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Experienced New England Attorneys

What a Difference a Mile Makes


Last week, I wrote about a Massachusetts Appeals Court decision that did a lot more than pay lip service to the constitutional principle that jurors must not be excluded from juries based on race, gender, religion, or national origin.  In Commonwealth v. Povez, the state Appeals Court reversed a second-degree murder conviction because it was concerned that the prosecutor’s stated reason for challenging a Hispanic juror was not “genuine.”  While it would have been a simple matter for the court to rubber-stamp the trial judge’s decision allowing the challenge to stand, even though she expressed some reservations, the court instead focused on the inconsistency between the judge’s subsidiary findings that the proffered reason was not genuine, and her failure to disallow the challenge, noting that the jury selection process needed not simply to be fair, but to appear fair.

Over in federal court, however, there seems to be much less concern for appearances.  A recent decision from the First Circuit demonstrates a court that went to great lengths to uphold the trial court’s allowance of a peremptory challenge, under circumstances that hardly pass the red-face test.  In United States v. Mensah, the federal appellate court upheld the exclusion of two Asian-Americans from the jury in an immigration case.

Calling the issue “close,” the First Circuit accepted the prosecutor’s stated reason that he had challenged one of the Asian-American jurors because she was “young and single” and he questioned her “limited life experience.”  Another Asian-American juror, a professor at Boston University Medical School, had previously been challenged as being potentially “too scientific” in his application of the reasonable doubt standard.  In neither case was the prosecutor asked, nor did he explain, how his ostensibly group-neutral reasons related to the immigration case to be tried.  In addition to the two Asian-American jurors he successfully challenged, the prosecutor also attempted to challenge an African-American juror based on her distant relatives “who were involved with criminal offenses”–while leaving untouched a white juror with a friend in jail.  This challenge was withdrawn when the judge stated that he was “inclined to agree” with the defense counsel’s assertion that the challenge was racially motivated.

In upholding the trial judge’s allowance of the challenged challenges, the appellate court noted that “ideally,” the judge might have gone a step further, and pressed the prosecutor to explain not only the coincidence of strikes against the only two Asian-Americans, but the connection between youth, marital status, and the immigration case.  Noting that both inferences–racial discrimination and neutral reasons–were equally plausible, the court declined to reverse the trial judge.  Unlike the state court in Povez, there was no apparent consideration of, or concern for, the appearance created by the government’s actions.

The two decisions, a few days apart, but reaching diametrically opposite results on similar facts, again underscore that federal court is not a place that most lawyers representing underdogs want to be.   The lengths to which the First Circuit went to uphold two challenges that, frankly, reek of discriminatory intent, make the state Appeals Court’s decision all the more remarkable and commendable.

Read the First Circuit’s decision in United States v. Mensah here.

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