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Judges must defend nixing juror strikes due to race, Md. high court says

Court of Appeals issues ruling on Batson challenges

Maryland Court of Appeals Judge Clayton Greene, Jr. in 2007. (The Daily Record / Maximilian Franz.)

Maryland Court of Appeals Judge Clayton Greene, Jr. (The Daily Record / Maximilian Franz.)

Trial judges must state on the record the evidentiary bases for concluding that a prosecutor or criminal defense attorney unconstitutionally sought to strike would-be jurors because of their race, a splintered Maryland high court ruled Tuesday.

Such documentation is required to let appellate courts know why the judge did not believe an attorney’s race-neutral explanation for trying to exclude someone from the jury, the Court of Appeals said in its 4-3 decision that yielded five separate opinions.

Without such an on-the-record explanation, appellate review of the judges’ decisions cannot be accomplished, the court added in vacating Kevon Spencer’s convictions for malicious destruction of property and a bevy of driving violations in connecting with hitting a cyclist while in a car chase with police.

The intermediate Court of Special Appeals had upheld the convictions, prompting Spencer’s appeal to the high court.

Spencer’s case called on the Court of Appeals to address how much deference is owed to trial judges’ determinations that an attorney’s benign explanation was a pretext for illegal discrimination 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.

Deference to trial judges is to be given, but they must provide an explanation for rejecting an attorney’s request, the high court said.

“Deferring to the trial judge’s finding of pretext, without more, is to effectively hold that such Batson findings are unreviewable by an appellate court,” Judge Clayton Greene Jr. wrote for the majority. “Without evidence to support the judge’s finding, upholding the (opposing counsel’s) Batson challenge is invalid.”

The Batson issue before the Court of Appeals arose before Kevon 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 the chase with police.

Wilson, however, never provided a clear on-the-record explanation linking Weck’s conduct in the earlier trial with Spencer’s case, the high court held.

“A credibility assessment based on counsel’s past conduct and history is proper; however, there should be evidence in the record which the appellate court can review,” Greene wrote.

“A trial judge’s reliance on counsel’s past conduct or history, is unlike an in-the-moment credibility determination or a demeanor assessment,” Greene added. “A record of counsel’s peremptory strikes from other trials ordinarily can be obtained and placed into evidence. An appellate court can easily review this. On the other hand, a trial judge’s demeanor assessment is not readily apparent from the record.”

AG weighs appeal

The Maryland attorney general’s office assailed the high court’s decision and hinted at a potential appeal to the U.S. Supreme Court.

“We were disappointed to see that, in a fractured decision, a slim majority of the Court of Appeals substituted its own credibility determination for that of the trial court’s when considering whether an attorney’s proffered race-neutral reasons for exercising peremptory strikes were pretextual, and seemed to suggest that a trial judge must support his or her credibility determination with detailed evidence from the record,” the office said in a statement Wednesday. “The majority fails to afford the trial court the appropriate amount of discretion, and fails to give the trial court’s factual findings the appropriate amount of deference. The state is considering whether to seek further review of this decision.”

Renee Hutchins, Spencer’s appellate counsel, said Wednesday that the high court acknowledged trial judges are entitled to deference in reviewing Batson challenges but that appellate courts deserve an explanation.

“If we are going to have appellate review, there has to be something to review,” said Hutchins, a director of the clinical law program at the University of Maryland Francis King Carey School of Law.  “They (judges) need to provide us (on the appellate court) with something so it doesn’t become a rubber stamp.”

Judges Sally D. Adkins, Shirley M. Watts and Michele D. Hotten joined Greene’s majority opinion.

In dissent, Chief Judge Mary Ellen Barbera said Wilson’s statement in court regarding his earlier encounter with Weck and the judge’s questioning of the defense attorney’s strikes in Spencer’s case provided sufficient evidence of racial bias and should be deferred to by the high court.

Judge Robert N. McDonald, in a separate dissent, said “great deference” to the trial judge was owed.

McDonald added that the Maryland Judiciary should adopt a rule requiring prosecutors and defense attorneys to explain their reason for striking a would-be juror rather than permit “peremptory” strikes, in which they must explain only when opposing counsel alleges the strike was based on race.

If peremptory strikes are eliminated, “the burden would be on counsel from the outset to explain a good reason for excluding a person from a jury,” McDonald wrote. “If all strikes were for cause, a reason that is neither persuasive nor plausible would carry no weight at all and would not be able to camouflage a discriminatory strike.”

Judge Joseph M. Getty, in a brief dissent, said he agreed with Barbera that Wilson “was not clearly erroneous in finding that defense counsel’s reasons for striking the jurors were pretextual.”

Second-degree murder conviction

In its decision, the high court also overturned Spencer’s conviction for attempted second-degree murder. In that 4-3 ruling, the court said the evidence at trial was insufficient as a matter of law to show he intended to kill when he struck the cyclist, Andrew Kinn.

Greene wrote the majority opinion overturning that conviction. He was joined by Barbera, Adkins and Hotten.

McDonald, Watts and Getty dissented.

Spencer faces a possible retrial on the charges of malicious destruction of property and of driving violations.

His 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 he struck 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.

The Court of Appeals rendered its decision in Kevon Spencer v. State of Maryland, No. 94, September Term 2015.

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