A federal appeals court has ordered another look at a prosecutor's explanation for striking a black woman from a jury -- that she was obese.
Seth Dolphy is challenging his convictions on drug and weapons charges, saying they should be vacated because the prosecutor was using obesity as a pretext to discriminate against the only black on the jury.
The 2nd U.S. Circuit Court of Appeals, in a ruling by Judge Dennis Jacobs, has remanded the case, Dolphy v. Mantello (pdf), 03-2738-pr, to give a lower court the chance to hold a hearing to reconstruct what happened at Dolphy's 1997 trial in state court in Binghamton.
The prosecutor, then-Broome County Assistant District Attorney Michael A. Korchak, was in the middle of jury selection with County Court Judge Martin E. Smith and defense counsel William Maney when he challenged the black juror.
The defense immediately objected to the challenge as based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Judge Smith said the burden now was on Korchak to advance a race-neutral explanation for the peremptory challenge.
Korchak said he struck the juror for her "appearance."
"I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant," he said.
Judge Smith said he was satisfied the prosecutor had offered a valid race-neutral explanation and ruled that the strike could stand.
At the end of jury selection, the defense moved for a mistrial on the grounds that two of the jurors who had been selected for the panel and seated were overweight.
Smith said that "overweight is a subjective term," and he noted that while both he and defense counsel were "a little overweight," the challenged juror was "grossly overweight." He denied the motion.
Dolphy was later sentenced to serve 14 1/2 years to 16 years in prison.
The Appellate Division, 3rd Department, rejected his appeal in People v. Dolphy, 257 A.D. 681 (1999), saying Dolphy had offered nothing more that a "bald contention that the explanation was pretextual."
When the New York Court of Appeals denied leave to appeal, Dolphy filed a pro se petition for a writ of habeas corpus in the Northern District.
Magistrate Judge Gustave Di Bianco recommended Judge Lawrence Kahn find that the trial court misapplied Batson, but Judge Kahn denied the petition, holding that U.S. Supreme Court and 2nd Circuit precedent did not require an explicit credibility determination for the prosecutor's explanation under Batson.
Dolphy had assigned counsel for his appeal to the 2nd Circuit, Robert Culp of Garrison. The appeal was heard by Judges Dennis Jacobs and Peter Hall and, sitting by designation, Western District Judge Richard Arcara.
Jacobs wrote for the court in discussing the three stages of a Batson analysis: a prima facie showing of "purposeful discrimination," an offer of a race-neutral explanation and, finally, a determination by the court of whether the defendant had established a discriminatory motive.
Judge Jacobs said the court was vacating Judge Kahn's order because "the record does not show whether the trial court made an ultimate determination on the issue of discriminatory intent."
"While the prosecution's proffered explanation was facially race-neutral, it rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant,)" Jacobs said. "Yet the trial court's initial ruling was made without inquiry or finding, as though the ground for making the strike was self-evident: 'Very well. Strike will stand.'
"And when defense counsel immediately renewed his objection, the judge's words seemed to assume that a race-neutral explanation (Batson step two) was decisive and sufficient."
Justice Martin had said, "I'm satisfied that is a neutral explanation, so the strike stands."
But Jacobs said "such a conclusory statement does not necessarily indicate -- even by inference -- that the trial court credited the prosecution's explanation, especially since (i) the judge's words suggested that the proffer of a race-neutral explanation was itself enough, and (ii) the explanation given here lends itself to pretext. (Which side is favored by skinny jurors?)"
On remand, the district court has the option of holding a reconstruction hearing or, "if the passage of time has made such a determination impossible or unsatisfactory, the district court may grant the writ contingent on the state granting Dolphy a new trial."
Culp said he was pleased his client has a chance to challenge his conviction.
"I hope this decision moves us forward toward the goal of judging people as individuals rather than through assumptions or stereotypes based on appearances," said Culp.
Assistant Attorney General Lisa E. Fleischmann represented the state.
A spokeswoman for the Broome County district attorney said the office is reviewing the decision and declined further comment.
