New York Federal Criminal Practice Blog
December 10, 2008

Second Circuit Finds No Error in Ruling that Peremptory Challenge Against Reader of Widely-Read African-American Newspaper Passed Batson Muster

Being a reader of the Amsterdam Daily News, which describes itself as “one of New York’s largest and most influential Black-owned and operated business institutions” and which has a circulation of about 25,000, is a legitimate ground for exercising a peremptory challenge against an African-American jury panel member, the Second Circuit held in United States v. Lee, 2008 WL 5076677 (2d Cir. December 3, 2008).  The government claimed the paper was an “anti[-]government newspaper,” and the district court accepted the reason as “plausible” and “credible,” relying on an unpublished Second Circuit decision, which held that it was not unreasonable to infer that “a regular reader of [The Amsterdam News ] could be expected to harbor negative feelings against the government's witnesses.”
The problem for Lee is that the reader was one of only two African-American men on his venire panel.  The other was found to have been legitimately struck because he “was twice late to jury selection, provided little information in response to questions, and stated that he was familiar with Hillside Homes, the area in which the alleged criminal activity occurred.”

As this blog has noted in the past, there is a very troubling gulf between the proportion of African-American individuals on jury panels and juries and the proportion of African-Americans in the general population (see here).  Notably, a prosecutor’s race-neutral reasons for striking a juror need not be persuasive or even plausible, although they must be facially valid and not inherently discriminatory.  It makes me rethink whether I want to include in my voir dire requests a question regarding the newspapers and periodicals each potential juror reads. 

 It wasn’t a total loss for Lee and his co-defendant.  In the same decision, the Court reversed their murder-for-hire convictions because of a Crawford violation.  The Second Circuit Blog has more on that aspect of the decision here.

Lawyers: Katherine Alfieri and Julia Pamela Heit (defendants); AUSA Julian Moore

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