Trotman v. State

Danny Trotman v. State of Maryland, No. 8, September Term, 2019 PROSPECTIVE JURORS WITH DISABILITIES – AMERICANS WITH DISABILITIES ACT – MD. CODE ANN., CTS. & JUD. PROC. (1974, 2013 REPL.

VOL., 2016 SUPP.) §§ 8-102(b) AND 8-103(b)(3) – Court of Appeals held that, under Americans with Disabilities Act, Maryland statutes that govern jury service, and relevant case law, trial court may not summarily excuse prospective jurors with disabilities. Instead, trial court may excuse prospective juror for cause on disability-related ground if no reasonable accommodation is possible, and, at that particular trial, particular disability would prevent prospective juror from providing satisfactory jury service. Court of Appeals held that, where staircase with twenty-five steps was only way to reach jury room that accompanied courtroom that was used for trial, and trial court concluded no other courtroom was available, trial court did not abuse its discretion in excusing for cause four prospective jurors who indicated that they would be unable to use stairs. Circuit Court for Baltimore City Case No. 115236022 Argued: September 9, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 8 September Term, 2019 ______________________________________ DANNY TROTMAN v. STATE OF MARYLAND ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Adkins, Sally D.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: October 18, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-10-18 11:37-04:00 Suzanne C. Johnson, Clerk It is well-established that having the opportunity to participate in jury service is both a right and a responsibility. As Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl.

Vol., 2016 Supp.) (“CJ”) § 8-102(a) states, “[e]ach adult citizen of this State has: (1) The opportunity for jury service; and (2) When summoned for jury service, the duty to serve.” (Paragraph breaks omitted). It is equally well-established that “[a] citizen may not be excluded from jury service due to color, disability, economic status, national origin, race, religion, or sex.” CJ § 8- 102(b) (emphasis added). Under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 to 12213, generally, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in . . . the . . . activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 . And, CJ § 8-103(b)(3) states in pertinent part: “[S]ubject to the federal Americans with Disabilities Act, an individual is not qualified for jury service if the individual . . . [h]as a disability that, as documented by a health care provider’s certification, prevents the individual from providing satisfactory jury service[.]” “The [Maryland] Judiciary is committed to complying with the Americans with Disabilities Act, including through providing prospective jurors with an equal opportunity to participate in jury service.” Maryland Judiciary, Jury Service: Notice: [Americans with Disabilities Act] Compliance, https:// www.mdcourts.gov/juryservice/noticeada [https://perma.cc/TJY2-LWEZ].

This case involves the unfortunate circumstance that in a courthouse in the Circuit Court for Baltimore City a staircase with twenty-five steps was the only way to reach the jury room that accompanied the courtroom that was used for the trial in this case. We must decide whether the trial court abused its discretion in excusing for cause four prospective jurors who said that they would have difficulty using1 or were unable to use stairs. The State, Respondent, charged Sergeant Danny Trotman, Petitioner, a correctional officer of the Department of Public Safety and Correctional Services, with second-degree assault, conspiracy to commit second-degree assault, and misconduct in office. At the start of trial, before the jury panel entered the courtroom, four prospective jurors disclosed to the Jury Commissioner’s Office that they would either have difficulty using or be unable to use stairs, and the Jury Commissioner’s Office gave that information to the circuit court.

The circuit court separately called each of the four prospective jurors to the bench. In each instance, first, the circuit court expressly confirmed that the prospective juror was unable to use stairs; then, the circuit court informed the prospective juror that a staircase with twenty-five steps was the only way to reach the jury room. Ultimately, the circuit court excused the four prospective jurors for cause and directed them to return to the jury assembly room to be available for participation as jurors in another trial. Trotman’s counsel objected to the circuit court excusing the four prospective jurors for cause and requested that the circuit court conduct the trial in another courtroom.

The circuit court responded that no other courtroom was available, and trial proceeded in the assigned 1 In response to questions from the circuit court during voir dire as to whether the jurors could use the stairs to the jury room, one prospective juror, Juror 376, indicated that she had “difficulty doing stairs”; a second prospective juror, Juror 408, responded that she had a “hard time going across the street”; and two other prospective jurors expressly said that they would not be able to use the stairs. No issue has been raised as to whether the circuit court was correct in determining that the four prospective jurors could not use the stairs to the jury room. -2- courtroom. The jury found Trotman guilty of two charges. Trotman appealed, and the Court of Special Appeals affirmed.

Trotman filed a petition for a writ of certiorari, which this Court granted. Before us, Trotman contends that the circuit court erred in excusing for cause the four prospective jurors who indicated that they were unable to use stairs. Trotman argues that the circuit court failed to properly exercise its discretion to excuse for cause the four prospective jurors at issue, as it failed to consider potential options for accommodating them. The State responds that, although prospective jurors with disabilities cannot be excluded from jury service across the board, on a case-by-case basis, a trial court may excuse a prospective juror with a disability if the disability would interfere with the performance of the prospective juror’s duties.

Guided by the Americans with Disabilities Act, Maryland statutes that govern jury service, and relevant case law, we hold that a trial court may not summarily excuse for cause prospective jurors with disabilities; instead, a trial court may excuse a prospective juror for cause on a disability-related ground if no reasonable accommodation is possible, and, at that particular trial, the particular disability would prevent the prospective juror from providing satisfactory jury service. Applying our holding to this case’s circumstances, we conclude that the circuit court did not abuse its discretion in excusing for cause the four prospective jurors who indicated they would be unable to use the stairs to the jury room. -3- BACKGROUND Jury Selection On the first day of trial, shortly after the jury panel entered the courtroom, during a bench conference, the circuit court stated: [Juror 3762] is unable to use stairs. So she can’t be on this jury because there are [twenty-five step]s to the jury room. So I’m going to strike her for cause. . . . [M]aybe I [had] better check with these [prospective jurors] to make sure [that] they’re telling the truth. . . . [Juror] 408 also says [that s]he can’t do stairs. . . .

I’m not going to strike. I’m going to talk to them. . . . [Juror] 624 also says [that] she can’t do stairs. After the circuit court called roll, the following exchanges occurred: THE COURT: May I see Juror [] 376 at the bench with [c]ounsel? *** THE COURT: [Juror 376], I understand from the Jury Commissioner’s Office that you have difficulty doing stairs, is that correct? [JUROR 376]: Yes. THE COURT: There are [twenty-five] steps to the jury room, so I’m going to excuse you from serving on this jury because you’re unable to do the stairs.

Okay? [JUROR 376]: Okay. THE COURT: So you should go back to the jury assembly room now. [JUROR 376]: Okay. Now, in the future, I don’t feel that I -- I have the ability to -- I know that you don’t want to discriminate against me -- THE COURT: Correct. [JUROR 376]: But I feel that[,] in serving on the jury[,] you need to use your 2 Although the transcript reads “(Indiscernible)” here, the context makes clear that the circuit court said “376,” referring to Juror 376. -4- visual cues as well as, you know, the evidence and everything -- THE COURT: Well, and you would let the [j]udge know that. Not every person who’s blind feels that way. [JUROR 376]: Okay.

THE COURT: But you would just[ --] the [j]udge will always ask you if there’s anything else, if there’s any other reason why you shouldn’t serve as [a] jur[or]. You can tell them that. Okay? [JUROR 376]: Okay. All right.

THE COURT: You can go back now to [the jury assembly room], where you were at. [JUROR 376]: Where I was at? THE COURT: Where you were at. [JUROR 376]: Thank you. THE COURT: May I see Juror [] 408[,] please? *** THE COURT: [Juror 408], you told the Jury [Commissioner’s] Office that you were unable to do [stair]s. There are [twenty-five] steps to the jury room in this courtroom.

Will you be able to do those? [JUROR 408]: I have hard time going across the street. THE COURT: No? Okay. Well, for that reason[ --] there are courtrooms that are on the same level, but this is not one of them.

So I’m going to excuse you and ask you to go back to the jury assembly room. [JUROR 408]: Okay. All right. Thank you. THE COURT: May I see Juror [] 624? *** THE COURT: I understand that you’re unable to do steps, is that correct? -5- [JUROR 624]: Yes.

THE COURT: There’s [twenty-five] steps to the jury room in this courtroom, so are you telling me that you don’t think you can do [twenty-five] steps? [JUROR 624]: No. Do you have[ --] is there an elevator? I can do that. THE COURT: We don’t have an elevator. You [would] have to walk up and down the steps.

Up and down the steps. [JUROR 624]: No. No. THE COURT: So I’m going to excuse you from serving on this jury. All right? [JUROR 624]: Okay. Thank you. THE COURT: So you’re excused now.

They do have courtrooms on the same level, so there are no steps involved. [JUROR 624]: Okay. THE COURT: So you may be selected for one of them, so you’re free to go back. [JUROR 624]: Okay. Okay. Thank you. *** THE COURT: May see Juror [] 404? *** THE COURT: [Juror 404], you told the [J]ury [C]ommissioner[’s Office] that you couldn’t serve on this jury because you couldn’t go up and down stairs, is that correct? [JUROR 404]: Umm -- THE COURT: I’ve got [twenty-five step]s.

Could you go up and down [twenty-five step]s? -6- [JUROR 404]: No. THE COURT: Okay. I’m going to excuse you then. [JUROR 404]: Okay. THE COURT: You can report back to the [j]ury [a]ssembly [r]oom now. [JUROR 404]: Thank you. After the circuit court finished questioning individual prospective jurors about their responses to the voir dire questions that the circuit court asked of the jury panel, the following exchange occurred: [TROTMAN’S COUNSEL]: I’d like to make motion on the stairs, particularly [Juror 624,3 who] said that [she] would love to serve if [she] could be accommodated with [] an elevator.

THE COURT: And how would you have suggested [that] I accommodate her? [TROTMAN’S COUNSEL]: That we go to another courtroom, on behalf of [] Trotman, who’s on trial here, for him to have fundamentally fair trial as a [d]efendant[,] versus the need to have steps in particular courtroom[. T]hat’s reason they’re going to get struck when they’re randomly picked [prospective] jurors. That’s my objection. THE COURT: Okay.

Unfortunately[,] in the Baltimore City Circuit Court[,] every single courtroom is being used. I, as a senior judge,[4] fill up the empty courtroom[,] Judge [Sylvester] Cox’s courtroom, which is what we’re in. He’s assigned to juvenile[. T]hat’s why we’re here.

It’s the only 3 Here, Trotman’s counsel inadvertently referred to Juror 408. 4 In this context, “senior judge” means an individual who (A) once served as a judge on the District Court, a circuit court, or an appellate court of this State, (B) retired from that office voluntarily or by operation of law by reason of age, and (C) has been approved for recall to sit as a judge[.] Md. R. 1-202(z)(2). -7- courtroom that’s available. So you’[v]e made your record. (Emphasis added). State’s Witnesses’ Trial Testimony, Verdicts, and Sentences Although the evidence adduced at trial is not dispositive of the issue that is before this Court, we provide a summary of the evidence for completeness.

At trial, as a witness for the State, David Gilmore testified that, on December 2, 2014, while he was working as a correctional officer at Baltimore Central Booking & Intake Center, he was told that five inmates needed to be moved. Gilmore went to the area where the five inmates were, and was told that one of them, Eric Wise, was refusing to move. Six or seven correctional officers were in the area of Wise’s cell. One of them, a Sergeant Thompson, approached the door to Wise’s cell, spoke to him, and then struck him.

According to Gilmore, Wise came “running, crawling out of [his] cell[.]” Two officers pushed Wise down and told him to get on his stomach. Wise broke away from the two officers and headed toward an exit. At that point, Trotman, who was standing near the exit, slapped Wise, who turned and went in a different direction. Sergeant Thomas struck Wise’s back, and Wise got on his stomach and was handcuffed.

As a witness for the State, Wise testified that, on December 2, 2014, while he was an inmate at Baltimore Central Booking & Intake Center, he was told that he needed to be moved. When Wise asked why, Sergeant Thomas hit him. Other correctional officers entered Wise’s cell. Wise tried to run, and some of the correctional officers tried to hold him down.

Wise pulled away from the correctional officers and got out of his cell. Wise testified that he was hit in the jaw, not slapped, but he could not tell who hit him. Wise was -8- taken to the infirmary and then to the University of Maryland Medical Center. Wise underwent surgery for a broken jaw, and multiple screws were placed in his jaw, which was wired shut.

Detective-Sergeant Christian Boodhoo of the Internal Investigative Division of the Department of Public Safety and Correctional Services testified for the State that the Department’s policy requires correctional officers to “use the minimal amount of force reasonably necessary to accomplish [a] mission.”5 According to Detective-Sergeant Boodhoo, an open-hand slap to the face, or a punch to the face, was not the minimal amount of force required in this situation. Detective-Sergeant Boodhoo testified that he had seen a video of Trotman’s encounter with Wise, and that Trotman could have put a knee on Wise and or laid on him while other correctional officers secured him. The jury found Trotman guilty of second-degree assault and misconduct in office, and not guilty of conspiracy to commit second-degree assault. The circuit court sentenced Trotman to ninety suspended days of imprisonment, eighteen months of probation, and 200 hours of community service for second-degree assault, and sixty suspended days of imprisonment and eighteen concurrent months of probation for misconduct in office.

Opinion of the Court of Special Appeals Trotman appealed, and the Court of Special Appeals affirmed, holding that the circuit court did not err or abuse its discretion in excusing for cause the four prospective jurors who said that they could not use stairs. See Danny Trotman v. State, No. 2331, Sept. 5 The circuit court did not admit Detective-Sergeant Boodhoo as an expert. -9- Term, 2016, 2019 WL 290022 , at ²¹, ¹¹ (Md. Ct. Spec. App. Jan. 15, 2019). The Court of Special Appeals explained: The [circuit court] judge, a retired and specially assigned veteran of the Circuit Court for Baltimore City, drew upon her current and historical knowledge of the courthouse. . . . [W]hen [Trotman’s] counsel suggested that another courtroom might possibly be able to accommodate the physical disabilities of [the four prospective] jurors[ at issue], the [circuit court] judge explained that Trotman’s trial had been assigned to her, along with the courtroom [that was] usually occupied by [another circuit court] judge who was temporarily sitting in juvenile court, and, according to the [circuit court] judge, there was no other courtroom available for Trotman’s two-day trial.

When the [circuit court] judge provided that explanation at trial, [Trotman’s] counsel did not dispute the lack of alternative courtrooms or challenge the adequacy of the [circuit court judge]’s investigation into alternative accommodations. Nor did [Trotman’s counsel] suggest any of the alternative jury deliberation scenarios [that were] set forth in Trotman’s [] brief. In the absence of any evidence in the record that there was another courtroom available, the [circuit court judge]’s finding is not clearly erroneous. Id. at ¹⁵-16 (cleaned up).

Petition for a Writ of Certiorari Trotman petitioned for a writ of certiorari, raising three issues. This Court granted the petition, limited to the issue that pertained to the circuit court excusing for cause the four prospective jurors who said that they were unable to use stairs. See Trotman v. State, 463 Md. 526 , 206 A.3d 315 (2019). DISCUSSION The Parties’ Contentions Trotman contends that the circuit court erred in striking for cause the prospective jurors who indicated that they were unable to traverse stairs.

Trotman notes that CJ § 8- 102(b) states in pertinent part: “A citizen may not be excluded from jury service due to . . - 10 - . disability[.]” Trotman argues that, in a criminal case, the defendant may assert a prospective juror’s right to an opportunity to participate in jury service because the exclusion of a qualified prospective juror impinges the defendant’s right to a fair trial. Trotman asserts that the grounds for disqualification are those that CJ § 8-103 sets forth, such as the juror being unable to comprehend spoken English or speak English, and that CJ § 8-103 does not indicate that being unable to use stairs is a ground for disqualification. Trotman acknowledges that, even if a prospective juror is not disqualified under CJ § 8-103, a trial court has the discretion to excuse him or her. Trotman maintains, however, that the circuit court failed to exercise such discretion, as it failed to consider any options for accommodating the four prospective jurors at issue.

Trotman contends that the circuit court should have contacted the administrative judge, the assignment office, or another circuit court judge, or dispatched a law clerk, to determine whether any other courtrooms were available. Trotman argues that, even if no other courtroom was available, the circuit court should have asked to use the jury room that accompanied a courtroom where no jury trial was ongoing or commandeered a conference room to use as a jury room. The State responds that the circuit court properly exercised its discretion in excusing for cause the four prospective jurors at issue. The State agrees with Trotman that a prospective juror with a disability is not automatically disqualified, but may be excused for cause in the exercise of a trial court’s discretion.

The State contends that a trial court may excuse a prospective juror on a disability-related ground where, for practical reasons, the disability would prevent the prospective juror from rendering satisfactory jury service. In other words, the State argues that, although prospective jurors with disabilities cannot be - 11 - excluded from jury service across the board, on an individual basis, a trial court may excuse a prospective juror on a disability-related ground if the disability would interfere with the performance of the prospective juror’s duties. The State asserts that a trial court may determine whether an accommodation for a prospective juror with a disability would be reasonable. The State maintains that the circuit court considered Trotman’s counsel’s proposed accommodation—namely, using another courtroom—and found, as a matter of fact, that there were not any available.

The State contends that it is reasonable to infer that another circuit court judge or court personnel informed the circuit court judge in this case that the courtroom to which she was assigned was the only courtroom available. The State argues that it was proper for the circuit court to take into account the time and effort to investigate the possibility of switching courtrooms, and then to move everyone involved—specifically, the circuit court judge, Trotman, his counsel, the prosecutor, the bailiff, the courtroom clerk, the law clerk, and the prospective jurors—to another courtroom. Standard of Review An appellate court reviews for abuse of discretion a trial court’s excusal of a prospective juror for cause. Cf.

Jenkins v. State, 375 Md. 284, 299 , 825 A.2d 1008, 1017 (2003). Maryland and Federal Statutes CJ § 8-102(b) states: “A citizen may not be excluded from jury service due to color, disability, economic status, national origin, race, religion, or sex.” CJ § 8-103 governs qualifications for jury service, and states: - 12 - (a) Requirements. — Notwithstanding [CJ] § 8-102[], an individual qualifies for jury service for a county only if the individual: (1) Is an adult as of the day selected as a prospective juror; (2) Is a citizen of the United States; and (3) Resides in the county as of the day sworn as a juror. (b) Disqualifying factors. — Notwithstanding [CJ § 8-103](a) [] and subject to the federal Americans with Disabilities Act, an individual is not qualified for jury service if the individual: (1) Cannot comprehend spoken English or speak English; (2) Cannot comprehend written English, read English, or write English proficiently enough to complete a juror qualification form satisfactorily; (3) Has a disability that, as documented by a health care provider’s certification, prevents the individual from providing satisfactory jury service; (4) Has been convicted, in a federal or State court of record, of a crime punishable by imprisonment exceeding 6 months and received a sentence of imprisonment for more than 6 months; or (5) Has a charge pending, in a federal or State court of record, for a crime punishable by imprisonment exceeding 6 months.[6] (c) Conviction. — An individual qualifies for jury service notwithstanding a disqualifying conviction under [CJ § 8-103](b)(4) [] if the individual is pardoned. In turn, 42 U.S.C. § 12132 , part of the Americans with Disabilities Act, states: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, 6 In 2019, the General Assembly amended Md. Code Ann., Cts. & Jud.

Proc. (1974, 2013 Repl. Vol., 2018 Supp.) § 8-103(b)(4) and (5) to replace each instance of “6 months” with “1 year.” 2019 Md. Laws (Ch. 750, S.B. 236). We quote the version of the statute that was effective at the time of the trial in this case. - 13 - by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Disability discrimination includes a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford [] goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.] 42 U.S.C. § 12182 (b)(2)(A)(ii).

The Supreme Court’s Case Law In Batson v. Kentucky, 476 U.S. 79, 96 (1986), the Supreme Court held “that 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 [strike]s at the defendant’s trial.” In that case, the defendant was African-American; the prosecutor peremptorily struck all four African-American prospective jurors; and, only white jurors were seated. See id. at 82-83 . The defendant’s counsel moved to discharge the jury on the ground that the prosecutor’s peremptory strikes violated the defendant’s rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.7 See Batson, 476 U.S. at 83 . The trial court denied the motion to discharge.

See id. The defendant was convicted, and the Supreme Court of Kentucky affirmed. See id. at 83-84 . “No State shall . . . deny to any person within its jurisdiction the equal protection 7 of the laws.” U.S. Const. amend. XIV, § 1. - 14 - The United States Supreme Court reversed and remanded.

See id. at 84, 100. The Supreme Court observed that, in a prior case, it had “decided that the State denies a[n African-American] defendant equal protection of the laws when it puts him [or her] on trial before a jury from which members of his [or her] race have been purposefully excluded.” Id. at 85 (citation omitted). Since the Supreme Court decided that prior case, “[a] recurring question . . . was whether the defendant had met his [or her] burden of proving purposeful discrimination on the part of the State.” Id. at 90 (citations omitted). “A number of lower courts [had] reasoned that proof of repeated striking of [African-American]s over a number of cases was necessary to establish a violation of the Equal Protection Clause.” Id. at 92. In Batson, the Supreme Court rejected that notion, see id. at 93, explaining “that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the [jury panel] by relying solely on the facts concerning its selection in his [or her] case[,]” id. at 95 (emphasis in original).

The Supreme Court set forth a three-pronged test for a Batson challenge that is based on race. First, the defendant must establish a prima facie case of purposeful racial discrimination by “show[ing] that he [or she] is a member of a cognizable racial group, and that the prosecutor has exercised peremptory [strike]s to remove from the [jury panel] members of the defendant’s race.” Id. at 96 (citation omitted). Second, “the burden shifts to the [prosecutor] to come forward with a [race-]neutral explanation for” peremptorily striking prospective jurors who are the same race as the defendant. Id. at 97.

Third, the trial court must “determine [whether] the defendant has established purposeful discrimination.” Id. at 98 (footnote omitted). - 15 - The Supreme Court decided Batson in 1986, which was four years before Congress enacted the Americans with Disabilities Act in 1990. See Pub. L. 101-336 (July 26, 1990). Four years later, in J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 129 (1994), the Supreme Court held that, during jury selection, “the Equal Protection Clause forbids intentional discrimination on the basis of gender[.]” The Supreme Court did not mention people with disabilities in Batson or J.E.B. Seven years after deciding J.E.B., in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367-68 (2001), an employment discrimination case, the Supreme Court held that States are not required by the Fourteenth Amendment to make special accommodations for [people with disabilities], so long as their actions toward such individuals are rational. . . . If special accommodations for [people with disabilities] are to be required, they have to come from positive law[,] and not through the Equal Protection Clause. (Footnote omitted). Three years later, in Tennessee v. Lane, 541 U.S. 509, 533-34 (2004), the Supreme Court held that, “as it applies to the class of cases implicating the fundamental right of access to the courts,” 42 U.S.C. § 12132—which states: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”— “constitutes a valid exercise of Congress’[s] authority to enforce the guarantees of the Fourteenth Amendment.” The Supreme Court observed that Congress enacted [ 42 U.S.C. § 12132 ] against a backdrop of pervasive unequal treatment in the administration of [S]tate services and programs, including systematic deprivations of fundamental rights.

For example, . . . a - 16 - number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as . . . serving as jurors. Id. at 524 (footnote omitted). That said, the Supreme Court has never addressed the question of when it is a violation of the Americans with Disabilities Act for a trial court to excuse a prospective juror on a disability-related ground. Other Courts’ Case Law In United States v. Harris, 197 F.3d 870, 871-72 (7th Cir. 1999), the United States Court of Appeals for the Seventh Circuit held that a trial court did not violate a defendant’s right to due process by allowing a prosecutor to peremptorily strike a prospective juror who had multiple sclerosis.

In that case, during voir dire, the trial court asked whether any prospective juror “had a condition, such as dyslexia or being hard of hearing, of which the [trial] court should be aware so that accommodation could be arranged.” Id. at 872 . In response, the only African-American prospective juror “stated that she had multiple sclerosis and that she was on medication to control it, but that she might have trouble [with] stairs and staying awake.” Id. (footnote omitted). The prosecutor peremptorily struck the prospective juror.

See id. The trial court asked the prosecutor “for a