FAIR PLAY / SUBSTANTIAL JUSTICE

if you want to get out of jury duty, be grossly overweight

Posted in Uncategorized by Ryan Locke on January 12, 2009

says Ryan.

When you’re picking a jury in a criminal case, each side gets to remove a certain number jurors from the jury pool without having to give a reason — they’re called peremptory challenges.  Juror 17 was robbed at gunpoint once, and your defendant allegedly robbed someone at gunpoint?  Boot him!  Juror 23 was beat up by the cops once?  He’ll get axed by the state.  It’s a process that’s meant to remove the extremes from both ends, leaving a jury that’s not too prosecution friendly or defense friendly.

There’s one important limit to peremptory challenges:  You can’t be racist or sexist.

This comes from a 1986 Supreme Court case called Batson.  It says that eliminating jurors solely because of their protected group status violates the Equal Protection Clause of the Fourteenth Amendment.  (This decision was later extended to civil trials in Edmonson).

Here’s how it works in practice (from the defense side, let’s say).  The State has just used all of its peremptory challenges to remove black people from the jury pool.  You say, hey, I assert a Batson challenge!  Then three things happen:

  1. The moving party must establish a prima facie case of impermissible discrimination.  You do that by showing: (1) the prospective juror is a member of a protected group (usually race and sex are the only ones upheld consistently); (2) the opposing party struck that juror; and (3) the facts and circumstances surrounding the exercise of the peremptory challenge raises an inference of discrimination.  Once this happens (and it’s a really low bar)…
  2. The burden shifts to the nonmoving party to articulate a neutral, nondiscrimatory reason for the peremptory challenge.  These reasons don’t need to be persuasive or even plausible.  They just need to be reasons.  Once this happens,
  3. The court determines whether the moving party has carried his ultimate burden of proving purposeful discrimination.  The court doesn’t need to comment on the reasons or anything, it just needs to say “challenge granted” or “challenge overruled.”

In our case, it would go like this:

  1. Defense: “Hey, the State struck all the black people.”
  2. State: “Sure, but we had race-neutral reasons.  Juror 1 said he was beat up by the cops once; Juror 2 has a cousin in jail; Juror 3 has 14 parking tickets, etc.”
  3. Judge decides that we didn’t meet our burden.

This all leads up to a Second Circuit opinion released yesterday about a Batson problem.  What happened is this.  The defendant is on trial in state court for drug, weapon, and attempted assault charges.  The defendant is black.  During jury selection, the prosecution used a perpemptory challenge to strike the only black juror in the jury pool.  The defense objects under Batson, and the dance begins.

  1. The defense makes a prima facie showing and shifts the burden to the prosecution.
  2. The prosecutor says he struck the juror because of “her appearance.”  He goes on:

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 court says hey, if race has nothing to do with it then the strike will stand.

Fast forward to the end of jury selection.  The defense moves for a mistrial, noting that two of the seated jurors are overweight.  Now things get a little bizarre.  From the opinion:

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.”

Take that, fatty!

Anyway, the defendant gets convicted and he appeals up to the Second Circuit.  They reverse the conviction because the judge never reached the third Batson step — the court never explicitly adjudicated the credibility of the non-movant’s race-neutral explanations for the challenged strike.

The court goes on:

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)….(Which side is favored by skinny jurors?).

Obviously, we need some scientific studies.  But the true winner in all this is the excluded juror — he or she got out of jury duty just for being fat.  Finally, a benefit of morbid obesity.

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