New York Federal Criminal Practice Blog
June 6, 2008

Second Circuit Affirms Government's Reverse-Batson Challenge

Picking a jury in a multi-defendant case requires considerable negotiation and compromise between defense counsel.  It also demands that with regard to “reverse Batson” challenges, the defense speaks with one voice, as illustrated in United States v. Rodriguez, 05-525-cr(L), 2008 WL 2278141 (2d Cir. June 5, 2008).  ("Reverse Batson" is where the government accuses defense counsel of engaging in discriminatory exercise of its peremptory challenges during voir dire.)

(a)    One Defendant's Discriminatory Intent Belongs to All

In Rodriguez, the district court granted the government's reverse-Batson challenge as to one juror, noting that the the defense exercised 85% of their challenges against white jurors where the panel was 65% white, and that the proffered race-neutral reasons for dismissing the re-seated juror were suspect where the defense had not challenged similarly-situated minority jurors. The Second Circuit affirmed, giving deference to the district court's determination that the reasons were pretextual.  

Significantly, the Court held that "the District Court needed only to determine that one Defendant had acted in a discriminatory manner in challenging the juror."  The Court explained: "Batson 'was designed to serve multiple ends, only one of which was to protect individual defendants from discrimination in the selection of jurors.... Batson ... is designed to remedy the harm done to the dignity of persons and to the integrity of the courts.' [citation omitted]  The Supreme Court has recognized that 'denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror.'  Because we recognize this harm to the juror, we ask whether any one Defendant has discriminated against that juror" (emphasis added).

In other words, one defendant's discriminatory intent will be imputed to all defendants, even if the others had fully defensible and justifiable race-neutral reasons for opposing the same juror.

(b)   No Affirmative Action Exception to Batson

In addition, in impeccably color-blind reasoning, the Court rejected the defendants' argument that Batson does not apply where an African American defendant seeks to eliminate white jurors.  Citing Supreme Court precedent, the Court held that a defendant - just like a prosecutor - may not subject a juror, regardless of their color, to "open and public racial discrimination."

The problem, as any lawyer who has represented a minority defendant on trial knows, is the existence of two profound disparities in the criminal justice system: one between the racial make-up of the community and that of the jury panel (previously addressed here), and the second between the jury panel and the race of individuals prosecuted by the system, the latter being disproportionately from minority populations.  Relying on gut or statistical evidence that mixed juries are less likely to convict than predominantly white ones, defense lawyers often try to redress these disparities in their use of peremptory challenges - not necessarily to discriminate against individual whites, but rather to engage in some ad hoc affirmative action in favor of minorities, especially those of the defendant's race.  Like colleges seeking diversity on campus, defense lawyers are seeking diversity in the jury room, in the hope that some jurors may identify with the defendant or with arguments raised by the defense, and in so doing, subject the government's case to a greater degree of scrutiny. 

In Rodriguez, the Court is sending a clear message that it will not sanction this practice, and therefore, any defense lawyer (or group of defense lawyers) who engages in it must approach jury selection not just with a coherent strategy on the kinds of jurors they want, but also a consistent and defensible set of reasons for the kinds of jurors they don't want. 

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