Montgomery County judge allowed to re-seat a stricken juror in criminal trial.

Khan v. State.

Juror 95

The Court of Special Appeals of Maryland held that the Montgomery County Circuit Court did not err in upholding a Batson challenge when the proponent of the peremptory strike did not provide an explanation that was not pretextual or prove, to the satisfaction of the court, that purposeful discrimination had not occurred.  In this case, an employee of a downtown Silver Spring cosmetics store was indicted by a Montgomery County grand jury on charges of committing a sexual offense and second-degree assault.  At the conclusion of his trial, he was convicted with one count of second-degree assault.  During jury selection, the court made note that appellant’s counsel used five of the allotted peremptory strikes against white men, prompting the court to issue a Batson challenge.[1]

In contesting the Circuit Court ’s Batson challenge, Appellant argued that his race-neutral explanations for striking juror 95 were improperly classified as pretextual.[2]  In support of this argument, Appellant cited to the trial judge’s acknowledgement that, counsel was being “candid” during his explanation, but, he “does not have to buy it” as proof that the trial court erroneously categorized the explanation as pretextual.  However, the Maryland Court of Special Appeals found this interpretation of the Batson analysis flawed.

 Instead, the Maryland Court reasoned that, simply because the trial court believed parts of defense counsel’s reasoning behind the strike, “does not mean that the court was required to exclude the challenged juror.”[3]  Rather, the court must also determine whether purposeful discrimination was at play when jurors were stricken (the third step of the Batson analysis).  Because the trial judge noted a pattern of strikes against white male jurors, defense counsel’s proffered explanation had not been previously accepted by the trial court, and his prior noted explanations for strikes were inapplicable to juror 95, this Court found that the Montgomery County trial judge did not err in his decision to reseat juror 95.

[1] See generally Batson v. Kentucky, 476 U.C. 79 (1985) (overruling the former rule which required challengers/opponents of peremptory strikes to prove a systemic pattern of discrimination.  Instead, the Batson Court delineated a three part-test to determine whether a peremptory strike is being used to discriminate on the basis of race or gender/in violation of the Equal Protection Clause of the Fourteenth Amendment.  First, a prima facie case of discrimination must be established/found.  Second, the proponent of

the strike must provide a neutral explanation for each strike.  Third, the trial court, considering all of the circumstances, must decide if purposeful discrimination has occurred.).

[2] Defense counsel noted that he struck “juror 95” based on his conservative appearance and the fact that he was a government attorney.

[3] Khan v. State, page 10.

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