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Prosecution's use of race in Jury Selection warrants a new trial


On the basis of a Batson challenge, "the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered." Batson was a case that held that a potential juror could not be stricken from the jury on the basis of race. It is a three-part test of which the parties do not dispute the first two parts were satisfied, leading to the court's discussion of the third-part of a Batson challenge.

Issue: Was the prosecutor's offered reason for the exclusion of a juror a pretext for the real reason, that being the race of the potential juror.

Law: [A new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see Batson v. Kentucky, 476 US 79) as to two black prospective jurors. In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories (see People v. Smocum, 99 NY2d 418, 421). In step one, the moving party must make a prima facie case of purposeful discrimination by "showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason" (id. at 421). If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party "offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome" (People v. Allen, 86 NY2d 101, 109). Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and " the trial court must determine whether the proffered reasons are pretextual'" (People v. Hecker, 15 NY3d 625, 634-635, quoting People v. Allen, 86 NY2d at 104), including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others (see People v. Richie, 217 AD2d 84, 89).]

The Second Department disagrees with the Supreme Court (trial court) decision that the prosecutor offered a facially race-neutral reason. The court notes that the prosecutor did not offer explanation as to how employment as a church deacon relates to the factual circumstances of the case or the juror's qualification. The failure of the prosecutor to strike a white juror for shaking of the head in agreement was noted by the Second Department. Also, the feeling of the prosecutor was not enough to justify the reason. Citing People v. Richie (217 AD2d at 88), the Court notes that it will not rubber stamp the determination of the trial court here. "While uneven application of race-neutral factors does not always indicate pretext (see People v. Allen, 86 NY2d at 110), the circumstances here support a finding of pretext, as the prosecutor had a much stronger reason for exercising a peremptory challenge to strike the white juror than the second black prospective juror (see People v. Morrison, 220 AD2d at 695)."…"For the purposes of equal protection, the constitutional violation is the exclusion of any blacks solely because of their race" (People v. Jenkins, 75 NY2d 550, 559). "Accordingly, the race-based challenges to the two subject prospective jurors require reversal and a new trial. In view of our decision, we need not determine whether peremptory challenges exercised by the prosecutor with regard to other black prospective jurors were race-based (see People v. Hall, 64 AD3d at 666)."

Conclusion: The proffered reason by the Prosecution was pretextual.

The Case is People v. Robert Bell, 9306/08, NYLJ 1202720245405, at *1 (App. Div., 2nd, Decided March 4, 2015).


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