Prosecutor argues that overweight jurors favor defendants

We all know that you cannot exclude a juror from trial because of his race. If a lawyer tries to exclude a black juror, any objection will fail if the lawyer articulates a race-neutral reason for excluding the juror. In this strange little case, the Court of Appeals finds that a state court criminal conviction was tainted because the prosecutor excluded an overweight black juror in the flimsy theory that overweight jurors are more sympathetic to criminal defendants.

The case is Dolphy v. Mantello, decided on January 9. After the prosecutor struck the black juror, the defendant's lawyer raised a Batson challenge, which requires the prosecutor to give a race-neutral reason for rejecting the juror. The trial judge then has to determine if the prosecutor's reason is credible. That did not happen here. As the Court of Appeals recounts the story, "The explanation given by the prosecution was that the juror was obese. The trial judge denied the Batson objection on the ground: 'I’m satisfied that is a race neutral explanation.'”

Here are the prosecutor's words, duly taken down by the court stenographer:

I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.

The defendant's lawyer then pointed out that the prosecutor had, in fact, seated overweight jurors in other cases and that some of the jurors in this very case were overweight (and white). Here is what happened next, according to the Court of Appeals: "The trial court observed that 'overweight is a subjective term,' tactfully suggested that the judge and defense counsel were both 'a little overweight' and could stand to lose a few pounds, and opined that the excluded juror was (by contrast) 'grossly overweight.'”

Can you believe this? I can, actually. Judges make jokes all the time in the courtroom. In fact, the Court of Appeals in this case throws in a joke of its own, asking rhetorically, "Which side is favored by skinny jurors?" Except that I'm not sure that the Court of Appeals is really joking. The Court may simply be telling us how absurd the trial judge was.

Few courtroom jokes represent grounds for a new trial. The Court of Appeals finds that the trial judge did not make any credibility assessment of the prosecutor's excuse and that he took the prosecutor at his word that he really did believe that overweight jurors are sympathetic to defendants. The judge is supposed to think this through, not rubber stamp the prosecutor. As the Second Circuit tells us, "While the prosecution’s proffered explanation was facially race-neutral, it rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant). Yet the trial court’s initial ruling was made without inquiry or finding, as though the ground for making the strike was self-evident: 'Very well. Strike will stand.'”

Since the trial judge took the prosecutor at his word, the criminal conviction is tainted. The trial court must now re-consider the prosecutor's excuse and if that process cannot be reconstructed, the defendant gets a new trial.