State v. McWoods

                                      728

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
                                  

    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, 

, 

, 

 (1986), arguing 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 

 (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 resulting 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, 

, 

, 

 (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 nonunanimous 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 conclude 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 reasonable 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, 

, 

, 

 (1994). Racial discrimination harms the individuals who are excluded from
serving as jurors because it prevents them from participating in our justice system. 

 And racial discrimination
harms the community “by the State’s participation in the
perpetuation of invidious group stereotypes and the inevitable loss of confidence” in the justice system that follows. 

        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 

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“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, 

, 

 (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 established by Batson, as developed through subsequent case law.
         As we have explained, “[t]o bring a Batson challenge,” defendant must first “make a prima facie showing
that a peremptory strike was based on race or gender.” State
v. Curry, 

, 

 (2019), adh’d to on
recons, 

, 

 (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 relevant 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

 at 382 (quoting Batson, 

). If the state offers
such an explanation, “then the trial court must, after consulting ‘all of the circumstances that bear on racial animosity,’ determine whether the defendant has shown purposeful racial discrimination by the state.” 

 (quoting
Snyder v. Louisiana, 

, 

, 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,

, 

, 

 (2005)
(“[W]hen illegitimate grounds like race are in issue, a prosecutor 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 thinking up any rational basis.”).
         The state does not dispute that defendant made a
prima facie showing that the peremptory challenges in question 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 challenge was not the product of purposeful discrimination as a
question of fact. Curry, 

. A court reviewing a Batson challenge is to consider “all relevant circumstances,” 

, which may include a comparative juror
analysis where the record allows for it, State v. Vandyke, 

, 

 (2022).3 We remain mindful

    3
      The comparative juror analysis is a tool to identify pretext through circumstantial 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 

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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, 

.
         We look to the record to determine whether the
trial court’s rejection of defendant’s Batson challenges was
clearly in error. Vandyke, 

. We begin by
noting that the usual process of jury selection pursuant to
ORS 136.210 through 136.270 was followed. The prospective 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 courtroom. 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 prosecutor 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 objection 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 concerns that the State has regarding this individual’s ability 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 questioning by the Prosecution about these concerns. And they
  didn’t make a for-cause challenge for him. My client is entitled to a jury of his peers, and we believe it is clearly—
  comes under Batson.
Cite as 

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   “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 misinterpreted 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 ___,
___, 

, 

 (2019). The state
agrees that under Flowers, a “series of factually inaccurate
explanations for striking black prospective jurors” can supply evidence of “discriminatory intent,” Flowers, 

, but it does not agree that such a series of inaccuracies 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 number 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 discrepancies 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 circumstances 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 discrimination. 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, 

; Curry, 

. 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 convict 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 questions 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 

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         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 honest, 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 honest, and that forensic evidence is more persuasive than eyewitness testimony. Three jurors who rated DNA evidence as
reliable also disagreed with the statement that forensic evidence 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 generally to forensic and medical evidence the same as
          some non-Black jurors who were not stricken from
          the jury;
Cite as 

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    •   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 defendant is innocent unless the state proves otherwise,
        while one non-Black juror disagreed with that
        statement and one non-Black juror strongly disagreed 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 questions 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 peremptory 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 number 9], in his jury questionnaire indicated he had no experience 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 indicated yesterday that he would have concerns about police
   investigation if there were the notion that they just simply 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 intentionally 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 

 (2022)                                    741

   anything he said would rise to the level of a for-cause challenge, 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 questionnaire, 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 person 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 statements 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 number 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; sometimes 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 number 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 

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         Peremptory strikes are a tool entrusted to trial lawyers by statute; they are not a matter of constitutional right.
Chief Justice Rehnquist agreed that “prosecutors’ peremptories 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, 

 (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 pursuit of fairness. The peremptory is, by design, an enclave of
   private action in a government-managed proceeding.”

Edmonson v. Leesville Concrete Co., 

, 

, 

 (1991) (O’Connor, J., dissenting). 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, 

 (quoting Reeves
v. Sanderson Plumbing Products, Inc., 

, 

, 

 (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 defendant’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 reasons 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 similarly 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 excusing 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 

 (2022)   745
APPENDIX A
746   State v. McWoods
Cite as 

 (2022)   747
748   State v. McWoods
Cite as 

 (2022)   749
750   State v. McWoods
Cite as 

 (2022)   751
 752         State v. McWoods
APPENDIX B