Friday, February 5, 2010

Batson challenge is forfeited

Mark Garraway went to trial in state court on a murder charge in 1997. During jury selection, the prosecutor tried to get rid of seven black jurors during voir dire. Garroway's lawyer made a Batson challenge, named after a Supreme Court case that says that blacks cannot be stricken from the jury because of their race. The prosecutor only explained his decision as to six of the jurors, which means that he never answered the seventh objection. Does Garraway have a legitimate habeas corpus challenge to his conviction?

The case is Garraway v. Phillips, decided on January 7. The answer is that Garraway does not have a challenge.

What happened during jury selection was this: the prosecutor tried to excuse seven black jurors (we call them venirepersons). Garraway raised the Batson challenge. While the prosecutor gave seven explanations, apparently one for each of the jurors he had tried to strike, one of the explanations was for a stricken juror whose strike to which Garraway had not objected. So in trying to do his job, the prosecutor was confused. He explained away a juror for whom there was no objection, and in doing so, he neglected to explain away a juror for whom there was an objection. As the Court of Appeals notes, "this omission was evidently missed by the prosecutor and the judge. Garraway noted his general 'exception' without objecting specifically to the prosecutor's failure to explain the seventh challenged strike."

Normally, if the prosecutor has no explanation (or an unconvincing one) for trying to excuse a black juror, the objecting party (the defendant) wins that argument and the juror remains on the case. Here, though, it's a little different. Garraway's lawyer did not properly object in a timely fashion. His general objection was not enough. He had to specifically tell the trial judge that the prosecutor did not explain why he wanted to excuse the seventh black juror. The objection is forfeited.

What do we learn from this? Really pay attention during jury selection. The opportunity to gain every advantage at trial is fleeting. The Second Circuit (Jacobs, Walker and Leval) recognizes the need for quick and specific objections:

This case illustrates the critical need for timely objection. Garraway was convicted in 1997 (over 12 years ago); the prosecutor, now living in Arizona, no longer specifically recalls the individual jurors; and the case file has been destroyed. A reconstruction hearing may no longer be feasible. The remedy of a new trial still would be available to Garraway, but there can be no remedy for venireperson Martin, who had a right to serve as a juror without suffering racial discrimination, or for the court system, which is alleged to have held a trial corrupted by racial bias. These considerations support the conclusion that a defendant forfeits a Batson objection unless it is made before the end of jury selection. These considerations justify finding forfeiture in this case as well.

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