State v. Andrews, A-105 September Term 2011; Supreme Court; opinion by Cuff, P.J.A.D., temporarily assigned; decided October 28, 2013. On certification to the Appellate Division. [Sat below: Judges Fuentes, Harris and Koblitz in the Appellate Division; Judge St. John in the Law Division.] DDS No. 14-1-1772 [36 pp.]

Defendant Amir Andrews was indicted in connection with the shooting of two women at a market in Newark. During jury selection, the prosecutor complained in a sidebar conference that defendant was impermissibly striking jurors based on their race. Noting that defendant had struck seven white jurors and two black jurors, the trial judge found that the state had established a prima facie case of using peremptory challenges to excuse jurors based on their race and told defense counsel that he must articulate a rational, articulable reason when exercising any other peremptory challenge. When he could not do so after exercising a peremptory challenge to excuse an Hispanic juror, the court seated the juror over defense counsel’s objection and completed jury selection.

Defendant was found guilty of all charges, including attempted murder and aggravated assault.

The Appellate Division reversed and remanded for a new trial, finding, inter alia, that the trial court failed to follow the three-part Osorio test before finding a prima facie case of race discrimination. The state’s petition for certification was granted.

The state contends that the single remedy set forth in State v. Gilmore, 103 N.J. 508 (1986), for unconstitutional exercise of peremptory challenges should be re-evaluated as it is too inflexible, improperly rewards unconstitutional behavior, and wastes judicial resources. The state emphasizes that most jurisdictions have adopted more flexible remedies for such violations and argues that New Jersey should follow suit.

Held: Because a confluence of factors counsels departure from the single, bright-line remedy imposed by Gilmore to redress improper exclusion of potential jurors following a Batson challenge, that remedy is modified to permit judges to choose from among a range of remedies on a case-by-case basis.

Batson v. Kentucky, 476 U.S. 79 (1986), held that a prosecutor could not peremptorily challenge potential jurors solely on account of their race. Adopting the justification for the representative cross-section rule in People v. Wheeler, 583 P.2d 748 (Cal. 1978), overruled in part by People v. Willis, 43 P.3d 130 (Cal. 2002), Gilmore held that a prosecutor may not exercise a peremptory challenge to remove members of a cognizable group based on a presumed group bias.

Batson left to the state and federal courts the discretion to fashion their own remedies. However, Gilmore established a single, bright-line remedy to redress improper exclusion of potential jurors following a Batson challenge: where a Batson violation is shown, the court must strike the venire and start anew. New Jersey is the only jurisdiction with this single remedy.

The court notes that other jurisdictions and commentators have observed that the Gilmore remedy tends to reward bad conduct and contributes to a waste of judicial resources. Two appellate decisions suggest that adherence to it has made it difficult for trial courts to fairly and effectively respond to Batson/Gilmore challenges. The court says these cases demonstrate that reseating improperly stricken jurors may better address concerns of fairness and judicial economy. Dismissing the entire venire and starting anew may neither vindicate the rights of the wrongfully excluded jurors nor achieve a fair result, but may actually encourage discriminatory behavior and do nothing to deter future abuses.

The court recognizes that the single remedy in Gilmore does not necessarily deter unconstitutional behavior since constitutionally impermissible challenges may persist with a new panel or in successive trials. Gilmore‘s remedy may place an offending party in a better situation than before the improper conduct, effectively rewarding unconstitutional behavior. Moreover, it places an unreasonable burden on the judicial system and can easily waste judicial resources.

The court concludes that a confluence of factors counsels departure from the single, bright-line remedy imposed by Gilmore, including modification of Wheeler by Willis, in which the judge kept the seated jurors and imposed a monetary sanction, which was lifted after trial, on defense counsel. Willis noted several permissible remedies for impermissibly used peremptory challenges, emphasizing that resort to an alternate remedy must be preceded by a waiver by the complaining party of the usual remedy of dismissal of the remaining venire. The court also cites the fact that all other jurisdictions allow trial judges broader discretion in fashioning remedies for Batson violations and that the Gilmore remedy has impeded New Jersey’s courts from responding fairly and effectively to such challenges.

Accordingly, the court modifies Gilmore to the extent it imposed a single remedy to respond to the constitutionally impermissible uses of peremptory challenges. Trial judges may choose from a broader set of remedies, including dismissing the empaneled juror(s) and the venire and beginning jury selection anew; reseating the wrongfully excused juror(s); reseating the wrongfully excused juror(s) and ordering forfeiture by the offending party of the improperly exercised peremptory challenge(s); permitting trial courts to require challenges to prospective jurors outside the presence of the jury; granting additional peremptory challenges to the aggrieved party, particularly when wrongfully dismissed jurors are no longer available; or a combination of these remedies as the individual case requires.

The court says that before reseating a wrongfully challenged juror the trial court should ensure that the juror is available for reseating, that the reseated juror will be able to participate fairly and impartially in the trial, and should consider whether a cautionary instruction should be given.

The court affirms the Appellate Division judgment reversing defendant’s conviction and remanding the matter for a new trial because, inter alia, the remedy chosen by the trial judge was contrary to the governing law at the time of trial and the judge failed to explain why the remedy would redress the impermissible challenge.

Chief Justice Rabner, Justices LaVecchia, Albin and Patterson and Judge Rodriguez, temporarily assigned, join in Judge Cuff‘s opinion.

For appellant — Stephen A. Pogany, Special Deputy Attorney General, Acting Assistant Prosecutor (Carolyn A. Murray, Acting Essex County Prosecutor). For respondent — Lon Taylor, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For amicus curiae Attorney General — Frank J. Ducoat, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General).