The Second District Court of Appeals has decided it will not grant a Dayton man another retrial for murder because there was no racial discrimination when the prosecutor dismissed a potential juror.

The appeals court has heard six different appeals filed by James A. Russell for issues related to his conviction on charges stemming from the September 2004 robbery and murder of FAA safety inspector Philip Troutwine. In a previous appeal, Russell was granted a retrial after the appeals court found the Montgomery County Court of Common Pleas erred when it overruled a motion for a mistrial after it was discovered that a verdict form was sent into the jury room by mistake. He was retried and convicted in April 2009.

Russell, who is African American, contended in a subsequent appeal that the trial court erred in mishandling an issue under the U.S. Supreme Court case Batson v. Kentucky, when the prosecution was allowed to excuse an African American during jury selection. In Batson the Supreme Court held the Equal Protection Clause of the U.S. Constitution forbids the prosecution from exercising a peremptory challenge to excuse a juror solely because of that juror’s race. The appeals court agreed and sent the matter to the trial court for a full hearing under Batson that involves a three-step analysis:

• The defendant has made a prima facie (at first sight) showing that the prosecutor has exercised a peremptory challenge on the basis of race.
• The prosecutor has met the burden of articulating a race-neutral reason for the peremptory challenge.
• The prosecutor’s race-neutral explanation is credible, or is instead a pretext for unconstitutional discrimination.

When the trial court did not complete the full three steps in concluding Russell failed to establish a case of racial discrimination, the appeals court again remanded the matter to the lower court. By the time another Batson hearing was scheduled for October 2012, the original trial judge was no longer with the common pleas court, and the hearing was held by the judge’s successor. The new judge found credible the prosecutor’s concerns about the juror’s age, work history, and how strongly the juror would maintain her viewpoint. The court also found that the challenge was not a pretext for discrimination.

In agreeing with the trial court, Appeals Court Judge Jeffrey E. Froelich wrote in the decision: “We also cannot find that the trial court’s conclusions that the prosecutor’s statements were credible and not a pretext for discrimination were clearly erroneous. In resolving this third step, the United States Supreme Court has made clear that the ultimate issue is whether the trial court believed that the prosecutor exercised the peremptory challenge for a nondiscriminatory reason.”

Judge Froelich also addressed Russell’s objection to a judge other than the one who heard the case conducting the Batson hearing.

“We note that at least one other court has expressly held that a successor judge could conduct a post-trial Batson hearing, provided that the successor judge, through a review of the trial record and holding post-trial hearings, was sufficiently able to assess the credibility of the State’s reasons for exercising the peremptory challenge,” Froelich stated.

Judges Mary E. Donovan and Jeffrey M. Welbaum each wrote separate concurring opinions.

Judge Donovan, concerned about allowing the juror to be excused because of her views, wrote: “… [A] juror who indicates she is not ‘easily persuaded’ is simply indicating a willingness to hold the State to its burden of proof beyond a reasonable doubt. A juror should not be struck because of a willingness to follow the law. Trial courts should be vigilant when such justification is argued by the State in response to a Batson challenge.”

In his comments, Judge Welbaum said he respectfully disagreed with Donovan.

“Peremptory challenges may be grounded on any nondiscriminatory reason. The other concurring opinion suggests that trial courts be vigilant when such justification is given by prosecutors. However, the admonition does not square with Batson or any other standard found in the law of peremptory challenges,” Welbaum said.

State v. Russell, 2013-Ohio-5166
Opinion: http://sc.ohio.gov/rod/docs/pdf/2/2013/2013-ohio-5166.pdf
Appeal From: Montgomery County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 22, 2013

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