The Court ruled a Fairfield County man did not prove that the prosecutor excluded male jurors in an attempt to stack the jury in the prosecution’s favor.

The Court ruled a Fairfield County man did not prove that the prosecutor excluded male jurors in an attempt to stack the jury in the prosecution’s favor.

A claim that a prosecutor is excluding jurors from a criminal trial based on gender must be supported by some relevant facts rather than just “bare allegations” that the jury is being stacked to favor the prosecution’s case, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court rejected Glen Stalder’s claim that he did not receive a fair trial in Fairfield County Municipal Court because prosecutors rejected two potential jurors who are male. The decision reversed the Fifth District Court of Appeals, which vacated Stalder’s 2021 conviction on one count of sexual imposition.

Writing for the Court majority, Chief Justice Sharon L. Kennedy explained that purposeful discrimination through a prosecutor’s use of peremptory challenges to excuse potential jurors is a violation of the equal protection clause of the U.S. Constitution’s Fourteenth Amendment. However, Stalder’s lawyer failed to present sufficient information to support the claim that the prosecutor was removing men from the jury because they were men, the Court ruled.

“But when a party alleges purposeful gender discrimination during the jury-selection process, that party must present the court with something more than a bare allegation,” Chief Justice Kennedy wrote. “This court, and various federal courts, have provided defendants with numerous factors they can use to show purposeful discrimination. But here, Stalder did not utilize, or attempt to utilize, any of those factors.”

Justices Patrick F. Fischer, R. Patrick DeWine, and Joseph T. Deters joined the chief justice’s opinion.

In a dissenting opinion, Justice Michael P. Donnelly asserted that the majority opinion correctly concluded that the trial court mistakenly decided that a man could not challenge the state’s dismissal of prospective jurors on the basis of gender discrimination.  He then faulted the majority for going beyond answering that question and placing new evidentiary burdens on criminal defendants wishing to challenge the state’s actions during jury selection.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.

Jury Selected to Hear Criminal Charge
Stalder contested his sexual imposition charge. The municipal court selected a jury pool of 26 prospective jurors, of which 23 were available for jury selection. The pool consisted of 12 women and 11 men.

As part of jury selection, each side was given three peremptory challenges to exclude a potential juror without stating a reason. The trial court also sought to select an alternate juror to be present if needed to serve on the eight-member jury. Each side was given one additional peremptory challenge to use against a potential alternate juror.

Stalder’s attorney used his three peremptory challenges to excuse three women as potential jurors. And at this stage of jury selection, the alternate juror was set to be a woman. Stalder used his one challenge to exclude the alternate juror who was a woman, and ultimately a man was selected as the alternate juror.

The prosecutor used two peremptory challenges to remove male jurors. He did not use the third challenge or the additional alternate juror challenge. Stalder’s lawyer requested that the prosecutor explain the basis for the challenge of the first man, and argued that the only reason the state was trying to remove the man was because the prosecutor believed that a man would “tend to sympathize” with Stalder.

Citing the U.S. Supreme Court’s 1986 Batson v. Kentucky decision, Stalder’s lawyer maintained the prosecution had to give a reason for the challenge beyond the potential juror’s gender. After Stalder’s lawyer objected to the state’s challenge of the first man, the prosecutor denied that gender played a role in the decision. The prosecutor stated that all the jury pool members indicated they could be fair and impartial.

“It’s just a matter of elimination on which jurors I think are most appropriate for the case,” the prosecutor said.

The trial court stated the Batson decision did not apply, and the prosecution did not have to provide a “gender-neutral reason” for challenging the juror. Although the judge did not require a reason beyond gender, the prosecution did provide a reason for excluding the second man, indicating the reason was based on the prospective juror’s response to a question about how he would react in a stressful situation.

The final jury consisted of five women and four men, counting the alternate juror. Stalder was convicted of the charge, and he appealed to the Fifth District Court of Appeals.

The Fifth District ruled that the trial judge failed to apply Batson, and the state was required to provide a reason other than gender for excluding the two men as prospective jurors. The Fifth District also ruled that Stalder established a prima facie case of discrimination when the prosecutor excluded the first male juror. The Fifth District vacated Stalder’s conviction and remanded the case for a new trial. The Lancaster Law Director’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Examined Juror Challenge Process
Chief Justice Kennedy explained that when a criminal defendant objects to a prosecutor’s challenge based on racial or gender discrimination, the trial court must apply a three-step analysis. First, the court must determine if the defendant presented a prima facie case establishing purposeful discrimination. If that case is made, then the prosecution must present an explanation other than race or gender for the challenge. Finally, the trial court “must decide, based on all the relevant circumstances, whether the defendant has proved purposeful discrimination,” she wrote.

To establish his prima facie case, Stalder has to show the excluded jurors were part of a recognized group, in this case, gender. Stalder must also show that the facts infer the prosecutor excluded the jurors based on their gender, the opinion stated.

The U.S. Supreme Court has not specifically stated what a defendant must do to prove purposeful discrimination, the opinion noted. However, several court cases have provided examples of what could support a discrimination claim, the Court noted. These might include statements made by the lawyer when making the challenge, questions by a lawyer to the jury pool, or if a pattern of discrimination appears from the exclusion of potential jurors.

The opinion explained that federal courts have found purposeful discrimination when the defendant provides statistics about the prosecutor uses peremptory challenges, presents a side-by-side comparison of those excluded from the jury compared to those accepted, or points to misrepresentations made by the prosecutor when defending peremptory challenges.

The opinion noted that the Fifth District correctly found that the trial court was mistaken when determining that the Batson requirements did not apply to Stalder’s objections. However, the Supreme Court disagreed with the Fifth District’s conclusion that Stalder established his prima facie case that the prosecutor was excusing the jurors only because they were men.

Aside from commenting that the men would tend to sympathize with his client, Stalder’s attorney presented no evidence to point to purposeful discrimination, the opinion stated. The lawyer did not point to any statements the prosecutor made during jury questioning, present any historical information demonstrating a pattern, or use any of the other means presented in other cases to prove discrimination, the Court concluded.

The lawyer only made a bare allegation and failed to meet the first part of the Batson test to  establish the prima facie case, the Court ruled. The Court remanded the case to the Fifth District to consider Stalder’s other objections to his conviction.

Trial Court Error Hampered Defendant’s Case, Dissent Reasoned
In his dissent, Justice Donnelly stated the majority opinion “answers the wrong question at the wrong time in the wrong way.”  Noting that it is the trial court’s responsibility to enforce the protections offered by Batson, the dissent then quoted the trial court transcript in which the trial judge assumed the Batson decision did not apply to a white man alleging discrimination by the exclusion of white men from the jury.

Because the judge did not think the case applied, he prevented Stalder from offering any facts to support the argument that the prosecution had excluded the jurors because they were men. The trial court’s incorrect determination that Batson did not apply to Stalder’s claims and its failure to follow the Batson procedures —a conclusion with which the majority agreed—resulted in a constitutional violation, and on that basis, wrote Justice Donnelly, the Fifth District appropriately ordered a new trial.

The dissent then argued that the majority went on to answer a question not presented in this case, and—in doing so—the majority had increased the burden on criminal defendants to prove discrimination. While a party making a Batson challenge need only make a preliminary showing that a potential juror has been struck for an improper purpose, the dissent reasoned, the standard set out by the majority now requires criminal defendants to provide evidence of discriminatory purpose—evidence not generally available to defendants. Applying the Batson framework to the information presented during jury selection, including the prosecutor’s statement that all the potential jurors were capable of being fair, the dissent concluded that the record showed the only reason the prosecutor excluded the two men was based on their gender.

2022-0707. State v. Stalder, Slip Opinion No. 2023-Ohio-2359.

View oral argument video of this case.

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