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Jurors and Fairness


A recent opinion from the Appeals Court provides a strong reminder of the restrictions on the use of peremptory challenges to strike jurors based on race, ethnicity, gender, or religious preference. In Commonwealth v. Povez, the court reversed a second-degree murder conviction, finding that there was doubt as to whether the prosecutor’s proffered reason for challenging a Hispanic juror was genuine.

Challenges to the impermissible use of peremptory challenges most often arise in criminal appeals, but the principles apply with equal force to civil cases. The Povez decision succinctly outlines the procedure judges and lawyers should follow in situations where there is a question with respect to the use of a challenge.

The constitutional prohibition against the use of peremptory challenges to exclude members of protected classes from a jury was recognized in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and Batson v. Kentucky, 476 U.S. 79 (1986). Since then, many cases have reviewed judicial decisions allowing or denying particular challenges, and the procedure is well-established. When counsel for a party believes that an opponent is systematically excluded members of protected classes from a jury, counsel may ask the judge to make a preliminary finding of discrimination and to demand that the opponent proffer a neutral, non-discriminatory reason for challenging the juror. Over the years, the law has become refined so that, when racial and ethnic minorities are scarce, even a single challenge can constitute a “pattern” that warrants explanation.

Once the issue is raised, the trial judge is obligated to make a finding of whether a prima facie case of improper exclusion has been shown, and if such a finding is made, require the party seeking to exercise the challenge to state a reason for the challenge. The judge must then rule on whether the reason is adequate.

Povez focuses on the judge’s assessment of the prosecutor’s proffered reason for challenging one of two Hispanic jurors on the venire. Past cases have established that the explanation met be clear, reasonably specific, and personal to the juror. For the most part, “gut feelings” or hunches will not suffice, nor will stereotyped assumptions based on the juror’s group affiliations–even if those affiliations are not based on race, gender or ethnicity.

But as Povez reminds us, even an explanation that is clear, specific, and personal will not automatically pass muster. In addition, the trial judge must find it to be genuine–that is the true reason for the challenge, and not a pretext to conceal discrimination. And that’s where the prosecutor foundered. The judge expressed her doubts that the explanation–that the juror’s father worked as a janitor in the federal courthouse, and thus might have “inside information” about court procedures in state court–was genuine. Nevertheless, she permitted the prosecutor to exercise the challenge.

The Appeals Court reversed, finding a conflict between the judge’s expression of doubt that the reason was genuine and her allowance of the challenge. Given her finding that she did doubt the genuineness of the prosecutor’s explanation, the trial judge needed to explain why she nevertheless permitted the challenge. In the absence of such an explanation, the Appeals Court felt constrained to reverse the conviction. Fueling the reversal was the court’s clear skepticism that the juror’s father’s janitorial position in a different courthouse had anything to do with the challenge.

The decision is one that the Commonwealth’s courts can and should be proud of, as it expresses the need for juries free of even an appearance of impropriety. Otherwise stated, it is important that the process of jury selection not only be fair but appear fair. The court is to be commended for reinforcing this message.

Read the decision in Commonwealth v. Povez here

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