Second Circuit Holds that Striking Juror on Grounds of Obesity Lends Itself to Pretext
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.)
Facts
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.
Holding
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.)
Comment
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)
Facts
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.
Holding
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.)
Comment
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)
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