Opinion
No. 97 Civ. 7046 (MBM).
December 26, 2000.
RANDALL D. UNGER, ESQ., (Attorney for Petitioner), 107-23 71st Road, Suite 122, Forest Hills, N.Y. 11375, (718) 261-5800
ROBERT M. MORGENTHAU, ESQ., District Attorney for the County of New York, MORRIE KLEINBART, ESQ., GARY GALPERIN, ESQ., Assistant District Attorneys, (Attorneys for Respondent), One Hogan Place, New York N.Y. 10013, (212) 335-9000
OPINION AND ORDER
Petitioner, convicted in 1991 of manslaughter in the courts of the State of New York, has petitioned for habeas corpus relief to set aside the judgment of conviction and grant him a new trial. I initially denied relief and dismissed the petition. The case is on remand from the Court of Appeals to assess petitioner's claim that five black potential jurors were challenged based on race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). See Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000)
Specifically, I am called on to resolve two issues: (i) whether it is possible at this time — nine years after the conviction — to determine what actually motivated the prosecutor to exercise the disputed challenges, and (ii) if so, whether those challenges were exercised based on race. A hearing addressed to those issues, at which the prosecutor in the case testified, was held on October 26, 2000. As set forth more fully below, it was possible to determine based on that hearing why the prosecutor exercised the disputed challenges, and it seems clear to me that he did not exercise them based on race. Therefore, petitioner's request for a new trial is denied and the petition is dismissed.
The direction from the Court of Appeals was as follows: "We . . . direct the district court to, in its discretion, hold a hearing to reconstruct the prosecutor's state of mind at the time of jury selection, or if the passage of nine years since Jordan's trial and other circumstances should have made such a determination impossible or unsatisfactory, to order that the state grant Jordan a new trial."Jordan, 206 F.3d at 202.
I.
Under Batson, it is the burden of the party objecting to his opponent's exercise of a peremptory challenge to show that the disputed challenge was motivated by "purposeful discrimination." Batson, 476 U.S. at 98. A trial court must proceed as follows to determine whether that burden has been carried by a defendant in a criminal case:
(1) decide whether the defendant has made a prima facie showing that the prosecutor has exercised a peremptory strike on the basis of race; (2) if so, decide whether the prosecutor has satisfied the burden of coming forward with a race neutral explanation for striking the potential juror; and, if so, [the court] then must (3) make a determination whether the defendant has carried his burden of proving purposeful discrimination.Jordan, 206 F.3d at 200 (citation omitted). As to the first of those steps — deciding whether the defendant has made a prima facie showing of discrimination — "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. 352, 359 (1991). That was what happened in this case, where the prosecutor offered race-neutral explanations for challenges to five black jurors, whether at the instance of the Court or of his adversary. These explanations were proffered at three separate points during the voir dire. The Court of Appeals faulted the trial court's performance at the third step of theBatson procedure, when it made a summary evaluation of the prosecutor's explanations, and of the surrounding circumstances:
Although the Court of Appeals wrote that "[i]n this case, three black members of the jury panel were challenged peremptorily by the prosecutor," 206 F.3d at 200, in fact five black jurors were challenged, although, as noted, those challenges were discussed at three separate points during the voir dire. This opinion weighs the challenges to all five.
The trial judge could not properly decide the third Batson step because he granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide whether the race neutral reasons given were credible and nonpretextual.Jordan, 206 F.3d at 201. This flaw at the third Batson step caused the remand and the hearing before me. See id. at 202.
II.
The one witness at the October 26 hearing was Barry Ginsberg, who in 1991 was an Assistant District Attorney (ADA) for New York County and was trial counsel for the prosecution. Ginsberg was able to testify to the circumstances surrounding the trial generally, the standards he employed generally in selecting jurors while an ADA, and his exercise of the five challenges at issue here, as set forth below. Thus, Ginsberg testified that this was his first homicide trial, and that he was the lead prosecutor in the case, which was a prosecution against two defendants — Jordan and Samuel McCray. The prosecution arose from the stabbing in a subway car of a panhandler who apparently was known to both defendants and "from what we heard, wasn't a particularly model citizen." (Tr. 10-11; 23) The victim and the two defendants were both black, as were several of the witnesses, including one law enforcement officer. (Tr. 24, 25) "In fact, the lead identification, I think maybe the only identification witness with respect to this defendant was himself an African American. It wasn't a race case." (Tr. 24) Jordan's defense was to contest identification and intent, the latter based on his having been armed with either a box cutter or a screw driver, but "not a huge knife." (Tr. 23-24) Apparently, the victim was known to have robbed other panhandlers, and "[t]here was some thought that the jury might consider that this was payback and they wanted to teach him a lesson, but not necessarily kill him." (Tr. 23)
Ginsberg's general approach to jury selection as an ADA, which he said he applied in this case, was to "try to find people of good common sense, people who get along with other people, discuss and exchange ideas with other people, maturity, people who are comfortable making important decisions." (Tr. 12) Ginsberg reviewed the transcript of the your dire in the case, which was introduced as an exhibit (DX A) consisting of two parts, as was a copy of his contemporaneous jury selection notes (DX B). It appeared that his recollection of the particular venire members at issue here was based principally on the transcript, although he did have a recollection of the case itself and some recollection of particular people.
The your dire transcript showed that after some colloquy about who had challenged whom and on what basis, the defense initially raised an issue with respect to Ginsberg's challenge to three potential jurors, named Taylor, Atkinson and Beasley. (DX A part 2, pp. 43-45) Ginsberg read the transcript segment having to do with excusal of Beasley, which disclosed that Beasley was "a young woman" who worked part time, spent the rest of her time watching television, lived with her mother, and had a brother in jail, and that Ginsberg had concluded at the time that, "She didn't seem to me to have the kind of maturity or life experience that would make her a good juror to sit on this particular case." (Tr. 17, quoting DX A part 2, p. 46) Ginsberg testified that he had no particular recollection of Beasley's appearance. (Tr. 31)
Again consulting the transcript, this time with respect to Atkinson, Ginsberg noted that Atkinson had a brother who was arrested and allegedly beaten or otherwise treated unfairly by the police. Because several police officers were to be called as witnesses, and despite Atkinson's statement that his brother's experience would not affect him, Ginsberg challenged him peremptorily, believing that he "seemed to have an animus against the police." (Tr. 18, citing DX A part 2, p. 46; Tr. 45) On cross-examination, petitioner's counsel noted that another juror, Jane Schmidt, who was white and who had not been challenged, also had a brother who had been arrested. However, Ginsberg noted that Schmidt believed that her brother had been fairly treated by the police; indeed, they had saved his life. (Tr. 36, 45, citing DX A part 1, p. 92)
The excusal of Taylor was argued specifically by Jordan on appeal, as noted by the Court of Appeals:
On appeal he [Jordan] has argued that one black panelist, Mr. Taylor, was struck on the grounds that he was young and had no supervisory experience, while Ms. Timkin, a white panelist of the same age who had been in her job for only eight months and also had no supervisory experience was not challenged.Jordan, 206 F.3d at 201. At the hearing before me, Ginsberg had a "vague" recollection of Taylor's appearance (Tr. 31) but, relying on the transcript of the your dire, said that Taylor "was relatively young, worked as a computer operator who didn't have any supervisory type of role, was single, has no kids, and didn't seem to have the kind of life experience that I prefer in jurors." (Tr. 18, citing DX A part 2, p. 46) He readily acknowledged the similarities between Taylor, a black male whom he did challenge, and Timkin, a white female whom he did not challenge but who was challenged by the defense:
The main [similarities] were that they both were single, they both didn't have children, and they both had jobs that did not involve supervisory responsibility.
(Tr. 21) Ginsberg noted particularly that during the your dire when he cited Taylor's lack of supervisory experience, neither defense counsel nor the court demurred. (Tr. 50)
Ginsberg went on to cite two distinctions between Taylor and Timkin that he said accounted for his decision to strike the one but not the other. The first was that Timkin lived with her sister rather than alone, and thus had to get along with another person on a day-to-day basis, unlike Taylor who lived alone. Indeed, he said that Timkin recently had accommodated her sister to the point of moving to a location closer to her sister's place of employment. He found this significant because,
One of the things . . . we're talking about life experience, one of the things . . . I would look for in jurors is someone who gets along with other people, listens to other people, be persuaded and persuade other people.
(Tr. 22) The second significant distinction Ginsberg saw between Taylor and Timkin was that Timkin "spoke in complete sentences rather than just short one or two-word answers to questions. So, it seemed like someone who when she got in the jury room was going to be better suited for the deliberation process." (Id.) He said that Taylor's responses were clipped and short, "one-word, two-word answers," whereas Timkin was "a little bit more of a talker." (Tr. 49)
Again consulting the transcript of the your dire, Ginsberg recalled that he had excused Davis because her daughter had resigned from the Police Department "under unknown and, frankly, to me somewhat mysterious circumstances and given the number of police officers testifying in this case[.]" (Tr. 19, citing DX A part 2, p. 63) The record of the your dire reflected that Ginsberg himself had questioned Davis in an attempt to elicit the circumstances of her daughter's resignation. (Tr. 50-51, citing DX A part 2, pp. 57-58)
Ginsberg did recall Chartrain as an older woman who seemed "goofy" because "[h]er answers just seemed not to connect." (Tr. 20, 32, 33) She did not recall what two of her three children were doing. (Tr. 33) Ginsberg recalled that Chartrain had just served on a jury that had convicted the day before the your dire in question — which did not appear in the transcript of the your dire — but he elected to excuse her because she "didn't seem to have it all." (Tr. 20)
As to all five jurors, Ginsberg denied directly that he had used race as a basis for any of his challenges, or indeed that he had ever done so in the 15 to 20 jury trials he had handled while an ADA. (Tr. 22-23) Ginsberg had 20 challenges, but exercised only 13; two black jurors remained on the jury, one of whom was the foreperson. (Tr. 15)
III.
As noted, the touchstone of the Batson determination is whether the disputed challenge was motivated by "purposeful discrimination." Batson, 476 U.S. at 98. Based on the testimony at the hearing, it is apparent to me for the reasons set forth below that the disputed challenges were not so based.
First, as to whether it is possible nine years after the event to determine the ADA's reasons for exercising his challenges, although Ginsberg's recollection at the hearing of his reasons for exercising those challenges was based principally on the transcript of the your dire, it was not entirely so based. Ginsberg had a strong present recollection of the circumstances surrounding the trial and of the issues at trial, which are important in evaluating his motivation at the time. Thus, although both defendants were black, so were the victim and the sole identification witness, as well as certain police witnesses; the defendants and the victim appeared to have known one another. (Tr. 10-11, 23, 24, 25) As Ginsberg put it succinctly at the hearing, "[i]t wasn't a race case." (Tr. 24) There was simply no motivation for Ginsberg to exercise race-based challenges.
Further, two black jurors remained on the jury, including the foreperson, even though Ginsberg had seven unused challenges. (Tr. 15)
The above factors, coupled with the race-neutral explanations Ginsberg had provided for each of his challenges, all of which I find to have been credible, convince me both that it is possible to determine now Ginsberg's motivation in exercising his challenges at trial, and that race was not a part of that motivation.
* * *
For the above reasons, petitioner's application to set aside the judgment of conviction and to grant him a new trial is denied, and the petition is dismissed. The court expresses its gratitude to Randall D. Unger, Esq., who provided skillful and dedicated representation to petitioner on appeal and at the hearing on remand.