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A defendant’s conviction for selling drugs has been overturned by a federal appeals court because a prosecutor challenged a potential black juror for a reason that was not race-neutral. The 2nd U.S. Circuit Court of Appeals ordered defendant Robert C. Walker’s petition for a writ of habeas corpus be granted, even though the panel that convicted him was racially mixed, because of the prosecutor’s justification for striking a juror was not “race-neutral.” The decision in Walker v. Girdich, 03-2645, reverses the denial of Walker’s petition for a writ of habeas by Eastern District of New York Judge Jack B. Weinstein. The issue first arose in 1999 before Brooklyn Supreme Court Justice Louis J. Marrero when a prosecutor struck black juror Bernard Jones on her 13th peremptory challenge. Defense counsel objected, saying that 12 of the challenges had been to black jurors, and the prosecutor was striking jurors in a racially discriminatory manner in violation of the Equal Protection Clause as dictated by the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). When Marrero took notice of the fact that five of the nine seated jurors were black and invited the prosecutor to state her objection to Jones for the record, the prosecutor said the juror “had a problem with every single question that was asked,” “gave one word answers” and was concerned about missing work. The prosecutor then elaborated, saying: “Okay, one of the main things I had a problem with was this is an individual who was a Black man with no kids and no family. He said he was not married. He had no family and in fact he had absolutely no experience whatsoever with police officers. He also stated after one of the questions was raised about whether or not — I believe it was if we proved our case, he goes, yeah, well only if its convincing.” The prosecutor went on to say that the government felt the juror “had an attitude… . An attitude against a prosecutor is certainly a basis to remove a person.” Marrero said he had been “watching it carefully” and said he did not believe the challenge was made on a “racial basis.” Walker was convicted and sentenced to serve 6-to-12 years in prison. Following his unsuccessful appeals in the state system, Weinstein found that habeas relief on his Batson claim was “not warranted,” but granted Walker a certificate of appealability on the issue. 2nd Circuit Judges Dennis Jacobs and Guido Calabresi, along with Southern District of New York Judge Jed Rakoff, sitting by designation, decided the appeal. The court outlined the three-part Batson test for whether a prosecutor exercises peremptory challenges in a racially biased manner. First, the defense must make a prima facie showing that the prosecutor has struck a juror in a discriminatory fashion; if so, the prosecutor is obligated to offer a race-neutral reason for the challenge; and finally, the judge must then determine whether the defendant has established “purposeful discrimination.” Jacobs said, “The record is insufficient to determine whether the prosecutor’s use of twelve of her thirteen peremptory challenges against African-Americans in a trial of an African-American is sufficient to create a prima facie case.” He added that the circuit was “at a disadvantage because we cannot tell the racial composition of the venire,” notwithstanding a statement from the defense that the panel was “very racially mixed.” VALID OBJECTION “Nevertheless, under Batson and its progeny, striking even a single juror for a discriminatory purpose is unconstitutional; so the Batson objection to the striking of Bernard Jones is a valid one,” he said. He said one of the main grounds “troubling the prosecutor was Mr. Jones’s race (seemingly aggravated by his being a bachelor). Some of the other explanations — e.g. that Mr. Jones gave ‘one word’ answers or ‘had an attitude’ — tend to reinforce rather than dispel a race-based motive. The juror’s lack of experience with the police would militate in favor of keeping him on the panel.” The state had argued that the prosecutor was merely being descriptive in saying that Jones “was black” and had “no family.” “However, the prosecutor’s words and phrasing adduce these characteristics as grounds for the peremptory challenge rather than as incidental description or as a predicate for inferring some permissible ground for excusing the juror,” Jacobs said. “The challenge was therefore improper.” Monica R. Jacobson of Alvy & Jacobson represented Walker. Assistant District Attorneys Thomas M. Ross, Leonard Joblove and Anthea H. Brufee represented the state.

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