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Why did the prosecutor strike the only black person from the jury? Because she was so fat.

That's the reason he gave, anyway:

"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."

Is that a good enough inquiry into whether there was race discrimination? The Second Circuit said no:

[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.

Visually assessing the jurors? relative obesity ? discreetly put by the Second Circuit. I checked the case to see what the trial judge actually said: Some people are "a little overweight," but the excluded juror was "grossly overweight."

So now, there needs to be a hearing "to reconstruct the prosecutor?s state of mind at the time of jury selection," or if that is "impossible or unsatisfactory," a new trial. The Second Circuit signaled its disbelief, saying the decision "rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes."

Is there some research on the sympathies of fat people? One might think that they are self-indulgent and will therefore indulge others. As long as there are going to be peremptory challenges, can't the prosecution maintain folk beliefs about what fat people are like?

Too bad there was no picture of the excluded juror and the Second Circuit had to rely on the cold paper record ? especially when the trial judge and the prosecutor were under social pressure to be polite. No one described in detail just how fat the excluded juror was. But the point is the judge should have asked more questions before letting the prosecutor exclude the only black juror.

(Technical law point: This was a habeas case, and 28 U.S.C. § 2254(d) only denies habeas relief ?with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.? The Second Circuit said that there was no adjudication of the claim at all, and therefore § 2254(d) did not apply.)

Full post as published by Althouse on January 10, 2009 (boomark / email).