Wednesday, December 1, 2010

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that
A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.
This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:
It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].

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