Monday, March 14, 2011

Batson challenge fails where lawyer did not feel "comfortable" with black juror

As the parties picked a jury in a civil rights trial, counsel for defendant excused the only black juror. Plaintiff's counsel made a Batson challenge, arguing that defendant was doing this because of the juror's race. Counsel for defendant told the court that he excused the black juror because he "felt uncomfortable with her." The trial court denied plaintiff's Batson challenge, and he ended up losing the trial. The Court of Appeals affirms.

The case is Filozof v. Monroe Community College, a summary order decided on February 25. Batson is shorthand for the Supreme Court decision that says you cannot reject jurors during voir dire because of race. If the plaintiff makes a Batson challenge to the defendant's choice, the latter has to give a race-neutral reason. Is it race-neutral for counsel to say that he did not feel comfortable with the potential black juror?

In denying plaintiff's motion for a new trial, the trial court noted that "there were no comments of counsel during voir dire ... and that "in this case because counsel made no comments at all during voir dire and did not participate, there was no comments of that ilk,and there was really very little motivation to strike this particular juror." In the end, however, the trial court decided that, having viewed the demeanor of defense counsel, he concluded that "I'm not convinced that the use of the word or phrase that 'I'm uncomfortable with the juror' is, in the context of this case, another way of saying that I struck the juror because she happened to be African-American."

Our instincts may say that this discomfort level with the only black juror was inherently racial. But trial courts have discretion to make these rulings one way or the other. The Second Circuit (Pooler, Cabranes and Raggi) does not second-guess the trial court. The Court of Appeals explains it this way: first, feeling uncomfortable with the juror "may not have been illuminating, [but] it can hardly be taken as an admission that his peremptory strike was motivated by racial considerations. Second, the Supreme Court has held that even if the lawyer offers a "frivolous or utterly nonsensical justification for the strike," the party making the Batson challenge still has to show that it was racial. The Second Circuit finds that it was not "clearly erroneous" for the trial court to reject the Batson challenge. No new trial for plaintiff.

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