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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 finding 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  This challenge was withdrawn when the judge stated that he was “inclined to agree” with defense counsel’s assertion that the challenge was racially motivated.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.


Jurors and Fairness

A recent opinion from the Appeals Court provides a strong reminder of the restrictions on the use of peremptory challenges to strike jurors based on race, ethnicity, gender or religious preference.  In Commonwealth v. Povez, the court reversed a second-degree murder conviction, finding that there was doubt as to whether the prosecutor’s proffered reason for challenging a Hispanic juror was genuine.

Challenges to the impermissible use of peremptory challenges most often arise in criminal appeals, but the principles apply with equal force to civil cases.  The Povez decision succinctly outlines the procedure judges and lawyers should follow in situations where there is a question with respect to the use of a challenge.

The constitutional prohibition against the use of peremptory challenges to exclude members of protected classes from a jury was recognized in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and Batson v. Kentucky, 476 U.S. 79 (1986).  Since then, many cases have reviewed judicial decisions allowing or denying particular challenges, and the procedure is well-established.  When counsel for a party believes that an opponent is systematically excluded members of protected classes from a jury, counsel may ask the judge to make a preliminary finding of discrimination, and to demand that the opponent proffer a neutral, non-discriminatory reason for challenging the juror.  Over the years, the law has become refined so that, when racial and ethnic minorities are scarce, even a single challenge can constitute a “pattern” that warrants explanation.

Once the issue is raised, the trial judge is obligated to make a finding of whether a prima facie case of improper exclusion has been shown, and if such a finding is made, require the party seeking to exercise the challenge to state a reason for the challenge.  The judge must then rule on whether the reason is adequate.

Povez focuses on the judge’s assessment of the prosecutor’s proffered reason for challenging one of two Hispanic jurors on the venire.  Past cases have established that the explanation met be clear, reasonably specific, and personal to the juror.  For the most part, “gut feelings” or hunches will not suffice, nor will stereotyped assumptions based on the juror’s group affiliations–even if those affiliations are not based on race, gender or ethnicity.

But as Povez reminds us, even an explanation which is clear, specific and personal will not automatically pass muster.  In addition, the trial judge must find it to be genuine–that is the true reason for the challenge, and not a pretext to conceal discrimination.  And that’s where the prosecutor foundered.  The judge expressed her doubts that the explanation–that the juror’s father worked as a janitor in the federal courthouse, and thus might have “inside information” about court procedures in state court–was genuine.  Nevertheless, she permitted the prosecutor to exercise the challenge.

The Appeals Court reversed, finding a conflict between the judge’s expression of doubt that the reason was genuine and her allowance of the challenge.  Given her finding that she did doubted the genuineness of the prosecutor’s explanation, the trial judge needed to explain why she nevertheless permitted the challenge.  In the absence of such an explanation, the Appeals Court felt constrained to reverse the conviction.  Fueling the reversal was the court’s clear skepticism that the juror’s father’s janitorial position in a different court house had anything to do with the challenge.

The decision is one that the Commonwealth’s courts can and should be proud of, as it expresses the need for juries free of even an appearance of impropriety.  Otherwise stated, it is important that the process of jury selection not only be fair, but appear fair.  The court is to be commended for reinforcing this message.

Read the decision in Commonwealth v. Povez here