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Batson Challenge: Sharps v. Doe
The Baltimore Medical Malpractice Lawyer Blog discusses Maryland appellate opinions in personal injury cases that involve issues also found in medical malpractice cases. In this post, I examine the requirement to make a prima facie Batson challenge, based on discriminatory use of peremptory challenges. The case is the Appellate Court of Maryland’s May 9, 2025, unreported opinion in Sharps v. Doe, No. 1298.
Factual Background
The plaintiff and defendant had been in a romantic relationship. The plaintiff brought a lawsuit for damages in the Circuit Court for Anne Arundel County, alleging that the defendant had transmitted the herpes virus (HSV-2) to her. (Op. at 1).
The court oversaw the jury selection process at trial. After the parties used their peremptory strikes, the court asked if the parties were satisfied, and the defense stated that they were not, because the jury consisted entirely of women. (Id. at 3-4).
The exchange included:
DEFENDANT’S COUNSEL: I don’t think this is a jury of my client’s peers.
THE COURT: Okay. Well, you had the opportunity to make that happen. You were satisfied with your (indiscernible) so I’m going to overrule your objection.
(Id. at 4).
After opening statements, the court asked the plaintiff’s lawyer why they struck male jurors. The plaintiff’s lawyer responded that the time for asserting a Batson challenge was before the jury was seated. (Id.).
On the second day of trial, after the plaintiff had begun to testify, the trial judge revisited the defendant’s Batson challenge and denied it, ruling it was insufficient. (Id.).
The jury found in favor of the plaintiff, and the court entered judgment in her favor in the amount of $890,000. (Id. at 1).
Appellate Court
On appeal, the defendant argued that he had raised a Batson challenge when he objected to the all-female jury. A party can raise a Batson challenge when the opposing party uses a peremptory challenge to strike a juror for a discriminatory purpose, such as gender. The U.S. Supreme Court established these principles in Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama, 511 U.S. 127 (1994). (Op. at 5).
Under Batson, if a party makes a prima facie case of discriminatory exercise of peremptory challenges, the opposing party must produce neutral explanations as to why it exercised its peremptory challenges. The opposing party must articulate a neutral explanation in this case. After these steps, the trial judge determines whether the objecting party has established a case of purposeful discrimination. (Id. at 6).
To make a prima facie Batson challenge, a party must put forth some evidence to show that the other party has exercised its peremptory strikes in a discriminatory manner. The moving party must show that they are a member of a cognizable group and that the adverse party exercised peremptory challenges to remove prospective members of the jury on the basis that they are of the same protected class as the objecting party. A challenging party must make the case that the totality of the factual circumstances raises an inference that the adverse party used its peremptory challenges to exclude jurors for a discriminatory purpose. (Id).
Defendant Failed to Make a Prima Facie Batson Challenge
Here, the defendant objected to the jury because he was a male and the seated jury was all female. There was a discussion of the juror numbers that the plaintiff had struck. Still, the defendant did not identify the jurors before the court swore the jury. (Id. at 8).
The Appellate Court stated that the defendant could have reviewed the jury list and identified the jurors struck by the plaintiff but did not. The defendant also did not state that he was making a Batson challenge. The defendant was required to identify the stricken jurors and proffer that the plaintiff struck those jurors for a discriminatory purpose. Failing to do so, the defendant was unable to make a prima facie Batson challenge. (Id. at 8-9).
Once the court swore the jury, it was too late to revisit a Batson challenge. (Id. at 8).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Making a Prima Facie Batson Challenge
As a trial lawyer, your role is not just about making decisions, but about making the right decisions at the right time. These decisions, once made, often cannot be undone. While you can anticipate some situations, there are many that are unpredictable. This unpredictability underscores the importance of strategic decision-making in legal cases.
Here, the defense lawyer recognized the situation with the jury that they wanted to challenge, but was unsure of the legal requirements. This situation is not unusual. It highlights the importance of a comprehensive understanding of legal principles and procedures. Trial lawyers cannot memorize every legal principle and its supporting citation. Still, they must prepare to navigate such situations.
Strategy Considerations
In such an instance, one option is to ask the judge for a brief recess, as soon as the all-female jury was seated, but before the court swore the jury. This proactive approach could have empowered the defense lawyer to inform the judge that they intend to challenge the jury selection and, during a brief recess, gather the necessary authority and procedure to do so.
We don’t know if the trial judge would have granted that brief recess. Based on the trial judge’s comments, the court would have also appreciated an opportunity to review the procedure and authorities.
During this discussion, the plaintiff’s lawyer was savvy. They declined to answer the judge’s question why they struck men from the jury. Instead, the lawyer replied that the inquiry was too late. This strategic decision may have prevented the defendant from gaining potentially useful information. Would the answer to the judge’s question have revealed information helpful to the defendant’s challenge? We don’t know. However, had the defendant taken steps to establish the prima facie case promptly, the plaintiff may have had to explain their actions.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.