Batson And Gender

The Ohio Supreme Court has reversed an appellate decision reversing a conviction for a Batson violation in the peremptory striking of two male jurors in a sexual imposition case.

Appellee, Glen Stalder, was tried for sexual imposition. During jury selection, appellant, the state of Ohio, exercised peremptory challenges on two male prospective jurors. Stalder’s counsel objected to both challenges under Batson, alleging that the prosecutor sought to exclude male jurors because they would tend to sympathize with Stalder. Stalder’s counsel did not offer any other facts or circumstances to support his claim. The trial-court judge determined that Batson did not apply and excused both jurors. The jury convicted Stalder of the charged offense.

The court majority

We agree with the appellate court that the trial court erred as a matter of law when it determined the requirements of Batson were inapplicable to instances of alleged gender discrimination. But we disagree with the appellate court that based on the record here, Stalder established a prima facie case of gender discrimination by the prosecutor based on the prosecutor’s exercise of preemptory challenges.

But

There is no doubt that the trial court erred when it failed to recognize that Batson applied to Stalder’s objections to the state’s peremptory challenges, but that error is immaterial because Stalder failed to establish a prima facie case of discrimination, which is a prerequisite for establishing an equal-protection violation.

Dissent of Justice Donnelly

The majority faults Stalder for having offered what it calls a “bare allegation” of purposeful gender discrimination. Majority opinion at ¶ 25. But the trial court shut down the conversation on the issue. The record contains no evidence of anything objectionable about the prospective jurors that the state peremptorily challenged, other than that they were male. Because the trial court failed to know the law under Batson, short-circuited the Batson process, and dismissed Stalder’s Batson claims out of hand, it failed in its essential role as gatekeeper against discrimination. The error was structural.

Justices Stewart and Brunner joined the dissent.

Oral argument linked here. (Mike Frisch)