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Date: 12-03-2020

Case Style:


Case Number: C-190367

Judge: Robert C. Winkler


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney

Defendant's Attorney:

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Cincinnati, OH - Criminal defense lawyer represented defendant Cleveland Saunders with appealing his convictions for murder and carrying concealed weapons.

{¶3} In Batson, the United States Supreme Court set forth a procedure for
evaluating claims of racial discrimination in the use of peremptory strikes at criminal
trials. Generally, “once a prima facie case of discrimination has been shown by a
defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial
judge must determine whether the prosecutor’s stated reasons were the actual reasons or
instead were a pretext for discrimination.” Flowers v. Mississippi, ___ U.S. ___, 139
S.Ct. 2228, 2241, 204 L.Ed.2d 638 (2019), citing Batson at 97-98. The “ultimate inquiry”
under Batson is whether the prosecutor was “motivated in substantial part by
discriminatory intent” when challenging the particular juror. (Internal quotation marks
and citation omitted.) Flowers at 2244.
{¶4} As an appellate court, we will not reject the trial court’s ruling on the issue
of discriminatory intent unless it is “clearly erroneous.” Id.; State v. Richardson, 1st Dist.
Hamilton No. C-030453, 2005-Ohio-530, ¶ 3.
{¶5} The dispute in this case involves prospective juror number 5 (“Juror 5”).
Like Saunders, Juror 5 is black. During voir dire, when questioned by the prosecutor,
Juror 5 indicated that her brother and brother-in-law had been “just[ly]” convicted of
murder after fair trials over 45 years ago and had turned their lives around after their
release from prison over 20 years ago. She further indicated that nothing about their
situation would affect her ability to sit on the jury and that she could be fair and impartial.
Later, when defense counsel elicited from Juror 5 “something interesting about [her]self
that [wa]s not on the [juror] questionnaire,” she shared several facts, including that she
had “23 grandchildren.”
{¶6} The prosecutor subsequently exercised peremptory challenges against
two potential jurors, including a black woman, and then exercised a peremptory
challenge against Juror 5. Afterwards, the following exchange took place at a
[Defendant’s Counsel]: * * * Judge, the State’s indicated they’re
excusing, once again, an African-American. This is clearly a violation
of the equal protection clause, and we’re making a Batson challenge.
We now have a pattern of two African-Americans. We’re making a
prima facie case, because they’re a member of a protected class and
they’re excusing them.
[Prosecutor]: Judge, on the questionnaire [sic] indicates and
she indicated during voir dire that she has not only a brother-in-law
who committed a murder, but also a brother who committed a
murder[,] two separate offenses, two separate victims, two separate
In addition to that she also has 23 grandchildren. The State has
some fear that she will empathize with the defendant who is a young
African-American male and would allow her sympathies to enter into
her deliberations, not only because of her grandchildren but because of
the two people convicted of the very crime that we’re trying here.
The Court: Okay.
[Defense Counsel]: Judge, clearly, that’s a violation of Batson.
What the State is saying is they don’t want an African-American to
have sympathy for an African-American defendant. That’s what
Batson is supposed to protect.
There has been no explanation given that is a legitimate reason
to excuse someone and resubmit our objection.
[The Prosecutor]: Our reason is because she has 23
grandchildren. No matter what race they may be, the defendant is a
young man. She’s going to have sympathy for him.
The Court: Okay. Overruled.
{¶7} To show a violation of the federal Equal Protection Clause, the
defendant must prove a racially discriminatory purpose. Hernandez v. New York,
500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The Batson Court
explained that the state cannot, consistent with the Equal Protection Clause, exclude
black persons from the jury “on the assumption that blacks as a group are
unqualified to serve as jurors” nor “on the assumption that they will be biased in a
particular case simply because the defendant is black.” Batson, 476 U.S. at 97, 106
S.Ct. 1712, 90 L.Ed.2d 69. Thus, a challenge to a juror of the defendant’s race “on the
[prosecutor’s] assumption—or [] intuitive judgment—that the[] [juror] would be
partial to the defendant because of their shared race,” is an improper, race-based
reason for the strike. Id. at 97; Richardson, 1st Dist. Hamilton No. C-030453, 2005-
Ohio-530, at ¶ 77-79.
{¶8} Here, the parties disagree as to whether the state gave a race-based
reason for its challenge to Juror 5. A prosecutor’s explanation in step two of the
Batson procedure will be deemed race neutral “[u]nless a discriminatory intent is
inherent in the prosecutor’s explanation.” Hernandez at 360.
{¶9} Saunders maintains the prosecutor’s explanation falls under the
shared-race assumption condemned in Batson. To evaluate the race-neutrality of the
prosecutor’s explanation, we must determine, after assuming the proffered reasons
for the peremptory challenge are true, if the challenge violates the Equal Protection
Clause as a matter of law. Hernandez at 359.
{¶10} The state argues that Juror 5’s family situations prompted the strike and
that “race or ethnicity played no role.” The state, however, ignores the reference to the
defendant’s race in its explanation and the impact of that reference when challenging a
potential juror of the same race. The prosecutor’s reasoning “that [Juror 5] will empathize
with the defendant who is a young African American male and would allow her
sympathies to enter into her deliberations” involves the shared-race concern condemned
in Batson.
{¶11} Admittedly, the prosecutor initially presented facially race-neutral reasons,
concerning two murders committed by family members, along with the discriminatory
purpose to explain the strike. The state’s racial motivation, however, is not excused or
made any less discriminatory because one aspect of the explanation was on its face race
neutral. The prosecutor chose to strike the juror “at least in part because of, not merely in
spite of, its adverse effects on an identifiable group.” (Internal citations omitted.)
Hernandez, 500 U.S. at 360, 111 S.Ct. 1859, 114 L.Ed.2d 395. The prosecutor attempted to
retract the impermissible race-based reasoning, but to accept that effort under the
circumstances would render the Batson decision meaningless. See Batson, 476 U.S. at 98,
106 S.Ct. 1712, 90 L.Ed.2d 69. Thus, we conclude that a discriminatory intent was
inherent in the prosecutor’s explanation for the challenge to Juror 5. Id. at 97-98.
{¶12} The United States Supreme Court in Flowers recently reiterated the
importance of the Batson procedure in “eradicat[ing] racial discrimination from the
jury selection process,” thereby “protect[ing] the rights of [criminal] defendants and
jurors” and “enhanc[ing] public confidence in the fairness of the criminal justice
system.” Flowers, ___ U.S. ___, 139 S.Ct. at 2242, 204 L.Ed.2d 638. The Flowers
Court further emphasized “the job of enforcing Batson rests first and foremost with
trial judges.” Id. at 2243. Because “America’s trial judges operate at the front lines
of American justice[,] [i]n criminal trials, trial judges possess the primary
responsibility to enforce Batson and prevent racial discrimination from seeping into
the jury selection process.” Id.
{¶13} In this case, the prosecutor presented an inherently raced-based
explanation for challenging Juror 5. The trial court responded “okay,” without further
inquiry, and ultimately allowed the strike, even though Saunders established that the
prosecutor’s challenge was “motivated in substantial part by discriminatory intent.”
(Internal quotation marks and citation omitted.) Flowers at 2244. Thus, the trial court’s
acceptance of the state’s explanation and its denial of Saunders’s equal-protection claim
was clearly erroneous. Richardson, 1st Dist. Hamilton No. C-030453, 2005-Ohio-530, at

Outcome: Consequently, we sustain Saunders’s second assignment of error, reverse
the trial court’s judgment, and remand this cause for a new trial. Because of our
disposition of Saunders’s second assignment of error, his remaining assignments of error are moot and we do not address them. See App.R. 12(A)(1)(c).

Judgment reversed and cause remanded.

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