Thursday, September 20, 2018

by Jill Paperno,

There is a body of law that bars discriminatory use of challenges to jurors based on a Supreme Court decision, Batson v. Kentucky 476 U.S. 79.  When you are challenging a prosecutor's discriminatory  use of jury challenges, it is called "making a Batson challenge."   

In People v. Herrod, the Fourth Department reminds us of the process and standards to be applied in Batson challenges.  One way prosecutors often oppose our Batsonchallenges is by claiming that there has been no "pattern" of discrimination established during our challenge.  But that is not the standard, and it's really important that we not allow the prosecutor or court to rely on that erroneous belief in denying our challenges.   In People v. Herrod , 2018 NY Slip Op 05110 [163  AD3d 1462 [4th Dept July 6, 2018],  the Fourth Department stated, 

Defendant contends that County Court misstated his burden under the first step of the three-step Batson test. We agree. In order for the moving party to satisfy its burden at step one, it must " show[ ] 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'" (People v Baxter, 108 AD3d 1158, 1159, 969 N.Y.S.2d 678 [4th Dept 2013], quoting People v Smocum, 99 NY2d 418, 421, 786 N.E.2d 1275, 757 N.Y.S.2d 239 [2003]). "A defendant need not show [either] a pattern of discrimination'" (People v Anthony, 152 AD3d 1048, 1050, 61 N.Y.S.3d 151 [3d Dept 2017]) or, as the court stated here, "a systematic approach by the prosecution." (Emphasis added.)  Rather, a defendant may satisfy his or her burden under the first step by demonstrating that "members of the cognizable group were excluded while others with the same relevant characteristics were not" or that the People excluded members of the cognizable group "who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution" (People v Childress, 81 NY2d 263, 267, 614 N.E.2d 709, 598 N.Y.S.2d 146 [1993]).

We conclude that defendant met his burden under step one by establishing that there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner. Here, defense counsel explained to the court that the relevant prospective juror was the first African-American male "that's been available without a [for]-cause" challenge and that the prospective juror provided answers during voir dire that were favorable to the prosecution, i.e., that the prospective juror had a number of family members in law enforcement, had a college degree and had at one time been  robbed. Defense counsel thus implied that he could not ascertain from the prospective juror's answers a reason for the peremptory challenge other than racial bias. The court did not provide defense counsel with any further opportunity to develop that argument and, instead, interrupted defense counsel and concluded that a pattern of discrimination had not been established.
Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, we conclude that "the burden shifted to the People to articulate a non-discriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual" (People v Davis, 153 AD3d 1631, 1632, 62 N.Y.S.3d 641 [4th Dept 2017]; see generally People v James, 99 NY2d 264, 270-271, 784 N.E.2d 1152, 755 N.Y.S.2d 43 [2002]). We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose (see Davis, 153 AD3d at 1632).