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Appeals Court Denies Claim of Racial Discrimination in Jury Selection Where Trial Counsel Did Not Object to Trial Court's Improper Procedure

A divided intermediate New York appellate court declined to award a new trial in an appeal of a criminal conviction where the defendant claimed he was denied a fair trial because the prosecutor improperly excluded African American jurors because of their race. By a three to two majority, the appellate panel, from New York’s Third Judicial Department, In People v. Acevedo http://decisions.courts.state.ny.us/ad3/Decisions/2016/106644.pdf, found that although the Court did not follow proper procedure to determine whether the District Attorney’s striking of to two African Americans from the jury panel were for genuinely race-neutral reasons, because the defense attorney raised no objection to the procedural irregularity, no retrial was warranted. Jury selection, also known as voir dire, is one of the most critical phases of any jury trial. The right to a trial by a jury of one’s peers, enshrined in both the federal and State Constitutions, is the bedrock of our criminal justice system. To ensure that the case is heard by jurors who are fair and unbiased, each side is allowed to “strike” or remove a limited number of individuals, for pretty much any reason. In Batson v. Kentucky https://scholar.google.com/scholar_case?case=11558261102149383532&q=Batson+v.+Kentuky&hl=en&as_sdt=6,33, however, the U.S. Supreme Court declared that a party could not remove a potential juror from a case solely based on race. Other courts have extended the prohibition to include gender, as well. Once a litigant raises a Batson challenge, the trial court must follow a three-step process to determine if the challenges were truly race-neutral. For step one, the party making the challenge must establish “a prima facia case of discrimination.” Once that is done, the party seeking to challenge the prospective jurors must set forth a race-neutral reason for excusing each person. Following that, the moving party then has the task of to prove “purposeful descrimination,” and the trial judge must decide whether the proffered “race-neutral” reasons for the challenges were legitimate or pre textual. It was this third step that the trial court neglected to perform in the Acevedo case. Although it was error, the appellate court ruled, because the defense lawyer did not object, the three judge majority decided to uphold the defendant’s conviction. However, because two judges dissented, and would have ordered the appeal put on hold while the case was sent back to the lower court to complete the entire Batson process, the defendant may seek leave to appeal this case to New York’s highest court, the Court of Appeals. This case illustrates the importance for a defense lawyer at the trial level to properly preserve the record for appeal.

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