Friday, July 15, 2005

Circuit approves of combining minority groups in a Batson challenge, but "race-neutral" justifications remain easily acceptable on habeas review

Green v. Travis, Docket No. 04-0426-pr (2d Cir. July 7, 2005) (Jacobs, Sotomayor, Hall) (Op. by Sotomayor): This case recognizes for the first time in this circuit that minority groups can be combined to form a “cognizable racial group” under Batson v. Kentucky. 476 U.S. 79, 86 (1986). Affirming the decision below, the Circuit found on habeas review that the state Appellate Division’s determination that Black and Hispanic venirepersons do not constitute a “cognizable racial group” was an unreasonable application of Batson.

During the defendant’s state trial for possession and sale of cocaine, defense counsel raised a Batson challenge after the prosecutor used three peremptory challenges to strike one Black man, one Black woman and one Hispanic woman during the first round of jury selection (leaving no minorities at the end of the round), and two peremptory challenges to strike one Black Man and one Hispanic woman during the second round of selection. The trial judge ruled that the defense had not made out a prima facie case under Batson because defense counsel had done no more than “refer[] to certain racial groups,” and the Appellate Division held that, “‘minorities’ in general do not constitute a cognizable racial group.” Op. at 4.

On habeas review, the Circuit agreed with Judge Weinstein of the Eastern District of New York that such a reading of Batson is unreasonable under 28 U.S.C. § 2254(d)(1). The Circuit relied on the Supreme Court’s holding in Powers v. Ohio that a defendant has third-party standing to raise a Batson challenge when venirepersons of a different race than the defendant are excluded from the jury. 499 U.S. 400, 416 (1991). The Circuit reasoned that because Powers established the right of individual venirepersons not to be excluded from a jury because of race (499 U.S. at 409), the equal protection clause is violated when “any and all venirepersons” are struck from a jury because of their race. Op. at 13. The Circuit determined that, “the only continuing relevance of Batson’s ‘cognizable racial group’ language is the requirement that a defendant… must demonstrate that a peremptorily excused venireperson was challenged by reason of being a member of some ‘cognizable racial group.’” Op. at 14 (emphasis in original).

However, the Circuit affirmed the district court’s denial of the defendant’s petition for a writ of habeas corpus, holding after a reconstruction hearing that Green failed to establish by a preponderance of the evidence that any of the challenges were based on race or ethnicity. While the prosecutor did not remember her reasons for the peremptory strikes independently, Judge Weinstein allowed her to recreate her reasoning in a reconstruction hearing after reading through her notes and the trial transcript. Based on her notes taken during voir dire and given her practice at voir dires, the prosecutor offered the following reasons for striking each of the five minority venirepersons: (1) for having a husband who had been arrested and prosecuted in the same county; (2) for having a family member who had been arrested on a drug offense and for having difficulty following the prosecutor’s questions; (3) for having a family member who had been mistreated by the police and for expressing hesitation regarding relying on witness testimony; (4) for having a history of negative interactions with the police and “generally appear[ing] confused;” and (5) for the prosecutor’s belief that at the time she must have concluded that the individual would have problems assessing witness credibility (although she lacked notes from voir dire to support this). Op. at 5-6. The district court credited the prosecutor’s testimony at the reconstruction hearing and ruled that Green failed to prove that the prosecutor’s challenges were race based. The Circuit agreed and noted that unfavorable demeanor and perceived bias against law enforcement have both been upheld as legitimate race-neutral justifications. Op. at 18, citing McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir. 1996); United States v. Rudas, 905 F.2d 38, 40-41 (2d Cir. 1990).

Ultimately, then, while the Circuit here clarified the scope of Batson by holding that a “cognizable racial group” can include multiple minority groups, this case reveals the feeble legs upon which any Batson challenge stands. The Circuit’s acceptance of the prosecutor’s explanations for striking one juror, derived not from her recollection or from her notes, but simply from reading the trial transcript, while not a new holding of law (See Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002)), is especially troubling. It underscores the ease with which “race-neutral justifications” proffered by prosecutors have been accepted by courts on habeas review.

(By Jocelyn Simonson, a rising 3-L at Harvard Law School).


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