Opinion
5633/2005.
Decided March 10, 2010.
People: ADA Michael McIntosh.
Defense: Eunice Lee, Esq., (Office of the Appellate Defender).
Defendant was convicted after a jury trial of coercion in the first degree and was sentenced, as a second felony offender, to a term or three-to-six years. On appeal the Appellate Division held the matter in abeyance and remanded the matter for a hearing. People v. Wilson , 65 AD3d 956 (1st Dep't., two justices dissenting).
The majority concluded that after the first round of jury selection a prima facie showing had been made of prosecution bias toward male jurors. The Court directed the trial court to hear and determine whether the People can articulate non-pretextual explanations for their peremptory challenges to four male jurors. See, Batson v. Kentucky, 476 U.S. 79 (1988).
Initially, I note that this case highlights the gridlock, undoubtedly unforseen, resulting from the United States Supreme Court's decision in Batson. In Batson the Supreme Court sought to cure the pernicious effects of racially motivated peremptory challenges employed by some prosecutors against African-Americans in the venire. The doctrine has been extended to racially motivated challenges to other racial and ethnic minority populations ( People v. Hernandez, 75 NY2d 35, aff'd 500 U.S. 352 (1991) (Hispanic-Americans); United States v. Chalan, 812 F.2d 1302, 1314 (2nd Cir), cert. denied 488 U.S. 983 (1988) (Native-Americans); People v. Rambersed, 170 Misc 2d 923 (Italian-Americans); Castenada v. Partida, 430 U.S. 482 (1977) (Mexican-Americans).
Further, Batson has been extended to racially motivated challenges to majority white venire persons ( Roman v. Abrahams, 822 F.2d 214 (2nd Cir.), cert. denied, 489 U.S.1052 (1989)) and to challenges based on gender ( J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)) and sexual orientation ( see generally, Johnson v. Campbell, 92 F.3d 951, 953; People v. Baker, 211 AD2d 602, lv. denied 86 NY2d 779). The doctrine has been extended to bias challenges employed by the defense as well as to the prosecution ( People v. Stiff, 206 AD2d 235, lv denied, 85 NY2d 867, cert. denied, 516 U.S. 832).
Efforts, thus far unsuccessful, have been made to extend Batson to challenges based on age. See, People v. Assi , 63 AD3d 19 , lv. granted 12 NY3d 912; United States v. Helmstetter, 479 F.3d 750 (10th Cir. 2007).
Every human being belongs to some sub-group, and indeed many of us belong to a combination of two or more. The potential for jury selection paralysis is not difficult to imagine. It appears to this writer that the only effective means of eliminating invidious juror challenges is to limit significantly the number of peremptory challenges allotted to both sides. Only in that way will the temptation to indulge in bigoted stereotyping be significantly reduced. See, Batson v. Kentucky, supra at 102-103 (concurring opinion of Justice Marshall).
Consider: Elderly Hispanics, gay white males, young African-American males with anItalian surname, middle-aged Asian women, etc.
The Hearing
Turning to the case at hand, defendant was convicted of beating and abusing his girlfriend. The jury that ultimately judged him consisted of six male jurors and six female jurors, certainly an eminently fair jury if gender is the relevant sub-group.
After the first round of sixteen prospective jurors, four were seated, two males and two females. The defense, however, asserted that the prosecution had challenged four other jurors solely because they were men. (The defense had struck three males from the initial group of sixteen and two females.)
At the hearing upon remand, the prosecutor was asked to explain his challenges to the four males. Since three years had passed since the trial the ADA, in order to refresh his memory, relied in part on his trial notes and those (largely illegible) of a co-counsel who was no longer employed at the District Attorney's office.
With regard to the first male he challenged, the ADA prefaced his remarks by noting that other things being equal, he prefers jurors with a college education; that he struck the first male because he had not progressed beyond high school. (Hearing Transcript at 9-10).
With regard to the second male, the ADA stated:
Your Honor, I don't really remember except that I noticed Mr. Dimase (the other ADA) and I both noted that he did have a contentious landlord tenant issue. . . . I don't know if that was eventually the deciding factor for us, but I believe it was, but I cannot say with a hundred percent surety (sic) that was why he was challenged. (Hearing Transcript at 10).
With regard to the third challenged male, the ADA candidly stated:
I looked at my notes and Mr. Dimase's notes. I don't remember that one, I just don't remember. . . . If I don't remember, I don't remember. . . . I am not giving a neutral reason. I wouldn't make something up. (Hearing Transcript at 11,19).
Concerning the fourth male, the ADA explained that the juror's brother had been convicted of a financial irregularity; that the juror appeared to harbor animus toward lawyers, and that he was challenged for that reason. (Hearing Transcript at 11, 20-21).
In the second round of eight prospective jurors, although the ADA did not raise a Batson challenge, the defense challenged five of the six female prospective jurors. The prosecution challenged one woman. Two jurors were seated, one man and one woman.
In the third round, the People challenged one woman. The defense struck nobody. No Batson objection was registered by either side. From that final round, three women and three men were seated. Two alternates were seated, one man and one woman.
Thus, although it was clear that the defense preferred male to female jurors, and the prosecution the converse, the seated jury, as noted, was composed of six women and six men, with one female alternate and one male alternate.
Findings
I conclude that with regard to the four male jurors who are the subject of the hearing, the People have offered gender neutral reasons for their challenges to numbers one, two, and four. With regard to the second male, although the prosecutor said he could not be "one hundred percent certain" of his reason for the challenge, I accept his explanation that he challenged that juror in good faith because he was embroiled in contentious litigation. Nobody can be one hundred percent certain of anything.
As for the third male, the case law is clear that a failure of memory signifies that the party who struck the juror has not met his or her burden of providing a neutral explanation. People v. Blunt, 176 AD2d 741; People v. Dove, 172 AD2d 768, lv denied 78 NY2d 1075; People v. Sandy, 164 AD2d 898; People v. Bozella, 161 AD2d 775; People v. Mims, 149 AD2d 948, lv denied 74 NY2d 744; People v. Davis, 253 AD2d 634. Nonetheless, this assistant is to be commended for his candor. It has been my observation that many lawyers, whether defense attorneys or prosecutors, have no difficulty conjuring plausible, albeit sometimes disingenuous, explanations for their respective challenges.
In sum, I find that the prosecutor has met his burden of providing non-pretextual explanations for three of the four challenges. He has not met his burden for the one for whom he has no memory.
The foregoing constitutes the findings of this Court. The matter is respectfully returned to the Appellate Division, First Department, for any further proceeding.
This constitutes the Decision and Order of this Court.