement that every defendant be afforded “equal protection of the laws.”2 Under the Sixth Amendment, a person who has been charged with a serious offense has a fundamental right to trial by a jury that is drawn from “a fair cross-section of the community.” State v. Compton, 333 Or 274, 288, 39 P3d 833 (2002). Defendant does not raise a “fair cross-section” challenge to the jury pool itself. He does, however, argue that he is entitled to a jury of his “peers.” The federal constitution does not use the word “peers.” The Oregon constitution likewise does not use the word “peers.” Instead, both documents use the word “impartial” to describe the type of jury to which a criminal defendant is entitled. We do not understand defendant to argue that he was entitled to have his race represented on the trial jury. We understand his argument to instead focus on the state’s use of peremptory strikes to exclude the only two Black persons from the jury panel after having already concluded that they were qualified to serve on the jury in this case and having, thus, passed those jurors for cause. Those challenges are examined using the framework estab- lished by Batson, as developed through subsequent case law. As we have explained, “[t]o bring a Batson chal- lenge,” defendant must first “make a prima facie showing that a peremptory strike was based on race or gender.” State v. Curry, 298 Or App 377, 381, 447 P3d 7 (2019), adh’d to on recons, 302 Or App 640, 461 P3d 1106 (2020). “ ‘Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging * * * jurors within an arguably targeted class.’ ”

1 The Sixth Amendment to the United States Constitution provides, in rele- vant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” Article I, section 11, of the Oregon Constitution similarly provides: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed[.]” 2 The Fourteenth Amendment to the United States Constitution provides, in relevant part: “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” 732 State v. McWoods

Id. at 382 (quoting Batson, 476 US at 97). If the state offers such an explanation, “then the trial court must, after con- sulting ‘all of the circumstances that bear on racial ani- mosity,’ determine whether the defendant has shown pur- poseful racial discrimination by the state.” Id. (quoting Snyder v. Louisiana, 552 US 472, 478, 128 S Ct 1203, 170 L Ed 2nd 175 (2008). We are to assess the plausibility of the state’s race-neutral explanation as we consider all the circumstances present and discern whether the defendant has shown purposeful discrimination. Miller-El v. Dretke, 545 US 231, 252, 125 S Ct 2317, 162 L Ed 2d 196 (2005) (“[W]hen illegitimate grounds like race are in issue, a prose- cutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in think- ing up any rational basis.”). The state does not dispute that defendant made a prima facie showing that the peremptory challenges in ques- tion were race-based. And defendant does not dispute that the reasons given by the state for using those peremptory challenges are race-neutral. We are likewise satisfied that those first two showings under Batson were made. We, thus, turn our attention to the key issue, the third Batson step: whether the state’s use of two of its peremptory strikes to remove the only two Black persons on the panel of prospective jurors was the product of purposeful racial discrimination. We review the trial court’s ruling that a peremptory chal- lenge was not the product of purposeful discrimination as a question of fact. Curry, 298 Or App at 389. A court review- ing a Batson challenge is to consider “all relevant circum- stances,” id. at 382, which may include a comparative juror analysis where the record allows for it, State v. Vandyke, 318 Or App 235, 238, 507 P3d 339 (2022).3 We remain mindful

3 The comparative juror analysis is a tool to identify pretext through circum- stantial evidence of differential treatment. When a Black juror gives the same answers as a non-Black juror but is struck for those answers, then it gives rise to the inference of pretext because similarly situated persons have been treated differently. But it is important to remember that the analysis is just a tool and, even more importantly, that it does not stand for the proposition that striking a Black juror who answers questions differently from non-Black jurors necessarily is a race-neutral strike. Indeed, striking a Black juror for answers that differ from those of non-Black jurors could, itself, be evidence that the strike is based Cite as 320 Or App 728 (2022) 733

that, at Batson’s third step, defendant bears the burden of persuasion. We are to affirm the trial court’s ruling unless it is “clearly erroneous.” Snyder, 552 US at 477. We look to the record to determine whether the trial court’s rejection of defendant’s Batson challenges was clearly in error. Vandyke, 318 Or App at 238. We begin by noting that the usual process of jury selection pursuant to ORS 136.210 through 136.270 was followed. The prospec- tive jurors completed written questionnaires containing 174 questions, and they participated in the oral process of voir dire that spanned a period of four to five hours in the court- room. A number of prospective jurors were excused by the court, for cause—that is to say, for reasons ranging from inadequate qualifications to conflicts to bias. The state did not challenge juror number 6 or juror number 9 for cause and, in fact, affirmatively passed each for cause. Both jurors were, thus, seated in the jury box when the state’s prose- cutor used two of her available peremptory challenges to strike them from the jury as provided in ORS 136.230 and ORCP 57 D. When the state exercised one of its available peremptory strikes on juror number 6, this dialogue took place: “[PROSECUTOR]: So Number 6, * * *. “THE COURT: Okay. “[DEFENSE COUNSEL]: We would make a Batson objec- tion to that, Your Honor. “THE COURT: Okay. Is there any further argument on that? “* * * * * “[DEFENSE COUNSEL]: Just that he’s entitled to a jury of his peers. We only have a total of two Black individuals, potentially, on this jury, and we believe that it would be a Batson violation to eliminate him. “THE COURT: And for the State?

on race. Here, defendant does not argue that any of the reasons given by the state were not race-neutral. 734 State v. McWoods

“[PROSECUTOR]: Judge, so there are numerous con- cerns that the State has regarding this individual’s abil- ity to be fair and impartial in this case. Referencing just his questionnaire, he indicated on the very last page that, ‘Being a father with two daughters myself, I can’t imagine what he’s going through,’ in reference to [defendant]. He didn’t believe police officers to be honest. In fact, he agreed, rated it a two, that police officers often lie. He indicated agreement with the notion that he will be uncomfortable deciding guilt or innocence—or guilt or not guilt [sic]. He agreed that doctors often get it wrong. He indicated that he would be more likely to require evidence of motive, for needing to know all the facts or circumstances surrounding a murder before being able to make a determination. And he indicated agreement that DNA evidence is not reliable. “Here in court, he indicated that he would need more information or more evidence given that this is a murder case rather than if this were some sort of other trial, which of course, the Court knows, is not the—does not comport with the burden of proof. There’s no higher burden of proof in a murder case than in a theft case, for example. And, frankly, he—he showed up to jury service wearing a shirt that says I have issues. I don’t know what that means, but that, in and of itself, is also concerning to the State. “So, for all of those reasons, we believe that he would be bias[ed] to the State, and a Batson challenge—no showing has been made to support a Batson challenge. “[DEFENSE COUNSEL]: I think that it mischaracterizes both what’s in the questionnaire and what he testified—or what he said here. He indicated that he was beaten as a child. That’s no longer socially acceptable. He indicated that he would have to know all of the facts, but that he would follow the standard of proof that was provided. He also indicated that it would be very difficult to presume my client innocent given that he’s a father. So he indicated, very clearly, issues for both sides. And again, given all of the answers that he did give, I don’t think that you can judge somebody. “He wasn’t brought back down for additional question- ing by the Prosecution about these concerns. And they didn’t make a for-cause challenge for him. My client is enti- tled to a jury of his peers, and we believe it is clearly— comes under Batson. Cite as 320 Or App 728 (2022) 735

“THE COURT: Okay. All right. So, based on the entire record that we have here, the Court is going to allow the State’s challenge. There’s no Batson violation, then.”

The trial court made no findings beyond those quoted above when it overruled defendant’s Batson objection, accepted the state’s peremptory challenge to juror number 6, and excused that juror from further service. But that lack of findings does not render review impossible. If it is clear from the “entire record” that the trial court’s rejection of defendant’s Batson objections was in error, then it is our obligation to say so and to correct that error. Defendant argues that the prosecutor misinter- preted the record when it described for the trial court the answers given by juror number 6 and that, in doing so, she misrepresented the record to the court, a factor that we should consider, citing Flowers v. Mississippi, ___ US ___, ___, 139 S Ct 2228, 2243, 204 L Ed 2d 638 (2019). The state agrees that under Flowers, a “series of factually inaccurate explanations for striking black prospective jurors” can sup- ply evidence of “discriminatory intent,” Flowers, 139 S Ct at 2250, but it does not agree that such a series of inaccura- cies exists here. We agree with defendant that there were, in fact, discrepancies between the state’s characterization of juror number 6’s answers to certain questions and the answers actually given by that juror. For example, the state advised the court that in the questionnaire, “[juror num- ber 6] didn’t believe police officers to be honest. In fact, he agreed, rated it a two, that police officers often lie.” In fact, juror number 6 rated police officers at a “4” for honesty on a scale of “1” (dishonest) to “5” (honest). He also rated his belief that police officers are more likely to testify truthfully than other witnesses with a “2,” on a scale of “1” (strongly agree) to “4” (strongly disagree). There are other discrepan- cies between the answers given by juror number 6 and how the state characterized those answers for the court, none of which, separately, or together, clearly establish purposeful racial discrimination. And yet, those discrepancies are cir- cumstances relevant to the overall Batson analysis. Defendant also argues that other jurors “provided the same or, in the prosecutor’s perspective, worse answers 736 State v. McWoods

to the questions relied on by the prosecutor,” to strike juror number 6 and that that is evidence of purposeful discrimi- nation. The state responds that “to the extent the record is even adequate for a comparative-juror analysis, defendant fails to identify any comparison that reveals purposeful discrimination.” Defendant did not ask the trial court to engage in a comparative-juror analysis, but where, as here, the record allows us to do so, we will undertake such an analysis. Vandyke, 318 Or App at 238; Curry, 298 Or App at 382. In doing so, we begin by focusing on the questions and the two “main areas of concern” that the state identified about juror number 6. See Appendix A, Juror Comparison Table for Juror Number 6. First, the state points to the prosecutor’s concern that juror number 6 might expect the state to prove motive in order to convict the defendant of murder. Juror number 6 “strongly agreed” that the state must prove motive to con- vict someone of murder. He also “strongly disagreed” that, if convinced by the evidence that someone is guilty of murder, he could find them guilty even if he does not know all the facts that led to the murder, and he “strongly disagreed” that “murder is murder, and understanding motives and circumstances are not necessary in determining guilt.” A review of the questionnaires completed by the non- Black jurors who were not stricken from the jury reveals that three also strongly agreed that the state must prove motive to convict someone of murder. Four non-Black jurors strongly disagreed that, if convinced by the evidence that someone is guilty of murder, they could find him guilty even if they do not know all of the facts that led to the murder. Six non-Black jurors “strongly disagreed” that “murder is murder, and understanding motives and circumstances are not necessary in determining guilt.” While none of the non-Black jurors answered each of those three ques- tions exactly the same as juror number 6, two of them answered two of the three questions just as juror number 6 did. Juror number 6 and 13 other non-Black jurors who were not excluded “strongly agreed” that a defendant is innocent unless the state proves otherwise; one non-Black juror “agreed” with that statement; and one non-Black juror “disagreed.” Cite as 320 Or App 728 (2022) 737

Next, the state was concerned that juror number 6 did not regard police officers to be honest. As noted earlier, there were some discrepancies between the juror’s responses to questions bearing on his view of police officers and the way in which those answers were characterized for the trial court. Juror number 6 agreed that police officers are hon- est, and six non-Black jurors who were not excused from the jury also rated their view of police officer honesty at a “4”— meaning that they agreed that police officers are honest. Juror number 6 and seven non-Black jurors who were not excused from the jury agreed that police officers are more likely to testify truthfully than other witnesses. More important to our Batson analysis, two of those seven non- Black jurors who remained on the jury agreed, along with juror number 6, that police officers often lie.

Finally, the state expressed concern about juror number 6’s “skepticism regarding scientific evidence.” In particular, the state noted that juror number 6 agreed that “DNA evidence is not reliable,” and he agreed that “doctors often get it wrong.” It is accurate that no non-Black juror agreed that DNA evidence is unreliable, but this was not a case that involved DNA as evidence of identity or any other key issue. And one non-Black juror also agreed that doctors often get it wrong. Defendant points out that juror number 6 and six other jurors who were not removed from the jury strongly agreed with the statements that doctors are hon- est, and that forensic evidence is more persuasive than eye- witness testimony. Three jurors who rated DNA evidence as reliable also disagreed with the statement that forensic evi- dence is more persuasive than eyewitness testimony. Three others strongly disagreed with that statement. Thus, juror number 6 gave answers that reflect both skepticism and trust regarding scientific evidence as did some non-Black jurors who were not stricken by the state through use of its peremptories.

The answers relied on by the state as race-neutral reasons for using one of its peremptory strikes against juror number 6 reflect that the juror’s personal views on police officers and doctors, and his views on the type of evidence and level of proof needed for a conviction in a murder case 738 State v. McWoods

are similar to the answers given by non-Black jurors who were not stricken from the jury. It is certainly challenging to understand why the state would strike juror number 6 but not, for example, juror number 32, who strongly agreed that the state must prove motive in a murder case, and who strongly disagreed that he would be able to find someone guilty of murder without knowing the facts that led up to the murder—even with convincing evidence of murder. It is likewise difficult to understand why juror number 6 was stricken but juror number 31 was not stricken even though juror number 31 agreed that the state had to prove motive, disagreed that he could find someone guilty of murder despite convincing evidence if he did not know all the facts leading up to the murder, disagreed that forensic evidence is more persuasive than eyewitness testimony, and agreed that doctors often “get it wrong.” To summarize, when consulting the record before it at the point when the Batson challenge to juror number 6 was made, the following basic information had been brought to the attention of, and was available to, the trial court: • Defendant is Black; • Juror number 6 is Black; • There are two jury panel members who are Black; • The state passed juror number 6 for cause; • Of the 10 questions and answers highlighted by the state as providing race-neutral reasons to remove juror number 6 from the jury, there were other jurors who were not Black and who were not stricken from the jury who had answered eight of those questions the same way as juror number 6; • Juror number 6 was the only juror to agree with the statement that DNA evidence is unreliable; • Juror number 6 answered questions relating gen- erally to forensic and medical evidence the same as some non-Black jurors who were not stricken from the jury; Cite as 320 Or App 728 (2022) 739

• The exhibit list included photos, medical records, an autopsy report, and forensic lab reports; DNA evidence is not mentioned; • Juror number 6 “strongly agreed” that every defen- dant is innocent unless the state proves otherwise, while one non-Black juror disagreed with that statement and one non-Black juror strongly dis- agreed with it; • Juror number 6 was the only juror to answer “very difficult” to the question about how difficult it would be to presume a person is innocent who is charged with killing his daughter; • The state mischaracterized some of the answers given by juror number 6 in its argument to the trial court; • Juror number 6 acknowledged during voir dire that it was “possible” he might “self-impose” a higher standard in a case like this; and • Juror number 6 wore a shirt with the words “I have issues” written on it. On answers for which the state criticized juror number 6, other jurors gave similar answers. And as to the two ques- tions on which juror number 6 gave unique answers— (1) DNA evidence was not material and other answers that reflected views more generally about scientific evidence were similar to answers given by non-Black jurors, and (2) this juror’s difficulty in presuming the innocence of a father accused of killing his daughter would seem to favor the state. To be sure, the state could have objected that a juror biased toward conviction is still improperly biased, but that was not a reason the state offered to explain its challenge to the juror, so we do not consider it. Given that the state characterized some of the answers of juror number 6 inaccurately and given that the state criticizes answers given by juror number 6 that are the very same answers given by some other non-Black jurors, we are not persuaded that the record is sufficient to support the plausibility of the state’s justification for its challenge to juror number 6. And 740 State v. McWoods

in this instance, “all the circumstances” as to juror number 6 includes the state’s challenge to juror number 9. Ultimately, the “plausibility” of the state’s justifications as to both jurors determines the issue of purposeful discrimination. We move to the state’s use of an available peremp- tory challenge to strike juror number 9 from the jury. See Appendix B, Juror Comparison Table for Juror Number 9. This is the dialogue that took place with respect to defendant’s Batson challenge: “[PROSECUTOR]: Thank you, Judge. The State would move to excuse Number 9, * * *. “THE COURT: Okay. And then for the Defense? “[DEFENSE COUNSEL]: Again, we’re making a Batson challenge. [Juror number 9] is the only other Black person on this jury, Your Honor. “[PROSECUTOR]: So, Judge, I think there has to be more of a showing from the Defense. But regardless, [juror num- ber 9], in his jury questionnaire indicated he had no expe- rience with children. He leaned towards strongly agreeing that he believes that in our criminal justice system that innocent people are routinely being found guilty. He indi- cated yesterday that he would have concerns about police investigation if there were the notion that they just sim- ply didn’t do their job, or they were too busy to do their job. He indicated he would, on the questionnaire, need to know about particular facts or circumstances leading up to a murder in order to find someone guilty. Or if he otherwise believes them to be guilty, he would still want to know the facts or circumstances leading up to that. “And then yesterday, he indicated that he was more likely to excuse behavior if the child was injured due to reckless conduct as opposed to intentional. There was quite a long discussion about that issue. And he was one of the few that actually volunteered and commented on a distinction in his mind between looking more—less concerned about conduct that’s—that occurred recklessly versus intention- ally to injuring this child. “The Court’s aware that the State—the State believes a juror could be bias[ed] one way or another. The State’s not obligated to make a for-cause challenge. I don’t think Cite as 320 Or App 728 (2022) 741

anything he said would rise to the level of a for-cause chal- lenge, which is why we did not make that motion for [juror number 9] or for [juror number 6]. But, nonetheless, given those reasons, the State has concerns about his ability to be fair and impartial on this particular case, given the information the Court knows about the nature of this case. “[DEFENSE COUNSEL]: I think that the selection by the State to eliminate the only two Black potential jurors in the jury pool is clearly a Batson issue for this Court. It does violate my client’s constitutional right to have a jury of his peers. There was nothing in his answers to indicate that he would not follow the law or that he had a particular bias one way or the other. “With regards to his specific answers on the question- naire, he works for the U.S. Postal Service, has trust for both the police and for the justice system. He did indicate that sometimes innocent people can be found guilty, but it is not okay to use corporal punishment. He indicated, very clearly, that he would understand the reasonable doubt that has to be shown by the Court—or by the Prosecution. And it would eliminate the only other Black juror. “THE COURT: Okay. So based on the entire record that we have here, again, the State has articulated reasons for their challenges to the particular juror that indicate there is not a Batson violation here. And so we’ll allow the State’s challenge here.” Of the non-Black jurors who had been passed for cause, five answered that they had no experience with children. One other juror indicated that they agreed that innocent people are frequently found guilty in our justice system, and one wrote that “[i]t does happen, but I don’t know how frequently.” Juror number 9 and three non-Black jurors “disagreed” that if they are convinced by the evidence that someone is guilty of murder, they could find that per- son guilty if they did not know all of the facts that led to the murder; and four non-Black jurors “strongly disagreed” with that statement. With respect to concerns about state- ments made by juror number 9 during the voir dire process in the courtroom, we cannot conclude based on the record that juror number 9 responded as the prosecutor argued he did. The record does reflect discussion among counsel and various jurors about differences between accidents and 742 State v. McWoods

intentional acts and about whether police sometimes get too busy to conduct adequate investigations. To summarize, when consulting the record before it at the point when the Batson challenge to juror number 9 was made, the following basic information had been brought to the attention of, and was available to, the trial court: • Defendant is Black; • Juror number 9 is Black; • Juror number 6, who is Black, had been excused on the state’s peremptory strike, leaving juror number 9 as the only Black panel member left; • The state passed juror number 9 for cause; and • At least one non-Black juror answered each of the questions highlighted by the state the same way as juror number 9 did. Like juror number 6, some non-Black jurors gave answers that were the same or similar to answers given by juror num- ber 9. And, as the state correctly notes, no “single answer can[ ] be viewed in isolation.” The answers to some questions provide context for the answers to other questions; some- times answers appear to be consistent with other answers and yet some seem to be in direct conflict with others. But that was predictable just given the sheer volume of questions included in the questionnaire. Considering, as we must, the race-neutral reasons given by the state in support of its use of a peremptory strike against juror number 9, there were two important factors present at that point in the jury selection process that had not been present when the state explained its use of a peremptory strike against juror num- ber 6: (1) no answer given by juror number 9 was his alone— in other words, no one answer caused him to stand out from the other jurors, and (2) the state had already stricken the only other Black juror from the panel. And while one might debate whether it takes two, three, or more of anything to create a pattern, the use of a peremptory challenge to strike the second and only remaining Black juror from the jury completes the pattern here. Cite as 320 Or App 728 (2022) 743

Peremptory strikes are a tool entrusted to trial law- yers by statute; they are not a matter of constitutional right. Chief Justice Rehnquist agreed that “prosecutors’ perempto- ries are based on their ‘seat-of-the-pants instincts’ as to how particular jurors will vote”; instincts that Justice Thurgood Marshall warned “may often be just another term for racial prejudice.” Batson, 476 US at 106 (Marshall, J., concurring). As Justice O’Connor described it, “In both criminal and civil trials, the peremptory challenge is a mechanism for the exercise of private choice in the pur- suit of fairness. The peremptory is, by design, an enclave of private action in a government-managed proceeding.”

Edmonson v. Leesville Concrete Co., 500 US 614, 633-34, 111 S Ct 2077, 114 L Ed 2d 660 (1991) (O’Connor, J., dissent- ing). That “private choice” may just as certainly be based upon the color of a juror’s skin when it is the product of a “seat-of-the-pants” judgment call as when it is the product of a deliberate thought process. In either case, and in the absence of an admission to racial discrimination by the prosecutor, proof that the state’s race-neutral explanation is pretextual is a matter of “circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Miller-El, 545 US at 241 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 US 133, 147, 120 S Ct 2097, 147 L Ed 2d 105 (2005) (internal quotation marks omitted). In fact, circumstantial evidence that is probative of the lawyer’s intent may well be the best evidence of the lawyer’s purpose that we have. By the time the trial court was considering defen- dant’s Batson objection to the state’s peremptory strike against juror number 9, juror number 6—the only other Black juror on the panel—had been excused at the state’s request. And although the state articulated legitimate, race-neutral reasons for striking juror number 9, those reasons were not “plausible” because there were other non- Black jurors that the state did not seek to strike who gave the same answers that the state relied on to strike juror number 9. And under Miller-El, it is the plausibility of the state’s reasons that provides insight into whether those rea- sons are a pretext for race. This case is like Curry, where we 744 State v. McWoods

engaged in a comparative-juror analysis and concluded that the state’s stated reasons for using a peremptory challenge against the only Black juror on the panel were a pretext for race because the state did not also seek to strike simi- larly situated jurors who were not Black. As we have already described, there were non-Black jurors who provided the same answers that the state offered as reasons to excuse juror number 9. That was true of juror number 6 as well. The plausibility of the state’s race-neutral reasons for excus- ing an otherwise qualified Black juror decreased with the second strike. That implausibility is evidence of purposeful discrimination which, in light of “all of the circumstances that bear on racial animosity,” leads us to the conclusion that the trial court clearly erred in excusing jurors number 6 and number 9 from the trial jury. Reversed and remanded. Cite as 320 Or App 728 (2022) 745 APPENDIX A 746 State v. McWoods Cite as 320 Or App 728 (2022) 747 748 State v. McWoods Cite as 320 Or App 728 (2022) 749 750 State v. McWoods Cite as 320 Or App 728 (2022) 751 752 State v. McWoods APPENDIX B