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The 2nd U.S. Circuit Court of Appeals has affirmed a writ of habeas corpus that a district court judge granted to a convicted murderer who argued that the prosecution’s use of peremptory challenges during jury selection was based on race. At the same time, however, the circuit ruled that the lower court abused its discretion when it granted the man a new trial absent a hearing to determine if those challenges were unlawful. The three-judge appellate panel found that Curtis Harris, a black man convicted of murder by an all-white jury in a two-day trial in 1985, was entitled to the writ of habeas corpus he received from U.S. District Judge Joanna Seybert in October 2000. But the panel also found that before granting a new trial, Seybert should have called for a hearing to address whether the prosecution used its peremptory strikes in violation of the defendant’s constitutional rights. In addition, the 41-page Oct. 10 decision rejected a motion by Harris, who has an IQ of about 70, which asserted that he was not competent to stand trial. During his trial for the murder of Vicki Ketsoglou, Harris escaped the custody of court officers in Mineola, N.Y. County Court and shot one officer in the head. Harris, himself, was shot in the head during the altercation. He was later prosecuted for the attempted murder of the court officer. He argued that his low IQ and the bullet lodged in his brain made him incompetent to stand trial for the Ketsoglou murder. On that issue, the 2nd Circuit held that Seybert, who sits in the Eastern District in Central Islip, was correct in finding that Harris’ counsel, during the murder trial, failed to properly raise the competency claim at that time. The 2nd Circuit judges who ruled last week in Harris v. Kuhlmann were Ellsworth Van Graafeiland, Jose A. Cabranes and Fred I. Parker. Eighteen years ago, a Nassau County jury found Harris guilty of one count of intentional murder, two counts of felony murder, and other crimes as a result of an incident in which Harris and another man, Julio Giano, robbed and killed Ketsoglou, Giano’s former girlfriend. Harris was sentenced to 25 years to life on each of the three murder counts, and 12-1/2 to 25 years on the other counts. JURY SELECTION During jury selection before Nassau County Court Judge Stuart L. Ain, one black man, who was chosen, later revealed that he had received a suspended sentence for weapons possession. The court denied the prosecution’s challenge to remove him for cause, but permitted it to use one of its peremptory challenges to dismiss him. Later the same day, the prosecution dismissed two other blacks using its peremptory challenges, over Harris’ objection. At that time, the judge reserved a determination on the peremptory challenge dispute. The 2nd Circuit’s decision noted that Harris’ attorney, Thomas Liotti, made objections throughout the selection process. By the end of jury selection, the prosecution had used peremptory challenges to strike all five blacks. And when the process was over, the judge denied defense counsel’s request for a hearing on the strikes, basing his reasoning largely on the fact that the prosecution had originally accepted a black man but had later used a peremptory challenge to exclude him because of his prior conviction. Harris was then found guilty. The 2nd Circuit judges noted that Harris’ criminal trial and conviction occurred some 16 months before the U.S. Supreme Court’s decision in Batson v. Kentucky, which held that states may not use peremptory challenges in discriminatory manner in violation of the 14th Amendment of the Constitution. However, the panel also noted that the high court ruled that so-called Batson challenges apply retroactively. Harris appealed his conviction to the Appellate Division, 2nd Department, which prompted a sua sponte decision holding that the evidence was insufficient to warrant his conviction. But the decision otherwise affirmed the judgment of the trial court, including its rejection of Harris’ Batson claim. The New York Court of Appeals later denied his appeal, and afterward, he filed a writ of habeas corpus in federal court. The 2nd Circuit’s decision regarding the peremptory strikes stemmed from a motion filed by the superintendent of the Sullivan Correctional Facility, where Harris was incarcerated, which challenged the writ and the new trial. In reviewing the Batson issue on a de novo basis, the 2nd Circuit judges concluded that the defense had met its burden in showing that the prosecution demonstrated the appearance of a pattern of discriminatory strikes, even though it originally accepted one black person on the panel. “We do not agree that this fact alone was sufficient to refute an otherwise-appropriate inference,” the circuit judges wrote. “Even if we were to conclude that the decision to strike [the first black man] was legitimate, the fact remains that the prosecutor used peremptory strikes to remove all four of the other black potential jurors as well.” As such, the 2nd Circuit held that the Appellate Division had faltered in its decision to affirm the trial court’s ruling on the Batson matter. However, the panel concluded that the federal district court was incorrect in its determination of relief for Harris. It observed that Seybert ordered a new trial, as opposed to conducting her own hearing on the Batson challenge or remanding the case to state court for a Batson hearing, because more than 15 years had elapsed since the trial. Seybert had written, “Under the circumstances, 15 years is a very long time. A hearing at this juncture would be akin to an attempt to repair a broken cobweb.” The 2nd Circuit judges held that Seybert abused her discretion when she concluded, without a hearing, that it was not feasible to conduct a proceeding on the peremptory challenge issues because so much time had passed. “There was no such demonstration of the effect of the passage of time here. Instead, the District Court relied only on the facts that a significant amount of time had elapsed, the trial judge had retired, and the former prosecutor had become a judge. The Court made no inquiry into or determination of what effect those facts would have on the feasibility of a reconstruction hearing,” the panel wrote. As a result, the 2nd Circuit judges remanded the case to district court to conduct a reconstruction hearing to determine whether the prosecutor’s use of peremptory strikes complied with the requirements of the Constitution as outlined in Batson. Brian Sheppard, a solo practitioner in New Hyde Park, N.Y., represented Harris. Nassau County Assistant District Attorneys Margaret E. Mainusch, Peter A. Weinstein and Tammy J. Smiley represented the prosecution.

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