Judges appeared leery this morning about whether jury questionnaires singling out distrust of authority unfairly exclude minority voices.
HARTFORD, Conn. (CN) — A case involving two minority individuals not chosen for a jury in a sexual assault case because of their own run-ins with police officers forced the Connecticut Supreme Court to wrestle with difficult questions Friday.
Ruling their elimination unfair could lead to changes in how prosecutors exclude jurors who resent or distrust the U.S. justice system.
The underlying question is one that has plagued voir dire in countless forums: Is distrust in the criminal justice system an adequate reason to strike a juror?
In the case at hand, Jose A.B. is appealing his conviction on various sexual assault charges on the basis that prosecutors unconstitutionally struck two prospective jurors because of comments they made indicating skepticism about the court system.
One of the jurors, referred to in court papers as N.L., said she would not be able to convict based on the testimony of one witness unless she was 100% certain of guilt, and also that one of her husband’s friends pleaded guilty to a sexual assault he did not commit.
Another of the jurors, referred to as C.J., failed to mention on his juror questionnaire prior convictions for assault of a police officer — and subsequent comments that he felt he had been wrongfully accused of that charge — as well as several probation violations.
The process for which jurors are chosen has underdone drastic changes over the years. In the 1986 case Batson v. Kennedy, the U.S. Supreme Court ruled 7-2 that it is unconstitutional to dismiss a juror based solely on his or her race. Distrust of the criminal justice system, on the other hand, has been deemed race-neutral under the U.S. Constitution.
Connecticut law meanwhile affords vast protections for defendants to strike potential jurors, also known as venirepersons, for various reasons. A state judicial task force concluded in a nonbinding December 2020 report that prior contact with law enforcement and expressing distrust of police is not a valid reason to strike a juror.
The ethnicity of N.L. and C.J. is unknown except that they were minorities. That fact played into the case made by Drew Cunningham, who represents Jose in the case. Striking both jurors was “facially discriminatory,” he argued, because minorities tend to hold distrustful views of law enforcement more so than Caucasians.
During arguments, Justice Christine Keller agreed with that assumption but was reluctant to create a new rule. “I’m a little concerned about how far you take it if there’s no proof or no supposition that certain kinds of attitudes will lead to the disproportionate exclusion of minorities,” she said.
Keller noted that minorities are disproportionately victims of crimes, and it could be where a defense attorney would not want minority individuals on the jury for fear they might seek retribution for something that had happened to them in their own life. “Is it going to come back to haunt defendants as well as making it more difficult for prosecutors to exclude people,” she mused.
Cunningham, who is with the firm Carmody Torrance, said courts should take into account “various socioeconomic and political factors” that potential jurors have experienced.
Timothy Sugrue, with the state attorney’s office, argued against a categorical ban on striking potential jurors who express distrust of law enforcement or judges. “Distrust of the criminal justice system is manifestly a relevant factor by which to judge a juror, especially beneath the standard for cause,” he argued.
Sugrue also picked apart the two potential jurors, noting that N.L. was excused, not because she was arrested or eventually pardoned, but because she was not forthcoming about those experiences.
“None of the reasons in this case by the testimony are connected to the venireperson’s believe that there is a problem with the criminal justice system based on their racial and ethnic experience,” Sugrue said. “All the reasons here are personal to these people.”
Other judges made the point, however, that the reasons given to strike the two jurors were more than just a distrust of the judicial system. Justice Steven Ecker noted to Cunningham that potential juror C.J. was not forthcoming about his criminal history during initial questioning. “It took a little pulling to get it all out of him,” Ecker observed.
Ultimately, the final makeup of Jose A.B.’s jury was minority-dominated: Three African-Americans, two Hispanics, and two Caucasians served on the jury. Cunningham said, however, exclusion of the two other jurors still could have harmed his client.
“Batson is clear, that a single act of discrimination is constitutionally infirm and requires a constitutional remedy, which in this case is remand for a new trial,” he argued.
That point was echoed by Chief Justice Richard Robinson, who noted during questioning of Sugrue that “if race was used as a factor for any one of those jurors that were excluded, it would not have been a fair trial.”