STATE OF CONNECTICUT v. EVAN JARON HOLMES
(SC 20048)
Supreme Court of Connecticut
December 24, 2019
Robinson, C. J., and Palmer, McDonald, D‘Auria, Mullins, Kahn and Ecker, Js.
Argued January 18—officially released December 24, 2019
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Convicted, after a jury trial, of the crimes of felony murder, home invasion, conspiracy to commit home invasion and criminal possession of a firearm, the defendant appealed to the Appellate Court, claiming that the trial court had improperly overruled his objection to the prosecutor‘s use of a peremptory challenge to excuse a prospective, African-American juror, W. During voir dire, the prosecutor questioned W, who previously had disclosed that he was employed as a social worker and performed volunteer work directly with prison inmates, regarding his interactions with the police and his opinions of the criminal justice system. In response, W indicated that he sometimes feared being stopped by the police while driving, he had family members who had been convicted of crimes and incarcerated, and he believed that certain groups of individuals are disproportionately convicted of crimes and receive disproportionate sentences. W further expressed that his concerns were largely informed by his life experiences as an African-American. In objecting to the prosecutor‘s peremptory challenge, defense counsel argued that it was in violation of the United States Supreme Court‘s decision in Batson v. Kentucky (476 U.S. 79), which prohibits a party from challenging potential jurors solely on account of their race. The prosecutor explained that the basis for the peremptory challenge was W‘s stated distrust of law enforcement and his concern about the fairness of the criminal justice system, as borne out by his life experiences. The prosecutor also noted that the peremptory challenge was not based on W‘s race but, rather, related only to the particular viewpoints that W had expressed. After the trial court overruled the defendant‘s Batson challenge, it excused W from the venire. The Appellate Court affirmed the trial court‘s judgment and, relying on State v. King (249 Conn. 645), concluded that the prosecutor‘s explanation of W‘s distrust of the police and concern regarding the fairness of the criminal justice system constituted a nondiscriminatory, race neutral reason for exercising the peremptory challenge. In so doing, the Appellate Court rejected the defendant‘s argument that the prosecutor‘s stated explanation was not race neutral because it had a disproportionate impact on African-Americans. The Appellate Court further concluded that there was no evidence that the prosecutor‘s explanation was a pretext for intentional discrimination. On the granting of certification, the defendant appealed to this court, claiming that the Appellate Court incorrectly concluded that the trial court had properly denied his Batson challenge and that this court should overrule King and its progeny and hold that distrust of the police and concern regarding the fairness of the criminal justice are not race neutral reasons for exercising a peremptory challenge in light of the disparate impact on prospective jurors of minority races. Held:
- The Appellate Court properly upheld the trial court‘s rejection of the defendant‘s Batson challenge, and this court declined the defendant‘s request to overrule King and its progeny establishing that distrust of the police and concern regarding the fairness of the criminal justice are race neutral reasons for exercising a peremptory challenge: this court‘s holdings in King and its progeny remain consistent with federal constitutional law, which was the sole basis for the defendant‘s claim on appeal, and, pursuant to federal constitutional law, the distrust of law enforcement or the criminal justice system is a race neutral reason for exercising a peremptory challenge; in the present case, the prosecutor‘s proffered explanation for striking W from the jury was facially race neutral as a matter of law, even if it had a disparate impact on minority jurors, who are more likely to have negative interactions with the police or concerns regarding the fairness of the criminal justice system, because it was based not on W‘s race but, rather, on the viewpoints that he espoused, which may be shared by whites and minorities alike, and, because the
defendant did not challenge on appeal the Appellate Court‘s conclusion that the trial court correctly determined that the prosecutor‘s proffered explanation for the peremptory strike was not a pretext for purposeful discrimination, the Appellate Court properly affirmed the judgment of conviction. - In light of systemic concerns identified by this court regarding the failure of Batson to address the effects of implicit bias and the disparate impact that certain race neutral explanations for peremptory challenges have on minority jurors, this court announced that it would convene a Jury Selection Task Force, appointed by the Chief Justice and composed of relevant stakeholders in the criminal justice and civil litigation communities, to study the issue of racial discrimination in the selection of juries, to consider measures intended to promote the selection of diverse jury panels, and to propose necessary changes, to be implemented by court rule or legislation, to the jury selection process in Connecticut.
(Two justices concurring separately in one opinion)
Procedural History
Substitute information charging the defendant with the crimes of murder, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree and criminal possession of a firearm, brought to the Superior Court in the judicial district of New London, where the first five counts were tried to the jury before Jongbloed, J.; verdict of guilty of the lesser included offense of manslaughter in the first degree with a firearm, felony murder, home invasion, conspiracy to commit home invasion, and burglary in the first degree; thereafter, the charge of criminal possession of a firearm was tried to the court; judgment of guilty; subsequently, the court vacated the verdict as to the lesser included offense of manslaughter in the first degree with a firearm and burglary in the first degree, and rendered judgment of guilty of felony murder, home invasion, conspiracy to commit home invasion, and criminal possession of a firearm, from which the defendant appealed to this court; thereafter, the appeal was transferred to the Appellate Court, Prescott and Beach, Js., with Lavine, J., concurring, which affirmed the trial court‘s judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.
Alan Jay Black, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state‘s attorney, with whom were Paul J. Narducci, senior assistant state‘s attorney, and, on the brief, Michael L. Regan, state‘s attorney, for the appellee (state).
ROBINSON, C. J. From its inception, the United States Supreme Court‘s landmark decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), has been roundly criticized as ineffectual in addressing the discriminatory use of peremptory challenges during jury selection, largely because it fails to address the effect of implicit bias or lines of voir dire questioning with a disparate impact on minority jurors.1 Consistent with these long-standing criticisms of Batson, the defendant, Evan Jaron Holmes, asks us in this certified appeal2 to overrule the line of cases in which this court held that a prospective juror‘s negative views about the police and the fairness of the criminal justice system constitute a race neutral reason for the use of a peremptory challenge to strike that juror. See, e.g., State v. King, 249 Conn. 645, 664-67, 735 A.2d 267 (1999). We conclude that the challenged line of cases, on which the Appellate Court relied in upholding the defendant‘s conviction of felony murder on the basis of its rejection of his Batson claim arising from the prosecutor‘s use of a peremptory challenge during jury selection; see State v. Holmes, 176 Conn. App. 156, 175-77, 169 A.3d 264 (2017); remains consistent with the federal constitutional case law that provides the sole basis for the Batson claim. Accordingly, we affirm the judgment of the Appellate Court in this case but refer the systemic concerns about Batson‘s failure to address the effects of implicit bias and disparate impact to a Jury Selection Task Force, appointed by the Chief Justice, to consider measures intended to promote the selection of diverse jury panels in our state‘s courthouses.
The record and the Appellate Court‘s opinion reveal the following relevant facts and procedural history. In connection with a shooting at an apartment in New London,3 the state charged the defendant with numerous offenses, including felony murder in violation of
“On the second day of jury selection, only one prospective juror had indicated on the questionnaire that he or she was African-American. During the voir dire examination of one venireperson, W.T.,6 he stated to defense counsel that he was African-American. W.T. indicated that he had obtained a master‘s degree in social work from the University of Connecticut and currently was employed by the state . . . as a supervisory social worker with the Department of Children and Families.
“During the state‘s voir dire examination of W.T., the following exchange occurred:
” ‘[The Prosecutor]: Now, you‘ve obviously had a little more dealing with the court systems than most—most people that we see in through here. Have you formulated any opinions about the criminal justice system based on your experiences? Is it too lenient, too stringent, it works, it doesn‘t work; any feeling about that?
” ‘[W.T.]: And like I said, probably already share[d] too much stuff about—that talk about in terms of I have seen people, have had family members [who] went to prison before.
” ‘[The Prosecutor]: Right.
” ‘[W.T.]: And I just think—I think that‘s why I became a social worker, because I wanted to make a difference, and that‘s why I have been doing mentoring programs—
” ‘[The Prosecutor]: Yep.
” ‘[W.T.]: —try[ing] to help young people so they won‘t get into trouble. So, I meant the system, all various systems, there‘s a lot of discrimination [that] still goes out. Even today, ladies are still not getting equal pay. So, it‘s a lot. We‘ve come a long way, but we have a long way to go.
” ‘[The Prosecutor]: Right.
” ‘[The Prosecutor]: . . . We need to know how you‘re feeling, so we can make the appropriate assessment and you can make the appropriate assessment. . . . I think that it‘s not a perfect system, but it‘s improving every day, and [there are] not as many systems that I can think of that are, any—come anywhere close. One of the concerns that people may have is, jurors who are in the—using their time as a juror to try to fix the system. You indicated, and I think you said, that you would listen to the evidence and decide it on the evidence and you wouldn‘t let any concerns that you had filter in.
” ‘[W.T.]: That‘s correct.
” ‘[The Prosecutor]: Fair to say?
” ‘[W.T.]: That‘s correct.
” ‘[The Prosecutor]: Okay. And so . . . you would sit and listen to what all the evidence is and make a decision based on the evidence?
” ‘[W.T.]: That‘s correct. . . .
” ‘[The Prosecutor]: Okay. With respect to that, as much as you know about those situations, were you satisfied with the way the police reacted to your family . . . or friend being the victim of a crime?
” ‘[W.T.]: Sometimes and sometimes not.
” ‘[The Prosecutor]: Okay.
” ‘[W.T.]: So-so.
” ‘[The Prosecutor]: Fair to say that it‘s an individual situation and that the police have been—have acted in a way that was satisfactory toward your family members or friends, and in other situations they weren‘t satisfied with what the police did?
” ‘[W.T.]: That‘s correct.
” ‘[The Prosecutor]: Okay. Had you had any interactions with the police in any respect in which you developed an—either a strong, favorable impression or an unfavorable impression about the police and the way they treated you in any situation, speeding tickets, calling up to complain about [a] noisy neighbor, something with work?
” ‘[W.T.]: I‘m, like—just growing up in this society, I fear, you know, I fear [for] my life. I got a new car, I feared that, you know, I might get stopped, you know, for being black, you know. So, you know, that‘s concerning and sometimes I get afraid—even me, you know, I—when I see the police in back of me, I wonder, you know, if I‘m going to be stopped.
” ‘[W.T.]: No, I wouldn‘t.
” ‘[The Prosecutor]: Okay. And I can appreciate what you‘re saying. Obviously, I haven‘t been in that—in your shoes. I haven‘t been in your situation, nor do we ask the jury to put themselves in the shoes of either the police or a particular defendant. We can‘t ask you to do that. But having now life‘s experience, is that something that you think you can put aside and decide the evidence based on everything that‘s presented to you, or is there some concern that you might have that you might not be able to do that?
” ‘[W.T.]: No, I will be able to because another thing, too, is, I know good police officers who are—who are good people, nice people, mentors who work in the community. So—so, yes, I‘d be able to.
” ‘[The Prosecutor]: Okay. Okay. And have you had . . . positive experiences with the police as well?
” ‘[W.T.]: Yes.
” ‘[The Prosecutor]: Okay. So, I guess like anybody else, there are bad lawyers and there are good lawyers. There are bad social workers, there are good social workers. . . . But what I‘m driving at is, we make an individual assessment based on what we hear and what we see and what we listen to. And that is what we‘re going to ask you to do if you‘re a juror.
” ‘[W.T.]: Yes.
” ‘[The Prosecutor]: We want to make sure you don‘t carry in any preconceived notions one way or the other.
” ‘[W.T.]: Yes.
” ‘[The Prosecutor]: No problems with that?
” ‘[W.T.]: No problem.
” ‘[The Prosecutor]: Okay. We can count on your word on that, then?
” ‘[W.T.]: That‘s right.
” ‘[The Prosecutor]: Okay. I asked about being the victim of a crime and your family member. The flip side to that, have you, any member of your family or any close personal friends ever been either accused or ever convicted of crimes?
” ‘[W.T.]: Yes. I have family members who‘ve been
” ‘[The Prosecutor]: Okay. This obviously is a crime of violence. Any—any family members who have been convicted of crimes of violence?
” ‘[W.T.]: No. . . .
” ‘[The Prosecutor]: You mentioned that your family members have—have served time. With respect to that, were—did you develop any feelings about the way the police had treated your family members in those situations?
” ‘[W.T.]: Well, I think the—like I told you earlier, my life experiences living in this world—
” ‘[The Prosecutor]: Right.
” ‘[W.T.]: —you see that things are not fair. And then you—I mean, you—you experience things, you know, and you see things happen. And some things are not fair, some things not—not all people are the same, all police are not bad or, like, you know, just like you said everybody, but when you see firsthand your own family members, then you experience something a little bit different.
” ‘[The Prosecutor]: Of course.
” ‘[W.T.]: Other people who, you know, so—
” ‘[The Prosecutor]: Of course. And I guess it‘s kind of tough, because I—you know, I could ask you questions all day long and I‘m not going to get to know you as well [as] you know yourself. But there‘s a difference, I think, between I‘m upset that my family member had to go through this versus I‘m upset that the police treated my family member in such a way. Do you understand the distinction I‘m trying to make, that you‘re not satisfied that your family member ended up in prison versus I‘m not satisfied that they were treated properly by either the court system or by the police. There‘s a difference, and I‘m not sure I‘m explaining it very well.
” ‘[W.T.]: Are you saying more, like, for instance, like, someone may have gone to jail because they did something wrong—
” ‘[The Prosecutor]: Right.
” ‘[W.T.]: —and they had to pay the consequences.
” ‘[The Prosecutor]: Right. And you know, like that, but—
” ‘[W.T.]: So—exactly. You have to—even if it‘s your family member or not, you did something wrong, you need to pay the consequences.
” ‘[The Prosecutor]: Right.
” ‘[W.T.]: You need to pay the consequences for whatever you‘ve done wrong, you know.
” ‘[The Prosecutor]: Right.’
“[Defense counsel] immediately raised a Batson objection to the [prosecutor‘s] use of a peremptory challenge, citing the fact that W.T. was the first African-American venireperson to be examined and that, in essence, W.T. had assured the court and the [prosecutor] that, regardless of his views about the criminal justice system or the police, he could be a fair and impartial juror.” (Footnote omitted.) Id., 169. In his argument, defense counsel compared W.T.‘s assurances that he could be fair with the voir dire of another member of the venire, a young white man from New London, who had “said that he couldn‘t be fair because of incidents with . . . police officers,” observing that, “if he had been black or white, the kid had to go. You know, [there are] clearly some people [who] can‘t be jurors. I don‘t see why [W.T.] shouldn‘t be seated.”
“The [prosecutor] then responded: ‘I understand exactly where [defense counsel] is coming from, would agree with him for the most part with the exception of, I do believe that there are race neutral reasons for this. It was somewhat of a struggle for me, but I looked at some of the answers. And even though he responded favorably after further questioning, the concerns that I did have [were] the—the comments that—about [a] disproportionate amount of people being sent to jail, disproportionate amount of jail time, the fact that he‘s had family members who have been convicted and have served time, the fact that he works to rehabilitate people. And none of this is per se bad, but I think in the context of this particular case, it‘s important, it‘s race neutral. If we had a Caucasian who was in the same situation, the exercising of a peremptory challenge would be the same, I think.
” ‘Additionally, the fact that he did mention . . . his concern about and his life‘s experience about driving and seeing a police officer behind him and his concern about police officers. Yes, he said that there are other police officers who are good and people can be good, but there is that life‘s experience that I would submit would make it difficult for him to be fair and impartial in this particular—in this particular case.
” ‘Again, I understand exactly what [defense counsel] is saying. I believe that they are race neutral reasons, and I was exercising the peremptory based on those race neutral reasons.’
“The court then asked for argument . . . and defense counsel gave the following response: ‘With respect to being, as an African-American male, fearful when the police are behind you, I mean, that‘s just, you
“The prosecutor, when asked if he wanted to argue further, stated: ‘Only briefly, and maybe it‘s a matter of semantics. I think [Batson] is, oh, I see an African-American gentleman, I see an Asian-American, I see a Hispanic, I‘m going to excuse them. If an African-American comes in with a distrust of the police and will not listen to a police officer and says he will not listen to a police officer, that isn‘t a challenge based on that person‘s race or ethnicity; it‘s a challenge based on that person‘s personal views.
” ‘If a white—a Caucasian person came in and said, I don‘t like being followed by the cops because I [have seen] a number of cops punch friends of mine in the face, it‘s not because he is a Caucasian, it‘s because of life‘s experiences. And I think that‘s what I would be arguing, that the comments that were made were not because of his ethnicity or his race, but rather his—his expressed opinions. And I think it‘s a distinction, I think it‘s a legitimate distinction, but I defer to Your Honor with respect to this.’ ” Id., 169-71.
The trial court then denied the defendant‘s Batson challenge, comparing W.T. to the white juror who previously had been excused because of his negative comments about the police, and stating: “I do think that, in both situations, it‘s an issue with regard to negative contact with the police and that, I believe, has been found to be a legitimate race neutral reason for exercising [a] peremptory challenge. So, under all the circumstances, I am going to find that the [prosecutor] has given a race neutral reason for exercising a peremptory challenge in this case, and I‘m going to overrule the Batson challenge.”7
“Throughout the remainder of the voir dire process, the [prosecutor] asked a uniform set of questions of all jurors. Furthermore, three African-American jurors were selected to serve in this case—two as regular jurors and one as an alternate juror.” Id., 171.
After a ten day trial, the jury returned a verdict of guilty of, inter alia, felony murder. The trial court subsequently rendered a judgment of conviction and sen-
The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the trial court improperly overruled his Batson objection to the prosecutor‘s use of a peremptory challenge on W.T.9 The Appellate Court relied on this court‘s decisions in State v. Edwards, 314 Conn. 465, 102 A.3d 52 (2014), and State v. King, supra, 249 Conn. 645, among other cases, and concluded that “[d]istrust of the police or concerns regarding the fairness of the criminal justice system are viewpoints that may be shared by whites and nonwhites alike. In other words, the prosecutor‘s questions regarding potential jurors’ attitudes about the police and the criminal justice system are likely to divide jurors into two potential categories: (1) those who have generally positive views about the police and our criminal justice system, and (2) those who have generally negative views of the police or concerns regarding the criminal justice system.” State v. Holmes, supra, 176 Conn. App. 175-76. The Appellate Court further observed that “the prosecutor . . . also did not refer to race in his explanation except as necessary to respond to the Batson challenge” and that Connecticut case law, including this court‘s decisions in State v. King, supra, 644-64, State v. Hodge, 248 Conn. 207, 231, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999), and State v. Hinton, 227 Conn. 301, 327, 630 A.2d 593 (1993), supported the proposition that “such explanations are facially neutral.” State v. Holmes, supra, 176; see id., 180 (emphasizing that, as intermediate appellate court, it was bound by King).
The Appellate Court rejected the defendant‘s “disproportionate impact” argument, namely, that “resentment of police and distrust of the criminal justice system are not racially neutral justifications for exercising a peremptory challenge because there is a much higher prevalence of such beliefs among African-Americans,” as not legally cognizable under the second step of the Batson rubric, which requires only a facially valid explanation. Id., 177. The Appellate Court further concluded that there was no evidence that the prosecutor had used W.T.‘s distrust of the criminal justice system as a pretext for intentional discrimination under Batson‘s third step.10 Id., 179; see id., 182 (emphasizing that prosecutor was not required to accept at “face value” W.T.‘s assurances that, “despite his expressed concerns and fears, he believed that he could follow the court‘s instructions and act as an impartial juror“). Accordingly, the Appellate Court “conclude[d] that the court [correctly] determined that the [prosecutor‘s] use of [a] peremptory challenge to exclude W.T. from the jury was not tainted by purposeful racial discrimination, and, therefore, it properly denied the defendant‘s Batson challenge.”11 Id., 182. The Appellate Court unanimously affirmed the judgment of conviction.12 Id., 192.
I
WHETHER FEAR OR DISTRUST OF LAW ENFORCEMENT IS A RACE NEUTRAL REASON FOR A PEREMPTORY CHALLENGE UNDER BATSON
On appeal, the defendant urges us to modify or overrule State v. King, supra, 249 Conn. 645, and hold that fear or distrust of law enforcement is not a race neutral reason for the use of a peremptory challenge “[b]ecause it is most commonly minority races that possess such a fear . . . .” The defendant emphasizes that W.T.‘s “general concerns for his safety and equality as an African-American,” on which the prosecutor relied as a race neutral explanation, are neither “unique to W.T. as an individual nor . . . a direct reflection of his personal experiences but, rather, a well understood reality to the majority of African-Americans. As a result, if the explanation provided by the [prosecutor] for [his] challenge of W.T. is to be considered by the courts as race neutral, it could be used as a reason for excluding a [large number] of potential African-American venirepersons. It would be difficult to maintain acceptance of this reason as race neutral . . . .” The defendant relies on the authorities cited in Judge Lavine‘s concurring opinion in the Appellate Court; see footnote 12 of this opinion; and emphasizes the need for courts to be vigilant in guarding against racial discrimination in jury selection given the effects of implicit bias, disparate impact, and the relative ease by which a prosecutor can proffer a racially neutral explanation in defense of a Batson challenge. The defendant further argues that “[a]ny implicit racial bias housed by the [prosecutor] in this case was certainly inflated by his knowledge of W.T.‘s employment, which he could have perceived, when considered alongside knowledge of W.T.‘s race, to be a sign of W.T.‘s ‘negative’ opinions of law enforcement.”
In response, the state relies on Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), State v. Gould, 322 Conn. 519, 142 A.3d 253 (2016), and State v. Edwards, supra, 314 Conn. 465, to contend that the Appellate Court properly upheld the trial court‘s rejection of the Batson challenge because disparate impact and unconscious bias claims are not cognizable under the second step of the Batson analysis; instead, “discriminatory intent or purpose . . . is discerned under the third step of Batson based [on] ‘an assessment of all the circumstances’ and not simply on the basis of disparate impact alone.” Relying on State v. Hodge, supra, 248 Conn. 231, and State v. Smith, 222 Conn. 1, 13-15, 608 A.2d 63 (1992), among other cases, the state also argues that fear or distrust of the police is a race neutral explanation as a matter of law because
The framework under which we consider Batson claims is comprehensively set forth in State v. Edwards, supra, 314 Conn. 465. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] [s]ixth [a]mendment right to an impartial jury will be honored. . . . Part of the guarantee of a defendant‘s right to an impartial jury is an adequate voir dire to identify unqualified jurors. . . . Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine [his or her] fitness to serve on the jury. . . . Because the purpose of voir dire is to discover if there is any likelihood that some prejudice is in the [prospective] juror‘s mind [that] will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted [to ask] questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. . . . The purpose of voir dire is to facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause. . . .
“Peremptory challenges are deeply rooted in our nation‘s jurisprudence and serve as one [state created] means to the constitutional end of an impartial jury and a fair trial. . . . [S]uch challenges generally may be based on subjective as well as objective criteria . . . . Nevertheless, [i]n Batson [v. Kentucky, supra, 476 U.S. 79] . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the [e]qual [p]rotection [c]lause forbids [a party] to challenge potential jurors solely on account of their race . . . .14
“Under Connecticut law, a Batson inquiry involves three steps.15 First, a party must assert a Batson claim
“In the third step, the burden shifts to the party asserting the Batson objection to demonstrate that the [opposing party‘s] articulated reasons are insufficient or pretextual. . . . In evaluating pretext, the court must assess the persuasiveness of the proffered explanation and whether the party exercising the challenge was, in fact, motivated by race. . . . Thus, although an improbable explanation might pass muster under the second step, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination at the third stage of the inquiry. . . .
“We have identified several specific factors that may indicate that [a party‘s removal] of a venireperson through a peremptory challenge was . . . motivated [by race]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case . . . (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner . . . (3) prospective jurors of one race . . . were asked a question to elicit a particular response that was not asked of other jurors . . . (4) persons with the same or similar characteristics but not the same race . . . as the challenged juror were not struck . . . (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race . . . .
“In deciding the ultimate issue of discriminatory intent, the [court] is entitled to assess each explanation in light of all the other evidence relevant to [a party‘s] intent. The [court] may think a dubious explanation undermines the bona fides of other explanations or may think that the sound explanations dispel the doubt raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances.
With respect to appellate review of Batson claims, the “second step of the Batson inquiry involves a determination of whether the party‘s proffered explanation is facially race neutral and, thus, is a question of law. . . . Because this inquiry involves a matter of law, we exercise plenary review.” (Citations omitted.) State v. Edwards, supra, 314 Conn. 487.
“The third Batson step, however, requires the court to determine if the prosecutor‘s proffered race neutral explanation is pretextual. . . . Deference [to the trial court‘s findings of credibility] is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations. . . . Whether pretext exists is a factual question, and, therefore, we shall not disturb the trial court‘s finding unless it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 489-90.
We understand the defendant‘s claims in this case, as clarified at oral argument before this court, to be limited to the second step of Batson, namely, to contend that fear or distrust of the police is not a race neutral reason for the exclusion of jurors as a matter of federal constitutional law16 given its disparate effect on minority jurors. The defendant acknowledges that this argument requires us to overrule, or at the very least strictly limit, a line of Connecticut cases. See, e.g., State v. King, supra, 249 Conn. 666 (concluding that prosecutor‘s reasons for striking juror were “not motivated by discriminatory considerations” because “it was reasonable for the prosecutor to conclude that [the juror‘s] concerns about the fairness of the criminal justice system might make it difficult for him to view the state‘s case with complete objectivity” and that rejection of juror‘s “employment applications [by] two law enforcement agencies . . . gave rise to a legitimate concern that he might harbor some resentment toward the police and the prosecuting authorities“); State v. Hodge, supra, 248 Conn. 231 (“[The prospective juror] testified that her son, brother and cousin each had a prior arrest record and that her son had been prosecuted by the New Haven office of the state‘s attorney, the same office involved in prosecuting the present case. In addition, [she] characterized her cousin‘s treatment at the hands of the prosecutor who handled his case as unfair.“);
The defendant‘s disparate impact argument is foreclosed as a matter of federal constitutional law by the United States Supreme Court‘s decision in Hernandez v. New York, supra, 500 U.S. 352. In Hernandez, the United States Supreme Court concluded that a prosecutor had not violated Batson by using peremptory challenges to exclude Latino jurors by reason of their ethnicity when he offered as a race neutral explanation his concern that bilingual jurors might have difficulty accepting the court interpreter‘s official translation of multiple witnesses’ testimony given in Spanish. Id., 357-58. In so concluding, the Supreme Court rejected the argument that the prosecutor‘s reasons, if assumed to be true, were not race neutral and thus violated the equal protection clause as a matter of law because of their disproportionate impact on Latino jurors. See id., 362-63. The court relied on “the fundamental principle that official action will not be held unconstitutional solely because it results in a racially disproportionate
The Supreme Court emphasized, however, that disparate impact is not completely irrelevant under Batson. Instead, “disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary [race neutrality] step of the Batson inquiry. An argument relating to the impact of a classification does not alone show its purpose. . . . Equal protection analysis turns on the intended consequences of government classifications. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. Nothing in the prosecutor‘s explanation shows that he chose to exclude jurors who hesitated in answering questions about following the interpreter because he wanted to prevent bilingual Latinos from serving on the jury.” (Citation omitted; emphasis in original.) Id., 362. After analyzing the record under the third step of Batson, the Supreme Court concluded that the reason was not a pretext for intentional discrimination, deferring to the state trial judge‘s factual finding that the prosecutor had not used that reason as a pretext for intentional discrimination. Id., 363-64.
We have relied on Hernandez on multiple occasions to reject claims that a prosecutor‘s explanation was not
Given the breadth of the United States Supreme Court‘s decision in Hernandez, it is not surprising that the defendant has not cited any case law for the proposition that distrust of law enforcement or the criminal justice system is not a race neutral reason under Batson for exercising a peremptory challenge on a juror.17 Indeed, the only post-Hernandez cases we have located on this direct point have expressly rejected this disparate impact argument. For example, the United States
II
BATSON REFORM IN CONNECTICUT
Although the relief that we can provide in this case is constrained by the defendant‘s decision to limit his Batson claims to the equal protection clause of the United States constitution; see footnote 16 of this opinion; the broader themes of disparate impact and implicit
A
Review of Batson Problems and Solutions
Reams of paper have been consumed by judicial opinions and law review articles identifying why Batson has been a toothless tiger when it comes to combating racially motivated jury selection, and numerous authorities and commentators have proposed various solutions
Second, the purposeful discrimination requirement does nothing to address the adverse effects of implicit or unconscious bias on jury selection. As the Washington Supreme Court has astutely observed: ‘‘In part, the problem is that racism itself has changed. It is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and
In a leading article on implicit bias, Professor Antony Page makes the following observation with respect to a lawyer’s own explanations for striking a juror peremptorily: ‘‘[W]hat if the lawyer is wrong? What if her awareness of her mental processes is imperfect? What if she does not know, or even cannot know, that, in fact, but for the juror’s race or gender, she would not have exercised the challenge?’’ (Emphasis omitted.) A. Page, ‘‘Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge,’’ 85 B.U. L. Rev. 155, 156 (2005). ‘‘The attorney is both honest and discriminating on the basis of race or gender. Such unconscious discrimination occurs, almost inevitably, because of normal cognitive processes that form stereotypes.’’ (Emphasis omitted.) Id., 180. Professor Page’s landmark article ‘‘examines the findings from recent psychological research to conclude that the lawyer often will be wrong, will be unaware of her mental processes, and would not have exercised the challenge but for the juror’s race or gender. As a result (and not because of lying lawyers), the Batson peremptory challenge framework is woefully ill-suited to address the problem of race and gender discrimination in jury selection.’’ (Emphasis omitted.) Id., 156.
The studies reviewed by Professor Page demonstrate that ‘‘few attorneys will always be able to correctly identify the factor that caused them to strike or not strike a particular potential juror. The prosecutor may have actually struck on the basis of race or gender, but she plausibly believes she was actually striking on the basis of a [race neutral] or [gender] neutral factor. Because a judge is unlikely to find pretext, the peremptory challenge will have ultimately denied potential jurors their equal protection rights.’’ (Footnote omitted.) Id., 235. Although Professor Page argues that the social psychology research supports addressing implicit bias by eliminating peremptory challenges entirely; id., 261; in the alternative, he proposes (1) to eliminate the
Similarly, Judge Mark W. Bennett, an experienced federal district judge, considers the ‘‘standards for ferreting out lawyers’ potential explicit and implicit bias during jury selection . . . a shameful sham’’; he, too, urges (1) the inclusion of jury instructions and presentations during jury selection on the topic of implicit bias, to adequately explore a juror’s impartiality, and (2) the administration of implicit bias testing to prospective jurors. M. Bennett, supra, 4 Harv. L. & Policy Rev. 169–70. But see J. Abel, ‘‘Batson’s Appellate Appeal and Trial Tribulations,’’ 118 Colum. L. Rev. 713, 762–66 (2018) (discussing Batson’s greater value in direct and collateral postconviction review proceedings, particularly in habeas cases that afford access to evidence beyond trial record to prove discrimination).
The second step of Batson, which requires the state to proffer a race neutral explanation for the peremptory challenge, has been criticized as particularly ineffective in addressing issues of disparate impact and implicit bias such as those raised by the defendant in this appeal. Specifically, the United States Supreme Court’s decision in Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), took a very broad approach to the second step, allowing virtually any race neutral explanation, however ‘‘implausible or fantastic,’’ to pass muster; the actual merit of the explanation is considered only during the pretext inquiry of the third step. See State v. Edwards, supra, 314 Conn. 484–85. Purkett has been criticized for its effect in ‘‘watering down’’ the Batson inquiry. See L. Cavise, ‘‘The Batson Doctrine: The Supreme Court’s Utter Failure To Meet the Challenge of Discrimination in Jury Selection,’’ 1999 Wis. L. Rev. 501, 537. Some courts and commentators have urged reforms to ensure that the reason proffered by the prosecutor relates to the case being tried in an attempt to limit post hoc reasoning for the use of the strike. See Ex parte Bruner, 681 So. 2d 173, 173 (Ala. 1996) (rejecting disparate impact conclusion in Hernandez v. New York, supra, 500 U.S. 352, and Purkett as matter of Alabama law); Spencer v. State, 238 So. 3d 708, 712 (Fla.) (under Florida law, second prong of Batson requires prosecutor to identify ‘‘clear and reasonably specific’’ race neutral explanation that is related to trial at hand, which requires trial court to ‘‘determine both whether the reason was neutral and reasonable and whether the record supported the
Other commentators have proposed solutions that more directly consider the demographics of the jury in considering whether to allow the use of peremptory challenges in a particular case, akin to the approach suggested by Judge Lavine in his concurring opinion in the Appellate Court. See State v. Holmes, supra, 176 Conn. App. 201–202; see also footnote 12 of this opinion. One proposal is to engage in a qualitative analysis similar to that used to assess a challenge for cause, in which the trial judge would balance claims of potential juror bias against the systemic interest in diversity of the jury.20 See L. Cavise, supra, 1999 Wis. L. Rev. 551 (‘‘The cost of this approach would be that, in gender and race questioning, the peremptory would be transformed into a challenge for ‘quasi-cause.’ In other words, trial judges would be required to do with peremptories just as they have been doing with challenges for cause . . . but simply lower the standard for the challenge to allow
Other commentators have suggested that some of the concerns about Batson can be addressed procedurally by delaying the final decision of whether to seat a juror or to accept a strike until the conclusion of voir dire, thus allowing a provisionally stricken juror to be reseated should a pattern emerge of apparently discriminatory challenges. See J. Bellin & J. Semitsu, supra, 96 Cornell L. Rev. 1127 (suggesting that if ‘‘a trial court can invalidate a peremptory challenge after finding an unrebutted appearance of discrimination, it could be contended that the proposal is insufficiently tethered to Batson and, thus, the constitutional right that Batson enforces,’’ and making prophylactic ‘‘analogy to Miranda warnings and the decades of practice that have shown that a robust enforcement of the Batson right must of necessity sweep more broadly than the constitutional right itself’’ [emphasis omitted]). Our existing Batson case law is compatible with this suggestion. See State v. Robinson, 237 Conn. 238, 252–53 and n.14, 676 A.2d 384 (1996) (holding that ‘‘a defendant may object to the state’s peremptory challenge on Batson equal protection grounds at any time prior to the swearing of the jury’’ and noting that nothing on face of
Moving beyond the courtroom itself, other commentators have suggested the reform of recordkeeping practices to allow for the evaluation of jury selection practices on a systemic level. See C. Grosso & B. O’Brien, ‘‘A Call to Criminal Courts: Record Rules for Batson,’’ 105 Ky. L.J. 651, 662 (2017) (‘‘Our limited evidence suggests that the regular availability of statistical evidence
Finally, we cannot ignore the intersection of peremptory challenges with other areas of the law bearing on the composition of our juries, including the fair cross section requirement that we recently considered in State v. Moore, 334 Conn. 275, 221 A.3d 40 (2019), to ensure a diverse jury pool. ‘‘When we approach a case with civil rights implications, it is important to think systemically. Important issues involving the [composition] of the venire pool, the scope of voir dire of potential jurors, the use of peremptory challenges, and the instructions given to the jury intersect and act together to promote, or resist, our efforts to provide all defendants with a fair trial.’’ State v. Veal, supra, 930 N.W.2d 344 (Appel, J., concurring in part and dissenting in part); see id., 360 (Appel, J., concurring in part and dissenting in part) (‘‘Batson’s relatively free reign on peremptory challenges cuts rough against the grain of the constitutional value of achieving juries with fair cross sections of the community. By opening the valve on peremptory challenges, you close the [fair cross section] pipe and lose the benefits of diversity, which are substantial.’’); L. Cavise, supra, 1999 Wis. L. Rev. 549 (noting solutions to Batson’s shortcomings that ‘‘focus on the selection of the venire, such as supplementing the traditional method of voter registration lists with driver’s license or other lists to [ensure] proportionality,’’ sending ‘‘jury questionnaires . . . to selected areas with a higher percentage of minorities, and [having] the results of the questionnaires or the composition of the venire actually called to service be scanned by the chief judge to [ensure] diversity’’).
B
Implementation of Batson Reforms
Although Batson has serious shortcomings with respect to addressing the effects of disparate impact and unconscious bias, we decline to ‘‘throw up our hands in despair at what appears to be an intractable
Instead, the scale and variety of the potential changes that appear necessary to address the flaws in Batson, as shown by the menu of possible solutions such as those discussed in part II A of this opinion, beg for a more deliberative and engaging approach than appellate adjudication, which is limited to the oral and written advocacy of the parties and stakeholders appearing as amici curiae in a single case. See, e.g., Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (recognizing that states ‘‘have flexibility in formulating appropriate procedures to comply with Batson’’); State v. Saintcalle, supra, 178 Wn. 2d 51 (‘‘[t]he Batson framework anticipates that state procedures will vary, explicitly granting states flexibility to fulfill the promise of equal protection’’); accord State v. Gould, supra, 322 Conn. 535–37 (declining to require provision of translator to ‘‘prevent the underrepresentation of minorities on juries due to the English proficiency requirement’’ because that argument ‘‘is one that is more appropriately addressed to the legislature rather than this court,’’ but noting that ‘‘[o]ur Judicial Branch has been proactive in addressing the issue of limited English proficiency by establishing the Committee on Limited English Proficiency and charging it with ‘eliminating barriers to facilities, processes and information that are faced by individuals with limited English proficiency’ ’’).
To this end, we find it most prudent to follow the Washington Supreme Court’s approach to this problem in State v. Saintcalle, supra, 178 Wn. 2d 34, which was to uphold under existing law the trial court’s finding that the prosecutor had not acted with purposeful discrimination in exercising a peremptory challenge, but also to take the ‘‘opportunity to examine whether our Batson procedures are robust enough to effectively combat race discrimination in the selection of juries’’; id., 35; by convening a work group of relevant stakeholders to study the problem and resolve it via the state’s rule-making process, which is superintended by that court.21 Id., 55–56; see State v. Jefferson, 192 Wn. 2d 225, 243–47, 429 P.3d 467 (2018) (describing work
The rule-making process22 that followed Saintcalle recently culminated in the Washington Supreme Court’s adoption of a comprehensive court rule governing jury selection,
Accordingly, we refer the systemic considerations identified in part II A of this opinion to a Jury Selection Task Force that will be appointed by the Chief Justice forthwith. We anticipate that the Jury Selection Task Force will consist of a diverse array of stakeholders from the criminal justice and civil litigation communities and will be better suited to engage in a robust debate to consider the ‘‘legislative facts’’25 and propose necessary solutions to the jury selection process in Connecticut, ranging from ensuring a fair cross section of the community on the venire at the outset to addressing aspects of the voir dire process that diminish the diversity of juries in Connecticut’s state courts.26 See State v. Saintcalle, supra, 178 Wn. 2d 52–53 (‘‘we seek to enlist the best ideas from trial judges, trial lawyers, academics, and others to find the best alternative to the Batson analysis’’); see also Seattle v. Erickson, 188 Wn. 2d 721, 739, 398 P.3d 1124 (2017) (Stephens, J., concurring) (‘‘The court has convened a work group to carefully examine the proposed court rule with the goal of developing a meaningful, workable approach to eliminating bias in jury selection. That process will be informed by the diverse experiences of its participants and will be able to consider far broader perspec-
Although we observed in State v. Holloway, supra, 209 Conn. 645, that ‘‘the issue of purposeful racial discrimination in the state’s use of peremptory jury challenges is a matter of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole,’’ we now have the advantage of more than three decades of research and experience since Batson to tell us that implicit bias may be equally as pernicious and destructive to the perception of the justice system. Accordingly, we anticipate that the Jury Selection Task Force will propose meaningful changes to be implemented via court rule or legislation, including, but not limited to (1) proposing any necessary changes to
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, McDONALD, KAHN and ECKER, Js., concurred.
Notes
By agreement of the parties, the charge of criminal possession of a firearm was severed from the remaining counts and tried to the court. The parties stipulated that the defendant had a prior felony conviction, and the trial court subsequently found the defendant guilty of that offense.
‘‘First, the [prosecutor’s] reasons for excluding W.T. were his stated distrust of [the] police and the criminal justice system, which clearly related to the trial of this case because it is a criminal proceeding in which police [officers] would provide significant evidence. Second, the [prosecutor] did not exercise [his] peremptory challenge without questioning W.T. but, rather, engaged in a detailed discussion with W.T. about the views he had expressed in response to defense counsel’s questions. Third, the defendant concedes, and our review of the record confirms, that the [prosecutor] asked a relatively uniform set of questions of all jurors. Accordingly, W.T. and the other African American venirepersons were not asked questions that were not asked of other jurors or that sought to elicit a particular response. Fourth, we are unaware of any venireperson of a race different from W.T.’s, who expressed the same or similar views regarding [the] police and the criminal justice system as those of W.T. but nevertheless was permitted to serve on the defendant’s jury. Fifth, the [prosecutor] did not advance any explanation that was based on an inapplicable group trait. Finally, and perhaps most significantly, the [prosecutor] did not use a disproportionate number of peremptory challenges to exclude African-Americans from the jury. In fact, as the defendant acknowledges, three African-Americans were selected to serve, two as regular jurors and one as an alternate. Although the racial composition of an empaneled jury certainly is not dispositive of the issue of impermissible motive for use of a peremptory strike as to a particular juror, it is among the various factors that a reviewing court can consider in evaluating whether the explanation for exercising a peremptory challenge is pretextual and, thus, constitutionally infirm.’’ State v. Holmes, supra, 176 Conn. App. 178–79.
Judge Lavine conducted a thorough review of case law and commentary cataloging Batson’s shortcomings, including that it requires the court to find that a prosecutor committed serious ethical violations; id., 196–97 and n.4; and that, ‘‘as it has evolved, [Batson has come to permit] the elimination of certain categories of prospective jurors whose views are reasonable and
‘‘[Additionally], permitting a peremptory challenge to be used under these circumstances is an affront to the dignity of the individual prospective juror who is excluded for honestly voicing reasonable and widely held views. It minimizes or negates his or her life experience in an insulting and degrading way. It must be remembered that one of the rationales for Batson is that the inappropriate exclusion of prospective jurors deprives the prospective juror of his or her constitutional right to serve on a jury—a basic right of citizenship. . . . To prohibit a significant percentage of people belonging to a suspect class from serving on a jury because they express a reasonable, [fact based], and widely held view cannot be countenanced.’’ (Citation omitted; emphasis in original.) Id., 198.
Acknowledging ‘‘that peremptory challenges play an important function in our system because they permit lawyers to use their intuition in the very human jury selection process’’; id., 199–200; Judge Lavine urged further study of this problem and also proposed an alteration to the Batson framework ‘‘in Connecticut to ameliorate the negative effects of the present regime.’’ Id., 201. Specifically, Judge Lavine proposed reallocating some of the discretion in the jury selection process from the lawyers to the trial judge and granting ‘‘judges . . . the discretion to disallow the use of peremptory challenges in cases in which (1) the prospective juror is part of a suspect class; (2) the prospective juror gives an unequivocal assurance, under oath, that he or she can be fair to both sides; (3) the prospective juror expresses reasonable and [fact based] views, which, in the opinion of the judge, following argument by the lawyers, are widely shared in the prospective juror’s particular community; and (4) the judge concludes that the prospective juror can, in fact, be fair.’’ Id.
The defendant argues, however, that, ‘‘based on what is known about the human inability to recognize biases and the tendency to readily provide a race neutral reason for [one’s] behavior, it is easy to assume that the [prosecutor] in this case acted in accordance with his implicit racial biases in exercising a peremptory challenge against W.T., and that the trial court did not exercise sufficient prudence in making a determination as to the propriety of the challenge. Had the court . . . been more aware of the likelihood of implicit racial biases to be hidden by race neutral reasons offered by the party exercising a challenge against a potential juror, [the court] would have found pretext as it related to the [prosecutor’s] proffered reasons for challenging potential juror W.T., particularly in a situation where the [court itself] found W.T. to be impartial.’’ (Emphasis added.) We disagree with this characterization of the record, insofar as the defendant has not identified, and our independent review has not revealed, a specific finding that W.T. was in fact impartial. In any event, this argument—founded on implicit bias—falls short of the purposeful discrimination contemplated by Batson. See, e.g., State v. Gould, supra, 322 Conn. 533–34.
Finally, to the extent that the defendant does argue pretext, he relies on the decision of the United States Court of Appeals for the Second Circuit in Mullins v. Bennett, 228 Fed. Appx. 55, 56 (2d Cir.), cert. denied sub nom. Mullins v. Bradt, 552 U.S. 911, 128 S. Ct. 259, 169 L. Ed. 2d 190 (2007), to contend that the prosecutor’s challenge to W.T. based on his employment as a social worker was a pretext for racial discrimination because ‘‘the central issue being contested in this case does not at all relate to social work or troubled families . . . .’’ We disagree, insofar as the prosecutor relied on W.T.’s volunteer work with incarcerated persons, not his social work employment as a general matter.
‘‘(b) Scope. This rule applies in all jury trials.
‘‘(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.
‘‘(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons that the peremptory challenge has been exercised.
‘‘(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.
‘‘(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.
‘‘(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following:
‘‘(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;
‘‘(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;
‘‘(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;
‘‘(iv) whether a reason might be disproportionately associated with a race or ethnicity; and
‘‘(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.
‘‘(h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge:
‘‘(i) having prior contact with law enforcement officers;
‘‘(iv) living in a high-crime neighborhood;
‘‘(v) having a child outside of marriage;
‘‘(vi) receiving state benefits; and
‘‘(vii) not being a native English speaker.
‘‘(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge.’’