New York Federal Criminal Practice Blog

Recently in the Jury Selection category:


The NYSACDL has published its fall issue of Atticus.  Judge Bellacosa has contributed an eloquent piece in support of open-file discovery, relevant both to state and federal prosecutorial practices, highlighting the success of a project in the Brooklyn DA's office, and advocating a state-wide statutory authorization, with uniform standards of application and accountability.  Mark Hosken of the WDNY Federal Defender has contributed a notable piece on the Ex Post Facto Clause in a post-Booker world, and I have contributed a piece on some recent decisions from the Second Circuit, including the Rajaratnam and Amanuel cases on wiretaps, the Martinez case on Batson, and Ortiz on sentencing. 

It must have been a showstopper, because after hearing defense counsel’s opening statement and before hearing any evidence, a juror in United States v. Uvino, 2008 WL 5272494 (E.D.N.Y. December 18, 2008), notified EDNY Judge Weinstein that his view that cooperating witnesses were inherently untrustworthy had been “further strengthened.”  The government moved to dismiss him for cause.  The defense, not surprisingly, wanted to keep him.

While Fed.R.Crim.P. 24, which sets forth the procedure for selecting and replacing jurors, does not address the circumstances under which a juror may be disqualified, the Second Circuit has held that “district courts have broad discretion to replace jurors at any time before the jury retires for deliberations.”  For example, a court would be justified in excusing a juror who indicated an intent to nullify the applicable law or is biased by virtue of a relationship or event. 

Judge Weinstein sided with the government:

Juror Six initially represented that he would be able to consider the testimony and evidence at trial without allowing his biases to interfere with his duties as a juror. Prior to receiving any evidence, he expressed biases and preconceived notions that made clear his inability to fairly consider the evidence and follow the instructions of the court. He is disqualified from jury service in this case.

Lawyers: Michael Washor, Nicholas Pinto, Law Offices of Michael Washor (defendants); AUSAs Deborah Mayer, Elizabeth Geddes, James Gatta

It is no surprise to defense lawyers that racial profiling of jurors by prosecutors is alive and well.  (Not that defense lawyers are saints on this issue, though they are more likely to do it affirmatively, see here.)  In a welcome judicial recognition of the problem, the Second Circuit has ruled in Dolphy v. Mantello, 03-2738-pr(L), 2009 WL 50496 (2d Cir. January 9, 2009), that a prosecutor’s justification for striking the only African-American juror of a jury panel – that she was obese, and obese people favor defendants – was so self-evidently pre-textual, it demanded further inquiry.  (Disclaimer: Mr. Dolphy was represented by Robert Culp, who is of counsel to Murray Law LLC.  Mr. Culp was acting in his individual capacity in this case.)


In Dolphy’s state court trial, there was only one African-American juror in the jury pool, so you would have hoped the trial judge would scrutinize the prosecutor’s explanation for exercising a peremptory challenge against her very closely, especially since Dolphy himself is African-American.  But instead, the court accepted without inquiry the prosecutor’s claimed “race-neutral” explanation in response to the defendant’s Batson challenge:  that he struck her because of her overweight appearance, adding “heavy-set people tend to be very sympathetic toward any defendant.”  When defense counsel pointed out that two of the seated white jurors were also overweight, the trial judge joked that he and both advocates could lose a few pounds, but “that the excluded juror (by contrast) was grossly overweight.”  It’s worth adding that the juror in question had impeccable credentials – she worked for a defense contractor, and was willing to serve despite a disabled husband and three children.  The state appellate division affirmed the trial court’s denial of the Batson challenge, and the court of appeals denied leave to appeal.  The defendant filed a federal habeas petition.  

NDNY Magistrate Judge DiBianco concluded in his Report and Recommendation that the trial court misapplied Batson when it accepted the prosecution’s explanation without assessing credibility or pretext.  District Judge Kahn, however, denied the petition, holding that the required credibility finding - which under Batson need not be explicit - was implicit in the trial judge’s rejection of the defendant’s Batson challenge.  


The Second Circuit, in a decision authored by Judge Jacobs, vacated the district court’s order, finding that “[w]e cannot say that the trial court properly applied Batson in this case.”  The Batson analysis has three steps: a showing of purposeful discrimination (for example, an apparent pattern of striking jurors of a particular race or sex), an opportunity to the striking party to provide race-neutral reasons for the strikes, and a determination by the judge as to whether there was discriminatory intent.  Here, the trial judge failed to satisfy Batson Step Three, both because his remarks indicated that he “seemed to assume that a race-neutral explanation (Batson step two) was decisive and sufficient” and because “the explanation given here lends itself to pretext.”  While facially race-neutral, the Court noted this explanation “rested precariously on an intuited correlation between body fact and sympathy for persons accused of crimes,” memorably adding “[w]hich side is favored by skinny jurors?”  The Court remanded for a hearing into the credibility of the prosecutor’s explanation, noting (and perhaps hinting) that given the passage of time, a hearing may be pointless, and Dolphy should be simply given a new trial.  (He has already served twelve of his fourteen to sixteen-year sentence.)


Dolphy is a note-worthy decision in the Second Circuit’s Batson jurisprudence.  Although decided on the seemingly narrow ground that the trial judge here did not even reach the third prong of the Batson analysis, Dolphy can be used as a precedent for the proposition that a suspect race-neutral explanation (whether because it is dubious on its face, or because it is called into question by other facts of record) demands more than simply a conclusory denial of the Batson challenge.  Second Circuit precedents hold that trial courts rejecting Batson challenges need not recite any particular formula.  But here, the Court concluded that the credibility of the prosecutor’s “race-neutral” explanation had never been properly assessed, and, importantly, included in its decision rhetorical remarks questioning the validity of the explanation provided.  One could argue, therefore, that under Dolphy, a questionable “race-neutral” reason must be subjected to closer scrutiny.

Lawyers: Robert A. Culp (defendant); Lisa Fleischmann (Asst. Attorney General for State of New York – not the trial prosecutor)

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

A prospective juror who says he’s a political science professor, albeit also a lawyer who has not practiced for the last six years, sounds like a good defense gamble.  After all, liberal professors outnumber conservatives in the social sciences by 11 to 1.  On the other hand, if you throw in that that same individual “received a bachelor’s degree from Yale University, a master’s degree from Harvard University, a law degree from Harvard, taught at the University of Michigan law School, was a litigator at two New York City law firms, and served for seven years as general counsel to two New York City agencies and as acting commissioner of homeless services,” one might think again about having such a smart, worldly person on the jury, since people with these kinds of credentials can wield disproportionate influence in the jury room.  It’s great if that influence operates in your favor, but can erase the possibility of a hung verdict if it does not.

In United States v. Bangiyev, 07-cr-331 (NG), 2008 WL 4240005 (E.D.N.Y. September 12, 2008), the presence of such a juror in a counterfeiting trial spawned a Rule 33 motion for a new trial on the grounds that the juror’s failure to reveal his legal work history was materially dishonest.  Had it known the truth, the defense contended it would have struck the juror for cause, or exercised a peremptory challenge.  A peculiar wrinkle in the case involved a post-verdict encounter between the judge and two jurors, who asked to speak to her about an aspect of their decision.  Judge Gershon declined to speak to them.  The defense – creatively – suggested that this was evidence that the jury had been “coerced and improperly influenced” by the deceptive professor/litigator.
Judge Gershon denied the motion for a new trial, holding first that the juror had not been dishonest – she had only asked the jurors in voir dire about employment with a law enforcement agency, which she found did not encompass the juror’s employment in the New York City Law Department.  Moreover, even if the juror had misled the court, there was no evidence that he had harbored any bias against the defendant to sustain a cause challenge, and the defense had forfeited its right to make an informed peremptory challenge by failing to ask additional questions about his employment history. 
Most interesting in the decision are the court’s comments on the defendant’s claim that the juror improperly used his experience and learning to influence the others.  Dismissing the claim as pure speculation, Judge Gershon added that, in any event, “personal experiences are permissible influences on jury deliberations.”  Rather, what is prohibited is the introduction of additional extra-record facts about the defendant.  She quoted Judge Friendly: “while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room ...specific facts about the specific defendant then on trial” (emphasis in the original).

Striking another blow against the strategic use of peremptory challenges, the Second Circuit upheld the "blind strike" method of jury selection in United States v. Bermudez, 06-5119-cr, 2008 WL 2415713 (2d Cir. June 17, 2008).  This is where both parties simultaneously exercise their peremptory challenges rather than alternately, leading to the possibility that the defense and the prosecutor strike the same person. 

Citing a Nineteenth Century Supreme Court case and five sister circuits, the Court held the defendant has no right to know the government's strikes before announcing his own.  He only has the right to strike up to ten jurors he finds objectionable.  "No injury [is] done if the government unite[s] with him in excluding particular persons from the jury" (quoting Pointer v. United States, 151 U.S. 396 (1894)). 

Of course, for the defense, duplicating a strike with the government means wasting a strike - a strike that could have been used more effectively to increase the defendant's prospects of getting a jury of his peers, or even a couple of jurors of his peers.  Afterall, given the racial disparities between the jury panels and the population of defendants, the defense doesn't just exercise its strikes to exclude people from the jury, it also uses strikes strategically in order to include particular people. Once again, as it did in Rodriguez, the Second Circuit has declined to give the defense any strategic advantage in jury selection, beyond the advantage granted by law (ten strikes as opposed to the government's six). 

In addition to the jury selection issue, most of this opinion deals with an evidentiary issue - whether the government could introduce bolstering evidence in anticipation of, but prior to, an actual attack on their witness's credibility.  The majority affirmed, but there is a compelling (and disheartening) dissent from District Judge Underhill, sitting by designation.

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. 

See Archives for all posts since September 2007.