Judge Abdus-Salaam
Judge Abdus-Salaam (Tim Roske)

ALBANY – Excluding a juror based on skin tone, like race, is prohibited under the New York Constitution, the state’s highest court has ruled in a case hailed by civil rights groups and affinity bar associations as an important decision.

The Court of Appeals decided unanimously that the way the jury was selected for a robbery trial in Queens Supreme Court violated the protections preventing the exclusion of jurors solely based on their race, color, creed or religion, as declared by the U.S. Supreme Court in Batson v. Kentucky, 476 US 79 (1986).

The court said in its Dec. 22 ruling that it was the first time it has explicitly stated that “race” and “color” are not the same in regards to juror bias purposes, and that a person’s dark skin tone could be a basis of cognizable discrimination under New York’s constitution and civil rights statutes.

“Defendant argues that ‘contrary to the people’s position, dark skin color is a cognizable class and, indeed, must be one unless the established protections of Batson are to be eviscerated by allowing challenges based on skin color to serve as a proxy for those based on race,’” Judge Sheila Abdus-Salaam wrote in People v. Bridgeforth, 207. “We agree with defendant.”

The case involved what the court found was the illegal exclusion of a dark-skinned woman who said she was born in India from the jury in the Bridgeforth case in 2012.

The court said Queens prosecutors gave the necessary race-neutral reasons for excluding four African-American jurors from the jury, but that the prosecutor could not remember why he also struck the Indian-born woman. The trial court did not pursue the matter further and improperly allowed the prosecutor to use a peremptory challenge to exclude the Indian juror.

Appealing his conviction, defendant Joseph Bridgeforth argued that the woman, because of her dark skin, was part of a constitutionally cognizable class that is protected under the equal protection clause, and that the prosecution’s striking of her was illegal under Batson.

The Court of Appeals reversed Bridgeforth’s conviction and ordered a new trial.

The Korematsu Center for Law and Equality at the Seattle University School of Law, which filed an amicus brief on behalf of 20 civil rights organizations and a group of 32 law school professors in the case, praised the decision.

“We are pleased the court found the scholarship and the history and effects of color discrimination that were cited in our amicus brief helpful and informative in finding that Batson does apply to color-based challenges under New York law,” Korematsu Center executive director Robert Chang said in a statement.

The Korematsu Center is named for Fred Korematsu, a Californian who defied military orders that led to the internment of Japanese-Americans during World War II for which he was convicted in a judgment that was upheld by the U.S. Supreme Court in 1944. The conviction was overturned in federal district court in Northern California in 1983.

Evan Bernstein, New York’s regional director of the Anti-Defamation League, said the ruling should promote further acceptance of the idea that discrimination can occur based on perception of someone’s race or religion, even if those discriminated against are not actually members of the presumed racial or religious group.

“The court recognized that discrimination on the basis of one’s skin color as been well researched and documented, and that skin color is a status that implicates equal protection concerns, including invidious discrimination in excluding people from a jury,” Bernstein said.

Abdus-Salaam noted that Article 1, §11 of the state constitution guarantees equal protection for all and prohibits discrimination based on “color” along with “race,” “creed” and “religion.”

Bolstering that idea, she said, is the fact that state Civil Rights Law §13 prohibits the disqualification of a citizen from jury service based on “color,” indicating the treatment of color as a distinct class.

“It follows, then, that color has been recognized as a category upon which discriminatory practices have been based, including exclusion from jury service,” Abdus-Salaam wrote, considering the separate treatments of “color” in the state constitution and in state statute separately.

Abdus-Salaam noted that research into colorism dating back decades indicates that even relatively minor differences in skin tone can lead to different perceptions about race and discrimination, making the court’s declaration in the case that “color must be distinguished from race” necessary.

“Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our state constitution and Civil Rights Law,” she wrote. “Making this distinction is necessary to serve the purpose of Batson, which recognized that discrimination in the selection of jurors violates ‘a defendant’s right to equal protection because it denies him [or her] the protection that a trial by jury is intended to secure.’”

Chief Judge Janet DiFiore and Judges Eugene Pigott Jr., Jenny Rivera, Leslie Stein, Eugene Fahey and Michael Garcia joined in the ruling.

Garcia wrote in a concurrence that while he agreed the defendant’s conviction should be negated because of the allegedly discriminatory jury selection, he worried that the court’s ruling would weaken the mootness doctrine that he said should apply to the ability to challenge prosecutors’ reason for dismissing the Indian juror.

Bridgeforth, now 25, was paroled in January 2016 after serving two-thirds of the five-year sentence for first- and second-degree robbery.

Assistant Queens District attorney Merri Turk Lasky argued for the prosecution before the Court of Appeals.

Tammy Linn of Appellate Advocates Inc. represented Bridgeforth.

In a statement issued in October by the Korematsu Center when it joined 19 other bar associations and nonprofit groups in filing the amicus group with the appeals court, professor Vinay Harpalani of the Savannah Law School, who served as of counsel for amici, noted that Indian-Americans, like the stricken juror, “have faced a long history of discrimination in the United States, based not only on race and national origin, but also skin color. Even today, we still see cases of dark-skinned Indian-Americans, like Black Americans, being profiled by police.”

Attorneys from Akin Gump Strauss Hauer & Feld helped prepared the amicus curiae brief along with the Korematsu Center.

In addition to the Anti-Defamation League, other civil rights organizations signing onto the brief were the Asian American Bar Association of New York, the Hispanic National Bar Association, the Metropolitan Black Bar Association, the National Association for the Advancement of Colored People’s Legal Defense and Educational Fund and the National Native American Bar Association.