In a blistering ruling Wednesday, the Oregon Court of Appeals overturned the 2015 conviction of a black man because the sole black juror in his case was wrongfully struck from the jury.

Anthony Lenaire Curry, who is black, was convicted by a jury on seven felony counts of using a child in a display of sexually explicit conduct. He appealed.

The appeals court ruling notes Washington County Circuit Court Judge Janelle Wipper wrongfully overruled an objection from Curry’s attorney. At the time of the trial, the attorney had objected to the prosecutor asking to remove the lone black juror from the jury through the legal tool known as a peremptory challenge.

The opinion is also critical of personal attacks from the then prosecutor Kevin Barton, who has since been elected as Washington County’s district attorney.

Washington County District Attorney Kevin Barton was election on May 15, 2018.

Washington County District Attorney Kevin Barton was election on May 15, 2018.

Office of Kevin Barton

“We conclude that, under that analysis, the trial court erred when it overruled defendant’s Batson objection and, further that the error is one that requires reversal,” Presiding Judge Erin Lagesen wrote in Wednesday’s ruling. “We therefore reverse and remand.”

Baston v. Kentucky is a 1986 U.S. Supreme Court decision that found using peremptory challenges to remove potential jurors based solely on their race violates the equal protection clause of the U.S. Constitution. 

During jury selection in Curry’s 2015 trial, defense attorney James Lang objected when Barton moved to strike the lone black juror.

“He argued that it was inferable that the prosecutor was excluding the one black juror based on race, given that defendant was African-American and the victim of the charges was white,” the appeals court wrote.

Barton replied that it was “impossible” he challenged the juror based on race because he made his decision before he saw the juror.

“As proof, the prosecutor offered into evidence a post-it note on which he had noted that he had ranked [the juror] a ‘0’ because of his status as an unemployed, young college student,” the appeals court wrote.

But the African American juror who was struck was not the only college student in the jury pool. There were two other college students who did end up seated on the jury. Defense attorney Lang called Barton’s justification, an “excuse” and told the judge she should infer that he was trying to exclude the only African American.

Barton then called Lang a racist and said he was offended by his arguments.

“[Defense Counsel] is a racist man, and he’s racist because he is saying that a juror belongs on this jury simply because of his race,” Barton said, according to the appeals court ruling. “After providing what I think is indisputable evidence that I made the decision to bump him prior to even seeing him, I’m offended that [defense counsel] says that it was still, nonetheless, racist on my part.”

Blossoms bloom in front of the Washington County Courthouse.

Blossoms bloom in front of the Washington County Courthouse.

Michael Clapp/OPB

Wipper, the trial court judge, ruled in Barton’s favor. It’s that ruling the Oregon Court of Appeals overturned and cleared Curry’s conviction. He could still be retried. 

“I am disappointed and strongly disagree with the court of appeals opinion,” Barton said in a statement on Wednesday. “I look forward to the opportunity to appeal this decision.”

In his statement, Barton also reiterated his decision to challenge the juror was made before the juror walked into the courtroom, without “any awareness of his race and with the approval of the trial judge who rejected the defense arguments.”

In an interview Lang, who has since retired, said he was pleased with the opinion.

“All we were looking for was a fair trial,” Lang said. “I think the Court of Appeals made it very clear when the prosecution bumps an African American, or a non-white juror, they have to have a real reason other than they don’t want that person on the jury. And they can’t use arbitrary, made up reasons for their challenge.”

In its analysis, the Oregon Court of Appeals, called out Barton’s behavior.

“If Batson is to realize its promise of eliminating impermissible discrimination in jury selection, we cannot afford to allow Batson challenges to devolve into what happened here,” the court wrote. “There is nothing offensive or racist about invoking the United States Supreme Court - established process for eliminating unconstitutional discrimination in jury selection, and defense counsel should not have been subjected to those accusations by the prosecutor simply for doing his job in accordance with the law.”

The court notes that Oregon’s law offers little guidance about how Batson challenges should be litigated to keep jury selection free from discrimination. It notes Washington state has done far more. In its opinion, the appeals court attached rules Washington state adopted last year.