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american lawyer media news service A black prospective juror who would not assure prosecutors that she could disregard her life experiences as a racial minority was improperly excluded from a criminal jury, an appellate court in New York has found. The Appellate Division, 3d Department, said Albany County, N.Y., prosecutors failed to meet their burden of establishing a race-neutral reason for the woman’s exclusion from the jury. That juror was among six blacks in the venire, and among four peremptorily stricken by the prosecution. “[T]here is . . . nothing in the juror’s actual comments to suggest that her particular life experience as an African-American would improperly bias her in favor of defendant or against the prosecution,” the court said in an opinion by Justice Robert S. Rose. People v. Van Hoesen, No. 11580, was an assault case involving a black defendant. After the prosecutor used peremptories to exclude several minorities from the jury, the defense mounted a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). In response, the prosecutor noted that the juror in question, who stressed that she would decide the case on the facts, indicated that her ethnic background brought a different perspective and that she could not shed her heritage. The defense countered that it was entitled to her perspective. Justice Dan Lamont of New York’s trial-level supreme court denied the Batson challenge and the defendant was convicted. Last week, the Appellate Division unanimously reversed. “[T]he prosecutor’s explanation related only to the juror’s race and stereotypical assumption that an African-American perspective would be biased against the prosecution,” Rose wrote, adding that the explanation itself was “facially discriminatory” and that the discrimination violated the defendant’s equal protection rights. Joining Rose were justices Thomas E. Mercure, Anthony J. Carpinello, Carl J. Mugglin and Anthony T. Kane.

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