June 6, 1997
Record No. 961736





M. Langhorne Keith, Judge
Present: All the Justices

In this appeal, we consider the
proper remedy for the unconstitutional exercise of a peremptory
strike, specifically whether a juror, reseated on the panel after
having been improperly stricken, may be stricken from the panel a
second time by the same party.

The defendant in this personal
injury action, Thomas J. Hogan, used two of his peremptory
challenges to strike two females, one of whom, Nayamka Thomas,
was the only black female on the jury panel. The plaintiff,
Margaret Coleman, challenged the strike, asserting that Hogan
struck Thomas based on racial grounds in violation of the Equal
Protection Clause of the United States Constitution. Batson v.
, 476 U.S. 79, 89 (1986); Edmonson v. Leesville
Concrete Co., Inc.
, 500 U.S. 614, 628 (1991).

When asked by the trial court to
provide his rationale for the strikes, Hogan’s counsel explained
that the women were students, and he wanted to strike all three
students who were on the panel. However, because he only had two
strikes remaining, he struck the two women students, leaving the
remaining male student on the panel, "basically on the
supposition that [the women] may be more sympathetic to the
female plaintiff." The trial court concluded that these two
strikes were based on the gender of the panel members and,
therefore, constituted purposeful gender-based discrimination in
violation of the Fourteenth Amendment of the United States
Constitution. J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 145 (1994).

The trial court then reseated the
two women, stated that "student" was a valid basis for
striking a potential juror, and told Hogan he could "strike
one of them, but [not] both of them." Hogan struck the male
student and Thomas, the black female student. When Coleman again
challenged the strike of the black female, Hogan explained that
he decided not to strike the other student, the white female,
because "she was extremely soft-spoken and meek and
. . . between the two women, we think she’ll have less
of an [e]ffect on the jury."

The trial court allowed Hogan’s
second strike of Thomas, holding that Hogan gave a
"racially-neutral reason" for his second strike of
Thomas. Following a jury verdict in favor of Hogan, Coleman filed
a motion to set aside the verdict and for a new trial, again
challenging Hogan’s use of his peremptory strikes to remove
Thomas from the jury panel a second time. After briefing and
argument by counsel, the trial court denied Coleman’s motion,
reaffirming its holding that Hogan’s second strike of Thomas was
based on a racially neutral reason. We awarded Coleman an appeal
to determine whether the trial court properly allowed Hogan to
exercise a second peremptory strike against Thomas.

Hogan does not challenge the
trial court’s ruling that his initial peremptory strikes on the
basis of gender violated the Equal Protection Clause. The issue
before us is whether the remedy chosen by the trial court,
allowing Hogan the opportunity to strike a reseated juror a
second time, is consistent with the principles of Batson
and its progeny, namely, whether this remedy provides sufficient
assurance that an individual will not be prevented from serving
as a juror for unconstitutional reasons.

The positions of the parties on
this issue are clear. Hogan asserts that, following the reseating
of the jurors, the process begins anew. The trial court’s
decision should be affirmed in this case, Hogan contends, because
the reasons he advanced for striking Thomas a second time – she
was a student and was not as "soft-spoken and meek" as
the other woman juror – were facially neutral and, thus, subject
only to the challenge that the reasons were pretextual. Here,
Hogan asserts, the trial court found that Hogan’s reasons were
not pretextual, and, Hogan argues, the trial court’s
determination on this factual issue should be given great
deference and overturned only if the trial court abused its
discretion or committed manifest error. Hernandez v. New York,
500 U.S. 352, 364 (1991).

Coleman argues that in cases such
as this, where the reason for the initial strike was
constitutionally infirm, any subsequent reason given for the
strike, even if neutral on its face, cannot be separated from the
original offensive basis for the strike. "[C]ounsel cannot
qualify or lessen the discriminatory effect of a peremptory
strike based on gender by relying on the explanation of the
juror’s ‘student’ status." Once a gender-based reason was
articulated for a peremptory strike, Coleman argues, "any
additional neutral reasons are suspect" and "that
strike must be disallowed in toto."

The Supreme Court of the United
States, in leaving the task of prescribing the appropriate remedy
for the unconstitutional exercise of a peremptory strike to the
states, identified two possible remedies: reseating persons
improperly struck from the jury panel and discharging the venire
and selecting a new jury from a new panel. Batson, 476
U.S. at 100 n.24. Some states have required that the venire be
discharged and a new panel chosen. See, e.g., People
v. Wheeler
, 583 P.2d 748, 765 (Cal. 1978); State v.
, 433 S.E.2d 144, 159 (N.C. 1993); State v.
, 456 S.E.2d 357, 360 (S.C. 1995). Other
jurisdictions have required that an improperly stricken juror be
reinstated on the panel. See, e.g., State v.
, 854 S.W.2d 403, 416 (Mo. 1993)(en banc). A third and
largest group has allowed the trial court to exercise its
discretion in selecting the appropriate remedy. See, e.g.,
Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992); Jones
v. State
, 683 A.2d 520, 529 (Md. 1996); Commonwealth v.
, 633 N.E.2d 369, 373 (Mass. 1994); Ezell v.
, 909 P.2d 68, 72 (Okla. Crim. App. 1995); State ex
rel. Curry v. Bowman
, 885 S.W.2d 421, 425 (Tex. Crim. App.

We agree with the majority of
states that the choice of remedy should be within the discretion
of the trial court. A number of factors, such as the point at
which the challenge to the strike is sustained and the knowledge
of the jurors regarding the improper strike, affect the
determination of which remedy to choose. The trial court is
uniquely positioned to evaluate the circumstances in each case
and to exercise its discretion in selecting the appropriate

The parties in this case do not
suggest that the trial court’s decision to reseat the juror was
improper. Rather, the dispute centers around the status of the
juror, once reseated. Few cases address this issue because the
majority of cases addressing challenges to peremptory strikes
involve review of decisions holding that the use of a peremptory
strike did not violate the Equal Protection Clause. See, e.g.,
Buck v. Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994); James
v. Commonwealth
, 247 Va. 459, 442 S.E.2d 396 (1994); Faison
v. Hudson
, 243 Va. 397, 417 S.E.2d 305 (1992). When an
appellate court reverses the trial court’s decision, the remedy
of "reseating" the improperly stricken juror is
impossible; the only remedy available at that point is a new
trial with an entirely new jury panel.

In the few cases of which we are
aware involving the issue in the instant case, the trial court
refused to allow the striking party to challenge the reseated
juror a second time. See United States v. Bentley-Smith,
2 F.3d 1368, 1372 (5th Cir. 1993); State v. Franklin, 456
S.E.2d 357, 360 (S.C. 1995). These cases do not provide extended
discussion of the rationale supporting this restriction on the
use of peremptory strikes. Nevertheless, we conclude that such a
restriction is proper because a litigant should not be entitled
to a new Batson analysis for every subsequent explanation
he offers to justify striking a previously challenged juror. Once
the trial court determines that the basis for a peremptory strike
is unconstitutional, any other reasons proffered at the same
time, or subsequently, cannot erase the discriminatory motivation
underlying the original challenge.

As the trial court recognized in
this case, the initial rationale which included both
"student" and "female" was tainted because
one of the two proffered reasons was improper. Hogan does not
suggest that, at this point, the trial court should have held
that the strikes were proper because one of the reasons was not
constitutionally infirm. Hogan’s position, however, would allow a
constitutionally proper reason to override a constitutionally
infirm reason if the acceptable reason is given at a later point
in time. To adopt the procedure suggested by Hogan invites a
litigant to engage in creating successive rationales, hoping one
will ultimately qualify as both facially neutral and not
pretextual. Such a manipulation of the jury selection process
would erode the constitutional protections enunciated in Batson
and its progeny. Furthermore, it requires the trial court to
ignore its prior determination and the prior explanations and
conduct each successive evaluation of a newly proffered rationale
as if on a "blank slate." Such a process improperly
restricts the ability of the trial court to make the required

With the exception of one 1989
case from the United States Court of Appeals for the Eighth
Circuit, peremptory strikes have not been upheld because one
proffered reason was constitutionally acceptable even though
another reason for the strike was constitutionally infirm. Compare
United States v. Iron Moccasin, 878 F.2d 226, 229 (8th
Cir. 1989)(where one explanation was race neutral, no need to
consider other reasons) with Faison v. Hudson, 243
Va. at 402-03, 417 S.E.2d at 308 (strike disallowed although age,
demeanor, and occupation also given as basis for strike); Riley
v. Commonwealth
, 21 Va. App. 330, 335-36, 464 S.E.2d 508, 510
(1995)(strikes exercised for age and gender reasons); Johnson
v. Love
, 40 F.3d 658, 668 (3d Cir. 1994)(evidence must show
that invidious discrimination "played no role" in
strike); United States v. Greene, 36 M.J. 274, 280-81
(C.M.A. 1993)(explanation which includes "in part" a
racially discriminatory reason is not neutral); Powers v.
, 813 S.W.2d 489, 490 n.1 (Tex. 1991)(race "not
the sole reason" for improper strike).

We conclude that once a juror has
been unconstitutionally stricken, the jury selection process
relative to that juror is tainted. The remedy provided by the
trial court must cure that taint. Therefore, when the trial court
chooses to reseat the improperly stricken juror, the striking
party may not use a peremptory strike to remove that juror from
the panel a second time.

Accordingly, the judgment of the
trial court will be reversed and the case remanded for a new

Reversed and remanded.