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SJC Reverses Conviction on Ground that Commonwealth Improperly Excluded Black Men from Jury

gavel-4-1236439-300x200In a recent case – Commonwealth v. Robertson – the SJC reversed the defendant’s convictions of first-degree murder and related offenses because “the Commonwealth improperly excluded black men from the jury [by means of peremptory challenges] in violation of Batsonv. Kentucky, 476 U.S. 79 (1986), and Commonwealthv. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979).”

The background was as follows. During empanelment of the jury, “[t]he Commonwealth used [a] peremptory challenge on the first black man who was a potential juror. The defendant objected and defense counsel stated, ‘My client is a black male and this is the first black male to come before the court to be a potential juror.’ The judge found no prima facie evidence of impropriety,” i.e., no “discriminatory pattern in the prosecutor’s peremptory challenges and, as a result, did not inquire about the prosecutor’s reasoning.” Later, “[t]he defendant raised a second objection to the Commonwealth’s use of a peremptory challenge to exclude a man from the Dominican Republic…. [T]he parties disagreed about the potential juror’s race. The Commonwealth argued that the potential juror was ‘Hispanic’ and the defendant argued that he was black.” “The judge observed that the potential juror was ‘lighter skinned than [the defendant].’” Without “deciding how to consider the juror’s race,” “[t]he judge explained that he did not see a pattern because, in part, there were two black women on the jury.” On appeal, the defendant challenged “[t]he judge’s failure to inquire about the Commonwealth’s reason for excluding” the two black male jurors.

In its decision, the SJC stated, “‘Consideration of all relevant circumstances compels the conclusion that the defendant made the limited showing necessary to make out a prima facie showing of discrimination.’ [Commonwealthv.] Jones, 477 Mass. [307,] 322 [2017]. We conclude therefore that the judge abused his discretion in finding no pattern after the defendant’s second objection to the Commonwealth’s use of peremptory challenges on black men. Because such an error is structural, carrying the presumption of prejudice, we vacate the convictions.” The Court noted that the judge’s “reasoning [that two black women had been seated on the jury] fails for two reasons. First, the defendant was not challenging the exclusion of all black people from the jury, but specifically black men. ‘[A]rticle 12 [of the Massachusetts Declaration of Rights] proscribes the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in a group delineated by race and gender.’Commonwealthv. Jordan, 439 Mass. 47, 62 (2003)…. Second, the mere presence on the jury of members of the group at issue is not dispositive [as to] whether there is a pattern; the totality of the circumstances must be taken into account.” Also, in regard to the juror from the Dominican Republic, the judge opined, “[W]here a juror’s membership in a protected class is reasonably in dispute, trial judges, in performing the first step of the BatsonSoares analysis, ought to presume that the juror is a member of the protected class at issue.”

Also in this decision, the SJC ruled that the judge did not abuse his discretion in declining to ask prospective jurors whether “the defendant’s race would affect [their] ability to be fair and impartial.” The judge’s reasoning, which the SJC accepted, was “that race was not an issue in the case because both the defendant and the victim are African-American.” The Court “reiterate[d],” however, “that ‘a motion to have jurors asked about racial prejudice should usually be granted.’ Commonwealthv. Ramirez, 407 Mass. 553, 555 (1990). Racial bias can, of course, have an impact on juror impartiality, even where the victim and the defendant are of the same race.”

Selecting jurors who have the ability to be fair and impartial is one of the most critical aspects of a criminal trial. Attorney Daniel Cappetta has selected many juries during the course of his work as a trial attorney and knows the best strategies to employ and appropriate issues and objections to raise to make sure his clients get a fair trial.  Call him for a consultation today.

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