2.Reverse Batson Challenge — Nonracial Strike Reasons Accepted
57 lines(Discussion at sidebar and out of the hearing of the jury:)
THE COURT: Is this the official? All right. I double-checked it against mine and I think it's fine. This is what I understand we have. I'd like you to see if your records reflect that.
MS. CLARKE: Yeah.
(Pause.)
MR. BRUCK: Yes.
THE COURT: All right?
MR. BRUCK: Yes.
THE COURT: All right?
MR. WEINREB: Yes.
THE COURT: You can check it in a minute. I just wanted to -- you've got the list?
MR. CHAKRAVARTY: We do, yes. The government does make a reverse Batson challenge with regards to the defense's apparent systematic exclusion of Latino jurors. There were two, I think, self-identified, I think a third whose name convention suggests -- and appearance suggests she's also Latino, and that results in effectively eliminating all visible minorities. The government thinks it is appropriate to disallow the strikes.
THE COURT: Do you have the numbers?
MR. CHAKRAVARTY: Yes, your Honor. 308 --
THE COURT: All right.
MR. CHAKRAVARTY: -- 350 and 390.
MR. BRUCK: Just those two?
MR. CHAKRAVARTY: Three.
MR. BRUCK: What was the first one?
MR. CHAKRAVARTY: 308.
THE COURT: Do you want to address that?
MS. CLARKE: If we may just have a moment?
(Counsel confer off the record.)
MR. BRUCK: Our position is there has been no prima facie showing of intentional ethnic or racial discrimination by the government so the objection should be denied.
THE COURT: Why don't you make me a proffer as to each of them.
MS. CLARKE: I didn't hear the question.
MR. BRUCK: The Court would like a proffer as to each juror.
MS. CLARKE: We could do that with our notes.
MR. BRUCK: We would need to draw back. I don't remember a lot of it, but...
THE COURT: All right.
(Pause.)
MR. BRUCK: Your Honor, we would like a short recess to make sure that we have -- I mean, I could do this off the cuff and it probably would be satisfactory, but we want to be sure we put every permissible basis and actual reasons for these strikes on the record, which means going back to our files and --
THE COURT: Which is where?
MR. BRUCK: Well, we have everything here on it.
THE COURT: Right.
MR. BRUCK: The record of the voir dire, the questionnaires, our notes.
THE COURT: Well, I'd rather not break up the session here.
MR. BRUCK: Well, I can --
THE COURT: I'll give you the time here while we --
MR. BRUCK: Right. I mean, I can make a proffer of some of the reasons they are not going to be --
MS. CLARKE: Let's just look at our stuff and then you can come up?
MR. BRUCK: Yeah, let's do that.
(Pause.)
MR. BRUCK: So we'll take these in order. Juror 308 was a dispatcher at Northeastern University and was actively involved in police work on the night of April 18th to 19th. In addition -- that was certainly enough for us not to think she should be on the jury. In addition to that, she clearly had ambition to be a law enforcement officer, and that was the direction of her career trajectory. And we felt that given the fact that this was the -- the case involved the murder of a police officer, she would -- even though she said otherwise on voir dire, that it was likely that she was going to feel pressured to go with the perceived interests or desires of law enforcement as a juror in this case and not be the person that spared the Boston Marathon bomber from receiving the death penalty.
As to Number 350, he had extremely strong pro death penalty views. He was the juror who felt based on his experiences in Puerto Rico that the death penalty sometimes was necessary to, quote, send a message. And he, more than any other juror in this entire process, talked about the value of using the death penalty for deterrence, which is something that goes against the whole idea of considering mitigation. So we thought he was an exceptionally dangerous juror from the point of view of imposing the death penalty on our client. We note that we made a motion to strike Juror 350 that the Court overruled on the grounds of his pro death penalty views.
Juror 390 was a 10 on her form. We also moved to disqualify Juror 390 on the basis of her pro death penalty views and rated her as an extremely adverse juror for her punishment views.
For those three reasons, we exercised our peremptories to exclude them using exactly the same criteria that we did for all the other jurors.
MR. CHAKRAVARTY: The government recognizes each of those as a plausible non-racially-based basis for striking; however, in the context of the litigation on the juror pool, it's clear that the defense has advanced a theory that the -- both the jury pool, the venire, as well as the -- those that were to be conducted by individual voir dire have not been racially diverse. And to the extent that the three visible minorities are on the panel have now been struck by the defense, I just wanted the record to reflect that despite the fact that there is a plausible non-racially based reason, there is still a strong inference that race played a role in that decision and we object to it.
MR. BRUCK: Well, I don't know that that requires us to respond.
THE COURT: I don't think it does.
MR. BRUCK: Thank you.
THE COURT: The record is there for whatever it means for the statistical argument, and it's certainly clear that to the extent there are no minorities, Hispanic minorities in this petit jury, it's clear that it was at the choice -- not for that reason, but at the choice of peremptories that the defense made to shape the jury that way, for whatever that means. I accept the proffer as to the non-ethnic or racial-based reasons for the strikes.
Okay. So we will begin as we planned with 530.
MR. CHAKRAVARTY: And go one at a time?
MR. BRUCK: I think it is two and one.
THE COURT: I was going to do two and one, but I could do one, one, one.
MR. CHAKRAVARTY: We prefer to do one, one, one.
THE COURT: All right. One, one, one is fine.
MR. CHAKRAVARTY: Thank you.
(In open court:)
(Long pause.)
THE COURT: Let me again see counsel, please, at the side.