You are here: / BATSON CHALLENGE

Tag Archive for: BATSON CHALLENGE

Flawed Procedure Following “Batson” Challenges to the Prosecution’s Exclusion of Two Nonwhite Jurors Required Reversal

The Third Department determined reversal and a new trial were necessary because of flaws in the procedure used following the “Batson” challenge of the prosecution’s peremptory challenges to two nonwhite members of the jury panel.  The judge denied the Batson challenges. The Third Department explained the correct procedure and the flawed procedure actually used:

A Batson challenge implicates a three-step process in which, “[a]t step one, ‘the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges'” … . “Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory — step two” … . The explanation at step two is “not required to be ‘persuasive, or even plausible’; as long as the reasons for the challenges are ‘facially neutral,’ even ‘ill-founded’ reasons will suffice” … , and determining whether the step two explanation is adequate is “a question of law” … . If the nonmoving party provides an adequate explanation, “the burden then shifts back, at step three, to the moving party to persuade the court that reasons are merely a pretext for intentional discrimination” … . This step is a factual issue in which the trial court has broad discretion in determining credibility … .

Initially, we note that the Batson application, made before the end of jury selection, was timely … and any issue regarding the sufficiency of defendant’s step one showing is now moot since the People offered step two race neutral reasons for the challenged peremptory challenges … . The reasons offered by the People included, as to juror No. 19, that the father of her children had been prosecuted by the Schenectady County District Attorney’s office for robbery and “presumably” was in prison. Regarding juror No. 127, the People explained in some detail that there were jurors after her that they preferred to use to fill the twelfth and final seat. Although these reasons were facially race-neutral satisfying the People’s step two burden, defendant points out that the People’s statement regarding juror No. 19 had significant factual errors embellishing on her actual comment, and also that the People did not challenge a white juror whose sister had “been in and out of trouble for years, felonies, in trouble with the law.” As such, there were important factual issues implicating credibility that needed to be resolved at step three. However, as conceded by the People in their brief on appeal, County Court ruled on the Batson application at the conclusion of step two.

The improper compressing of a Batson inquiry does not necessarily mandate reversal, as the movant must preserve the issue as to whether a meaningful step three inquiry occurred … . Indeed, whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed … . Here, defendant sufficiently preserved the issue and the ultimate issue was not adequately addressed. After the People offered their race neutral reasons as to the second relevant juror, defendant began to respond and urged that the record was not complete. County Court stated that the record was complete and summarily denied defendant’s Batson challenge. “[T]he court did not appear to give any consideration to pretext, nor was the basis of its ruling reflected in the record”… . People v Grafton, 2015 NY Slip Op 07701, 3rd Dept 10-22-15

 

Prosecutor’s Reasons for Challenging an Hispanic Juror Were Pretextual—New Trial Ordered

The Second Department determined the prosecutor’s proffered reason for challenging an Hispanic juror was pretextual and ordered a new trial. Two Hispanic jurors were challenged by the prosecutor. The prosecutor’s reason for challenging one of them was the juror’s alleged inability to understand questions. The Second Department determined there was no support for that reason in the record:

… [A] new trial is necessary because the prosecutor exercised one of her peremptory challenges in a discriminatory manner with respect to a Hispanic male prospective juror … . Under both state and federal law, the use of peremptory challenges in a racially discriminatory manner is prohibited … . Trial courts must follow a three-step protocol to determine whether a party has used its peremptory challenges in a racially discriminatory manner. First, the moving party contesting the peremptory challenges must allege sufficient facts to make a prima facie showing that the prospective jurors were challenged because of race … . Where the moving party makes such a prima facie showing, the burden shifts to the nonmoving party to offer a race-neutral reason for each of the disputed peremptory challenges … . If such reasons are offered, the burden shifts back to the moving party to demonstrate that the reasons, although facially neutral, are pretextual … . The third step requires the trial court to make an ultimate determination as to whether the proffered reasons are pretextual … . * * *

Contrary to the trial court’s determination, the facially race-neutral reason proffered by the prosecutor for exercising a peremptory challenge with respect to the Hispanic male prospective juror was pretextual. Although the prosecutor argued that this prospective juror had a difficult time understanding the trial court’s questions during voir dire, this claim is not borne out by the record. Rather, the record shows that the prospective juror was repeatedly asked the same question regarding his willingness to follow the law and assured the trial court more than once that he would follow the law as it was provided. While this prospective juror asked for one of the court’s questions to be repeated, and expressed that he did not understand compound questions when they were asked of him, never during the questioning by the trial court did he give a conflicting answer or state that he would not or could not follow the law. Indeed, any appearance of a lack of understanding on the part of this prospective juror is attributable to confusion caused by the manner in which the trial court intervened during the prosecutor’s questioning of the juror: while a question was pending before the juror, the court asked compound questions of him.

Moreover, the prosecutor’s failure to pursue questioning of this prospective juror, whom she purportedly believed could not follow the law, despite repeated assurances by the prospective juror to the contrary, also renders the basis for the challenge pretextual … . People v Fabregas, 2015 NY Slip Op 06253, 2nd Dept 7-22-15

 

Reverse-Batson Challenge to the Peremptory Challenge of a White Woman by Defense Counsel Properly Sustained/Judge’s Failure to Inform and Seek the Input of the Parties Re: a Jury Note Was a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial judge properly sustained the prosecutor’s “reverse-Batson” challenge to a peremptory challenge to a white woman by defense counsel.  Defense counsel’s proffered reason, that the juror had her head down and would be a “wall flower” following others on the jury, was deemed pretextual.  The proffered reason was entirely subjective and was not based upon the voir dire.  Reversal of the conviction was warranted, however, because the trial judge did not inform and seek the input of the parties in response to a jury.  Preservation of the error was not required because the record did not reflect that defense counsel was made aware of the contents of the note prior to the judge’s answering it in the jury’s presence:

“Although not entirely insulated from review, the determination of whether an explanation [of the exercise of a peremptory challenge to a a juror in response to a reverse-Batson challenge by the prosecutor] is merely pretextual is generally a matter for the Trial Judge, whose findings are entitled to great deference” … . This is particularly true where, as here, the reason for challenging a prospective juror is based upon certain nonverbal responses and reactions of the prospective juror, which the trial court had the opportunity to observe … . However, “[a]lthough a proffered race- [or gender-] neutral explanation for the exclusion of a potential juror need not rise to the level required to challenge a venireperson for cause,’ . . . the burden cannot be met by merely claiming good faith and denying discriminatory purpose” … . Here, the reason proffered by defense counsel for exercising the peremptory challenge against the subject prospective juror was that, during voir dire, “[s]he had her head down the entire time and was kind of looking down through this process,” from which counsel concluded that she was “going to be a wall flower[ ] and just kind[ ] of go with the flow.” This explanation was purely intuitive and based on counsel’s subjective impression rather than upon facts adduced at voir dire … . To accept the defendant’s bare assertion, unsupported by any factual basis, that the prospective juror was neutral and would not be a strong juror for the defense would be, in effect, to accept no reason at all … . There is nothing in the record to support defense counsel’s purported conclusion that this prospective juror—a 68-year-old sales associate who had previously sat on a jury, did not know anyone in law enforcement, and, unlike many of the prospective jurors, had not been the victim of a crime—would be a weak juror for the defense. * * *

… [T]he jury advised: “We have one juror that feels she cannot make a decision based on the evidence presented to us.” Instead of marking the note as an exhibit and reading it aloud on the record to the parties prior to calling in the jury, the court read the note on the record for the first time in front of the jurors, and then immediately responded by issuing a truncated Allen charge …, encouraging continuing deliberations. This jury note “called for a substantive response that required careful crafting after hearing argument from both the People and the defense” … . Yet there is no indication that the court provided notice to defense counsel and the prosecutor of the contents of the note or “a full opportunity to suggest appropriate responses” … . “[B]y depriving the defendant of meaningful notice of the communication [and] a meaningful opportunity to participate in the formulation of the court’s response,” the court failed to fulfill its “core responsibility” under CPL 310.30, thereby committing an error affecting “the mode of the proceedings” … . Such an error “need not be preserved, and prejudice manifestly results” … . Thus, despite defense counsel’s failure to object to the Supreme Court’s handling of the jury’s notes, reversal is required … .

The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” … . However, while the record shows that a discussion was held off the record at the sidebar immediately before the Supreme Court directed the court officer to “bring them in,” it is not evident from the record that defense counsel had knowledge of the contents of the note or how the court would respond to the note. Rather, as far as the record reveals, defense counsel first learned of the court’s response at the same time the jury heard it … . Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to … . People v Brown, 2015 NY Slip Op 04860, 2nd Dept 6-10-15

 

Defense Counsel’s Main Reason for the Peremptory Challenges To Which the Prosecutor Objected, i.e., the Potential Jurors Had Been Crime-Victims, Was Not Pretextual

The Second Department reversed defendant’s conviction because Supreme Court improperly applied the Batson doctrine and denied defense counsel’s peremptory challenges to two jurors.  The prosecutor raised a “reverse-Batson” objection to defense peremptory challenges alleging the defense was excluding “Asian persons.”  Defense counsel offered race-neutral reasons for the peremptory challenges, the principal reason being that the potential jurors had been crime victims. Supreme Court found the proffered race-neutral reasons were pretextual.  The Second Department determined they were not:

“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. 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. 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. 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” … . A trial court’s step-three determination that the facially race-neutral reasons for a nonmoving party’s peremptory challenges to particular jurors were pretextual is entitled to great deference on appeal and will not be disturbed where such determination is supported by the record … . * * *

The record does not support the trial court’s step-three finding of fact as to the subject prospective juror, to wit, that other prospective jurors who were crime victims and who indicated that the incident would not affect them had nevertheless been seated. “[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual” … . Nonetheless, the record indicates that defense counsel treated such jurors consistently by exercising a peremptory challenge for another prospective juror who was not Asian but was a crime victim who provided assurance that nothing in her experience would affect her as a juror. In addition, although defense counsel did not exercise peremptory challenges for K.A.M. and G.A., defense counsel sufficiently distinguished the experiences of those jurors from that of the subject prospective juror, who had been robbed at gunpoint … . Consequently, the record supports a finding that defense counsel had legitimate, nonpretextual reasons for challenging prospective jurors based on their crime victim status … .People v Grant, 2015 NY Slip Op 04505, 2nd Dept 5-17-15

 

Under a Batson Analysis, the Prosecutor’s Peremptory Challenges to Two Black Jurors Were “Pretextual” Requiring Reversal

The Second Department determined the reasons proffered by the prosecutor for the peremptory challenge of two black jurors were “pretextual” under a Batson analysis, requiring reversal.  With regard to one of the two pretextual challenges, the court wrote:

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 … . 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” … . 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” … . 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'” …, 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… . * * *

With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was “just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone.”

Contrary to the Supreme Court’s determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror … . Furthermore, the prosecutor’s challenge was admittedly based on his “feeling” that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact … . When the reason advanced for a peremptory challenge relates to a juror’s appearance, deference must be afforded to the trial court’s findings with regard to pretext, as the trial court has the distinct advantage of being able to observe the juror … . However, the same cannot be said when the reason advanced for the challenge is based on the juror’s profession or background … . Indeed, it would not “be acceptable for this Court to invoke the rule providing for deference to the trial court in matters of credibility in order to rubber stamp every determination relating to the legitimacy of a peremptory challenge” … . People v Bell, 2015 NY Slip Op 01812, 2nd Dept 3-4-15

 

Question Posed by the Prosecutor to Prospective Black Jurors About Whether They Felt Police Officers Unfairly Target Members of the Minority Community Required Reversal

The Fourth Department reversed defendant’s conviction, finding that the prosecutor’s explanation for excluding black jurors was not race-neutral.  The prosecutor asked the jurors whether they felt that police officers unfairly target members of the minority community:

Pursuant to Batson and its progeny, “the party claiming discriminatory use of peremptories must first make out 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 [prospective] jurors for an impermissible reason . . . Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory—–step two … The third step of the Batson inquiry requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented” … . * * *

With respect to step two of the analysis, we conclude that the People failed to meet their burden of setting forth a “race-neutral reason” for striking the challenged prospective jurors … . “A race-neutral reason naturally means an explanation based on something other than the race of the [prospective] juror’ ” …, and must be “related to the particular case to be tried” … . Although the burden on the nonmoving party at this stage of the analysis is relatively minimal, “[a] prosecutor’s explanation may not be sustained where discriminatory intent is inherent in the explanation” … .

Here, the People excluded the two prospective jurors at issue solely based upon their answers to a race-based question, i.e., whether they believed that police officers “unfairly target members of the minority community” … . Notably, that question was unrelated to the facts of this case, which does not involve any allegation of racial profiling . We are unpersuaded by the People’s assertion that the question was “designed to ensure that the jurors would not automatically accept or reject police testimony.”  People v Mallory, 2014 NY Slip Op 06728, 4th Dept 10-3-14

 

Supreme Court Should Have Proceeded to Second Step of Defendant’s “Batson” Challenge Alleging the Prosecutor’s Exclusion of Jurors on the Basis of Race

The Second Department determined Supreme Court should have proceeded to the second step of a “Batson” challenge alleging the prosecutor was excluding jurors on the basis of race.  The matter was sent back for a completion of the process:

As the United States Supreme Court stated in Batson v Kentucky (476 US 79), “[s];election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice” (id. at 87). The first step under Batson requires a defendant to make a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose” … . This first step “is not to be onerous,” and is satisfied “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred” … . When a prima facie showing is made, the burden shifts to the prosecution to provide a race-neutral explanation for the challenged peremptory exclusions … .

The defendant made a prima facie showing of discrimination based on the prosecutor’s exercise of peremptory challenges to exclude the only two prospective jurors who were black, the same race as the defendant. Contrary to the Supreme Court’s finding, under the circumstances of this case, those facts were sufficient to create an inference of purposeful discrimination in the prosecution’s use of peremptory challenges to strike the only two jurors in the venire who were black … .

Accordingly, the Supreme Court should have proceeded with the second step and, if applicable, the third step of the Batson inquiry. People v Chery, 2014 NY Slip Op 03697, 2nd Dept 5-21-14

 

Trial Court’s Batson Ruling Re: Pretextual Reasons for Exclusion of White Jurors Upheld

In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote:

In Batson v Kentucky (476 US 79, 94-98), 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 …. 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” … . 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” … . 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'” …, 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 … . Here, the trial court’s determination that the proffered reasons for challenging certain white jurors were pretextual is entitled to great deference on appeal and is supported by the record… . People v Carrington, 2013 NY Slip Op 02587, 2006-09951, Ind No 369/05, 2nd Dept 4-17-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy