Danny Trotman v. State of Maryland, No. 8, September Term, 2019

PROSPECTIVE JURORS WITH DISABILITIES – AMERICANS WITH
DISABILITIES ACT – MD. CODE ANN., CTS. & JUD. PROC. (1974, 2013 REPL.
VOL., 2016 SUPP.) §§ 8-102(b) AND 8-103(b)(3) – Court of Appeals held that, under
Americans with Disabilities Act, Maryland statutes that govern jury service, and relevant
case law, trial court may not summarily excuse prospective jurors with disabilities. Instead,
trial court may excuse prospective juror for cause on disability-related ground if no
reasonable accommodation is possible, and, at that particular trial, particular disability
would prevent prospective juror from providing satisfactory jury service. Court of Appeals
held that, where staircase with twenty-five steps was only way to reach jury room that
accompanied courtroom that was used for trial, and trial court concluded no other
courtroom was available, trial court did not abuse its discretion in excusing for cause four
prospective jurors who indicated that they would be unable to use stairs.
Circuit Court for Baltimore City
Case No. 115236022

Argued: September 9, 2019
                                                                                         IN THE COURT OF APPEALS

                                                                                              OF MARYLAND

                                                                                                    No. 8

                                                                                             September Term, 2019
                                                                                   ______________________________________

                                                                                             DANNY TROTMAN

                                                                                                      v.

                                                                                           STATE OF MARYLAND
                                                                                   ______________________________________

                                                                                             Barbera, C.J.
                                                                                             McDonald
                                                                                             Watts
                                                                                             Hotten
                                                                                             Getty
                                                                                             Booth
                                                                                             Adkins, Sally D. (Senior Judge,
                                                                                             Specially Assigned),

                                                                                                   JJ.
                                                                                   ______________________________________

                                                                                              Opinion by Watts, J.
                                                                                   ______________________________________

                                                                                             Filed: October 18, 2019




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.




                       2019-10-18 11:37-04:00




Suzanne C. Johnson, Clerk
       It is well-established that having the opportunity to participate in jury service is both

a right and a responsibility. As Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol.,

2016 Supp.) (“CJ”) § 8-102(a) states, “[e]ach adult citizen of this State has: (1) The

opportunity for jury service; and (2) When summoned for jury service, the duty to serve.”

(Paragraph breaks omitted).

       It is equally well-established that “[a] citizen may not be excluded from jury service

due to color, disability, economic status, national origin, race, religion, or sex.” CJ § 8-

102(b) (emphasis added). Under the Americans with Disabilities Act, 42 U.S.C. §§ 12101

to 12213, generally, “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in . . . the . . . activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. And, CJ § 8-103(b)(3)

states in pertinent part: “[S]ubject to the federal Americans with Disabilities Act, an

individual is not qualified for jury service if the individual . . . [h]as a disability that, as

documented by a health care provider’s certification, prevents the individual from

providing satisfactory jury service[.]” “The [Maryland] Judiciary is committed to

complying with the Americans with Disabilities Act, including through providing

prospective jurors with an equal opportunity to participate in jury service.” Maryland

Judiciary, Jury Service: Notice: [Americans with Disabilities Act] Compliance, https://

www.mdcourts.gov/juryservice/noticeada [https://perma.cc/TJY2-LWEZ].

       This case involves the unfortunate circumstance that in a courthouse in the Circuit

Court for Baltimore City a staircase with twenty-five steps was the only way to reach the

jury room that accompanied the courtroom that was used for the trial in this case. We must
decide whether the trial court abused its discretion in excusing for cause four prospective

jurors who said that they would have difficulty using1 or were unable to use stairs.

       The State, Respondent, charged Sergeant Danny Trotman, Petitioner, a correctional

officer of the Department of Public Safety and Correctional Services, with second-degree

assault, conspiracy to commit second-degree assault, and misconduct in office. At the start

of trial, before the jury panel entered the courtroom, four prospective jurors disclosed to

the Jury Commissioner’s Office that they would either have difficulty using or be unable

to use stairs, and the Jury Commissioner’s Office gave that information to the circuit court.

The circuit court separately called each of the four prospective jurors to the bench. In each

instance, first, the circuit court expressly confirmed that the prospective juror was unable

to use stairs; then, the circuit court informed the prospective juror that a staircase with

twenty-five steps was the only way to reach the jury room. Ultimately, the circuit court

excused the four prospective jurors for cause and directed them to return to the jury

assembly room to be available for participation as jurors in another trial. Trotman’s

counsel objected to the circuit court excusing the four prospective jurors for cause and

requested that the circuit court conduct the trial in another courtroom. The circuit court

responded that no other courtroom was available, and trial proceeded in the assigned



       1
         In response to questions from the circuit court during voir dire as to whether the
jurors could use the stairs to the jury room, one prospective juror, Juror 376, indicated that
she had “difficulty doing stairs”; a second prospective juror, Juror 408, responded that she
had a “hard time going across the street”; and two other prospective jurors expressly said
that they would not be able to use the stairs. No issue has been raised as to whether the
circuit court was correct in determining that the four prospective jurors could not use the
stairs to the jury room.

                                           -2-
courtroom. The jury found Trotman guilty of two charges. Trotman appealed, and the

Court of Special Appeals affirmed. Trotman filed a petition for a writ of certiorari, which

this Court granted.

       Before us, Trotman contends that the circuit court erred in excusing for cause the

four prospective jurors who indicated that they were unable to use stairs. Trotman argues

that the circuit court failed to properly exercise its discretion to excuse for cause the four

prospective jurors at issue, as it failed to consider potential options for accommodating

them. The State responds that, although prospective jurors with disabilities cannot be

excluded from jury service across the board, on a case-by-case basis, a trial court may

excuse a prospective juror with a disability if the disability would interfere with the

performance of the prospective juror’s duties.

       Guided by the Americans with Disabilities Act, Maryland statutes that govern jury

service, and relevant case law, we hold that a trial court may not summarily excuse for

cause prospective jurors with disabilities; instead, a trial court may excuse a prospective

juror for cause on a disability-related ground if no reasonable accommodation is possible,

and, at that particular trial, the particular disability would prevent the prospective juror

from providing satisfactory jury service.         Applying our holding to this case’s

circumstances, we conclude that the circuit court did not abuse its discretion in excusing

for cause the four prospective jurors who indicated they would be unable to use the stairs

to the jury room.




                                           -3-
                                      BACKGROUND

                                        Jury Selection

       On the first day of trial, shortly after the jury panel entered the courtroom, during a

bench conference, the circuit court stated:

       [Juror 3762] is unable to use stairs. So she can’t be on this jury because there
       are [twenty-five step]s to the jury room. So I’m going to strike her for cause.
       . . . [M]aybe I [had] better check with these [prospective jurors] to make sure
       [that] they’re telling the truth. . . . [Juror] 408 also says [that s]he can’t do
       stairs. . . . I’m not going to strike. I’m going to talk to them. . . . [Juror] 624
       also says [that] she can’t do stairs.

       After the circuit court called roll, the following exchanges occurred:

       THE COURT: May I see Juror [] 376 at the bench with [c]ounsel?

                                              ***

       THE COURT: [Juror 376], I understand from the Jury Commissioner’s
       Office that you have difficulty doing stairs, is that correct?

       [JUROR 376]: Yes.

       THE COURT: There are [twenty-five] steps to the jury room, so I’m going
       to excuse you from serving on this jury because you’re unable to do the stairs.
       Okay?

       [JUROR 376]: Okay.

       THE COURT: So you should go back to the jury assembly room now.

       [JUROR 376]: Okay. Now, in the future, I don’t feel that I -- I have the
       ability to -- I know that you don’t want to discriminate against me --

       THE COURT: Correct.

       [JUROR 376]: But I feel that[,] in serving on the jury[,] you need to use your

       2
        Although the transcript reads “(Indiscernible)” here, the context makes clear that
the circuit court said “376,” referring to Juror 376.

                                            -4-
visual cues as well as, you know, the evidence and everything --

THE COURT: Well, and you would let the [j]udge know that. Not every
person who’s blind feels that way.

[JUROR 376]: Okay.

THE COURT: But you would just[ --] the [j]udge will always ask you if
there’s anything else, if there’s any other reason why you shouldn’t serve as
[a] jur[or]. You can tell them that. Okay?

[JUROR 376]: Okay. All right.

THE COURT: You can go back now to [the jury assembly room], where you
were at.

[JUROR 376]: Where I was at?

THE COURT: Where you were at.

[JUROR 376]: Thank you.

THE COURT: May I see Juror [] 408[,] please?

                                    ***

THE COURT: [Juror 408], you told the Jury [Commissioner’s] Office that
you were unable to do [stair]s. There are [twenty-five] steps to the jury room
in this courtroom. Will you be able to do those?

[JUROR 408]: I have hard time going across the street.

THE COURT: No? Okay. Well, for that reason[ --] there are courtrooms
that are on the same level, but this is not one of them. So I’m going to excuse
you and ask you to go back to the jury assembly room.

[JUROR 408]: Okay. All right. Thank you.

THE COURT: May I see Juror [] 624?

                                    ***

THE COURT: I understand that you’re unable to do steps, is that correct?


                                   -5-
[JUROR 624]: Yes.

THE COURT: There’s [twenty-five] steps to the jury room in this courtroom,
so are you telling me that you don’t think you can do [twenty-five] steps?

[JUROR 624]: No. Do you have[ --] is there an elevator? I can do that.

THE COURT: We don’t have an elevator. You [would] have to walk up and
down the steps. Up and down the steps.

[JUROR 624]: No. No.

THE COURT: So I’m going to excuse you from serving on this jury. All
right?

[JUROR 624]: Okay. Thank you.

THE COURT: So you’re excused now. They do have courtrooms on the
same level, so there are no steps involved.

[JUROR 624]: Okay.

THE COURT: So you may be selected for one of them, so you’re free to go
back.

[JUROR 624]: Okay. Okay. Thank you.

                                  ***

THE COURT: May see Juror [] 404?

                                  ***

THE COURT: [Juror 404], you told the [J]ury [C]ommissioner[’s Office]
that you couldn’t serve on this jury because you couldn’t go up and down
stairs, is that correct?

[JUROR 404]: Umm --

THE COURT: I’ve got [twenty-five step]s. Could you go up and down
[twenty-five step]s?



                                 -6-
      [JUROR 404]: No.

      THE COURT: Okay. I’m going to excuse you then.

      [JUROR 404]: Okay.

      THE COURT: You can report back to the [j]ury [a]ssembly [r]oom now.

      [JUROR 404]: Thank you.

      After the circuit court finished questioning individual prospective jurors about their

responses to the voir dire questions that the circuit court asked of the jury panel, the

following exchange occurred:

      [TROTMAN’S COUNSEL]: I’d like to make motion on the stairs,
      particularly [Juror 624,3 who] said that [she] would love to serve if [she]
      could be accommodated with [] an elevator.

      THE COURT: And how would you have suggested [that] I accommodate
      her?

      [TROTMAN’S COUNSEL]: That we go to another courtroom, on behalf of
      [] Trotman, who’s on trial here, for him to have fundamentally fair trial as a
      [d]efendant[,] versus the need to have steps in particular courtroom[. T]hat’s
      reason they’re going to get struck when they’re randomly picked
      [prospective] jurors. That’s my objection.

      THE COURT: Okay. Unfortunately[,] in the Baltimore City Circuit
      Court[,] every single courtroom is being used. I, as a senior judge,[4] fill
      up the empty courtroom[,] Judge [Sylvester] Cox’s courtroom, which is what
      we’re in. He’s assigned to juvenile[. T]hat’s why we’re here. It’s the only

      3
          Here, Trotman’s counsel inadvertently referred to Juror 408.
      4
          In this context, “senior judge” means

      an individual who (A) once served as a judge on the District Court, a circuit
      court, or an appellate court of this State, (B) retired from that office
      voluntarily or by operation of law by reason of age, and (C) has been
      approved for recall to sit as a judge[.]

Md. R. 1-202(z)(2).

                                           -7-
       courtroom that’s available. So you’[v]e made your record.

(Emphasis added).

             State’s Witnesses’ Trial Testimony, Verdicts, and Sentences

       Although the evidence adduced at trial is not dispositive of the issue that is before

this Court, we provide a summary of the evidence for completeness. At trial, as a witness

for the State, David Gilmore testified that, on December 2, 2014, while he was working as

a correctional officer at Baltimore Central Booking & Intake Center, he was told that five

inmates needed to be moved. Gilmore went to the area where the five inmates were, and

was told that one of them, Eric Wise, was refusing to move. Six or seven correctional

officers were in the area of Wise’s cell. One of them, a Sergeant Thompson, approached

the door to Wise’s cell, spoke to him, and then struck him. According to Gilmore, Wise

came “running, crawling out of [his] cell[.]” Two officers pushed Wise down and told him

to get on his stomach. Wise broke away from the two officers and headed toward an exit.

At that point, Trotman, who was standing near the exit, slapped Wise, who turned and went

in a different direction. Sergeant Thomas struck Wise’s back, and Wise got on his stomach

and was handcuffed.

       As a witness for the State, Wise testified that, on December 2, 2014, while he was

an inmate at Baltimore Central Booking & Intake Center, he was told that he needed to be

moved. When Wise asked why, Sergeant Thomas hit him. Other correctional officers

entered Wise’s cell. Wise tried to run, and some of the correctional officers tried to hold

him down. Wise pulled away from the correctional officers and got out of his cell. Wise

testified that he was hit in the jaw, not slapped, but he could not tell who hit him. Wise was


                                           -8-
taken to the infirmary and then to the University of Maryland Medical Center. Wise

underwent surgery for a broken jaw, and multiple screws were placed in his jaw, which

was wired shut.

       Detective-Sergeant Christian Boodhoo of the Internal Investigative Division of the

Department of Public Safety and Correctional Services testified for the State that the

Department’s policy requires correctional officers to “use the minimal amount of force

reasonably necessary to accomplish [a] mission.”5         According to Detective-Sergeant

Boodhoo, an open-hand slap to the face, or a punch to the face, was not the minimal amount

of force required in this situation. Detective-Sergeant Boodhoo testified that he had seen

a video of Trotman’s encounter with Wise, and that Trotman could have put a knee on

Wise and or laid on him while other correctional officers secured him.

       The jury found Trotman guilty of second-degree assault and misconduct in office,

and not guilty of conspiracy to commit second-degree assault. The circuit court sentenced

Trotman to ninety suspended days of imprisonment, eighteen months of probation, and 200

hours of community service for second-degree assault, and sixty suspended days of

imprisonment and eighteen concurrent months of probation for misconduct in office.

                          Opinion of the Court of Special Appeals

       Trotman appealed, and the Court of Special Appeals affirmed, holding that the

circuit court did not err or abuse its discretion in excusing for cause the four prospective

jurors who said that they could not use stairs. See Danny Trotman v. State, No. 2331, Sept.



       5
           The circuit court did not admit Detective-Sergeant Boodhoo as an expert.

                                           -9-
Term, 2016, 2019 WL 290022, at *21, *11 (Md. Ct. Spec. App. Jan. 15, 2019). The Court

of Special Appeals explained:

       The [circuit court] judge, a retired and specially assigned veteran of the
       Circuit Court for Baltimore City, drew upon her current and historical
       knowledge of the courthouse. . . . [W]hen [Trotman’s] counsel suggested that
       another courtroom might possibly be able to accommodate the physical
       disabilities of [the four prospective] jurors[ at issue], the [circuit court] judge
       explained that Trotman’s trial had been assigned to her, along with the
       courtroom [that was] usually occupied by [another circuit court] judge who
       was temporarily sitting in juvenile court, and, according to the [circuit court]
       judge, there was no other courtroom available for Trotman’s two-day trial.
       When the [circuit court] judge provided that explanation at trial, [Trotman’s]
       counsel did not dispute the lack of alternative courtrooms or challenge the
       adequacy of the [circuit court judge]’s investigation into alternative
       accommodations. Nor did [Trotman’s counsel] suggest any of the alternative
       jury deliberation scenarios [that were] set forth in Trotman’s [] brief. In the
       absence of any evidence in the record that there was another courtroom
       available, the [circuit court judge]’s finding is not clearly erroneous.

Id. at *15-16 (cleaned up).

                              Petition for a Writ of Certiorari

       Trotman petitioned for a writ of certiorari, raising three issues. This Court granted

the petition, limited to the issue that pertained to the circuit court excusing for cause the

four prospective jurors who said that they were unable to use stairs. See Trotman v. State,

463 Md. 526, 206 A.3d 315 (2019).

                                        DISCUSSION

                                 The Parties’ Contentions

       Trotman contends that the circuit court erred in striking for cause the prospective

jurors who indicated that they were unable to traverse stairs. Trotman notes that CJ § 8-

102(b) states in pertinent part: “A citizen may not be excluded from jury service due to . .



                                           - 10 -
. disability[.]” Trotman argues that, in a criminal case, the defendant may assert a

prospective juror’s right to an opportunity to participate in jury service because the

exclusion of a qualified prospective juror impinges the defendant’s right to a fair trial.

Trotman asserts that the grounds for disqualification are those that CJ § 8-103 sets forth,

such as the juror being unable to comprehend spoken English or speak English, and that

CJ § 8-103 does not indicate that being unable to use stairs is a ground for disqualification.

       Trotman acknowledges that, even if a prospective juror is not disqualified under CJ

§ 8-103, a trial court has the discretion to excuse him or her. Trotman maintains, however,

that the circuit court failed to exercise such discretion, as it failed to consider any options

for accommodating the four prospective jurors at issue. Trotman contends that the circuit

court should have contacted the administrative judge, the assignment office, or another

circuit court judge, or dispatched a law clerk, to determine whether any other courtrooms

were available. Trotman argues that, even if no other courtroom was available, the circuit

court should have asked to use the jury room that accompanied a courtroom where no jury

trial was ongoing or commandeered a conference room to use as a jury room.

       The State responds that the circuit court properly exercised its discretion in excusing

for cause the four prospective jurors at issue. The State agrees with Trotman that a

prospective juror with a disability is not automatically disqualified, but may be excused for

cause in the exercise of a trial court’s discretion. The State contends that a trial court may

excuse a prospective juror on a disability-related ground where, for practical reasons, the

disability would prevent the prospective juror from rendering satisfactory jury service. In

other words, the State argues that, although prospective jurors with disabilities cannot be


                                          - 11 -
excluded from jury service across the board, on an individual basis, a trial court may excuse

a prospective juror on a disability-related ground if the disability would interfere with the

performance of the prospective juror’s duties.

       The State asserts that a trial court may determine whether an accommodation for a

prospective juror with a disability would be reasonable. The State maintains that the circuit

court considered Trotman’s counsel’s proposed accommodation—namely, using another

courtroom—and found, as a matter of fact, that there were not any available. The State

contends that it is reasonable to infer that another circuit court judge or court personnel

informed the circuit court judge in this case that the courtroom to which she was assigned

was the only courtroom available. The State argues that it was proper for the circuit court

to take into account the time and effort to investigate the possibility of switching

courtrooms, and then to move everyone involved—specifically, the circuit court judge,

Trotman, his counsel, the prosecutor, the bailiff, the courtroom clerk, the law clerk, and the

prospective jurors—to another courtroom.

                                    Standard of Review

       An appellate court reviews for abuse of discretion a trial court’s excusal of a

prospective juror for cause. Cf. Jenkins v. State, 375 Md. 284, 299, 825 A.2d 1008, 1017

(2003).

                              Maryland and Federal Statutes

       CJ § 8-102(b) states: “A citizen may not be excluded from jury service due to color,

disability, economic status, national origin, race, religion, or sex.” CJ § 8-103 governs

qualifications for jury service, and states:


                                           - 12 -
       (a) Requirements. — Notwithstanding [CJ] § 8-102[], an individual qualifies
       for jury service for a county only if the individual:

              (1) Is an adult as of the day selected as a prospective juror;

              (2) Is a citizen of the United States; and

              (3) Resides in the county as of the day sworn as a juror.

       (b) Disqualifying factors. — Notwithstanding [CJ § 8-103](a) [] and subject
       to the federal Americans with Disabilities Act, an individual is not qualified
       for jury service if the individual:

              (1) Cannot comprehend spoken English or speak English;

              (2) Cannot comprehend written English, read English, or write
       English proficiently enough to complete a juror qualification form
       satisfactorily;

               (3) Has a disability that, as documented by a health care provider’s
       certification, prevents the individual from providing satisfactory jury service;

             (4) Has been convicted, in a federal or State court of record, of a crime
       punishable by imprisonment exceeding 6 months and received a sentence of
       imprisonment for more than 6 months; or

              (5) Has a charge pending, in a federal or State court of record, for a
       crime punishable by imprisonment exceeding 6 months.[6]

       (c) Conviction. — An individual qualifies for jury service notwithstanding a
       disqualifying conviction under [CJ § 8-103](b)(4) [] if the individual is
       pardoned.

       In turn, 42 U.S.C. § 12132, part of the Americans with Disabilities Act, states:

“Subject to the provisions of this subchapter, no qualified individual with a disability shall,



       6
        In 2019, the General Assembly amended Md. Code Ann., Cts. & Jud. Proc. (1974,
2013 Repl. Vol., 2018 Supp.) § 8-103(b)(4) and (5) to replace each instance of “6 months”
with “1 year.” 2019 Md. Laws (Ch. 750, S.B. 236). We quote the version of the statute
that was effective at the time of the trial in this case.

                                          - 13 -
by reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to discrimination by

any such entity.” Disability discrimination includes

         a failure to make reasonable modifications in policies, practices, or
         procedures, when such modifications are necessary to afford [] goods,
         services, facilities, privileges, advantages, or accommodations to individuals
         with disabilities, unless the entity can demonstrate that making such
         modifications would fundamentally alter the nature of such goods, services,
         facilities, privileges, advantages, or accommodations[.]

42 U.S.C. § 12182(b)(2)(A)(ii).

                              The Supreme Court’s Case Law

         In Batson v. Kentucky, 476 U.S. 79, 96 (1986), the Supreme Court held “that a

defendant may establish a prima facie case of purposeful discrimination in selection of the

petit jury solely on evidence concerning the prosecutor’s exercise of peremptory [strike]s

at the defendant’s trial.” In that case, the defendant was African-American; the prosecutor

peremptorily struck all four African-American prospective jurors; and, only white jurors

were seated. See id. at 82-83. The defendant’s counsel moved to discharge the jury on the

ground that the prosecutor’s peremptory strikes violated the defendant’s rights under the

Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United

States.7 See Batson, 476 U.S. at 83. The trial court denied the motion to discharge. See

id. The defendant was convicted, and the Supreme Court of Kentucky affirmed. See id. at

83-84.




         “No State shall . . . deny to any person within its jurisdiction the equal protection
         7

of the laws.” U.S. Const. amend. XIV, § 1.

                                           - 14 -
       The United States Supreme Court reversed and remanded. See id. at 84, 100. The

Supreme Court observed that, in a prior case, it had “decided that the State denies a[n

African-American] defendant equal protection of the laws when it puts him [or her] on trial

before a jury from which members of his [or her] race have been purposefully excluded.”

Id. at 85 (citation omitted). Since the Supreme Court decided that prior case, “[a] recurring

question . . . was whether the defendant had met his [or her] burden of proving purposeful

discrimination on the part of the State.” Id. at 90 (citations omitted). “A number of lower

courts [had] reasoned that proof of repeated striking of [African-American]s over a number

of cases was necessary to establish a violation of the Equal Protection Clause.” Id. at 92.

In Batson, the Supreme Court rejected that notion, see id. at 93, explaining “that a

defendant may make a prima facie showing of purposeful racial discrimination in selection

of the [jury panel] by relying solely on the facts concerning its selection in his [or her]

case[,]” id. at 95 (emphasis in original).

       The Supreme Court set forth a three-pronged test for a Batson challenge that is based

on race. First, the defendant must establish a prima facie case of purposeful racial

discrimination by “show[ing] that he [or she] is a member of a cognizable racial group, and

that the prosecutor has exercised peremptory [strike]s to remove from the [jury panel]

members of the defendant’s race.” Id. at 96 (citation omitted). Second, “the burden shifts

to the [prosecutor] to come forward with a [race-]neutral explanation for” peremptorily

striking prospective jurors who are the same race as the defendant. Id. at 97. Third, the

trial court must “determine [whether] the defendant has established purposeful

discrimination.” Id. at 98 (footnote omitted).


                                             - 15 -
       The Supreme Court decided Batson in 1986, which was four years before Congress

enacted the Americans with Disabilities Act in 1990. See Pub. L. 101-336 (July 26, 1990).

Four years later, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994), the Supreme

Court held that, during jury selection, “the Equal Protection Clause forbids intentional

discrimination on the basis of gender[.]” The Supreme Court did not mention people with

disabilities in Batson or J.E.B.

       Seven years after deciding J.E.B., in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 367-68 (2001), an employment discrimination case, the Supreme Court held that

       States are not required by the Fourteenth Amendment to make special
       accommodations for [people with disabilities], so long as their actions toward
       such individuals are rational. . . . If special accommodations for [people with
       disabilities] are to be required, they have to come from positive law[,] and
       not through the Equal Protection Clause.

(Footnote omitted).

       Three years later, in Tennessee v. Lane, 541 U.S. 509, 533-34 (2004), the Supreme

Court held that, “as it applies to the class of cases implicating the fundamental right of

access to the courts,” 42 U.S.C. § 12132—which states: “Subject to the provisions of this

subchapter, no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such entity”—

“constitutes a valid exercise of Congress’[s] authority to enforce the guarantees of the

Fourteenth Amendment.” The Supreme Court observed that

       Congress enacted [42 U.S.C. § 12132] against a backdrop of pervasive
       unequal treatment in the administration of [S]tate services and programs,
       including systematic deprivations of fundamental rights. For example, . . . a


                                          - 16 -
       number of States have prohibited and continue to prohibit persons with
       disabilities from engaging in activities such as . . . serving as jurors.

Id. at 524 (footnote omitted). That said, the Supreme Court has never addressed the

question of when it is a violation of the Americans with Disabilities Act for a trial court to

excuse a prospective juror on a disability-related ground.

                                 Other Courts’ Case Law

       In United States v. Harris, 197 F.3d 870, 871-72 (7th Cir. 1999), the United States

Court of Appeals for the Seventh Circuit held that a trial court did not violate a defendant’s

right to due process by allowing a prosecutor to peremptorily strike a prospective juror who

had multiple sclerosis. In that case, during voir dire, the trial court asked whether any

prospective juror “had a condition, such as dyslexia or being hard of hearing, of which the

[trial] court should be aware so that accommodation could be arranged.” Id. at 872. In

response, the only African-American prospective juror “stated that she had multiple

sclerosis and that she was on medication to control it, but that she might have trouble [with]

stairs and staying awake.” Id. (footnote omitted). The prosecutor peremptorily struck the

prospective juror. See id. The trial court asked the prosecutor “for a race-neutral reason

for the [peremptory] strike.” Id. The prosecutor responded that the reason for the

peremptory strike was that the prospective juror was “‘on medication, and that sleep may

be a problem for her with her multiple sclerosis.’” Id. (footnote omitted). Over the

defendant’s objection, the trial court allowed the peremptory strike and excused the

prospective juror. See id. The defendant was convicted, and appealed. See id.

       The Seventh Circuit affirmed. See id. at 876. The Seventh Circuit concluded that



                                          - 17 -
people with disabilities “are not a suspect or quasi-suspect class[,]” and that, accordingly,

the rational-basis test, rather than strict scrutiny, applied.8 See id. The Seventh Circuit

explained: “Unlike race or gender, the broad category of ‘disability’ is not ‘unrelated to [a

person’s] fitness as a juror.” Id. at 875 (quoting Batson, 476 U.S. at 87). The Seventh

Circuit stated:

       Unlike race or gender, disability may legitimately affect a person’s ability to
       serve as a juror. For example, [] potential jurors [with disabilities] who
       would be unable to understand testimony at trial[,] or who would suffer pain
       or hardship from spending hours each day sitting in a courtroom[,] are
       properly excused from service for cause.

Harris, 197 F.3d at 875. Addressing Harris’s facts, the Seventh Circuit held that the

prosecutor’s peremptory strike of the prospective juror on disability-related grounds “did

not violate the equal protection rights of either” the defendant or the prospective juror. Id.

at 876. The Seventh Circuit explained:

       If the [prosecutor] had [peremptorily] struck [the prospective juror] because
       of an irrational animosity toward or fear of [people with disabilities], this

       8
         A “suspect class” is a group of people who are subject to a “suspect
classification”—that is, “[a] statutory classification based on race, national origin, or
alienage, and thereby subject to strict scrutiny under” the Equal Protection Clause. Suspect
Classification, Black’s Law Dictionary (11th ed. 2019). In turn, “[u]nder strict scrutiny,
the [S]tate must establish that it has a compelling interest that justifies and necessitates the
law in question.” Strict Scrutiny, Black’s Law Dictionary.
        Meanwhile, a “quasi-suspect class” is a group of people who are subject to a “quasi-
suspect classification”—that is, “[a] statutory classification based on gender or legitimacy,
and therefore subject to intermediate scrutiny under” the Equal Protection Clause. Quasi-
Suspect Classification, Black’s Law Dictionary. In turn, to survive intermediate scrutiny,
a quasi-suspect “classification must be substantially related to the achievement of an
important governmental objective.” Intermediate Scrutiny, Black’s Law Dictionary.
        If a statute does not involve a suspect classification or a quasi-suspect classification,
then the statute is subject to the “rational-basis test,” under which a “court will uphold a
[statute] if it bears a reasonable relationship to the attainment of a legitimate governmental
objective.” Rational-Basis Test, Black’s Law Dictionary.

                                           - 18 -
       would not be a legitimate reason for excluding her from the jury. However,
       the [prosecutor peremptorily] struck [the prospective juror] because [the
       prosecutor’s] stated concern, accepted by the [trial] court, was that she would
       become drowsy and would not be able to pay attention during the trial. This
       is a legitimate concern that is rationally related to the provision of a fair trial
       for [the defendant].

Id. (citations omitted).

       In United States v. Santiago-Martinez, 58 F.3d 422, 423 (9th Cir. 1995) (per

curiam), the United States Court of Appeals for the Ninth Circuit held that Batson “does

not . . . prohibit peremptory strikes on the basis of obesity.” In that case, the defendant’s

counsel raised a Batson challenge and alleged that three prospective jurors whom the

prosecutor had peremptorily struck were obese. Santiago-Martinez, 58 F.3d at 423. The

defendant’s counsel also claimed that he was obese, though “he acknowledged that the

defendant was not.” Id. The trial court rejected the Batson challenge, and the defendant

was convicted and appealed. Santiago-Martinez, 58 F.3d at 423. The Ninth Circuit

affirmed, concluding that, although people who are obese are protected from discrimination

under the Americans with Disabilities Act, discrimination against them is not subject to

“heightened scrutiny.” See id. at 423 & n.1.

       In People v. Guzman, 555 N.E.2d 259, 260 (N.Y. 1990), the Court of Appeals of

New York held that a trial court did not err in denying a defendant’s motion to excuse for

cause a prospective juror who was deaf. In that case, one of the prospective jurors could

read, write, and speak English, but could not hear; “[a]lthough he [was] able to read lips,

he was assisted during jury selection by a court-appointed sign language interpreter.” Id.

The defendant moved to strike the prospective juror for cause, contending that his deafness



                                           - 19 -
“would prevent him from judging the witnesses’ credibility[,] and that the interpreter’s

presence in the jury room would inhibit deliberations and violate the confidentiality of the

deliberative process.” Id. at 261. The trial court denied the motion to strike for cause. See

id. The defendant peremptorily struck the prospective juror, and used up the rest of his

peremptory strikes. See id. The defendant was convicted, and the Appellate Division of

the Supreme Court of New York affirmed. See id. The Court of Appeals of New York

affirmed as well, concluding that the prospective juror would have been able to discharge

his duties as a juror, and that the sign language interpreter’s presence during deliberations

would not have interfered with the defendant’s rights. See id. at 260, 262-63.

       In People v. Falkenstein, 732 N.Y.S.2d 817, 818 (N.Y. App. Div. 2001), the

Appellate Division of the Supreme Court of New York held that a trial court did not err in

allowing a prosecutor to peremptorily strike a prospective juror who had difficulty hearing.

In that case, the prosecutor expressed concern “that the hearing impairment of the

prospective juror would affect her ability to assess [] audiotape evidence because, as noted

by the prosecutor, the inflections of [the] defendant’s voice on the audiotapes were

significant to the [government]’s case.” Id. The Appellate Division observed: “While it is

impermissible to exercise a peremptory [strike] on the basis of race . . . , no such prohibition

applies to physical disabilities.” Id. (citing Batson, 476 U.S. 79; Harris, 197 F.3d at 874-

875). The Appellate Division explained: “While the prosecutor’s concerns about the ability

of the prospective juror to serve as a juror may not have warranted her dismissal for cause,

the concerns provided a legitimate basis for the exercise of the peremptory [strike].”

Falkenstein, 732 N.Y.S.2d at 818 (citing three cases, including Guzman, 555 N.E.2d 259,


                                           - 20 -
and Harris, 197 F.3d at 876).

       In People v. Caldwell, 603 N.Y.S.2d 713, 713 (N.Y. Crim. Ct. 1993), the Criminal

Court of the City of New York supplemented an oral ruling in which it allowed a juror with

vision impairments to continue serving on the jury. In that case, the juror’s vision

impairments were “not discovered until the second day of trial.” Id. At that time, the juror

“disclosed that she had a detached retina in one eye[,] and had limited vision in her other

eye.” Id. The juror explained that, from where she was sitting in the jury box, “she could

see only the outline[s] of the witnesses’ faces, but could not see all the details of their facial

expressions.” Id. at 713-14. She also disclosed that it was “difficult, if not impossible, for

her to read standard size print”; but, she had “special reading glasses [that] made it easier

for her to read enlarged print.” Id. at 714.

       At trial, the Court noted that the Americans with Disabilities Act required it to

reasonably accommodate the juror. See id. at 714. The Court had the juror move, for the

duration of all remaining testimony, to the seat in the jury box that was closest to the

witness box; the Court read into the record all documents that it admitted into evidence;

the Court described the layouts of certain documents; and the Court caused to be given to

the juror an enlarged print version of a transcript of an audiotape that was offered into

evidence. See id.

       The Court explained that it “was not obligated to disqualify [the juror] merely

because the [defendant] introduced some photographs at trial.”               Id. at 715.     The

photographs purportedly showed bruises on the defendant’s face, and were offered to

corroborate the defendant’s testimony that the victim had assaulted the defendant. See id.


                                            - 21 -
The Court determined that, although it was likely that the juror could not see the

photographs clearly, she “had sufficient information to enable her to evaluate the

plausibility of the witnesses’ testimony” because the Court described the photographs to

the juror, and because “the defendant testified in great detail about the many indignities,

slights[,] and abuses [that] she claimed the [government’s] witnesses had committed

against her[.]” Id. at 715-16. The Court explained:

               It is difficult to imagine a trial in which absolutely no documents,
       diagrams, police reports, photographs or physical evidence are introduced.
       If this court were to hold that [the juror] was disqualified simply because a
       few documents and a few photographs were presented, it would, in effect, be
       concluding that there were almost no cases on which [jurors with vision
       impairments] or [] jurors [who are blind] could sit. Such a ruling would
       violate the spirit and intent of the [Americans with Disabilities Act]. . . .
       Rather, the question is whether the court could accommodate the juror by
       [orally] describing the evidence or by any other means, and whether the
       evidence is so crucial that the juror’s inability to see it denied the defendant
       a fair trial. In this case, the [C]ourt finds that the defendant was not denied
       due process[,] and adheres to its oral ruling permitting [the juror] to
       [continue] sit[ting] on the jury.

Id. at 716.

       In Donelson v. Fritz, 70 P.3d 539, 544-45 (Colo. App. 2002), the Colorado Court of

Appeals held that a trial court did not err in rejecting a plaintiff’s Batson challenge9 where

the defendant peremptorily struck two prospective jurors with disabilities. In that case, the

plaintiff sued the defendant for injuries that resulted from a car accident. See Donelson,

70 P.3d at 541. The plaintiff alleged that his injuries were painful and permanent, and

required him to reduce his personal and work-related activities. See id. at 543. During


       9
       Batson applies to both criminal cases and civil cases. See Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 616 (1991).

                                          - 22 -
voir dire, the defendant’s counsel peremptorily struck a prospective juror who had

“disabling rheumatoid arthritis[,]” as well as a prospective juror who had “a hip condition.”

Id. at 543-44. The plaintiff’s counsel raised a Batson challenge on the ground that the

defendant’s counsel was discriminating against prospective jurors with disabilities. See

Donelson, 70 P.3d at 543-44. The defendant’s counsel responded that the prospective juror

who had disabling rheumatoid arthritis could have difficulty sitting through long days of

trial and could “be sympathetic to plaintiff’s claims of back pain and impairment[,]” and

that the prospective juror who had a hip condition could have difficulty concentrating at

trial.   Id. at 544.   The trial court rejected the Batson challenge, “expressing some

uncertainty [about] whether Batson had been extended to persons with disabilities, [and]

conclud[ing] that it was not improper, in a case dealing with a person with [a] disability

and chronic pain, to exclude people with similar conditions.” Donelson, 70 P.3d at 544.

The jury found in the defendant’s favor, and the plaintiff appealed. See id. at 541.

         The Colorado Court of Appeals affirmed. See id. The Court held that, “assum[ing]

that the physical conditions from which [the prospective] jurors suffered constituted

disabilities within the meaning of the [Americans with Disabilities Act], the trial court did

not err in denying [the] plaintiff’s Batson challenge[.]” Donelson, 70 P.3d at 544-45. The

Court “agree[d] with the rationale of” multiple cases from other jurisdictions—including

Harris, 197 F.3d 870, Santiago-Martinez, 58 F.3d 422, and Falkenstein, 732 N.Y.S.2d

817—and “conclude[d] that Batson does not apply to peremptory” strikes of prospective

jurors with disabilities. Donelson, 70 P.3d at 544.




                                         - 23 -
                                            Analysis

       Here, guided by the Americans with Disabilities Act, Maryland statutes that govern

jury service, and relevant case law, we conclude that a trial court may not summarily excuse

for cause prospective jurors with disabilities; instead, a trial court may excuse a prospective

juror for cause on a disability-related ground if no reasonable accommodation is possible,

and, at that particular trial, the particular disability would prevent the prospective juror

from providing satisfactory jury service.

       We begin with our conclusion that a trial court may not summarily excuse for cause

prospective jurors with disabilities. To be sure, people with disabilities do not constitute a

suspect, or quasi-suspect, class; accordingly, the Equal Protection Clause does not require

trial courts “to make special accommodations for [prospective jurors with disabilities], so

long as their actions toward such individuals are rational.” Garrett, 531 U.S. at 367. By

way of illustration, in Harris, 197 F.3d at 876, the Seventh Circuit held that a peremptory

strike of a prospective juror with multiple sclerosis did not violate her, or the defendant’s,

rights under the Equal Protection Clause because the government had “a legitimate concern

that [was] rationally related to the provision of a fair trial”—namely, a concern “that [the

prospective juror] would become drowsy and would not be able to pay attention during the

trial.” In sum, a Batson challenge (which arises out of the Equal Protection Clause) may

be properly based only on a prospective juror’s race or gender—not on a prospective juror’s

disability.   See Harris, 197 F.3d at 875; Santiago-Martinez, 58 F.3d at 423 & n.1;

Falkenstein, 732 N.Y.S.2d at 818; Donelson, 70 P.3d at 544.

       But, Maryland and federal statutes protect prospective jurors from disability


                                            - 24 -
discrimination. Specifically, CJ § 8-102(b) provides in pertinent part: “A citizen may not

be excluded from jury service due to . . . disability[.]” And, under the Americans with

Disabilities Act, generally, “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in . . . the . . . activities of a public entity, or

be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Jury service

constitutes an activity of a public entity—namely, a trial court. In short, under CJ § 8-

102(b) and 42 U.S.C. § 12132, prospective jurors with disabilities have a right to an

opportunity to participate in jury service. We fully agree with the National Center for State

Courts and the State Justice Center Institute that, “[f]or jury service, people with disabilities

must be afforded the opportunity to participate in all the same ways as [people without

disabilities]. Summarily removing [people with disabilities] from [jury] service . . . is a

violation of the Americans with Disabilities Act.” Deborah Smith and Greg Hurley, Jurors

with Disabilities: A Discussion of the Americans with Disabilities Act and Other Statutory

Requirements Requiring Accommodations for [People with Disabilities], and Practical

Information To Be Compliant, National Center for State Courts and the State Justice Center

Institute   (“Jurors    with    Disabilities”),       at   5   (2018),   https://www.ncsc.org/~/

media/Microsites/Files/CJS/Other/Juror%20with%20Disabilities%20Final%20Report.ash

x [https://perma.cc/2GMW-K7AW].

       Under the Americans with Disabilities Act, failing to make reasonable

accommodations constitutes disability discrimination, whereas failing to make

fundamental alterations does not. See 42 U.S.C. § 12182(b)(2)(A)(ii). Thus, “[c]ourts are

not required to provide an accommodation if it fundamentally alters jury service.” Jurors


                                             - 25 -
with Disabilities at 25. And, “[a] person should be excused from jury service only for

mental or physical disability [that], despite reasonable accommodation for the disability,

substantially impairs the capacity to serve[.]” Am. Bar Ass’n, Criminal Justice Section

Standards, Standard 15-2.1(d) (Dec. 5, 2018), https://www.americanbar.org/groups/

criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_jurytri

al_blk/ [https://perma.cc/FQK3-39VJ]. Consistent with the Americans with Disabilities

Act and the Maryland statutes that govern jury service, a trial court may excuse a

prospective juror for cause on a disability-related ground if no reasonable accommodation

is possible, see 42 U.S.C. § 12182(b)(2)(A)(ii), and, at that particular trial, the particular

disability would prevent the prospective juror “from providing satisfactory jury service[,]”

CJ § 8-103(b)(3).10

       Just as there are multiple types of disabilities, there are multiple examples of

reasonable accommodations for prospective jurors. In Guzman, 555 N.E.2d at 260, where

a court-appointed sign language interpreter assisted a prospective juror who was deaf, New


       10
         CJ § 8-103(b)(3) contemplates that “a health care provider’s certification” can
establish that a disability “prevents the individual from providing satisfactory jury
service[.]” The language regarding “a health care provider’s certification” is clearly
intended to prevent a person from avoiding jury service by falsely claiming to have a
disability. But, that is a moot point by the time that a person with a disability reports for
jury duty and becomes a prospective juror at a particular trial. At that time, the trial court
must determine whether the prospective juror can provide satisfactory jury service at a
particular trial. CJ § 8-103(b)(3) does not preclude a trial court from finding, in the absence
of a health care provider’s certification, that a prospective juror has a disability that, at that
particular trial, would prevent the prospective juror “from providing satisfactory jury
service[.]” Guided by the standard set forth in CJ § 8-103(b)(3), we determine that a trial
court may excuse a prospective juror for cause based on a disability if no reasonable
accommodation is possible and the disability would prevent the prospective juror from
“providing satisfactory jury service” at a particular trial.

                                            - 26 -
York’s highest court concluded “that the prospective juror’s deafness did not render him

incapable of performing in a reasonable manner the duties of a juror.” (Cleaned up). And,

in Caldwell, 603 N.Y.S.2d at 713-14, the Criminal Court of the City of New York made

multiple reasonable accommodations for a juror with vision impairments, including

reading into the record all documents that the Court admitted into evidence.

       The takeaway is that, generally, the Americans with Disabilities Act prohibits a trial

court from reaching the blanket conclusion that a certain disability would necessarily

preclude jury service at any given trial. Suppose, for instance, that a prospective juror has

a vision impairment, or is blind. As the Criminal Court of the City of New York explained

in Caldwell, 603 N.Y.S.2d at 716, if a trial court reasons that a prospective juror who has

a vision impairment, or is blind, is “disqualified simply because a few documents and a

few photographs [are to be] presented, it would, in effect, be concluding that there were

almost no cases on which [jurors with vision impairments] or [] jurors [who are blind]

could sit. Such a ruling would violate the spirit and intent of” the Americans with

Disabilities Act.

       When determining whether it is permissible to excuse for cause a prospective juror

on a disability-related ground, a trial court must engage in an individualized, case- and

disability-specific inquiry. Multiple cases provide examples of such an inquiry. In addition

to the above-discussed cases of Guzman, 555 N.E.2d at 260, and Caldwell, 603 N.Y.S.2d

at 713-14, there is Falkenstein, 732 N.Y.S.2d at 818, in which the Appellate Division of

the Supreme Court of New York held that a trial court did not err in allowing a prosecutor

to peremptorily strike a prospective juror who was hard of hearing, where the prosecutor


                                         - 27 -
noted that “the inflections of [the] defendant’s voice on the audiotapes were significant to

the [government]’s case.” And, in Donelson, 70 P.3d at 541, 543-44, where a plaintiff sued

a defendant for injuries that resulted from a car accident, and the defendant’s counsel

peremptorily struck a prospective juror with disabling rheumatoid arthritis and another

prospective juror with a hip condition, the Colorado Court of Appeals affirmed the

judgment of a trial court that concluded that “it was not improper, in a case dealing with a

[plaintiff] with [a] disability and chronic pain, to exclude [prospective jurors] with similar

conditions.” Only by making disability-related determinations on a case-by-case basis can

a trial court safeguard the right of prospective jurors with disabilities to an opportunity to

participate in jury service.11

       Applying relevant statutes and case law to this case’s circumstances, we have no

trouble concluding that the circuit court did not abuse its discretion in excusing for cause

the four prospective jurors who indicated that they were unable to use stairs. Indeed, the

record reflects that the circuit court acted appropriately and respectfully throughout its

interactions with the four prospective jurors.

       Although the Maryland Judiciary is moving toward having courthouses that are

entirely accessible, the record establishes that a staircase with twenty-five steps was the

only way to reach the jury room that accompanied the courtroom that was used for the trial


       11
          On a related note, if a trial court excuses a prospective juror for cause on a
disability-related ground, generally, the trial court should not indicate that he or she is
dismissed for the day; instead, time permitting, the trial court should direct the prospective
juror to return to the jury assembly room so that he or she may have an opportunity to serve
as member of another jury panel, and, possibly, be seated as a juror at another trial.


                                          - 28 -
in this case. The circuit court expressly noted that there was no elevator to the jury room.

The record makes clear that, before the jury panel entered the courtroom, the four

prospective jurors at issue disclosed to the Jury Commissioner’s Office that they were

unable to use stairs, and the Jury Commissioner’s Office made the circuit court aware of

that information. The circuit court separately called each of the four prospective jurors to

the bench. In each instance, first, the circuit court expressly confirmed that the prospective

juror was unable to use stairs; then, the circuit court informed the prospective juror that a

staircase with twenty-five steps was the only way to reach the jury room; and, finally, the

circuit court excused the prospective juror and directed the prospective juror to return to

the jury assembly room. The circuit court respected the prospective jurors’ privacy by

speaking with each one individually at the bench and refraining from asking what their

respective medical conditions were, or otherwise inquiring into why the prospective jurors

were unable to traverse stairs.

       At no time did the circuit court state or imply that any of the four prospective jurors

could never be seated as jurors in any given trial. To the contrary, in interacting with each

of the four prospective jurors, the circuit court clearly contemplated that the prospective

juror could be seated as a juror at another trial. The circuit court told Juror 376 that it

would “excuse [her] from serving on this jury[,]” and advised her that, if she became part

of another jury panel, she should inform the other circuit court judge “if there[ was] any

other reason why [she] shouldn’t serve as [a] jur[or].” The circuit court told Juror 408:

“[T]here are courtrooms that are on the same level[ as their jury rooms], but this is not one

of them.” The circuit court stated to Juror 624: “I’m going to excuse you from serving on


                                          - 29 -
this jury. . . . They do have courtrooms on the same level[ as their jury rooms], so there are

no steps involved. . . . So you may be selected for one of them[.]” Finally, the circuit court

informed Juror 404 that she “couldn’t serve on this jury[.]”

       After the circuit court excused for cause the four prospective jurors at issue,

Trotman’s counsel objected and noted that one of them had indicated that she could serve

as a juror if there were an elevator to the jury room. The circuit court asked Trotman’s

counsel: “[H]ow would you have suggested [that] I accommodate her?” Trotman’s counsel

responded: “That we go to another courtroom[.]” The circuit court explained that, “in the

Baltimore City Circuit Court[,] every single courtroom is being used. I, as a senior judge,

fill up the empty courtroom”; and that the designated courtroom was available for the trial

only because the circuit court judge who usually presided in that courtroom had been

assigned to juvenile court.

       Significantly, the circuit court’s statement that, “in the Baltimore City Circuit

Court[,] every single courtroom [was] being used” constitutes a finding of fact. An

appellate court cannot set aside a trial court’s finding of fact unless it is clearly erroneous.

See Givens v. State, 459 Md. 694, 711, 188 A.3d 903, 913 (2018). Here, absolutely nothing

in the record indicates that, contrary to the circuit court’s finding, another courtroom was

available. The circuit court’s finding was not clearly erroneous.

       The circuit court’s actions were in complete accord with our holding that a trial

court may not summarily excuse for cause prospective jurors with disabilities, and that a

trial court may excuse a prospective juror for cause on a disability-related ground if no

reasonable accommodation is possible, and, at that particular trial, the particular disability


                                           - 30 -
would prevent the prospective juror from providing satisfactory jury service.            It is

undisputed that, to reach the jury room, the jurors would have been required to walk up

twenty-five steps. Each of the four prospective jurors at issue indicated that he or she was

unable to do so. In this particular case, the four prospective jurors’ inability to use stairs

prevented them “from providing satisfactory jury service[.]” CJ § 8-103(b)(3). There is

no evidence that a reasonable accommodation was possible; indeed, there was no elevator

to the jury room, and the circuit court concluded no other courtroom was available.

       Trotman takes issue with the circuit court’s conclusion that no other courtroom was

available. Trotman contends that the circuit court should have either contacted the

administrative judge or assignment office, or another circuit court judge, or dispatched a

law clerk, to determine whether any other courtrooms, jury rooms or conference rooms

were available. Trotman’s contention is premised on speculation that another courtroom

might have been available, and that the circuit court did not have sufficient information to

conclude that no accommodation could be made for the jurors who could not use stairs.

We disagree. As noted by the Court of Special Appeals, this was “a retired and specially

assigned veteran of the Circuit Court for Baltimore City, [who] drew upon her current and

historical knowledge of the courthouse” to find that this was the courtroom that had been

assigned to her and that there was no other courtroom available. Trotman, 2019 WL

290022, at *15.

       Although, theoretically, the circuit court could have conducted voir dire while court

personnel made such inquiries, the circuit court could not have begun seating a jury, and

allowing peremptory strikes, without first confirming whether it needed to excuse for cause


                                          - 31 -
the four prospective jurors at issue on the ground that they said that they were unable to

traverse stairs. As a practical matter, whether the Circuit Court of Baltimore City has a

policy that permits senior judges to switch courtrooms with other judges is unknown, as is

whether another circuit court judge with a jury room that did not have stairs, and who

would have been amenable to switching courtrooms, was available. Trotman bases his

argument on the theory that another circuit court judge with a jury room without stairs may

have been willing and able to switch courtrooms or allow the use of his or her jury room,

and/or that there may have been a conference room that was nearby, available, and able to

substitute for a jury room. There is no information in the record that any of these things

were possible, or that they could have been accomplished within a reasonable time during

the jury selection process. At bottom, Trotman’s argument comes down to an allegation

that the circuit court failed to adequately investigate the possibility of a reasonable

accommodation. In this instance, the circuit court judge, utilizing her knowledge of the

Circuit Court for Baltimore City, found the following facts: namely, that she was a senior

judge who had been assigned to a vacant courtroom, that the courtroom was available

because the judge who was regularly assigned to that courtroom was serving in a different

court (Juvenile Court), and that no other courtrooms were available. The circuit court

promptly excused for cause the four prospective jurors at issue, who had indicated that they

could not use the stairs, and ensured that the jurors would return to the jury assembly room

as soon as practicable to be available for serving on another jury panel. Under the

circumstances of this case, the circuit court did not clearly err in finding that no other




                                         - 32 -
courtroom was available, and the circuit court’s actions were completely proper exercises

of discretion.


                                  JUDGMENT OF THE COURT OF SPECIAL
                                  APPEALS AFFIRMED. PETITIONER TO PAY
                                  COSTS.




                                        - 33 -
