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Md. high court weighs judges’ role in strikes of would-be jurors

How much deference are trial judges owed?

ANNAPOLIS – Maryland’s top court grappled Thursday with whether trial judges can consider a prosecutor or criminal defense attorney’s perceived practice of striking would-be jurors because of their race in deciding if the lawyer’s explanation for excluding individuals from the jury pool is true.

Assistant Maryland Attorney General Robert Taylor Jr. told the Court of Appeals that a judge can certainly rely on his past dealings with the prosecutor or defense counsel in determining why a potential juror was really struck. But Renee M. Hutchins, representing a man convicted of attempted second-degree murder in Dorchester County, said a judge needs more than “conjecture, suppositions and assumptions” based on a prior episode to conclude that the attorney is not telling the truth.

The case calls on the Court of Appeals to address how much deference is owed to trial judges’ determinations under the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, striking down as unconstitutional the removal of would-be jurors because of their race.

The Batson issue before the Court of Appeals arose before Kevon Jamar Spencer’s trial, when Dorchester County Circuit Judge Brett W. Wilson denied public defender David Weck’s bid to remove three white men from the jury pool after the prosecution alleged the strikes were based on race.

Wilson concluded illegal discrimination had occurred based on Weck’s similar strikes in a case before the judge days earlier. The judge rejected as pretextual Weck’s argument that he did not want these jurors because one was older, and more likely to be pro-conviction; another was a farmer with deep ties to the community; and the third was a mechanic who might conclude that Spencer could have avoided colliding with the cyclist during a car chase with police.

The intermediate Court of Special Appeals upheld the judge’s seating of the three jurors, as well as Spencer’s conviction and 58-year prison sentence.

‘Clear error’

Pressing Spencer’s appeal, Hutchins said Wilson made a “clear error” in seating the three jurors that defense counsel wanted excluded for legitimate and strategic reasons that had nothing to do with skin color. Wilson cited what he called the defense counsel’s reputation for race-based strikes but pointed to just one prior case in which the judge believed the attorney had violated Batson, Hutchins added.

“We have nothing with regard to a pattern of discrimination,” said Hutchins, a director of the clinical law program at the University of Maryland Francis King Carey School of Law.

“You cannot sustain a Batson challenge on mere conjecture,” she added. “There has to be some support in the record.”

But Taylor, the assistant attorney general, said trial judges have the duty to assess the credibility of an attorney’s explanation for striking a would-be juror. That assessment can be made based on the judge’s prior dealings with the attorney as well as the lawyer’s demeanor in explaining why the juror was struck, he added.

“Judges are human,” Taylor said. “They might well draw on their experiences with that attorney.”

But Chief Judge Mary Ellen Barbera appeared unconvinced, saying trial judges should presumably be required to explain in some detail why they disbelieve the attorney’s race-neutral explanation for striking a would-be juror.

“He or she cannot just pull it out of the ether,” Barbera said, referring to the trial judge.

Taylor responded that appellate courts, including the Court of Appeals, often defer to the credibility determinations of judges even when based on their personal experience with a witness.

For example, “a police officer who routinely lies at suppression hearings is not going to get the benefit of the doubt,” Taylor said. “The credibility call is left to the trial judge.”

12-mile chase

Spencer’s legal odyssey began when he rolled through a stop sign on June 20, 2013, and, rather than pulling over for the traffic stop, led police on a 12-mile chase at speeds exceeding 60 mph as he tried to weave his Kia Soul between vehicles and through abrupt turns. At one point, Spencer struck cyclist Andrew Kinn, who sustained severe injuries.

The pursuit ended when Christopher Tolley, a Dorchester County deputy, rammed his vehicle into the Soul’s rear bumper. Spencer ran but was found and arrested soon after, according to papers filed with the high court.

In addition to attempted second-degree murder, Spencer was convicted of several counts of malicious destruction of property and a bevy of driving violations.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Kevon Jamar Spencer v. State of Maryland, No. 94 September Term 2015.

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