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.)

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. 

There is a jarring disconnect between the make-up of New York's federal juries in criminal cases and the race and ethnic background of the defendants.  In 2006, according to Bureau of Justice statistics, 51% of federal defendants sentenced after a jury trial in New York State were white, with an unknown percentage of those (possibly up to 50%) being of Hispanic descent.  Juries, however, tend to be 80% or more white. 

To address the concern that juries may consist of individuals who are geographically close to the defendant but otherwise worlds apart, the law guarantees a jury culled from a broad cross-section of the community.  This guarantee is designed to assure "diffused impartiality and partly, because sharing in the administration of justice is a phase of civic responsibility."  Taylor v. Louisiana, 419 U.S. 522, 531 (1975), quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting) (emphasis added).  Giving meat to the cross-section guarantee is the subject of some fascinating jury challenges, incorporating sophisticated statistical and probability analyses. 

One such challenge was made recently and unsuccessfully in United States v. Barnes, 2007 WL 3050790 (S.D.N.Y. October 17, 2007), a capital case in White Plains.  Armed with analyses prepared by professors at Columbia University, the defendants moved to stay the proceedings under the Jury Selection and Services Act of 1968 and the Sixth Amendment, on the grounds that African-Americans and Hispanic-Americans are under-represented in the qualified jury wheel (the list of persons eligible for jury service) in the Northern Division of the SDNY.  The defense established through their experts that under an "absolute disparity" approach (which measures the difference between a group's representation in the general population and the same group's representation in the qualified jury wheel), African-Americans were under-represented by 2.8% and Hispanic-Americans under-represented by 2.3%.  Whites were over-represented by 5%.  Under an alternative probability analysis, the experts concluded that there is a 28.5% chance that African-Americans will be selected for a 60 person jury panel in proportion to their population and a 29% chance in the case of Hispanic-Americans, yielding probabilities of under-representation in the case of African-Americans of 53.8% and 54.7% in the case of Hispanic-Americans.  The government did not dispute the analyses, but rather disagreed that the probability methodology was applicable.

The court, constrained by the Second Circuit's holding in United States v. Rioux, 97 F.3d 648(2d Cir. 1996), agreed with the government that an absolute disparity approach was appropriate.  Although acknowledging that the value of absolute disparity methodology is questionable when the group being analyzed is a small section of the population, the court noted that in Rioux, the Second Circuit approved an absolute disparity analysis in a cross-section challenge where the percentages of African-Americans and Hispanic-Americans in the general population were actually smaller than at issue in Barnes.  The Barnes court further pointed out that the under-representation established by the defendants' experts would require the addition of "between one and two African-Americans and one and two Hispanic-Americans to a 60-person venire in order to reach proportionality."  Such figures, the court held, did not support a fair cross-section claim. 

But, leaving aside the merits of the defendants' probability analysis, an extra two to four minority members of a 60-person venire pool can make all the difference in terms of getting one extra minority member on the final jury, and that one minority person may make all the difference in bringing into the jury room a unique perspective of meaningful empathy with the client and appreciation of defense arguments.  That perspective may be the one voice that gives the others pause, and cause them to have doubts.  And it is all the more essential in a capital case, where the jury may be called upon to study the defendant's history and circumstances in detail in deciding whether the ultimate penalty should be imposed.  It's important to note too that increased representation by minorities on juries adds not just to the varieties of human experience brought to jury deliberations, but promotes "sharing in the administration of justice" and thus, counters alienation from the legal system.

Under-representation of minority populations, no matter how slight, is therefore of critical  importance in a system that prosecutes large percentages of those minority populations.  Surely, any margin of error should favor the inclusion rather than the exclusion of minority individuals?

In an interesting footnote in the decision, the court noted the defendant's challenge to the use of voter registration lists to establish the qualified jury wheel because of the under-representation of minorities in voter registration.  While acknowledging the fact of under-representation in these lists, the court rejected that challenge in part because the Second Circuit in Rioux found voter lists to be benign.  But it can hardly be benign to continue using lists that are widely known to under-represent minorities.  It is time for the SDNY court to take a leaf out the state court system, and draw jury pools not just from voter lists, but also DMV records and welfare rolls.  (Notably, the EDNY jury plan supplements its jury pool drawn from voter lists with people drawn from DMV records.)