Legal News

Batson, Peremptory Challenges, Obesity & Race

By Dan Slater

Any Batson junkies out there?

Here’s a good one: What inquiry must a trial court undertake when a prosecutor cites “obesity” as the reason for using a peremptory challenge to strike the only African-American from the jury pool?

That’s the situation addressed in Dolphy v. Mantello, an appeal that the Second Circuit decided today.

Here’s what happened: In Dolphy’s trial on drug, weapon, and attempted assault charges, the prosecutor struck the only African-American in the jury pool. When the defendant, also African-American, challenged the strike, the prosecutor explained that he struck the juror because of “her appearance.” He told the court: “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.”

When asked whether he was saying that race had nothing to do with it, the prosecutor said “that’s correct.” And the trial court ruled: “I’m satisfied that is a race neutral explanation, so the strike stands.”

But the Second Circuit found that to be an unsatisfactory inquiry. It reasoned:

[S]uch a conclusory statement does not necessarily indicate — even by inference — that the trial court credited the prosecution’s explanation, especially since (i) the judge’s words suggested that the proffer of a race-neutral explanation was itself enough, and (ii) the explanation given here lends itself to pretext. (Which side is favored by skinny jurors?) Defense counsel later pointed out that several overweight jurors had been seated without objection, but the trial court rejected that further attack on the prosecutor’s motives after visually assessing the jurors’
relative obesity.

Because the trial court failed to assess the credibility of the prosecution’s explanation, it follows that there was no adjudication of Dolphy’s Batson claim on the merits. . . .

Full post as published by Law Blog - WSJ.com on January 09, 2009 (boomark / email).