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Judges disagree on case involving juror strikes

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A Marion County deputy prosecutor's striking of potential jurors has divided an Indiana Court of Appeals panel, with judges disagreeing about whether it should second-guess a lower court's finding that no racial discrimination was in play in striking the African-American jurors.

The appellate court issued a 14-page decision April 6 in Edward Killebrew v. State, No. 49A05-0905-CR-246, which reverses and remands a decision from Marion Superior Judge Steven Eichholtz that struck down Edward Killebrew's objection to the prosecution's use of peremptory challenges to strike all African-Americans from the jury pool. Judge Paul Mathias wrote a five-page dissent, saying he would affirm the case because he reads precedent from the Supreme Court of the United States differently than his colleagues.

"Even though there was some evidence tending to prove racial discrimination, I would not second-guess the credibility and demeanor judgments of the trial court in making the ultimate factual determination of whether the prosecutor's proffered race-neutral explanations were believable or simply pretextual," Judge Mathias wrote in his dissent.

The case involves Edward Killebrew's charges for felony cocaine dealing and misdemeanor resisting law enforcement charges in August 2008, and the subsequent jury selection for his trial that began in March 2009.

Five African-Americans were called as part of the jury venire and the state challenged each of them to be struck - one was a convicted felon and another was the subject of five police reports, while the state struck another because she was a nurse and the deputy prosecutor said the office has a policy of always striking nurses because they are too compassionate. Another was stricken after saying a relative was convicted of drug dealing and he felt the police had acted unfairly in that case, though a white juror with a similar statement on his jury questionnaire remained seated. The fifth person was struck after the deputy prosecutor asserted the man had been too "emphatic" in agreeing with how defense counsel described the state's burden of proof in criminal cases.

In analyzing the case, the appellate panel turned to the landmark juror challenge case of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), that established a three-part test to determine if a challenge was valid. The majority found that in recent years, the federal justices have made it clear that "courts need not accept any facially neutral reason for striking a juror and should consider 'all relevant circumstances' in assessing Batson-challenged strikes.

The majority dealt with the main two challenges to individuals who'd mentioned potential bias against the police, but didn't address the nurse-challenge in anything more than a footnote: "Additionally, reasonable minds could differ on the desirability of having nurses serve as jurors. However, without evidence that the deputy prosecutor here was being untruthful with respect to having a policy of routinely striking nurses like A.S. in all cases, regardless of race, we cannot second guess that claim."

Ultimately, Judges Michael Barnes and Elaine Brown found that there's no meaningful distinction between some of the juror strikes and non-challenges.

"Batson violations, hopefully, are and should be rare. It should not be impossible, however, for a defendant to prove a Batson violation. Neither trial courts nor appellate courts should simply blithely accept a facially neutral reason for striking African-Americans from a jury panel, especially when all African-Americans have been struck. The possibility of purposeful discrimination in the use of peremptory challenges is very much alive and real...," Judge Barnes wrote. "Although there is no indication that Marion County prosecutors systematically exclude minorities from juries, courts must be vigilant in ensuring that the jury selection process in criminal cases is free from any hint of bias."

But Judge Mathias disagreed with his colleagues' caselaw interpretations and findings, admitting that the case was very close and evidence of possible discrimination did exist enough to overturn the trial court's judgment. He wrote that the majority read a 2008 U.S. Supreme Court case too broadly, because the justices had also offered other reasons for the prosecution's challenges to jurors and past cases don't equate to the facts at issue here.

"Although I admit that this is a very close call, under the standard of review applicable to the issues before us, I cannot say that the trial court's decision to overrule Killebrew's Batson objections constitutes clear error," he wrote.

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