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The passage of time and a lower court’s inability to assess in retrospect whether a prosecutor’s peremptory challenge to black jurors was based on race has led a federal appeals court to order new trials for two men. The 2nd U.S. Circuit Court of Appeals said that it was now impossible to determine the motives behind the government’s decision to strike two black jurors in the robbery trial of defendants James L. Johnson and Ozem Thomas. The 2nd Circuit said that absent the additional information it sought on those motives, jury selection was apparently tainted by an impermissible challenge in violation of the equal protection principle of a U.S. Supreme Court decision, Batson v. Kentucky, 476 U. S. 79 (1986). The 2nd Circuit’s decision last week in United States v. Thomas, 00-1593, was the appeals court’s second ruling in three years on the Batson-related challenge made by the two black defendants. Eastern District of New York Judge Edward R. Korman presided over the 2000 trial of Johnson and Thomas for murder, robbery and weapons charges, but jury selection was handled by Magistrate Judge A. Simon Chrein. While the government used peremptory challenges to strike four black jurors, only two of the strikes were the subject of the appeal. Juror Emma Franklin was struck after telling the lawyers that she had a son who was behind bars for gun possession, but that she believed her son was treated fairly and felt he “would have probably been dead otherwise,” if not for incarceration. Magistrate Judge Chrein denied a defense challenge to the strike, accepting the prosecution’s explanation that Franklin’s son had faced similar charges as the two defendants on trial, and that the government was concerned Franklin might be swayed against convicting because the defendants’ mothers would be in the courtroom. The defense was also rebuffed in a renewed challenge issued when the prosecution accepted a white juror whose son had also been convicted of a weapons offense. The difference, the judge said, was that the white juror’s son had been sentenced only to probation, and the white juror had even expressed some reluctance about voting for conviction, apparently against the interests of the prosecution. A second peremptory challenge of a black juror who the prosecutor found “flippant” was also upheld. Following conviction, Thomas was sentenced to 42 1/2 years in prison and Johnson was sentenced to 30 years. The men then challenged the magistrate judge’s rulings under Batson before the 2nd Circuit. The 2nd Circuit remanded the case, saying it was unable to resolve the issue without a finding by the magistrate judge on the credibility of the prosecution’s “race-neutral” explanations. In its ruling ordering the remand, the 2nd Circuit said, “Where the principal difference between them is race, the credibility of the prosecutor’s explanation is much weakened.” But in its ruling last week, the appeals court said the magistrate judge, while understandably hampered by the passage of nearly three years, made findings that “reflect a reliance on the transcript that is not substantially informed by any refreshed recollection.” In responding to the remand order concerning Franklin, the magistrate judge had said the government had “justified its differential treatment on the distinction between an imprisoned son and a probated son, and it appears that I found that distinction non-pretextual when I observed that the ‘record speaks for itself.’” As to the “flippant” juror, Magistrate Judge Chrein on remand explained that he did not restore the juror to the panel because the government was not appearing to engage in race-based challenges. As evidence of this, the magistrate judge said, the government “left three blacks on the panel.” Writing for the court, 2nd Circuit Judge Dennis Jacobs said the lower court had failed to make the credibility determinations that were required on remand.”This case seem to fall into the category of those in which the passage of time renders unavailable the findings that are mandated,” he said. “The passage of time that explains the inability to make findings, however, does not obviate them.” And because the defendants were “convicted by a jury that was not selected according to the Constitution,” he said, “we must remand for a new trial.” Senior Judge Amalya L. Kearse and Judge Damon J. Keith of the 6th U.S. Circuit Court of Appeals, sitting by designation, joined in the opinion. Assistant U.S. Attorneys David C. James and Cecil C. Scott represented the government. Bernard H. Udell represented Johnson. Richard Ware Levitt represented Thomas.

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