THE JUDGE’S PROVIDING A RACE-NEUTRAL REASON FOR THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR, WHILE THE PROSECUTOR REMAINED SILENT, WAS REVERSIBLE ERROR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the judge’s providing a race-neutral reason for the People’s peremptory challenge of a juror, while the prosecutor remained silent, was reversible error:

Here, it is undisputed that defendant established a prima facie case of discrimination with respect to the prosecution’s exercise of a peremptory challenge against K.S., an African-American female, and that the burden then shifted to the prosecution to provide a race-neutral basis for its peremptory strike. The People failed to do so entirely … . Rather, the court stepped in to provide an explanation, speculating that the prosecution had gotten a “bad vibe” from K.S. regarding whether her prior jury service resulted in an acquittal. The prosecution remained silent. The court nevertheless ruled that the prosecution had “given a legitimate race neutral reason” for the strike.

This serious departure from the Batson framework was an error of the highest order. When the court supplied a race-neutral reason for the peremptory strike, it failed to hold the prosecution to its burden and instead, effectively became an advocate for the prosecution, thus abandoning its Batson-specific duty to “consider the prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in light of the arguments of the parties” … . It is the nonmovant’s expressed explanation for its peremptory challenge—and whether such explanation is mere pretext for a race-based motive—not simply whether a race-neutral reason could theoretically exist—which is the focus of the Batson framework at steps two and three … . The court’s speculation as to the prosecution’s basis for the strike was irrelevant and deprived defendant of any meaningful way to demonstrate pretext in the face of the prosecution’s silence. People v Estwick, 2024 NY Slip Op 02768, CtApp 5-21-24

Practice Point: It is the prosecutor’s actual reason for a peremptory challenge which is required under Batson, not the theoretical existence of a race-neutral reason. Therefore the Batson procedure is violated where, as here, the judge steps in to provide a reason while the prosecutor remains silent.