State v. Holmes ( 2019 )

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STATE OF CONNECTICUT v. EVAN JARON HOLMES
(SC 20048)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted, after a jury trial, of the crimes of felony murder, home invasion,
conspiracy to commit home invasion and criminal possession of a fire-
arm, 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 individ-
uals are disproportionately convicted of crimes and receive dispropor-
tionate 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 challeng-
ing 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 prosecu-
tor 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 chal-
lenge, 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 consti-
tuted 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-Ameri-
cans. The Appellate Court further concluded that there was no evidence
that the prosecutor’s explanation was a pretext for intentional discrimi-
nation. 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:
1. 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 constitu-
tional law, which was the sole basis for the defendant’s claim on appeal,
and, pursuant to federal constitutional law, the distrust of law enforce-
ment 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.
2. 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 communi-
ties, 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)
Argued January 18—officially released December 24, 2019
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 pos-
session 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 mur-
der, home invasion, conspiracy to commit home inva-
sion, 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).
Opinion
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 chal-
lenges 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 Bat-
son, 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 court-
houses.
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 numer-
ous offenses, including felony murder in violation of
General Statutes § 53a-54c, and the defendant elected
a jury trial.4 ‘‘On the first day of jury selection, defense
counsel noted that the entire venire panel appeared to
be ‘white Caucasian’ and that every prospective juror
who had completed a jury questionnaire had indicated
that they were either white or Caucasian, or had not
indicated a race or ethnicity.5
‘‘On the second day of jury selection, only one pro-
spective 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 supervi-
sory social worker with the Department of Children
and Families.
‘‘He also disclosed that he performed volunteer work
for the Department of Correction and had worked
directly with inmates. When asked by defense counsel
whether that work might affect him as a juror, W.T.
responded: ‘Because I work with, like I say, inmates,
and also my work, I do—I mean, you see a lot of differ-
ent things and you see a lot of sad situations. I’m sure
as a professional and because I work with people
who’ve been through a lot of stuff, you know, I’m sure
I have an understanding of what they’re doing. And
also, just—just in the criminal justice system in general,
I know how sometimes people are not, you know, given
a fair trial or they [maybe] disproportionately have to
go to jail and different things of that nature. So, part
of my whole experience is as an African-American, as
an American and also studying these situations, I know
that there’s a lot of issues [going] on in various systems.
The criminal justice system, the educational system and
various systems, but people are not fairly treated, so I
know that much. But I don’t use that, you know, I
can—I could make a professional—and I think keep
my composure and do my job just like—as a profes-
sional, as I work—even as I do volunteer work, but you
have to know the reality in life as well, though.’ In
response to a subsequent question by defense counsel
regarding whether, in light of his life experiences, he
could be fair to both sides in the case, W.T. stated that
he could.
‘‘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 formu-
lated any opinions about the criminal justice system
based on your experiences? Is it too lenient, too strin-
gent, 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.
‘‘ ‘[W.T.]: But I think I can make—I could keep the
facts and be able to look at the facts of the case and
judge by the facts.
‘‘ ‘[The Prosecutor]: . . . We need to know how
you’re feeling, so we can make the appropriate assess-
ment and you can make the appropriate assessment.
. . . I think that it’s not a perfect system, but it’s improv-
ing 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 evi-
dence 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 mem-
bers 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 interac-
tions with the police in any respect in which you devel-
oped an—either a strong, favorable impression or an
unfavorable impression about the police and the way
they treated you in any situation, speeding tickets, call-
ing 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 concern-
ing 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.
‘‘ ‘[The Prosecutor]: Okay. Now with—with respect
to that, there will probably be police officers who will
be testifying here, and the judge will tell you that [you]
can’t give a police officer more credibility merely
because [he or she is] a police officer. Conversely,
though, they don’t get less credibility merely [because]
they are police officers. They are to be treated like
anybody else. Would you have any difficulty following
the judge’s instructions concerning that?
‘‘ ‘[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
in—who served time in jail.
‘‘ ‘[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 situ-
ations?
‘‘ ‘[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 dif-
ferent.
‘‘ ‘[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 ques-
tions 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 under-
stand 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 some-
thing 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 what-
ever you’ve done wrong, you know.
‘‘ ‘[The Prosecutor]: Right.’
‘‘Following the voir dire examination, defense coun-
sel stated that W.T. was acceptable to the defendant.
The [prosecutor], however, exercised a peremptory
challenge and asked that W.T. be excused.’’ (Footnotes
added.) State v. Holmes, supra, 176 Conn. App. 162–69.
‘‘[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 [prosecu-
tor] 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 mem-
ber of the venire, a young white man from New London,
who had ‘‘said that he couldn’t be fair because of inci-
dents 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 peo-
ple. 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
know, something that [the prosecutor] and I never have
had to deal with . . . but if this gentleman sitting next
[to] me is entitled to a jury of his peers, we’ve picked
three white people already. We’ve accepted them. I
mean, isn’t he—and that’s a common complaint by Afri-
can-American people, that they feel that they get pulled
over too often, and there are probably studies that say
it’s disproportionate. So, that particular reason does
seem to me to be race based . . . . It was [W.T.’s] view
and, I mean, again, that’s—he’s entitled to a jury of his
peers, and we get nobody who feels that way or has
those thoughts is not really his peers because that’s
probably the experience or experiences [that] a lot of
African-Americans go through.’
‘‘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 pre-
viously had been excused because of his negative com-
ments 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 exercis-
ing [a] peremptory challenge. So, under all the circum-
stances, 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 subse-
quently rendered a judgment of conviction and sen-
tenced the defendant to a total effective sentence of
seventy years imprisonment.8
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming that the trial court
improperly overruled his Batson objection to the prose-
cutor’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 regard-
ing 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 expla-
nation 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 explana-
tions 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 ‘‘dispro-
portionate 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 expla-
nation. 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 prose-
cutor 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’’). Accord-
ingly, 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 Bat-
son challenge.’’11 Id., 182. The Appellate Court unani-
mously affirmed the judgment of conviction.12 Id., 192.
This certified appeal followed. See footnote 2 of this
opinion.
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 over-
rule 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 Afri-
can-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 per-
sonal 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 venire-
persons. It would be difficult to maintain acceptance
of this reason as race neutral . . . .’’ The defendant
relies on the authorities cited in Judge Lavine’s concur-
ring 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 enforce-
ment.’’
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 analy-
sis; 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
it is a viewpoint that may be shared by whites and
minorities alike. The state further argues that this is
not an appropriate case in which to overrule or modify
King because the record demonstrates that the prose-
cutor’s questioning of all members of the venire was
uniform, and, of the at least four African-American
members of the venire, W.T. was the only one who
expressed a negative view of the police and the only
one removed.13 We agree with the state and conclude
that the Appellate Court properly upheld the trial court’s
rejection of the defendant’s Batson challenge.
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 indi-
vidually, 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 dis-
cover if there is any likelihood that some prejudice is
in the [prospective] juror’s mind [that] will even subcon-
sciously 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 chal-
lenges 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 consti-
tutional 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
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.
. . . In evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming
the proffered reasons for the peremptory challenges
are true, the challenges violate the [e]qual [p]rotection
[c]lause as a matter of law. . . . At this stage, the court
does not evaluate the persuasiveness or plausibility of
the proffered explanation but, rather, determines only
its facial validity—that is, whether the reason on its
face, is based on something other than the race of the
juror. . . . Thus, even if the [s]tate produces only a
frivolous or utterly nonsensical justification for its
strike, the case does not end—it merely proceeds to
step three. . . .
‘‘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 expla-
nation 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 purpose-
ful 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.
. . . Ultimately, the party asserting the Batson claim
carries the . . . burden of persuading the trial court, by
a preponderance of the evidence, that the jury selection
process in his or her particular case was tainted by
purposeful discrimination.’’ (Citations omitted; foot-
note added; footnote altered; internal quotation marks
omitted.) State v. Edwards, supra, 314 Conn. 483–86;
see also Conn. Const., art. I, § 19, as amended by art. IV
of the amendments to the constitution; General Statutes
§ 54-82f; Practice Book § 42-12.
With respect to appellate review of Batson claims,
the ‘‘second step of the Batson inquiry involves a deter-
mination 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, there-
fore, we shall not disturb the trial court’s finding unless
it is clearly erroneous.’’ (Citations omitted; internal quo-
tation 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 minor-
ity jurors. The defendant acknowledges that this argu-
ment 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 prosecu-
tor’s reasons for striking juror were ‘‘not motivated by
discriminatory considerations’’ because ‘‘it was reason-
able for the prosecutor to conclude that [the juror’s]
concerns about the fairness of the criminal justice sys-
tem 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 enforce-
ment 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.’’);
State v. Smith, supra, 222 Conn. 14 (concluding that
exclusion of juror with arrest record was racially neu-
tral because ‘‘[p]rosecutors commonly seek to exclude
from juries all individuals, whatever their race, who
have had negative encounters with the police because
they fear that such people will be biased against the
government’’); State v. Jackson, 73 Conn. App. 338, 350–
51, 808 A.2d 388 (rejecting Batson challenge to peremp-
tory strike of African-American juror who ‘‘had some
relatives that had some general contact with New Haven
police officers and had been involved in narcotics, and
[whose] relatives have been in court,’’ because defen-
dant’s Batson argument ‘‘rested solely on the dispropor-
tionate impact that the race neutral explanations the
state provided could have on inner-city black males,’’
and ‘‘[p]roof of racially discriminatory intent or purpose
is required to show a violation of the [e]qual [p]rotection
[c]lause’’ [internal quotation marks omitted]), cert.
denied, 262 Conn. 929, 814 A.2d 381 (2002), and cert.
denied, 262 Conn. 930, 814 A.2d 381 (2002); State v.
Morales, 71 Conn. App. 790, 807, 804 A.2d 902 (conclud-
ing that prospective juror’s ‘‘negative opinion concern-
ing police performance, especially with respect to drug
related crime,’’ was ‘‘a valid, nondiscriminatory reason’’
for excusing him given ‘‘the state’s considerable depen-
dency on police testimony . . . and the fact that the
crime charged was drug related,’’ and prosecutor was
not bound to accept his statement that ‘‘he would not
allow those considerations to affect his impartiality as
a juror’’), cert. denied, 262 Conn. 902, 810 A.2d 270
(2002); see also State v. Hinton, supra, 227 Conn. 327–28
(prospective juror’s stated ‘‘sympathy to African-Ameri-
cans whom she perceived were treated unfairly by the
criminal justice system,’’ as well as her exposure to
pretrial media publicity and fact that she lived near
crime scene, were legitimate race neutral reasons for
her exclusion and not pretextual).
The defendant’s disparate impact argument is fore-
closed 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 prosecu-
tor had not violated Batson by using peremptory chal-
lenges to exclude Latino jurors by reason of their eth-
nicity 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
impact. . . . Proof of racially discriminatory intent or
purpose is required to show a violation of the [e]qual
[p]rotection [c]lause. . . . Discriminatory purpose
. . . implies more than intent as volition or intent as
awareness of consequences. It implies that the [decision
maker] . . . selected . . . a particular course of
action at least in part because of, not merely in spite
of, its adverse effects upon an identifiable group.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
359–60, quoting Personnel Administrator v. Feeney,
442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979),
and Arlington Heights v. Metropolitan Housing Devel-
opment Corp., 429 U.S. 252, 264–65, 97 S. Ct. 555, 50
L. Ed. 2d 450 (1977). The Supreme Court stated that a
‘‘neutral explanation in the context of [its] analysis . . .
means an explanation based on something other than
the race of the juror. At this step of the inquiry, the
issue is the facial validity of the prosecutor’s explana-
tion. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be
deemed race neutral.’’ Hernandez v. New York, supra,
360. Noting that the prosecutor also had relied on the
prospective jurors’ demeanor and his assessment of
their willingness to accept the official translation rela-
tive to other bilingual jurors, the court observed that
‘‘[e]ach category would include both Latinos and non-
Latinos. While the prosecutor’s criterion might well
result in the disproportionate removal of prospective
Latino jurors, that disproportionate impact does not
turn the prosecutor’s actions into a per se violation of
the [e]qual [p]rotection [c]lause.’’ Id., 361.
The Supreme Court emphasized, however, that dispa-
rate 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 classifi-
cation 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 Lat-
inos 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 con-
cluded 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
race neutral as a matter of law under the second step
of Batson because of its claimed disparate impact on
minority groups. Most recently, in State v. Edwards,
supra, 314 Conn. 465, we rejected a defendant’s claim
that a prospective juror’s racial self-identification on the
juror questionnaire as ‘‘human,’’ which the prosecutor
offered as a race neutral explanation in response to the
defendant’s Batson challenge, is ‘‘a proxy for race, and,
thus, the court should find discriminatory intent inher-
ent in the prosecutor’s explanation’’; id., 490; because
‘‘a racial minority is more likely to identify himself or
herself as an ‘unusual’ race, and, thus, the prosecutor’s
proffered reason is inherently discriminatory. This argu-
ment is, in essence, a disparate impact argument, which
is not dispositive of the issue of race neutrality.’’ Id.,
492. Turning to the third step of Batson, we considered
disparate impact as a possible indicator of pretext, but
we ultimately determined that there was ‘‘insufficient
evidence to find any sort of disparate impact from the
prosecutor’s proffered explanation,’’ given that the
social science studies proffered by the defendant
proved ‘‘only that racial minorities are more likely to
self-identify in creative and unusual ways, not that these
same individuals would write an unusual answer in an
official document. Furthermore, the prosecutor’s prof-
fered explanation related to unusual answers in the
questionnaire generally, not to the race line specifi-
cally.’’ Id., 496–97; see id., 497 (noting that ‘‘a policy of
excluding all individuals who provide an answer other
than the usual answer to the question of race, i.e., ‘Cau-
casian,’ ‘African-American,’ or other [well known]
races, ‘without regard to the particular circumstances
of the trial or the individual responses of the [potential]
jurors, may be found by the trial [court] to be a pretext
for racial discrimination’ ’’). In State v. Hinton, supra,
227 Conn. 329–31, this court rejected a state constitu-
tional challenge based on the disparate racial impact
of prospective jurors’ residency near the crime scene,
but we expressed caution about the possible pretextual
effect of this explanation should it be left ‘‘unscruti-
nized’’ by the trial court. Cf. State v. Gould, supra, 322
Conn. 533–34 (erroneous removal of juror for cause
based on judge’s misperception of his English language
competency did not require automatic reversal under
Batson because there was no claim of purposeful dis-
crimination, and ‘‘the specter of implied or unconscious
bias . . . finds no support in Batson or its progeny’’).
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 proposi-
tion 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 dispa-
rate impact argument. For example, the United States
Court of Appeals for the Seventh Circuit recently
rejected an argument that ‘‘the government’s proffered
justification for the strike—bias against law enforce-
ment—is not [race neutral] because [African-Ameri-
cans] are disproportionately affected by negative inter-
actions with law enforcement. Even accepting the
premise of this argument, it does not support a finding
of pretext. Batson protects against intentional discrimi-
nation, not disparate impact. . . . Moreover, we have
acknowledged that bias against law enforcement is a
legitimate [race neutral] justification.’’ (Citation omit-
ted.) United States v. Brown, 809 F.3d 371, 375–76 (7th
Cir.), cert. denied, U.S. , 136 S. Ct. 2034, 195 L.
Ed. 2d 219 (2016); see United States v. Arnold, 835
F.3d 833, 842 (8th Cir. 2016) (rejecting argument that
prosecutor’s reliance on prospective jurors’ ‘‘[exhibi-
tion of] strong agreement with the suggestion that
police could be wrong’’ was ‘‘by itself . . . illegitimate
and discriminatory because distrust of police officers
is prevalent among [African-Americans]’’). Similarly, in
State v. Rollins, 321 S.W.3d 353 (Mo. App. 2010), trans-
fer denied, Missouri Supreme Court, Docket No.
SC91170 (October 26, 2010), cert. denied, 563 U.S. 946,
131 S. Ct. 2115, 179 L. Ed. 2d 910 (2011), the court
rejected an argument under the second step of Batson,
founded on an African-American prospective juror’s
negative perception of police officers, that ‘‘the court
was required to take into account the disparate impact
of such a supposedly facially [race neutral] reason when
it means that members of a particular race or ethnicity
are more likely to be affected than others’’ because
‘‘disparate impact does not conclusively govern in the
preliminary [race neutrality] step of the Batson inquiry.’’
Id., 366; cf. State v. Veal, 930 N.W.2d 319, 334 (Iowa
2019) (declining to adopt ‘‘something like a cause
requirement’’ with respect to use of strike of last Afri-
can-American juror, despite ‘‘aware[ness] of the dispro-
portionate impact when jurors can be removed based
on prior interactions with law enforcement,’’ because
‘‘this case involved a special set of circumstances—a
prosecutor’s use of a peremptory strike on a juror
because the same prosecutor had sent her father to
prison for the rest of his life’’). Thus, with no adequate
claim that the Appellate Court improperly upheld the
trial court’s finding that the prosecutor’s reasons were
not pretextual under the third step of Batson,18 we con-
clude that the Appellate Court properly affirmed the
judgment of conviction.
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 opin-
ion; the broader themes of disparate impact and implicit
bias that the defendant advances raise, as the state
candidly acknowledges, extremely serious concerns
with respect to the public perception and fairness of the
criminal justice system.19 As the United States Supreme
Court recently observed, ‘‘[o]ther than voting, serving
on a jury is the most substantial opportunity that most
citizens have to participate in the democratic process.’’
Flowers v. Mississippi, U.S. , 139 S. Ct. 2228,
2238, 204 L. Ed. 2d 638 (2019). Moreover, there is great
‘‘constitutional value in having diverse juries,’’ insofar
as ‘‘equally fundamental to our democracy is that all
citizens have the opportunity to participate in the
organs of government, including the jury. If we allow
the systematic removal of minority jurors, we create a
badge of inferiority, cheapening the value of the jury
verdict. And it is also fundamental that the defendant
who looks at the jurors sitting in the box have good
reason to believe that the jurors will judge as impartially
and fairly as possible. Our democratic system cannot
tolerate any less.’’ State v. Saintcalle, 178 Wash. 2d 34,
49–50, 309 P.3d 326 (overruled in part on other grounds
by Seattle v. Erickson, 188 Wash. 2d 721, 398 P.3d 1124
[2017]), cert. denied, 571 U.S. 1113, 134 S. Ct. 831, 187 L.
Ed. 2d 691 (2013). ‘‘From a practical standpoint, studies
suggest that compared to diverse juries, [all white]
juries tend to spend less time deliberating, make more
errors, and consider fewer perspectives. . . . In con-
trast, diverse juries were significantly more able to
assess reliability and credibility, avoid presumptions of
guilt, and fairly judge a criminally accused. . . . By
every deliberation measure . . . heterogeneous
groups outperformed homogeneous groups. . . .
These studies confirm what seems obvious from reflec-
tion: more diverse juries result in fairer trials.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
50; see, e.g., J. Rand, ‘‘The Demeanor Gap: Race, Lie
Detection, and the Jury,’’ 33 Conn. L. Rev. 1, 60–61
(2000) (suggesting that jury diversity is necessary to
address ‘‘[d]emeanor [g]ap,’’ which undermines accu-
racy of cross-racial credibility determinations). Insofar
as Batson has been roundly criticized for its doctrinal
and practical shortcomings in preventing both purpose-
ful and unconscious racial discrimination, this appeal
presents us with an occasion to consider whether fur-
ther action on our part is necessary to promote public
confidence in the perception of our state’s judicial sys-
tem with respect to fairness to both litigants and their
fellow citizens.
A
Review of Batson Problems and Solutions
Reams of paper have been consumed by judicial opin-
ions and law review articles identifying why Batson
has been a toothless tiger when it comes to combating
racially motivated jury selection, and numerous authori-
ties and commentators have proposed various solutions
to those specific problems. Much of Batson’s perceived
ineffectiveness stems from its requirement of purpose-
ful discrimination. To begin with, the pretext and pur-
poseful discrimination aspects of Batson’s third step
require the trial judge to make the highly unpalatable
finding that the striking attorney has acted unethically
by misleading the court and intentionally violating a
juror’s constitutional rights. See, e.g., State v. Veal,
supra, 930 N.W.2d 360 (Appel, J., concurring in part and
dissenting in part) (‘‘requiring a district court judge to,
in effect, charge the local prosecutor with lying and
racial motivation from the bench in the course of voir
dire is unrealistic’’); State v. Saintcalle, supra, 178 Wash.
2d 53 (‘‘[i]magine how difficult it must be for a judge
to look a member of the bar in the eye and level an
accusation of deceit or racism’’); J. Bellin & J. Semitsu,
‘‘Widening Batson’s Net To Ensnare More Than the
Unapologetically Bigoted or Painfully Unimaginative
Attorney,’’ 96 Cornell L. Rev. 1075, 1113 (2011) (‘‘so
long as a personally and professionally damning finding
of attorney misconduct remains a prerequisite to award-
ing relief under Batson, trial courts will be understand-
ably reluctant to find Batson violations’’); M. Bennett,
‘‘Unraveling the Gordian Knot of Implicit Bias in Jury
Selection: The Problems of Judge-Dominated Voir Dire,
the Failed Promise of Batson, and Proposed Solutions,’’
4 Harv. L. & Policy Rev. 149, 162–63 (2010) (noting dual
difficulties that ‘‘[m]ost trial court judges will . . . find
such deceit [only] in extreme situations,’’ while other
troubling cases indicated that ‘‘some prosecutors are
explicitly trained to subvert Batson’’); R. Charlow, ‘‘Tol-
erating Deception and Discrimination After Batson,’’ 50
Stan. L. Rev. 9, 63–64 (1997) (‘‘[S]hould courts apply
Batson vigorously, it would be even less appropriate to
sanction personally those implicated. Moreover, judges
may be hesitant to find Batson violations, especially in
close cases, if doing so means that attorneys they know
and see regularly will be punished personally or profes-
sionally as a result.’’); T. Tetlow, ‘‘Solving Batson,’’ 56
Wm. & Mary L. Rev. 1859, 1897–98 (2015) (‘‘[The Batson
rule’s focus on pretext] requires personally insulting
prosecutors and defense lawyers in a way that judges
do not take lightly, calling them liars and implying that
they are racist. Technically, as some have argued, lying
to the court constitutes an ethics violation that the
judge should then report to the bar for disciplinary
proceedings. Disconnecting the regulation of jury selec-
tion from the motives of lawyers will make judges far
more likely to enforce the rule.’’ [Footnotes omitted.]).
Second, the purposeful discrimination requirement
does nothing to address the adverse effects of implicit
or unconscious bias on jury selection. As the Washing-
ton 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
often unconscious, implicit biases that endure despite
our best efforts to eliminate them. Racism now lives
not in the open but beneath the surface—in our institu-
tions and our subconscious thought processes—
because we suppress it and because we create it anew
through cognitive processes that have nothing to do
with racial animus.’’ (Footnote omitted.) State v. Saint-
calle, supra, 178 Wash. 2d 46; see also T. Tetlow, supra,
56 Wm. & Mary L. Rev. 1946 (‘‘The current Batson rule
constitutes a placebo that purports to solve the problem
of discrimination by juries but really focuses only on
purported discrimination against jurors. Not only does
it fail to address the real issues, it also actively distracts
from them. The Batson rule represents the culmination
of the [United States] Supreme Court’s desire to solve
the intractable and unconscionable problem of racism
in our criminal justice system by ordering everyone in
the courtroom to ignore it.’’).
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 peremp-
torily: ‘‘[W]hat if the lawyer is wrong? What if her aware-
ness 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 dis-
crimination occurs, almost inevitably, because of nor-
mal cognitive processes that form stereotypes.’’
(Emphasis omitted.) Id., 180. Professor Page’s landmark
article ‘‘examines the findings from recent psychologi-
cal 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 frame-
work 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 peremp-
tory challenge will have ultimately denied potential
jurors their equal protection rights.’’ (Footnote omit-
ted.) 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
Batson procedure’s requirement of subjective discrimi-
natory intent, which also relieves judges of ‘‘mak[ing]
the difficult finding that the lawyers before them are
dishonest,’’ (2) to instruct jurors about the concepts
of unconscious bias and stereotyping, (3) to require
educating attorneys about unconscious bias, with a
requirement that they ‘‘actively and vocally affirm their
commitment to egalitarian [nondiscriminatory] princi-
ples,’’ and (4) to increase the use of race blind and
gender blind questionnaires. Id., 260–61.
Similarly, Judge Mark W. Bennett, an experienced
federal district judge, considers the ‘‘standards for fer-
reting out lawyers’ potential explicit and implicit bias
during jury selection . . . a shameful sham’’; he, too,
urges (1) the inclusion of jury instructions and presenta-
tions 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 collat-
eral 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 deci-
sion 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 consid-
ered 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 Chal-
lenge 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 Her-
nandez 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
absence of pretext’’ [internal quotation marks omit-
ted]), cert. denied, U.S. , 138 S. Ct. 2637, 201 L.
Ed. 2d 1039 (2018); see also Tennyson v. State, Docket
No. PD-0304-18, 2018 WL 6332331, *7 (Tex. Crim. App.
December 5, 2018) (Alcala, J., dissenting from refusal
of discretionary review) (‘‘[i]f any implausible or out-
landish reason that was never even discussed with a
prospective juror can be accepted as a genuine [race
neutral] strike by a trial court . . . and if appellate
courts simply defer to trial courts . . . then Batson is
rendered meaningless, and it is time for courts to enact
alternatives to the current Batson scheme to better
effectuate its underlying purpose’’). It also has been
suggested that the second step of Batson be modified
to circumscribe the number of permissible race neutral
explanations or increase their quality, which would also
alleviate the more difficult discrimination finding atten-
dant to the third step. See L. Cavise, supra, 551–52 (‘‘If
the Supreme Court is serious when it holds that the
venireperson’s right to serve is of such importance that
it merits equal protection coverage, then surely it is
merely a logical extension to prohibit a person from
being improperly removed for the [nonreason] of the
neutral explanation. Is the exalted right to serve merely
a facade to be torn away on the sheerest of explana-
tions? Minorities, women, and persons of cognizable
ethnicity should . . . be removed [only] for legitimate
reasons—which does not include those that are purely
subjective, irrational, or unverifiable, much less racist
or sexist.’’); J. Wrona, Note, ‘‘Hernandez v. New York:
Allowing Bias To Continue in the Jury Selection Pro-
cess,’’ 19 Ohio N.U. L. Rev. 151, 158 (1992) (criticizing
Hernandez for giving ‘‘little value to the disparate
impact of the prosecutor’s challenges’’ and ‘‘emphasiz-
ing the prosecutor’s subjective rationale and attaching
minor significance to objective evidence,’’ which
affords ‘‘prosecutors ample means to discriminate in
jury selection’’).
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 simi-
lar 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
some exercise of the intuitive. Any judge who can say
‘I may not agree but I see how you can think that’ has
mastered this suggestion in peremptory challenges.’’);
A. Cover, ‘‘Hybrid Jury Strikes,’’ 52 Harv. C.R.-C.L. L.
Rev. 357, 395 (2017) (‘‘[The author suggests the] replace-
ment of traditional peremptory strikes with hybrid jury
strikes, which could . . . be exercised [only] if the pro-
ponent first articulated reasons coming close to, but
not found to satisfy, the standard for cause challenges.
This reform would have important salutary effects by
mandating ex ante rationality, yet preserving in modi-
fied form the most important penumbral function of
the peremptory strike.’’); T. Tetlow, supra, 56 Wm. &
Mary L. Rev. 1895 (proposing test that would balance
quality of claims of juror bias against impact on diversity
of striking juror, rather than their sincerity); see also
T. Tetlow, supra, 1900–1906 (arguing that that Holland
v. Illinois, 493 U.S. 474, 482–83, 110 S. Ct. 803. 107
L. Ed. 2d 905 [1990], holding that sixth amendment
requirement of fair cross section on venire does not
apply to petit jury, was wrongly decided and arguing
in favor of consideration of diversity during jury selec-
tion, rather than ‘‘equat[ing] race consciousness with
racism’’).
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 discrim-
inatory 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 sugges-
tion. 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 Bat-
son equal protection grounds at any time prior to the
swearing of the jury’’ and noting that nothing on face
of General Statutes § 51-238a precludes trial judge from
recalling juror who was released from duty).
Moving beyond the courtroom itself, other commen-
tators have suggested the reform of recordkeeping prac-
tices to allow for the evaluation of jury selection prac-
tices 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 sug-
gests that the regular availability of statistical evidence
might mitigate racial disparities in jury selection. If this
is true, criminal courts need to recognize their obliga-
tion to preserve and provide access to jury selection
data for all criminal trials.’’); id., 667–68 (suggesting
retention of records, including race of potential jurors,
whether they served, and ‘‘additional venire characteris-
tics,’’ with omission of juror names or other identifying
information to protect jurors’ privacy and safety); R.
Wright et al., ‘‘The Jury Sunshine Project: Jury Selection
Data as a Political Issue,’’ 2018 U. Ill. L. Rev. 1407,
1442 (advocating for aggregation and collection of jury
selection data across court systems to promote public
policy advocacy with respect to reduction of discrimi-
nation during jury selection process); see also A. Burke,
‘‘Prosecutors and Peremptories,’’ 97 Iowa L. Rev. 1467,
1485–86 (2012) (urging prosecutors to ‘‘collect and pub-
lish both individual and office-wide data regarding the
exercise of peremptory challenges’’).
Finally, we cannot ignore the intersection of peremp-
tory 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. , A.3d (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 [composi-
tion] of the venire pool, the scope of voir dire of poten-
tial 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 defen-
dants 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 constitu-
tional 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 per-
centage 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
problem. Instead, we should recognize the challenge
presented by unconscious stereotyping in jury selection
and rise to meet it.’’ State v. Saintcalle, supra, 178 Wash.
2d 49. We hesitate to assume, however, that this court
is best situated in the first instance to issue an edict
prescribing a solution to what ails Batson on a systemic
level. But see State v. Holloway, 209 Conn. 636, 646
and n.4, 553 A.2d 166 (using supervisory authority to
provide greater protection than required by Batson by
eliminating requirement under first prong of establish-
ing prima facie case of purposeful discrimination in any
case in which venirepersons of same cognizable racial
group as defendant are peremptorily struck from
venire), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104
L. Ed. 2d 643 (1989).
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. Cali-
fornia, 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 Wash. 2d 51
(‘‘[t]he Batson framework anticipates that state proce-
dures 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 underrepresenta-
tion of minorities on juries due to the English profi-
ciency 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 ‘elimi-
nating barriers to facilities, processes and information
that are faced by individuals with limited English profi-
ciency’ ’’).
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 Wash. 2d 34, which was
to uphold under existing law the trial court’s finding
that the prosecutor had not acted with purposeful dis-
crimination 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 stakehold-
ers 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 Wash. 2d
225, 243–47, 429 P.3d 467 (2018) (describing work
group’s process).
The rule-making process22 that followed Saintcalle
recently culminated in the Washington Supreme Court’s
adoption of a comprehensive court rule governing jury
selection, Washington General Rule 37,23 which applies
in all jury trials and is intended ‘‘to eliminate the unfair
exclusion of potential jurors based on race or ethnicity.’’
Wn. Gen. R. 37 (a) and (b). With respect to the issues
in the present case, one particularly notable feature of
General Rule 37 is a declaration—targeted to the second
prong of Batson—that certain ostensibly race neutral
explanations are ‘‘presumptively invalid,’’ including dis-
trust of law enforcement officers, not being a native
English speaker, and residing in a high crime neighbor-
hood. Wn. Gen. R. 37 (h); see also Wn. Gen. R. 37 (i)
(requiring corroboration and verification on record of
certain conduct based challenges). General Rule 37 also
responds to implicit bias concerns by requiring the trial
judge to consider ‘‘the reasons given to justify the
peremptory challenge in light of the totality of circum-
stances. 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 pur-
poseful discrimination to deny the peremptory chal-
lenge.’’24 Wn. Gen. R. 37 (e); see also State v. Jefferson,
supra, 192 Wash. 2d 229–30 (extending General Rule 37’s
modification of third prong of Batson with objective test
to pending cases and reversing defendant’s conviction
because record indicated that ‘‘objective observer could
view race or ethnicity as a factor in the use of the
peremptory strike’’).
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 communi-
ties 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 Wash. 2d 52–53 (‘‘we
seek to enlist the best ideas from trial judges, trial
lawyers, academics, and others to find the best alterna-
tive to the Batson analysis’’); see also Seattle v. Erick-
son, 188 Wash. 2d 721, 739, 398 P.3d 1124 (2017) (Ste-
phens, 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 partici-
pants and will be able to consider far broader perspec-
tives than can be heard in a single appeal. Uncon-
strained by the limitations of the Batson framework, the
rule-making process will be able to consider important
policy concerns as well as constitutional issues.’’).
Although we observed in State v. Holloway, supra,
209 Conn. 645, that ‘‘the issue of purposeful racial dis-
crimination in the state’s use of peremptory jury chal-
lenges 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 destruc-
tive 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 General Stat-
utes § 51-232 (c),27 which governs the confirmation form
and questionnaire provided to prospective jurors, (2)
improving the process by which we summon prospec-
tive jurors in order to ensure that venires are drawn
from a fair cross section of the community that is repre-
sentative of its diversity, (3) drafting model jury instruc-
tions about implicit bias, and (4) promulgating new
substantive standards that would eliminate Batson’s
requirement of purposeful discrimination. Cf. Newland
v. Commissioner of Correction, 322 Conn. 664, 686 n.7,
142 A.3d 1095 (2016) (expressing preference that Rules
Committee of Superior Court consider and adopt pro-
phylactic rules, rather than Supreme Court exercising
its supervisory powers, because ‘‘the Rules Committee
of the Superior Court . . . provides a more appropriate
forum in which to fully and fairly consider any potential
amendment to the procedural rules’’). Accordingly, we
‘‘hope . . . that our decision sends the clear message
that this court is unanimous in its commitment to eradi-
cate racial bias from our jury system, and that we will
work with all partners in the justice system to see this
through.’’28 Seattle v. Erickson, supra, 188 Wash. 2d 739
(Stephens, J., concurring).
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, McDONALD, KAHN and
ECKER, Js., concurred.
1
See, e.g., Batson v. Kentucky, supra, 476 U.S. 106 (Marshall, J., concur-
ring); State v. Veal, 930 N.W.2d 319, 359–61 (Iowa 2019) (Appel, J., concurring
in part and dissenting in part); State v. Saintcalle, 178 Wash. 2d 34, 46–49,
309 P.3d 326 (overruled in part on other grounds by Seattle v. Erickson,
188 Wash. 2d 721, 398 P.3d 1124 [2017]), cert. denied, 571 U.S. 1113, 134 S.
Ct. 831, 187 L. Ed. 2d 691 (2013); J. Bellin & J. Semitsu, ‘‘Widening Batson’s
Net To Ensnare More Than the Unapologetically Bigoted or Painfully
Unimaginative Attorney,’’ 96 Cornell L. Rev. 1075, 1077–78 (2011); N. Marder,
‘‘Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory
Challenge,’’ 49 Conn. L. Rev. 1137, 1182–83 (2017); A. Page, ‘‘Batson’s Blind-
Spot: Unconscious Stereotyping and the Peremptory Challenge,’’ 85 B.U. L.
Rev. 155, 178–79 and n.102 (2005); T. Tetlow, ‘‘Solving Batson,’’ 56 Wm. &
Mary L. Rev. 1859, 1887–89 (2015).
2
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court err in determining that
the trial court properly denied the defendant’s challenge under Batson v.
Kentucky, [supra, 476 U.S. 96–98]?’’ State v. Holmes, 327 Conn. 984, 175
A.3d 561 (2017).
3
For a detailed recitation of the underlying facts of this case, see State
v. Holmes, supra, 176 Conn. App. 159–62.
4
Specifically, the state charged the defendant with murder in violation
of General Statutes § 53a-54a (a), felony murder in violation of § 53a-54c,
home invasion in violation of General Statutes § 53a-100aa (a) (2), conspiracy
to commit home invasion in violation of General Statutes §§ 53a-48 (a) and
53a-100aa, burglary in the first degree in violation of General Statutes § 53a-
101 (a) (1), and criminal possession of a firearm in violation of General
Statutes § 53a-217.
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.
5
Defense counsel observed for the record that the defendant ‘‘is of mixed
race’’ and that, on the basis of his observation of the questionnaires and
the jury panel on the first day, ‘‘[there are] no Hispanic surnames, no African-
Americans, no Asians, [there are] no Indians or [Middle] Easterners, [there
are] no Pacific Islanders. It’s 100 percent, from my view, [a] white Caucasian
jury panel that was brought in.’’ He indicated that he might put on the record
that a prospective juror who had not answered the racial identification
question on the questionnaire appeared to be white or Caucasian in the
event that person was excused from service.
6
‘‘In accordance with our usual practice, we identify jurors by initial in
order to protect their privacy interests.’’ State v. Berrios, 320 Conn. 265,
268 n.3, 129 A.3d 696 (2016).
7
‘‘Following the filing of this appeal, the defendant filed with [the Appellate
Court] a motion for articulation, which was referred to the trial court pursu-
ant to Practice Book § 66-5. The trial court granted the motion and in a
memorandum concluded that all of the reasons set forth by the [prosecutor]
in exercising [the] peremptory challenge were race neutral.’’ State v. Holmes,
supra, 176 Conn. App. 171. Specifically, the trial court cited, inter alia, this
court’s decisions in State v. King, supra, 249 Conn. 664–67, 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. Smith, 222 Conn. 1, 13–15, 608 A.2d
63 (1992), for the proposition that ‘‘negative contact with the police’’ is a
‘‘legitimate, race neutral reason for exercising a [peremptory] challenge.’’
The trial court then determined that the defendant had not met his burden
of persuading the court by a preponderance of the evidence that the explana-
tions were pretextual or insufficient. The trial court also observed in its
articulation that ‘‘the other reasons given by the [prosecutor] for exercising
the peremptory challenge were also race neutral. Those reasons included
the expressed view that the criminal justice system was not fair, the venire-
person had family members who had been convicted and served time, and
that he worked to rehabilitate people.’’
8
Specifically, the defendant was found guilty on all of the counts tried
to the jury and the count tried to the court; see footnote 4 of this opinion;
except for murder, as the jury instead found the defendant guilty of the
lesser included offense of manslaughter in the first degree with a firearm
in violation of General Statutes § 53a-55a (a). In rendering its judgment of
conviction, the trial court vacated the convictions of manslaughter and
burglary in the first degree pursuant to State v. Polanco, 308 Conn. 242, 255,
61 A.3d 1084 (2013).
9
The Appellate Court rejected the defendant’s other claims on appeal,
namely, that (1) the trial court improperly admitted a tape-recorded state-
ment of a witness pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d
86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and
(2) the state violated his right to remain silent under Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), ‘‘when it cross-examined
him at trial about his failure to disclose to the police at the time of his
arrest certain exculpatory information that he later testified to at trial.’’
State v. Holmes, supra, 176 Conn. App. 185. These claims are not before us
in this certified appeal.
10
The Appellate Court observed that the six factors articulated in State
v. Edwards, supra, 314 Conn. 485–86, for determining whether the prosecutor
had acted with discriminatory intent in using a peremptory challenge on
W.T. all ‘‘support the [trial] court’s conclusion that the [prosecutor] properly
exercised [his] right to use a peremptory challenge with regard to W.T.
‘‘First, the [prosecutor’s] reasons for excluding W.T. were his stated dis-
trust 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.
11
The Appellate Court was by no means insensitive to the concerns raised
by the defendant. In a footnote, the Appellate Court cited ‘‘studies conducted
by reputable research firms’’ and observed that ‘‘permitting the use of
peremptory challenges with respect to potential jurors who express negative
views toward the police or the justice system may well result in a dispropor-
tionate exclusion of minorities from our juries, a deeply troubling result.’’
State v. Holmes, supra, 176 Conn. App. 180–81 n.5. The Appellate Court also
expressed its concern about the effect of implicit bias in decisionmaking,
observing that it was making ‘‘this point not to suggest that the prosecutor
conducting voir dire in this case was motivated by racial bias, but to recog-
nize the need to be particularly vigilant in assessing a prosecutor’s use of
peremptory challenges, especially if the proffered explanation may have a
disproportionate impact on minority participation on juries.’’ Id., 181 n.5.
Ultimately, the Appellate Court observed that, as ‘‘an intermediate state
appellate court, we are, of course, bound by extensive precedent that limits
our ability to remedy the weaknesses inherent in the Batson standard. Our
cases are clear that disparate impact alone is insufficient to demonstrate a
Batson violation. Accordingly, as [this court] did in State v. Hinton, supra,
227 Conn. 330, we are confined to reminding trial courts to be particularly
diligent in assessing the use of peremptory challenges in circumstances that,
if left unscrutinized for pretext, may result in ‘an unconstitutionally disparate
impact on certain racial groups.’ ’’ State v. Holmes, supra, 181–82 n.5.
12
Judge Lavine issued a scholarly and insightful concurring opinion, agree-
ing with the Appellate Court majority’s conclusion that, ‘‘in the present case,
the peremptory challenge was properly exercised under prevailing law and
practices’’ but opining that ‘‘this case brings into sharp relief a serious flaw
in the way Batson has been, and can be, applied. Batson is designed to
prevent lawyers from peremptorily challenging prospective jurors for mani-
festly improper reasons based on race, national origin, and the like. It
was not designed to permit prosecutors—and other lawyers—to challenge
members of suspect classes solely because they hold widely shared beliefs
within the prospective juror’s community that are based on life experiences.’’
(Emphasis in original.) State v. Holmes, supra, 176 Conn. App. 192. Judge
Lavine argued that this ‘‘blatant flaw that significantly disadvantages black
defendants—and people belonging to other suspect classes—has become
part of the Batson process itself’’ and urged reform of Connecticut’s ‘‘jury
selection process to eliminate the perverse way in which Batson has come
to be used.’’ (Footnote omitted.) Id., 193.
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
widely shared in their communities. The potential for the kind of categorical
exclusion that Batson permits is simply unacceptable in a system that strives
to treat everyone equally. It sends a troubling message to members of
minority communities who should be encouraged—not discouraged—to
actively engage in, and trust, the criminal justice system.
‘‘[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 omit-
ted; 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 discre-
tion in the jury selection process from the lawyers to the trial judge and
granting ‘‘judges . . . the discretion to disallow the use of peremptory chal-
lenges 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, follow-
ing 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.
13
The state also observes that the prosecutor had proffered other race
neutral reasons—unchallenged by the defendant on appeal—for the peremp-
tory challenge of W.T., including his concerns about racial disparities in
sentencing, his work to rehabilitate prisoners, and the fact that he had close
relatives who had been convicted and incarcerated.
14
In addition to race, it is well established that Batson also precludes
peremptory challenges that discriminate purposefully on the basis of gender,
religious affiliation, and ancestry or national origin. See, e.g., J.E.B. v. Ala-
bama ex rel. T.B., 511 U.S. 127, 129, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)
(gender); State v. Rigual, 256 Conn. 1, 10, 771 A.2d 939 (2001) (ancestry/
national origin); State v. Hodge, supra, 248 Conn. 240 (religious affiliation).
15
‘‘We note that a Batson inquiry under Connecticut law is different from
most federal and state Batson inquiries. Under federal law, a three step
procedure is followed when a Batson violation is claimed: (1) the party
objecting to the exercise of the peremptory challenge must establish a prima
facie case of discrimination; (2) the party exercising the challenge then
must offer a neutral explanation for its use; and (3) the party opposing the
peremptory challenge must prove that the challenge was the product of
purposeful discrimination. . . . Pursuant to this court’s supervisory author-
ity over the administration of justice, we have eliminated the requirement,
contained in the first step of this process, that the party objecting to the
exercise of the peremptory challenge establish a prima facie case of discrimi-
nation.’’ (Internal quotation marks omitted.) State v. Edwards, supra, 314
Conn. 484 n.16; see State v. Holloway, 209 Conn. 636, 646 and n.4, 553 A.2d
166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).
16
Our analysis is limited to the federal constitution because, as the defen-
dant acknowledged at oral argument before this court, he has not briefed
an independent state constitutional claim pursuant to State v. Geisler, 222
Conn. 672, 684–86, 610 A.2d 1225 (1992). See, e.g., State v. Saturno, 322
Conn. 80, 113 n.27, 139 A.3d 629 (2016); see also State v. Hinton, supra, 227
Conn. 329–31 (rejecting Batson claim under state constitution on basis of
disparate impact on jurors who reside in vicinity of crime scene at issue).
17
Examples abound of courts accepting distrust of the criminal justice
system or law enforcement officers as a race neutral explanation for peremp-
torily challenging a juror. See, e.g., United States v. Alvarez-Ulloa, 784 F.3d
558, 567 (9th Cir. 2015); United States v. Moore, 651 F.3d 30, 43 (D.C. Cir.
2011), aff’d sub nom. Smith v. United States, 568 U.S. 106, 133 S. Ct. 714,
184 L. Ed. 2d 570 (2013); People v. Hardy, 5 Cal. 5th 56, 81, 418 P.3d 309,
233 Cal. Rptr. 3d 378 (2018), cert. denied, U.S. , 139 S. Ct. 917, 202 L.
Ed. 2d 648 (2019); State v. Mootz, 808 N.W.2d 207, 219 (Iowa 2012); Batiste
v. State, 121 So. 3d 808, 849 (Miss. 2013), cert. denied, 572 U.S. 1117, 134
S. Ct. 2287, 189 L. Ed. 2d 178 (2014); State v. Nave, 284 Neb. 477, 487–88,
821 N.W.2d 723 (2012), cert. denied, 568 U.S. 1236, 133 S. Ct. 1595, 185 L.
Ed. 2d 591 (2013).
18
The state observes that the ‘‘Appellate Court majority was unable to
ascertain whether the defendant was challenging the trial court’s resolution
of both the second and third steps of Batson, or whether he was challenging
only the court’s ultimate factual finding that the prosecutor did not act with
discriminatory intent in exercising the peremptory challenge against W.T.’’
See State v. Holmes, supra, 176 Conn. App. 175. We read the defendant’s
brief to this court to limit his challenge to the second step of Batson, insofar
as he does not engage in any significant analysis of the record to demonstrate
that the trial court’s finding of no pretext was clearly erroneous and instead
emphasizes that the prosecutor’s reasons with respect to ‘‘ ‘negative’ ’’ inter-
actions with law enforcement were not racially neutral ‘‘per se’’ because
they ‘‘have a strong air of implicit racial bias, particularly with the knowledge
that potential juror W.T. is of African-American descent,’’ and ‘‘minority
races are generally afraid of [the] police, a statistical conclusion that is not
shocking given the amount of violence against minorities inundating recent
headlines.’’ This reading was borne out at oral argument before this court,
at which counsel for the defendant candidly acknowledged that the trial
prosecutor had not acted purposefully to exclude African-Americans or
other minorities from the jury but instead had elected to question prospective
jurors about a topic that would have the effect of excluding minority jurors,
rendering it not race neutral as a matter of law.
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 [prose-
cutor] 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 propri-
ety 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 identi-
fied, 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.
19
To its great credit, the state acknowledges the importance of ‘‘under-
standing and appreciating the existence and potentially corrupting influence
of implicit or unconscious biases’’ and notes that ‘‘Connecticut prosecutors
regularly receive training on this subject for the purpose of gaining insight
regarding this phenomenon and eliminating its corrupting influences to the
full[est] extent possible.’’ See A. Burke, ‘‘Prosecutors and Peremptories,’’
97 Iowa L. Rev. 1467, 1483–85 and n.93 (2012) (urging prosecutors to consider
their institutional ethical obligation and to undertake ‘‘voluntary reforms
designed to bolster the prosecutor’s role in protecting [race neutral] jury
selection and to neutralize the biases that might lead to racialized peremptory
challenges,’’ including implicit bias training and ‘‘ ‘switching’ exercises dur-
ing voir dire to assess for disparate questioning or reasoning’’).
20
The state, while acknowledging that ‘‘Batson has been widely criticized
as being ineffectual,’’ criticizes such diversity conscious solutions as uncon-
stitutional and discriminatory in their own right insofar as they would affirm-
atively treat white and minority venirepersons differently. Because neither
of these solutions is directly before us for adjudication, we express no view
regarding the merits of the state’s concerns.
21
In referring Batson reform to the rule-making process, ‘‘[a]s a first
step,’’ the Washington court proposed to ‘‘abandon and replace Batson’s
‘purposeful discrimination’ requirement with a requirement that necessarily
accounts for and alerts trial courts to the problem of unconscious bias,
without ambiguity or confusion. For example, it might make sense to require
a Batson challenge to be sustained if there is a reasonable probability that
race was a factor in the exercise of the peremptory challenge or [when]
the judge finds it is more likely than not that, but for the defendant’s race,
the peremptory challenge would not have been exercised. A standard like
either of these would take the focus off of the credibility and integrity of
the attorneys and ease the accusatory strain of sustaining a Batson challenge.
This in turn would simplify the task of reducing racial bias in our criminal
justice system, both conscious and unconscious.’’ State v. Saintcalle, supra,
178 Wash. 2d 53–54.
22
The Final Report of the Jury Selection Workgroup, explaining the pro-
posal adopted by the Washington Supreme Court as General Rule 37, pro-
vides a comprehensive ‘‘legislative history’’ of that rule, which resulted from
consideration of proposed rules submitted by the American Civil Liber-
ties Union and the Washington Association of Prosecuting Attorneys, with
considerable comment by the bench and bar. See Jury Selection Work-
group, Washington Supreme Court, Proposed New GR 37—Jury Selec-
tion Workgroup Final Report, p. 1, available at http://www.courts.wa.gov/
content/publicUpload/Supreme%20Court%20Orders/OrderNo25700-A-1221
Workgroup.pdf (last visited December 16, 2019).
23
Rule 37 of the Washington General Rules, adopted on April 24, 2018,
provides: ‘‘(a) Policy and Purpose. The purpose of this rule is to eliminate
the unfair exclusion of potential jurors based on race or ethnicity.
‘‘(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 circum-
stances the court should consider include, but are not limited to, the fol-
lowing:
‘‘(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 signifi-
cantly 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 pre-
sumptively invalid reasons for a peremptory challenge:
‘‘(i) having prior contact with law enforcement officers;
‘‘(ii) expressing a distrust of law enforcement or a belief that law enforce-
ment officers engage in racial profiling;
‘‘(iii) having a close relationship with people who have been stopped,
arrested, or convicted of a crime;
‘‘(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 corrobo-
ration by the judge or opposing counsel verifying the behavior shall invalidate
the given reason for the peremptory challenge.’’
24
We note that General Rule 37 may well be subject to consideration in
at least one other jurisdiction, as a defendant has sought review by the
Arizona Supreme Court of an Arizona Court of Appeals decision that relied
on its intermediate role in the hierarchal system to decline an invitation to
‘‘adopt the approach to peremptory challenges established in Washington,
which carves out a list of reasons presumed invalid and expands the third
step of the Batson analysis to include an ‘objective observer’ standard.’’
State v. Gentry, Ariz. , 449 P.3d 707 (App. 2019), petition for review
filed (Ariz. August 23, 2019) (CR-19-0273-PR).
25
‘‘[I]t is well established that an appellate court may take notice of
legislative facts, including historical sources and scientific studies, which
help determine the content of law and policy, as distinguished from the
adjudicative facts, which concern the parties and events of a particular
case.’’ (Internal quotation marks omitted.) State v. Santiago, 318 Conn. 1,
53 n.44, 122 A.3d 1 (2015). ‘‘Legislative facts may be judicially noticed without
affording the parties an opportunity to be heard, but adjudicative facts, at
least if central to the case, may not.’’ (Internal quotation marks omitted.)
State v. Edwards, supra, 314 Conn. 479. Particularly because many of the
relevant issues have not yet been presented to us through the crucible of
the adversarial process, we deem it advisable to stay our hand in favor of
the rule-making process, which is better suited to consider the array of
relevant studies and data in this area, along with the interests of the stake-
holders, and to promote diversity on juries in Connecticut’s state courts.
See id., 481–82.
26
We note that the Jury Selection Task Force may well recommend that
the applicability of some Batson reforms be limited to criminal cases, given
the fundamental difference between a criminal trial—which brings the
resources of the government to bear against a private citizen—and one
between private litigants. Cf. M. Howard, ‘‘Taking the High Road: Why Prose-
cutors Should Voluntarily Waive Peremptory Challenges,’’ 23 Geo. J. Legal
Ethics 369, 373–74 (2010) (Discussing prosecutors’ ‘‘ethical duty to ‘seek
justice’ ’’ and noting that peremptory challenges are ‘‘a prophylactic safe-
guard of a constitutional right to an impartial jury’’ that ‘‘are subject to cost-
benefit scrutiny prompting an assessment of the extent to which the practice
risks unconstitutional discrimination, damaging both the actual and per-
ceived fairness of the prosecution process, as well as the extent to which
the practice actually increases the likelihood of a just conviction. And in
balancing the two, is the benefit of one outweighed by the detriment to the
other?’’ [Footnote omitted.]); see also id., 375 (‘‘I argue for an office policy
directing prosecutors to waive peremptory challenges except in narrowly
defined circumstances, such as curing a failed challenge for cause by either
party or excusing a juror who demonstrates an unwillingness to deliberate
in good faith’’).
27
General Statutes § 51-232 (c) provides: ‘‘The Jury Administrator shall
send to a prospective juror a juror confirmation form and a confidential
juror questionnaire. Such questionnaire shall include questions eliciting the
juror’s name, age, race and ethnicity, occupation, education and information
usually raised in voir dire examination. The questionnaire shall inform the
prospective juror that information concerning race and ethnicity is required
solely to enforce nondiscrimination in jury selection, that the furnishing of
such information is not a prerequisite to being qualified for jury service and
that such information need not be furnished if the prospective juror finds
it objectionable to do so. Such juror confirmation form and confidential
juror questionnaire shall be signed by the prospective juror under penalty
of false statement. Copies of the completed questionnaires shall be provided
to the judge and counsel for use during voir dire or in preparation therefor.
Counsel shall be required to return such copies to the clerk of the court
upon completion of the voir dire. Except for disclosure made during voir
dire or unless the court orders otherwise, information inserted by jurors
shall be held in confidence by the court, the parties, counsel and their
authorized agents. Such completed questionnaires shall not constitute a
public record.’’
28
We note that numerous commentators and jurists, including United
States Supreme Court Justices Stephen Breyer and Thurgood Marshall, have
suggested that nothing short of the complete abolition of peremptory chal-
lenges will suffice to address discrimination in jury selection. See, e.g.,
Miller-El v. Dretke, 545 U.S. 231, 273, 125 S. Ct. 2317, 162 L. Ed. 2d 196
(2005) (Breyer, J., concurring); Batson v. Kentucky, supra, 476 U.S. 107
(Marshall, J., concurring); State v. Veal, supra, 930 N.W.2d 340 (Cady, C. J.,
concurring); People v. Brown, 97 N.Y.2d 500, 509, 769 N.E.2d 1266, 743
N.Y.S.2d 374 (2002) (Kaye, C. J., concurring); Davis v. Fisk Electric Co.,
268 S.W.3d 508, 529 (Tex. 2008) (Brister, J., concurring); Seattle v. Erickson,
supra, 188 Wash. 2d 739–40 (Yu, J., concurring); State v. Saintcalle, supra,
178 Wash. 2d 70–71 (Gonzalez, J., concurring); M. Bennett, supra, 4 Harv. L. &
Policy Rev. 167; N. Marder, ‘‘Foster v. Chatman: A Missed Opportunity for
Batson and the Peremptory Challenge,’’ 49 Conn. L. Rev. 1137, 1205 (2017).
As the state aptly observes—and as Justice Mullins acknowledges in his
concurring opinion, in which he advocates for ‘‘substantially reduc[ing] the
number of peremptory challenges that the parties have available for their
use’’—this specific remedy raises serious state constitutional questions. See
Conn. Const., art. 1, § 19, as amended by art. IV of the amendments to the
constitution (‘‘The right of trial by jury shall remain inviolate . . . . In all
civil and criminal actions tried by a jury, the parties shall have the right
to challenge jurors peremptorily, the number of such challenges to be
established by law. The right to question each juror individually by counsel
shall be inviolate.’’ [Emphasis added.]); Rozbicki v. Huybrechts, 218 Conn.
386, 392 n.2, 589 A.2d 363 (1991) (‘‘[t]he provisions concerning peremptory
challenges and the individual voir dire appear to be unique to Connecticut’s
constitution’’); see also Rivera v. Illinois, 556 U.S. 148, 152, 129 S. Ct. 1446,
173 L. Ed. 2d 320 (2009) (‘‘The right to exercise peremptory challenges in
state court is determined by state law. This [c]ourt has long recognized that
peremptory challenges are not of federal constitutional dimension. . . .
States may withhold peremptory challenges altogether without impairing
the constitutional guarantee of an impartial jury and a fair trial.’’ [Citation
omitted; internal quotation marks omitted.]). As was emphasized at oral
argument before this court, the defendant has not requested that we consider
abolishing peremptory challenges as a matter of law, so we do not consider
further this more drastic remedy, not yet embraced by any state. See State
v. Saintcalle, supra, 117 (Gonzalez, J., concurring). Accordingly, we leave
it to the rule-making process to address the systemic issues identified by
the defendant in this appeal.