A federal appeals court is weighing whether a Massachusetts prosecutor’s exclusion of three young black men from a jury was constitutional. The state claims that it was because youth is “not a protected class.”

Attorneys for Dagoberto Sanchez asked the U.S. Court of Appeals for the First Circuit to reverse the Massachusetts Appeals Court’s April 2011 ruling affirming his conviction. The Supreme Judicial Court of Massachusetts and the U.S. Supreme Court each declined to review that ruling in a first round of appeals. The First Circuit heard the case on Thursday.

Sanchez was 17 when he was indicted in a Massachusetts state court in August 2005 for second-degree murder and a gun charge. Regarding the potential jurors’ exclusion, the trial judge initially made a finding of prima facie discrimination. But he ultimately agreed with the prosecutor that youth was not a protected class and that the presence of other black people gave the jury racial balance.

The judge allowed the prosecutor to exclude three young black men and seat a white male college student.

Sanchez was convicted in 2006 and given a life sentence with the possibility of parole in 15 years.

Judge Jeffrey Howard sat on the panel with Judge O. Rogeriee Thompson and Seventh Circuit Judge Kenneth Ripple, who sat by designation.

Sanchez’s lawyer, Ruth Greenberg, a solo practitioner from Swampscott, Mass., said the state’s argument that youth is not a protected class is entirely correct.

“But if you are a young black guy and they knock you out because you’re a young black guy but they don’t block out the other young people categorically, then you are being discriminated against not because you are young but because you are a black guy,” he added.

Sanchez’s brief argued that “due process is violated when even one juror is challenged based on his race/gender combination.”

The government’s brief claimed that U.S. Supreme Court precedent requires a prima facie case of discrimination “based upon the totality of the circumstances.”

Under questioning by Howard, the government’s attorney, Thomas Bocian, an assistant state attorney general, said he didn’t know the age of the white male college student who was seated on the jury.

Howard suggested it would be a problem if that man were young. “If those are the numbers the decision could not possibly have been anything other than race and gender,” he said.

Bocian noted that that particular juror was born in Moscow.

“His background or experience may have been such that the prosecutor thought he was different from other young people who had been excluded,” Bocian said.

Another college-age white male was excluded, he added.

Howard asked the government to produce any available jury questionnaires not on the record.

Young black males are a distinct group because they have higher incarceration rates, said Norman Zalkind, a criminal defense lawyer at Zalkind Duncan & Bernstein in Boston, who isn’t involved in the case.

Zalkind said research indicates that they have distinct attitudes towards law enforcement because of this and other negative experiences with law enforcement. There’s a balancing acts that goes on, at least in Massachusetts courts, where “prosecutors try to get rid of young black males, but they cant get rid of too many,” he said. “It’s clearly a different group of people. It would be awful if [this] were upheld.”

Sheri Qualters can be contacted at squalters@alm.com.