Permissibility of Accent-Based Peremptory Strikes and Eleven-Member Jury Deliberations

Introduction

This commentary examines the United States Court of Appeals for the Fourth Circuit’s decision in United States v. Jose Joya Parada (April 9, 2025), affirming two pivotal rulings at the trial level: (1) that a prosecutor’s peremptory strike based on a juror’s strong accent does not necessarily violate Batson v. Kentucky, and (2) that a district court may, under Federal Rule of Criminal Procedure 23(b), continue deliberations with an eleven-member jury when a juror is excused mid-deliberation. The four appellants—Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez—challenged both rulings. This decision sets a new Fourth Circuit precedent clarifying the scope of acceptable race-neutral reasons for peremptory strikes and articulates the district court’s discretion to proceed with an eleven-juror panel when unforeseen circumstances arise.

Summary of the Judgment

In a published opinion authored by Judge Agee (joined by Chief Judge Diaz and Judge Wynn), the Fourth Circuit affirmed the district court’s rulings in two respects:

1. Batson Challenges: The court found no clear error in the district court’s conclusion that the prosecutor’s peremptory strikes of two Black prospective jurors (Jurors 217 and 138) were based on neutral, non-racial reasons—namely, a heavy accent that could impede deliberation (Juror 217), and perceived lack of engagement and questionnaire omissions (Juror 138).
2. Rule 23 Eleven-Member Jury: The court held that excusing Juror 9 after she tested positive for COVID-19 and continuing deliberations with eleven jurors was within the district court’s broad discretion. The Fourth Circuit found no abuse of discretion, noting the district court’s careful consideration of all alternatives (pausing deliberations, Zoom participation, seating an alternate) and its conclusion that proceeding under Rule 23(b) was the most practical and legally sound option.

Analysis

Precedents Cited

• Batson v. Kentucky, 476 U.S. 79 (1986) – Establishes the three-step framework for evaluating racial discrimination in peremptory challenges.
• Hernandez v. New York, 500 U.S. 352 (1991) – Clarifies burden-shifting under Batson and underscores deference to trial judge’s credibility findings.
• United States v. Green, 599 F.3d 360 (4th Cir. 2010) – Reaffirms clear-error review for Batson rulings and emphasizes the trial judge’s pivotal role.
• United States v. Levenite, 277 F.3d 454 (4th Cir. 2002) – Approves proceeding with an eleven-member jury under Rule 23 when jurors fall ill during deliberations.

Legal Reasoning

The Fourth Circuit applied distinct standards to each issue:

1. Batson Analysis

1. Step 1 (Prima Facie Case): The court recognized that once the prosecutor proffers a neutral explanation, the prima facie inquiry becomes moot.
2. Step 2 (Race-Neutral Explanation): The Government explained the strikes were based on (a) Juror 217’s “very thick accent” and difficulty in communicating, and (b) Juror 138’s incomplete questionnaire responses and perceived lack of attentiveness. The district court deemed these reasons facially neutral under Batson.
3. Step 3 (Purposeful Discrimination): Deference was afforded to the trial judge’s credibility determination—the court saw no indication that the prosecutor’s motives were pretextual or rooted in race or national origin. No clear error was found.

2. Rule 23(b) Eleven-Member Jury

Federal Rule of Criminal Procedure 23(b) permits a jury of eleven to return a verdict if “the court finds good cause to excuse a juror” after deliberations begin. The Fourth Circuit’s abuse-of-discretion review highlighted:

• The district court’s detailed consideration of all available options: waiting for the sick juror to recover, summoning an alternate under Rule 24, using videoconference technology, or proceeding with eleven jurors.
• Finding that waiting would have delayed verdicts by at least a week under standing COVID protocols, that remote deliberations risked privacy and unequal participation, and that seating an alternate late would undermine the continuity of deliberations.
• Concluding the decision was neither arbitrary nor capricious but a careful balancing of practical, procedural, and fairness concerns.

Impact

This decision will shape future trials by:

• Affirming that accent-based concerns can constitute a legitimate, race-neutral reason for peremptory strikes when there is a genuine—and nonpretextual—apprehension about juror comprehension and participation.
• Clarifying the district court’s expansive discretion under Rule 23 to dismiss a juror mid-deliberation and proceed with eleven jurors, provided the court carefully weighs alternatives and finds good cause.
• Reinforcing the high level of appellate deference to credibility findings in Batson challenges and to district-court procedural judgments affecting jury composition.

Complex Concepts Simplified

Peremptory Challenge vs. For-Cause Strike

A peremptory challenge allows counsel to exclude a juror without stating a cause, but it cannot be used to discriminate based on race, national origin, or gender. A for-cause strike requires an explicit showing that the juror cannot be fair or impartial.

Batson Three-Step Framework

1. Prima Facie – Defendant shows potential discrimination.
2. Proffer – Prosecutor gives a race-neutral reason.
3. Intent – Court decides whether the true motive was discriminatory.

Rule 23(b)

Allows a jury of fewer than twelve—down to eleven—to return a valid criminal verdict when a juror is excused during deliberations for a valid reason and the court finds “good cause.”

Conclusion

United States v. Parada clarifies two important frontiers of jury law. First, it confirms that a strong accent, when shown to truly impede comprehension, may justify a peremptory strike without running afoul of Batson, so long as the district court credits the prosecutor’s non-racial, non-pretextual explanation. Second, it upholds the district court’s broad discretion under Rule 23 to proceed with an eleven-member jury when a juror falls ill, provided the court canvasses alternatives, finds good cause, and safeguards the fairness and integrity of deliberations. Together, these holdings reaffirm the trial judge’s pivotal role in evaluating jury composition and preserve the flexibility needed to administer justice efficiently, even under challenging circumstances.