It’s well-established in New Jersey that discriminatory uses of peremptory challenges are illegal, but a published opinion on Tuesday addresses a wrinkle not found in earlier precedents.
In the usual scenario, where the state removes multiple jurors who share a trait such as race with the accused, the defense can show a pattern of removal to establish a prima facie case of discriminatory purpose, forcing the prosecution to provide a nondiscriminatory one.
In contrast, State v. Pruitt, A-1343-11, holds that the state’s removal of a single African-American juror, the only one in a case against a black defendant, can be enough.
The result was the reversal of a Cape May County drug conviction and a remand for a hearing on the prosecutor’s reason for striking the juror.
Markees Pruitt was convicted on multiple counts of selling crack cocaine to an undercover detective within 1,000 or 500 feet of school property. He is serving a 14-year sentence and is not eligible for parole until 2018.
Juror 13 was one of two African-Americans on the jury panel and was one of five jurors against whom Assistant Cape May Prosecutor Saverio Carroccia exercised peremptories. The other black juror was dismissed for cause.
The defense lawyer, Michael Schreiber, a Linwood solo, immediately asked for a side bar, at which he objected that striking Juror 13 left the panel with no African-Americans.
Schreiber asked Superior Court Judge Raymond Batten to require Carroccia to explain why Juror 13 was excused, in order to determine if the peremptory challenge was exercised for a valid reason or because of her race.
Carroccia argued that the "threshold showing" for requiring him to explain had not been made.
Batten called the circumstances "worthy of concern" and said the fact that "the only juror of color" was excused by the state was "certainly interesting," but "statistical reality cannot be denied."
He said he was unable to find that a prima facie case had been made that there was a "substantial likelihood" of a discriminatory purpose.
Batten also said he was "uncomfortable" with his ruling and suggested it would be better if there existed a legal basis to require the state to divulge why it asserted the peremptory challenge.
Reversing, the Appellate Division found Batten applied too stringent a standard, since State v. Osorio, 199 N.J. 486 (2009), relaxed the "substantial likelihood" test.
The panel held that removing a single member of a "cognizable group" — one based on race, religion, color, ancestry, national origin or sex — to which the defendant also belongs, can suffice to raise the inference needed to require the prosecutor to provide a nondiscriminatory reason.
"We … conclude that whenever a prosecutor uses a peremptory challenge to excuse the only qualified member of a cognizable group in the jury panel, where the defendant or the victim is also a member of that same group, and where the other Osorio factors are met, the trial judge should, upon timely objection by the defense, require the prosecutor to explain his or her nondiscriminatory reason for the challenge," wrote Michael Haas, a Superior Court judge temporarily assigned to the Appellate Division.
"Requiring the prosecutor to provide such an explanation imposes no unreasonable burden upon the State and serves the interests of justice by ensuring that no juror is excused from service for unconstitutional reasons," he wrote. "Were we to hold otherwise, discriminatory challenges could escape judicial review whenever the representation of cognizable groups in a jury panel was particularly low."
Haas noted that Carroccia failed to ask Juror 13 any follow-up questions and he said the reason for dismissing her was far from evident in contrast to the other four people subjected to peremptory challenges. One of the four had a son-in-law in drug treatment, one had a cousin serving a life sentence for a double murder and two had acquitted defendants when serving as jurors in prior cases.
Haas was joined by Judges Paulette Sapp-Peterson and Jamie Happas.
Assistant Deputy Public Defender Jason Coe, who represented Pruitt on appeal, says, "I’m pleased with the court’s sensitivity to issues affecting jury selection," but declines further comment.
Schreiber terms the ruling "encouraging," saying "time and time again, I struggle with getting a fair cross-representation of minorities on juries where my client’s a minority." In his view, minorities are underrepresented among jurors because they tend to be poorer and jury pools are drawn from the ranks of taxpayers, licensed drivers, registered voters and applicants for homestead rebates and are thus more likely to own cars and homes and to have jobs.
U.S. Census figures for 2011 show Cape May County with a population of 96,304, which is 86.6 percent non-Hispanic white, 6.4 per cent Hispanic, 5.1 percent black and 1 percent Asian.
The Cape May County Prosecutor’s Office did not return a call. Assistant Prosecutor John Molitor handled the appeal.
The Supreme Court is scheduled to hear oral argument on April 30 in another case involving race bias in jury selection, State v. Andrews, A-105-11.
The trial judge there found a prima facie case that the defense used peremptory challenges to exclude white jurors in a murder case against a black defendant, who was subsequently convicted and sentenced to life in prison. Once the judge made the finding, he required the defense to provide a "rational, articulable reason" not related to race whenever it employed a peremptory against a white juror.
The Supreme Court granted an appeal on whether the judge should have scrapped the voir dire process and started over.