Chew v. State

MOYLAN, Judge. The Background On July 28, 1868, the Fourteenth Amendment to the Constitution of the United States was ratified. The enduring part of that amendment has been its Section 1, which includes the three provisions that have come to be called 1) the privileges and immunities clause, 2) the due process clause, and 3) the equal protection clause. It is the equal ⁶⁸⁵ protection clause that concerns us here.

It provides: “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Within 12 years of ratification, the Supreme Court decided Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880). That decision held that the State of West Virginia had denied a black defendant the equal protection of the laws when it put him on trial before a jury from which members of his race had been purposefully excluded. The mechanism of purposeful exclusion had been a state law prohibiting blacks from serving on juries generally. Such systematic and legislatively mandated discrimination presented an easy target for constitutional attack.

A knottier problem was presented when the mechanism for allegedly denying equal protection was not a blanket statute or rule of procedure but the discretionary use of the peremptory challenge. A further distinction contrasted a pattern of using peremptory challenges over a series of cases with the case-specific use of peremptory challenges in a single instance. The peremptory challenge, a venerable fixture of the common law, was the device by which any party to a lawsuit, civil or criminal, was permitted to strike a predetermined number of prospective jurors from the jury panel without any justification or explanation needing to be shown. Within the numerical limits of one’s available peremptory challenges, the striking party was free to be as arbitrary, capricious, or irrational as he might choose in the exercise of those strikes.

As the adjective “peremptory” implied, there could be no outside review of an option committed to the total discretion of the user. The rationale for the peremptory challenge is that participants in the jury selection process will frequently have hunches — feelings of hostility toward certain prospective jurors or feelings of empathy with other prospective jurors. These hunches are frequently based on “vibrations” or non-verbal communications that seldom can be articulated rationally. The canons of trial advocacy insist that skilled adversaries be permitted, within reasonable numerical limits, to act upon their ⁶⁸⁶ hunches and feelings.

An article of faith in that jury selection is more an art form than a science. Inevitably, the use of the peremptory strike, especially but not necessarily by the prosecutor in a criminal case, invited challenge under the equal protection clause. Just such a challenge was made in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). The Supreme Court generally extolled the historic purpose and continuing value of the peremptory challenge, 380 U.S. at 218-222 , 85 S.Ct. at 834-837 .

It observed, however, that the proper function of the challenge is to enhance the chance of victory in a single case and not to perpetuate a pattern of demographic exclusion in the community as a whole. It held that where there is shown to have been a systematic exclusion of blacks from petit juries generally, there has been demonstrated that “invidious discrimination” which is forbidden by the equal protection clause. Where prospective black jurors, for instance, were challenged even in those particular cases where their presence would probably enhance rather than diminish the State’s likelihood of success, “the purposes of the peremptory challenge [were] being perverted,” 380 U.S. at 224 , 85 S.Ct. at 838 , to preserve the “lily white” character of a community’s court system rather than to win a victory in a specific case. The Supreme Court held that systematic use of the peremptory challenge to preserve, de facto, a segregated judicial system violated the equal protection clause.

Within the limited context of a single case, however, the Court held that inquiry was not permitted into the motives of the prosecutor for exercising peremptory strikes: “In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case ⁶⁸⁷ before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.” 380 U.S. at 222 , 85 S.Ct. at 837 .

Maryland followed Swain v. Alabama. In Brice v. State, 264 Md. 352, 366 , 286 A.2d 132 (1972), the Court of Appeals, after citing Swain , held: “In short, the right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason. Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.” See also Lawrence v. State, 51 Md.App. 575 , 444 A.2d 478 (1982) , aff'd, Lawrence v. State, 295 Md. 557 , 457 A.2d 1127 (1983) ; Evans v. State, 304 Md. 487, 522-528 , 499 A.2d 1261 (1985). It was to be expected, therefore, that the trial judge in this case also followed Swain .

The Present Case The appellant, Michael Anthony Chew, was convicted by a Charles County jury, presided over by Judge George W. Bowling, of 1) first-degree felony-murder, 2) an attempt to commit rape in the first degree, and 3) a third-degree sexual offense. For the felony-murder, the appellant received a sentence of life imprisonment. The conviction for the attempted rape in the first degree was merged into the felony-murder conviction. For the third-degree sexual offense, the appellant received a sentence of ten years, to be served consecutively with the life sentence.

Upon this appeal, the appellant raises the following six contentions: 1) That the use of peremptory challenges by the State to strike every member of the appellant’s race from the ⁶⁸⁸ jury panel was a violation of his constitutional right to the equal protection of the law; 2) That he was denied his Fifth Amendment privilege against compelled self-incrimination when the prosecutor, in opening statement, made an adverse comment upon his probable invocation of his right to silence; 3) That the evidence was not legally sufficient to support the convictions for attempted rape in the first degree and the third-degree sexual offense; 4) That Judge Bowling erroneously denied his motion for the production of specimens of pubic hair by the State’s chief prosecution witnesses; 5) That Judge Bowling erroneously restricted his cross-examination of a State’s witness; and 6) That Judge Bowling erroneously excluded evidence necessary to the defense theory of the case. Batson v. Kentucky On April 30, 1986, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Batson overturned that portion of Swain v. Alabama that had foreclosed inquiry into the purpose for using peremptory challenges in a manner apparently racially motivated. It extended the equal protection inquiry to the context of an individual case, relieving the putative victim of the equal protection violation of the burden of showing a systematic pattern of abuse over a series of cases.

It concluded, “To the extent that anything in Swain v. Alabama ... is contrary to the principles we articulate today, this decision is overruled.” 476 U.S. at-n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25. The Retroactivity Issue Batson v. Kentucky was decided on April 30, 1986. The trial of the present case had concluded as of November 26, 1985. In the immediate wake of Batson, Allen v. Hardy, 478 U.S.-, 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986), held ⁶⁸⁹ that that decision, overruling Swain v. Alabama, would not be applied retroactively to cases on collateral federal habeas corpus review.

Griffith v. Kentucky, 479 U.S.-, 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), has since held, however, that the new rule of Batson will be applied to all cases still pending on direct review, and therefore not yet final, as of the date of the Batson decision. The present case falls into that “non-final” category and will, therefore, be analyzed under the standards of Batson . The Constitutional Predicate In the interim between Swain and Batson , several jurisdictions concluded that the examination of the use of peremptory challenges in a racially discriminatory manner was reviewable even within the context of a single case. They distinguished Swain by pointing out that that decision was based exclusively upon the equal protection clause of the Fourteenth Amendment.

They based their holdings, by way of contrast, on the Sixth Amendment right to an impartial jury. People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 (1979); Riley v. State, 496 A.2d 997 (Del.1985); State v. Neil, 457 So.2d 481 (Fla.1984); State v. Crespin, 94 N.M. 486 , 612 P.2d 716 (App.1980); Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated sub. nom. Michigan v. Booker, — U.S.-, 106 S.Ct. 3289 , 92 L.Ed.2d 705 , aff'd, 801 F.2d 871 (1986); McCray v. Adams, 750 F.2d 1113 (2d Cir.1984), vacated, — U.S. -, 106 S.Ct. 3289 , 92 L.Ed.2d 705 (1986). The petitioner Batson actually based his claim on the Sixth Amendment right to an impartial jury.

The Supreme Court, however, rested its decision in Batson exclusively on the equal protection clause. 1 The Court stated unequivocally, ⁶⁹⁰ at 476 U.S. at-n. 4, 106 S.Ct. at 1716 n. 4, 90 L.Ed.2d 79 n. 4: “We agree with the State that resolution of petitioner’s claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner’s Sixth Amendment arguments.” Although the ultimate reach of Batson still lies shrouded in an unseen future, its choice of a constitutional predicate is loaded with latent growth potential. The Sixth Amendment (the road not chosen) rests on a very narrow base; the Fourteenth Amendment base, by contrast, is much broader. The Sixth Amendment provision is, “In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury----” By its very terms, the guarantee is limited to criminal cases. There is no such curtailment on the reach of the Fourteenth Amendment’s equal protection clause.

The Sixth Amendment right, moreover, is only available to “the accused”; the equal protection right may well be available to both sides of the trial table and civilly as well as criminally. 2 Although the critical opening words of the Fourteenth Amendment are “No State shall ...” the very establishment of a jury selection procedure may qualify as State action, regardless of which party ultimately exercises the peremptory challenges in an allegedly discriminatory fashion. Indeed, the Supreme Court has kept alive the possibility that defense counsel may fall under the scrutiny of the equal protection clause. “We express no views on whether the Constitution imposes any limit on the exercise of per ⁶⁹¹ emptory challenges by defense counsel.” 476 U.S. at -- n. 12, 106 S.Ct. at 1718-19 n. 12, 90 L.Ed.2d at 82 n. 12. 3 In keeping with that broader constitutional base, Justice Powell, for a seven-justice majority, identified three distinct groups of beneficiaries of equal protection, all of whom would be aggrieved by the use of peremptory strikes in a racially discriminatory fashion. First, of course, is the accused himself, the only party who would have been a beneficiary under the Sixth Amendment: “The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge____ Those on the venire must be ‘indifferently chosen,’ to secure the defendant’s right under the Fourteenth Amendment to ‘protection of life and liberty against race or color prejudice.’ ” (Citation omitted). 476 U.S. at-, 106 S.Ct. at 1717, 90 L.Ed.2d at 81 . If the accused were the only party benefitting from the constitutional protection, the Batson strictures would apply only to the suspect use of peremptory challenges by the prosecutor.

Justice Powell goes on, however, to identify a second group of beneficiaries and, therefore, a distinct rationale for the Batson holding: “Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned ⁶⁹² to try. ... As long ago as Strauder [v. State of West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 ], therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror.” 476 U.S. at-, 106 S.Ct. at 1717-18, 90 L.Ed.2d at 81 . With the recognition of “the excluded juror” as an aggrieved party in his own right, the strictures would seem to apply with equal logic to prosecutor, to criminal defense attorney, to plaintiff’s attorney, and to civil defense attorney alike. There would be, moreover, under that rationale, no necessary correlation between the race of the excluded juror and the race of the criminal defendant.

See, e.g., Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547 , 427 N.E.2d 754 (1981) (peremptory challenge of a black juror by a white defendant disallowed). Allen v. Hardy, supra, reaffirmed that the purpose of Batson v. Kentucky was broader than the protection of the rights of the defendant alone. A racially “excluded juror” is protected by Batson , quite aside from any impact on the defendant and, arguably, even when the source of the exclusion has been the defendant. That opinion stated: “[T]he decision [of Batson ] serves other values as well.

Our holding ensures that States do not discriminate against citizens who are summoned to sit in judgment against a member of their own race and strengthens public confidence in the administration of justice. The rule in Batson , therefore, was designed ‘to serve multiple ends’....” 106 S.Ct. at 2880, 92 L.Ed.2d at 205. Justice Powell adds yet a third class of beneficiaries and yet a third rationale for the Batson holding: “The harm from discretionary jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries ⁶⁹³ undermine public confidence in the fairness of our system of justice.” 476 U.S. at-, 106 S.Ct. at 1718, 90 L.Ed.2d at 81 .

Using that third express rationale, posit the case of the State’s prosecuting a white policeman, or possibly even a member of the Ku Klux Klan, for the brutal beating of a black victim. It might well be in such a demographic posture that it would be defense counsel for the policeman or the Klansman who might be deliberately using peremptory challenges to strike all blacks from the jury. It is difficult to see how that use of the peremptory challenge would “undermine public confidence in the fairness of our system of justice” any less than would such a use on some other occasion by the public prosecutor. “The potential for racial prejudice, further, inheres in the defendant’s challenge as well.” 476 U.S. at-, 106 S.Ct. at 1729, 90 L.Ed.2d at 95 (Marshall, J., concurring). In the case of the white policeman or Klansman, what would be the equal protection right of the defendant if the prosecutor were using all available peremptory challenges deliberately to strike as many whites as possible from the jury upon no other basis than that they were white?

In terms of the broader impact of the Batson rule, Justice Marshall, in his dissenting opinion in Allen v. Hardy, supra, (joined by Justice Stevens), has identified the larger interests being served: “ ‘The effect of excluding minorities goes beyond the individual defendant, for such exclusion produces “injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” ’ ” 106 S.Ct. at 2882, 92 L.Ed.2d at 207 (Marshall, J., dissenting). It is Justice Marshall’s conclusion that “criminal defendants will not be the only beneficiaries of the rule.” Id. In any event, the constitutional base of the equal protection clause is a broad one and the possible repercussions from Batson v. Kentucky are open-ended. In Batson it ⁶⁹⁴ self, however, it was a criminal defendant who invoked the protection.

That is also the posture of the case at bar. The Allocation of the Burden of Production Initially, the burden is on the party claiming an equal protection violation to establish a prima facie case in that regard. The Supreme Court stated, at 476 U.S. at -, 106 S.Ct. at 1721, 90 L.Ed.2d at 85 : “As in any equal protection case, the ‘burden is, of course,’ on the defendant who alleges discriminatory selection of the venire ‘to prove the existence of purposeful discrimination.’ ” Absent the establishment of such a prima facie case, there is no obligation on the opposing party to offer any explanation for the use of a peremptory challenge and no entitlement on the part of the moving party to a hearing on the issue. Batson established clear guidelines by which a criminal defendant can meet this burden of establishing a prima facie case of discrimination.

It is no longer necessary to show a systematic pattern of exclusion, based on race, over a series of cases. 4 As the Supreme Court stated: “[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” 476 U.S. at-, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87 . In the typical criminal case, the defendant must show that he is a member of a “cognizable racial group” — it is hard to imagine anybody who isn’t — and essentially that the prosecutor’s use of peremptory challenges operated “to ⁶⁹⁵ remove from the venire members of the defendant’s race.” As the Supreme Court discussed this burden of production: “To establish such a case, the defendant first must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.” (Citations omitted). 476 U.S. at-, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 . A showing by defense counsel that the prosecutor has used peremptory challenges to strike potential jurors of the defendant’s race does not automatically cast a burden on the prosecutor to offer a neutral explanation. Procedurally, the judge must make a ruling in that regard. The Batson opinion is uncharacteristically murky about precisely what should cause the judge to require the prosecutor to go forward.

The quite possibly careless use of the phrase “prima facie case” suggests that the defendant need only meet a burden of production, the establishing of a case that would be legally sufficient to persuade the hearing judge whether it actually did persuade him or not. Other language, however, sends the strong message that the actual striking of the prospective jurors of the defendant’s race only gives rise to an inference of discrimination and that the judge will consider the fact of the strikes along with other surrounding facts in deciding whether to draw the infer ⁶⁹⁶ ence. 5 There is thus not merely a burden of production but a closely related burden of at least threshold persuasion before the prosecution is required to offer a racially neutral explanation for the peremptory challenges. 6 The majority opinion discussed this triggering or burden-shifting step: “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire ⁶⁹⁷ might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.

These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” 476 U.S. at -, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 . Justice White’s concurring opinion clearly articulates the discretionary range in which the trial judge operates: “The Court now rules that such use of peremptory challenges in a given case may, but does not necessarily, raise an inference, which the prosecutor carries the burden of refuting, that his strikes were based on the belief that no black citizen could be a satisfactory juror or fairly try a black defendant.” 476 U.S. at-, 106 S.Ct. at 1725, 90 L.Ed.2d at 90 (White, J., concurring). Justice White goes on: “If the defendant objects, the judge, in whom the Court puts considerable trust, may determine that the prosecution must respond____ The Court emphasizes that using peremptory challenges to strike blacks does not end the inquiry; it is not unconstitutional, without more, to strike one or more blacks from the jury.

The judge may not require the prosecutor to respond at all.” 476 U.S. at-, 106 S.Ct. at 1725, 90 L.Ed.2d at 91 (White, J., concurring). See also Commonwealth v. Robinson, 382 Mass. 189, 195 , 415 N.E.2d 805, 809-810 (1981); People v. Rousseau, 129 Cal.App.3d 526, 536-537 , 179 Cal.Rptr. 892, 897-898 (1982). In the case at bar, the appellant clearly showed enough to raise a permitted inference of discrimination. The appellant, a black, was a member of “a cognizable ⁶⁹⁸ racial group.” Three prospective jurors who were black were called up individually as both parties then had the opportunity to exercise peremptory strikes.

All three blacks were struck from the jury by the prosecutor. The resulting jury was exclusively white. The appellant showed thereby that “the prosecutor [had] exercised peremptory challenges to remove from the venire members of the defendant’s race.” The appellant, moreover, timely challenged this use of peremptory challenges on the part of the prosecutor. 7 Under Batson , a ruling on the threshold merits was called for as to whether the prosecutor was required to offer a racially neutral explanation for his peremptory challenges. 8 No such ruling was made. The Shifting of the Burden Once the judge rules that the defendant has met that initial burden, the obligation then passes to the prosecutor to satisfy the court that there is “a neutral explanation” for the use of the peremptory challenges: “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.

Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” ⁶⁹⁹ 476 U.S. at-, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 . As the Supreme Court carefully pointed out, however, the prosecutor’s explanation “need not rise to the level justifying exercise of a challenge for cause.” It need not even be a good reason. It need only be a racially neutral reason. Except when it violates the equal protection clause, the peremptory challenge retains its peremptory attribute of unaccountability.

On the other hand, “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” Id. “Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming his good faith in individual selections.’ ” Id. The prosecutor, rather, “must articulate a neutral explanation related to the particular case to be tried.” Id. To rebut the case of presumptive prejudice, one additional step is needed. It is that step which the State overlooked in its argument before us.

Not only must the prosecutor “articulate a neutral explanation,” but the trial judge must be satisfied by that neutral explanation and make a ruling to that effect. 9 Three days after the initial challenging of the three black veniremen in this case, the assistant state’s attorney placed on the record his reasons for using a peremptory challenge against each of the three. He stated that he challenged one 19-year-old male laborer because of 1) his youth, 2) an occupational background that is similar to that of the defendant, and 3) because the prosecutor thought ⁷⁰⁰ that prospective juror “would be sympathetic with the defendant.” See People v. Hall, 35 Cal.3d 161 , 197 Cal.Rptr. 71 , 672 P.2d 854 (1983). A second prospective juror was struck because “she appeared to be very nervous and fidgety. That was not the type of individual we wanted for a juror.

Also, her estranged husband had a fairly serious criminal record.” The assistant state’s attorney also noted with respect to that juror that there was some indication that she might be a relative of a person whose home had recently been the subject of a drug bust. A third prospective juror was struck because “she just showed an utter contempt for the whole proceeding. She never cracked a smile, no facial expression during the whole time____ I decided we did not want her serving on the jury.” See People v. Hall, supra, 35 Cal.3d at 165 , 197 Cal.Rptr. at 73 , 672 P.2d at 856 ; See also King v. County of Nassau, 581 F.Supp. 493, 498 (E.D.N.Y.1984). Those explanations might well have satisfied the trial judge that the three prospective jurors had, indeed, been struck for neutral reasons and not primarily because of their race. 10 Understandably relying on the then-prevailing law of Swain v. Alabama, however, the trial judge made no rulings in that regard, just as he had made no ruling that explanations were even necessary.

He rather applied the Swain v. Alabama rule that, as a matter of law, within the context of an individual case no explanation or justification was called for. While defense counsel was objecting to the State’s “tardy” explanations (that, in itself, would have presented no problem), the trial judge interrupted and stated, “They don’t have to ... it is a peremptory challenge as I ⁷⁰¹ see it.” In reiterating the then-prevailing standard, the trial judge stated: “There is no basis to show that it is a policy of the office [of the State’s Attorney] to strike because of race and in the absence of such a showing I don’t think that the court can conclude just because it happened in this case that it was done for racial reasons.” It is not, of course, for us on appellate review to assess the adequacy of the State’s explanation, any more than it is for us on appellate review to draw the inference triggering the need for the State’s explanation in the first place. It is rather for the trial judge, observing the entire proceeding firsthand and able to evaluate credibility, to make findings of fact with respect both to the prima facie case of discrimination to be proved by the defendant and the rebuttal of that prima facie case to be proved by the prosecution. The trial judge, in a quasi-factfinding capacity on this issue, must resolve both questions.

As Batson explained: “The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” 476 U.S. at-, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 88-89 . Appellate Deference to Finding by Trial Judge Once the trial judge has made those determinations, whichever way they go, any subsequent reviewing court must pay great deference to those determinations. With direct reference to such a ruling made by the trial judge, the Supreme Court explained: “ ‘[A] finding of intentional discrimination is a finding of fact’ entitled to appropriate deference by a reviewing court---- Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” (Citation omitted). ⁷⁰² 476 U.S. at-, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21.

And see United States v. Woods, 812 F.2d 1483 (4th Cir.1987). Our problem in the present case, of course, is that there were no rulings on the critical issue to which we can extend appropriate deference. Our remand is on exclusively procedural grounds, not on the substantive merits of the equal protection issue. The Appropriate Appellate Response Our decision with respect to the procedural requirements for handling the equal protection question does not, as the appellant urges, necessarily mandate a reversal of his convictions.

Again, Batson is dispositve. In that case, as here, the trial judge had applied the law according to Swain v. Alabama and had made no findings with respect to either 1) the prima facie case of racial discrimination, or 2) the adequacy of the State’s rebuttal of that prima facie case. In that case, as here, the appropriate redress was a remand for further proceedings. If, upon remand, the trial judge should rule that the appellant has not established a prima facie case or, in the alternative, that the State has provided satisfactorily neutral explanations to rebut that prima facie case, the convictions will stand.

Only if the trial judge finds a prima facie case of discrimination not adequately rebutted by the State will the judgments of convictions have to be reversed and the case remanded for retrial on the merits. As the Supreme Court explained: “In this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed.” ⁷⁰³ 476 U.S. at-, 106 S.Ct. at 1725, 90 L.Ed.2d at 90 .

See also Griffith v. Kentucky, 479 U.S.-, 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987). 11 Unresolved Issue: The Appropriate Trial Court Response Figuring out the possible remedies available to us at the appellate level does not answer the question of what remedies are available to the trial judge. If the trial judge rules 1) that the State must offer explanations for its use of peremptories and 2) that the explanations are inadequate, what follows? Batson is singularly unilluminating. “[W]e make no attempt to instruct these courts how best to implement our holding today.” 476 U.S. at-n. 24, 106 S.Ct. at 1724 n. 24, 90 L.Ed.2d at 90 n. 24. As Chief Justice Burger characterized that disinclination to provide instruction, “The Court does not tarry long over any of these difficult, sensitive problems, preferring instead to gloss over them as swiftly as it slides over centuries of history.” 476 U.S. at -, 106 S.Ct. at 1741, 90 L.Ed.2d at 110 (Burger, C.J., dissenting).

Two remedial possibilities are readily apparent: “[W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.” (Citation omitted). 476 U.S. at-n. 24, 106 S.Ct. at 1724 n. 24, 90 L.Ed.2d at 90 n. 24. With respect to that reluctance to spell out the appropriate remedy at the trial level, the Chief Justice sympathized with the plight of the trial judge: ⁷⁰⁴ “That leaves roughly 7,000 general jurisdiction state trial judges and approximately 500 federal trial judges at large to find their way through the morass the Court creates today. The Court essentially wishes these judges well as they begin the difficult enterprise of sorting out the implications of the Court’s newly created ‘right.’ I join my colleagues in wishing the nation’s judges well as they struggle to grasp how to implement today’s holding.” 476 U.S. at -, 106 S.Ct. at 1741, 90 L.Ed.2d at 110 (Burger, C.J., dissenting). Fashioning an appropriate remedy would appear to fall within the broad discretionary range necessary for the trial judge’s effective management of a trial.

If a half a dozen or more of prospective jurors have been unconstitutionally challenged, it may be necessary to dismiss the entire venire and to begin again with a new panel. If a single prospective juror has been unconstitutionally challenged, it may be adequate to reinstate that juror on the venire. There is the lurking danger, of course, that an unsuccessfully challenged juror may now bear an animus against the challenger arising from the challenge itself. Caution also must be exercised so that the choice of remedies does not permit the challenger to accomplish indirectly what he may not accomplish directly.

Unresolved Issue: Mixed Motives The heart of the Batson v. Kentucky holding is at 476 U.S. at-, 106 S.Ct. at 1719, 90 L.Ed.2d 83 : “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.” (Emphasis supplied). The adverb “solely” is a teaser. What should be the court’s response where the prosecutor feels two or more antipathies toward a challenged venireman, one of which is unabashedly racial but the others of which are not? If any one of the antipathies, standing alone, would have been sufficient to trigger the challenge, is the situation different from that in which only the combination of antipathies was ⁷⁰⁵ sufficient to trigger the challenge?

There appears to be wisdom, again, in leaving such matters in the broad discretion of the trial judge. Unresolved Issue: Affirmative Uses of Peremptories What are the equal protection implications where the motive of the peremptory challenger is that he “loved not Prospective Juror # 12 less, but only Prospective Juror # 13 more?” It is again an article of faith among trial advocates and part of the core curriculum of trial advocacy seminars and institutes that the ideal jury will be made up of twelve clones of one’s client. When, therefore, two skilled professionals, each armed with a cartridge belt full of peremptory challenges, sit down before a panel of forty or fifty prospective jurors knowing that only twelve will survive, their aim is to leave standing the most favorable jury possible. The purpose is not only to eliminate the negative but to accentuate the positive.

Admittedly, much guesswork is involved, but it is intelligent guesswork, educated hunches, background checks and statistical probabilities, hopefully valid generalizations and the law of averages. The goal is not only to minimize the cultural differences and the lack of points of identity that might likely distance a juror from one’s client but also to maximize the likely sympathies, empathies and common experiences that will help a juror identify with one’s client. Generally speaking, the issue is not that of good jurors versus bad jurors or adequate jurors versus inadequate jurors. It is rather the wily maneuvering of two skilled chess players to obtain a slight edge, a barely discernible “tilt,” as they mold a jury.

As long as peremptory challenges were truly peremptory, these trial tactics, wise or foolish, were beyond constitutional scrutiny. Will Batson have an impact upon them? Will it be an adequately neutral explanation that prospective juror # 12, of the same race as the defendant and with no arguably negative attributes, was challenged simply to open up a place for prospective juror # 13, coincidentally of a different race but more significantly loaded with similarities ⁷⁰⁶ to the crime victim, to the critical State’s witness or to the investigating officer? May even jurors thought to be favorable be challenged to make room for other jurors thought to be more favorable?

Even with respect to the affirmative choice of the more favorable over the merely adequate, it would appear that if the factor influencing the chess move be racial, it is suspect; if the factors be non-racial, they are, wise or foolish, beyond scrutiny. At what point may the quantity of the peremptory challenges influence the quality of the peremptory exercise? If it is legitimate to strike prospective juror # 12 to make room for prospective juror # 13, even where there is a coincidental racial impact, is it equally legitimate to strike prospective jurors # 12, 13, 14, 15, 16, and 17 to make room for “dream juror” # 18, even when there are coincidentally six racial impacts? Assuming a credible non-racial explanation, will a six-fold impact be measured any differently than a one-fold impact?

Again, there seems to be much wisdom in leaving these matters to the discretion of the trial judge. Some interesting questions may arise even when the motive behind a given peremptory challenge is indisputably racial. Given the case of a black defendant and a single peremptory challenge, would it be any less unconstitutional for the prosecutor to strike one of the twelve black jurors to make room for a single white than to strike the only black juror to make room for an all-white jury? Would the result be any different if the defense attorney struck one of the twelve whites, solely on the basis of race, to make room for a single black?

Batson has probably raised more questions than it has answered. Unresolved Issue: Verifiable Group Characteristics The heart of the problem dealt with, or created by, Batson, is that there is a basic incompatibility between the rhetoric of the equal protection clause and the traditional tenets of trial advocacy. The trial advocate recognizes the danger of overgeneralization but nonetheless believes that ⁷⁰⁷ there is statistical validity to properly limited