461 P.3d 1106
Or. Ct. App.2020Background
- Defendant Anthony Lenaire Curry challenged a prosecutor’s peremptory strike of an African‑American prospective juror under Batson v. Kentucky.
- The trial court overruled Curry’s Batson challenge; the Court of Appeals (original opinion) reversed that ruling.
- The State petitioned for reconsideration, advancing new arguments not raised below or in its appellate brief, including that the struck juror would have been the alternate and thus should not be compared with seated jurors.
- The State also asserted a factual error in the opinion: by the time a similarly situated juror (Sarah) was seated, both sides had exhausted peremptories, so the prosecutor could not have exercised a peremptory against her.
- The Court allowed reconsideration to clarify that any implication the opinion relied on the prosecutor having had a peremptory against Sarah was unnecessary to the outcome, rejected the State’s late arguments as procedurally and Batson‑improper, and adhered to the original reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State may raise new justifications on reconsideration | State: New justifications show strike was race‑neutral; reconsideration should consider them | Curry: New arguments were not raised below or on appeal and are untimely | Court: Rejected—new contentions come too late under appellate procedure (Schneider) and Batson (cannot invent post‑hoc reasons) |
| Whether a factual error (prosecutor lacked a peremptory against Sarah) warrants reversal of the panel’s Batson analysis | State: Opinion wrongly implies prosecutor could have struck Sarah; that factual error undermines inference of racial motivation | Curry: Concedes record shows no peremptories remained but says that fact does not alter inference of pretext or analysis | Court: Clarified that the opinion does not rest on the prosecutor having had a peremptory against Sarah; the factual point does not change outcome |
| Whether comparisons to similarly situated seated jurors were improper because the stricken juror would have been the alternate | State: Because the stricken juror would have been alternate, comparing her to seated jurors is inappropriate | Curry: The State itself invited that comparison at trial and on appeal; comparison is proper for Batson inference | Court: Rejected State’s new contention as untimely and noted State previously invited the comparison |
| Whether courts may rely on post‑hoc rationales not articulated by the prosecutor | State: Court may infer neutral reasons now on review | Curry: Post‑hoc justifications are improper; court should assess prosecutor’s contemporaneous reasons | Court: Cited Miller‑El—courts must not accept after‑the‑fact rationalizations; review confines to reasons given |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (prohibits race‑based peremptory strikes)
- Miller‑El v. Dretke, 545 U.S. 231 (2005) (courts may not invent post‑hoc justifications for strikes)
- State v. Schneider, 204 Or. App. 710 (2006) (appellate court will not entertain arguments first raised on reconsideration)
- State v. Curry, 298 Or. App. 377 (2019) (original appellate opinion reversing trial court on Batson grounds; adhered to on reconsideration)