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DECISION TO REMOVE POTENTIAL JUROR IS UPHELD

Utah's Supreme Court has upheld a prosecutor's decision to remove a prospective juror who would have been the only minority juror in an aggravated robbery trial in Weber County.

Prosecutor Sandra Sjogren thought a jury candidate was staring at her with disturbing hostility, "looking right at me as if she was drilling holes through me."That was sufficient reason, the Utah Supreme Court ruled recently.

Defense attorney Martin Gravis had contested the juror's dismissal, citing Batson vs. Kentucky, a landmark 1986 U.S. Supreme Court decision that held prosecutors cannot challenge jurors solely on account of their race.

But the Utah Supreme Court said Sjogren's interpretation of the juror's body language was enough to justify the rejection.

"Although trial courts should be particularly sensitive when facial expressions or body language alone is advanced as the reason for striking a minority juror, these reasons provide a sufficient basis to support the exercise of a peremptory challenge," Justice Richard C. Howe wrote.

The justices upheld 2nd District Judge Michael Lyon's decision that Sjogren had given a sufficient and race-neutral explanation.

Lyon had observed that since the accused, Cora Jean Higginbotham, was white, "the exclusion of a Hispanic from the (panel) for race seems remote."

Higginbotham, now 39, was convicted of the January 1994 armed robbery of an Ogden convenience store.

Defense attorney Kent Snider, who represented Higginbotham on appeal, said the court's decision means minority jurors can be removed easily, by either the prosecution or the defense.

"Basically, any excuse will do," he said. "The bottom line is you might as well just turn around and reverse Batson."

Assistant Attorney General Marian Decker said any attorney who perceives a jury candidate is biased - minority or not - should be able to remove the juror. Sjogren felt the juror's staring was hostile.

In a dissenting opinion, Chief Justice Michael Zimmerman said the trial judge erred by refusing to allow defense attorney Gravis to question the juror about her alleged hostility.