Op Ed Bergen Record

In its recent decision on the exclusion of jurors on the basis of impermissible racial and ethnic grounds, the New Jersey Supreme Court has rectified one area of criminal jurisprudence in which New Jersey's burden for defendants was more rigorous than those required by the U.S. Constitution and federal precedent. What remains to be seen is what effect the decision will have on the jury selection process.

In any criminal case there are two types of challenges regarding the seating of a particular juror, challenges for cause, for such reasons as he is related to a party or attorney in the case, or peremptory challenges based upon any other reason, such as whether the juror has been a victim of a similar type of crime. In fact, the challenge can even be based no reason at all, except a hunch or gut feeling, so long as that reason is unrelated to race or ethnicity.

Thus, the July 2, 2009 unanimous decision of the New Jersey Supreme Court in State v. Osorio, goes a long way toward settling, once and for all, the procedure to be employed when the defense raises such a challenge to the exclusion of a juror, based upon race or ethnicity. The United States Supreme Court recognized this type of challenge in 1986 in Batson v. Kentucky. In Batson, the U.S. Supreme Court laid down a three-pronged test for establishing racially motivated juror disqualification: first, the defendant must make out a prima facie case, by a totality of the circumstances, giving rise to an inference of improper discrimination; then the prosecutor must come forward and adequately explain a race neutral basis for the exclusion; and lastly the Court must weigh the evidence and determine whether the defendant had met his burden of proving unlawful race or ethnic based juror exclusion. The principles in Batson gained traction in significant cases, such as Johnson v..California, where the federal court rejected the "more likely than not" standard used by California courts, as one which was too onerous on the accused.

Interestingly, the prior New Jersey rule set forth in 1986 in State v. Gilmore heightened the burden on a defendant challenging a juror exclusion. The New Jersey court gave the exclusion a presumption of correctness, and required the defendant to rebut the presumption by showing that there was a "substantial likelihood" that the exclusion was race or ethnicity based. Thus, the burden on defendant in New Jersey was greater than that adopted by the U.S. Supreme Court, and was similar to the "more likely than not" standard struck down in Johnson.

The Osorio decision will now bring New Jersey into line with the federal requirements. However, unfortunately, this clarification and expansion of legal safeguards is of no help to Mr. Osorio, who finished serving his prison sentence prior to the date of the decision. In the years to come, he can take some comfort from the fact that the errors in the handling of his case have given rise to new standards which will aid the untold number of other defendants whose cases have yet to be tried.

In the Osorio case, the Court threw out a rule making it easier for prosecutors in New Jersey to exclude racial and ethnic minorities, and adopted the three step procedure set forth by federal precedent. It is interesting to note that the Court did not find that the juror challenges in Osorio were racially based; rather, it found that on the seven year old record before it, especially with the differing memories of the attorneys, it could not resolve the issue. Ironically, the prosecutor in Osorio may well have exercised the challenges appropriately. However, she failed to create a sufficient record of the reasoning behind them. Four African-Americans were excused; one was excused because he appeared to be sleeping during jury selection, another because his brother had been arrested for a narcotics violation, another who, along with her father, had both been the victim of car theft and because her brother had been incarcerated for two years, and the fourth because her father's murderer had "got away." Two Hispanics were excused because they were high-fiving each other and giggling when other jurors were excused. On their face, those challenges may have been proper had they been explored further at the time of jury selection. However, certain critical evidence was missing which would have allowed the appellate court to sufficiently decide the issue. Those factors include the racial make-up of the entire jury pool, as well as whether the reasons given were applied across the racial spectrum, or only to a particular group.

While this decision has been hailed as a sea change in how juror challenges are substantiated, it remains to be seen whether the change is more in form rather than in substance. Surely, it requires a more detailed analysis by the court of the reasons for excusing jurors of a particular group at the time of jury selection, but does it accomplish more? Perhaps the biggest plus for criminal defendants is that any juror who is excluded by the prosecutor, and thereafter allowed to serve after a searching analysis of the propriety of the exclusion, may well bring to the jury room a negative back-lash against the prosecutor, which had not been there at the start. Thus, preventing the seating of a juror with a recent "axe to grind" against the prosecution may be the biggest motivator in keeping prosecutors careful about questionable juror challenges.

Moreover, it should not go unmentioned that there are other ways for a prosecutor to prevent a defendant from obtaining a jury of his peers. Thus, what if a prosecutor indicates that a trial will take four to six weeks, due to the number of witnesses whose names appear on the list of potential witnesses. Certainly, people with blue-collar jobs are less likely to be able to sit on such a jury, without fear that it will impact their jobs, or their ability to provide for their family. This is especially true in these perilous economic times. Then, if the trial takes only two days for the prosecutor to put n his case, hasn't the state accomplished the same result, excluding a greater percentage of certain races or ethnic groups. Defense attorneys beware.