People v. Bridgeforth

69 N.E.3d 611, 28 N.Y.3d 567

Opinions

OPINION OF THE COURT

Abdus-Salaam, J.

This appeal requires us to consider whether skin color of a prospective juror is a cognizable classification upon which a challenge to a prosecutor’s use of peremptory strikes under Batson v Kentucky (476 US 79 [1986]) may be based. We recognize the existence of discrimination on the basis of one’s skin color, and acknowledge that under this State’s Constitution and Civil Rights Law, color is a classification upon which a Batson challenge may be lodged. The courts below held that defendant failed to make a prima facie showing of discrimination when he challenged the prosecutor’s use of peremptory strikes to exclude dark-colored women. We find this was error, and therefore reverse.

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Batson provides the framework under which courts analyze challenges to peremptory strikes of potential jurors based on alleged discrimination. The Supreme Court of the United States held that “the Equal Protection Clause [of the Fourteenth Amendment] forbids [a] prosecutor to challenge potential jurors solely on account of their race” (476 US at 89). Batson's application has been extended to discrimination on the basis of sex (see J. E. B. v Alabama ex rel. T. B., 511 US 127 [1994]) and ethnicity (see Hernandez v New York, 500 US 352 [1991]). Batson outlines a three-step protocol to be applied when a defendant challenges the use of peremptory strikes during voir dire to exclude potential jurors for pretextual reasons. At step one, the movant must make a prima facie showing that the peremptory strike was used to discriminate; at step two, if that showing is made, the burden shifts to the opposing party to articulate a non-discriminatory reason for striking the juror; and finally, at step three, the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual and whether the movant has shown purposeful discrimination (see id. at 96-98).

We have adopted Batson under the State Constitution and prohibit discrimination against prospective jurors by either the People or the defense “on the basis of race, gender or any other status that implicates equal protection concerns” (People v Luciano, 10 NY3d 499, 502-503 [2008]; see People v Kern, 75 NY2d 638 [1990]). In this appeal, we are asked to decide whether skin color is a “status that implicates equal protection concerns” (id.).

The Equal Protection Clause of the State Constitution provides:

“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state” (NY Const, art I, § 11 [emphasis added]).

The separation of “race” and “color” in the Clause indicates that “color” is a distinct classification from “race.” Similarly, section 13 of the Civil Rights Law, which prohibits disqualification of a state citizen from jury service on the basis of certain personal characteristics, lists “race” and “color” as distinct classes. Specifically, this provision states that “[n]o citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a grand or petit juror in any court of this state on account of race, creed, color, national origin or sex” (Civil Rights Law § 13 [emphasis added]). These provisions indicate that “color” is a separate and distinct classification from “race.” It follows, then, that color has been recognized as a category upon which discriminatory practices have been based, including exclusion from jury service.

Our State Constitution and Civil Rights Law plainly acknowledge that color is a “status that implicates equal protection concerns” (Luciano, 10 NY3d at 503), and therefore a Batson challenge may be based on color. Discrimination on the basis of one’s skin color—or colorism—has been well researched and analyzed, demonstrating that “not all colors (or tones) are equal” (Trina Jones, Shades of Brown: The Law of Skin Color, 49 Duke LJ 1487, 1499 [2000]; see Taunya Lovell Banks, Colorism Among South Asians: Title VII and Skin Tone Discrimination, 14 Wash U Global Stud L Rev 665, 671-674 [2015]; Michael Hughes & Bradley R. Hertel, The Significance of Color Remains: A Study of Life Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 68 Soc Forces 1105, 1116 [1990]). Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race. Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our State Constitution and Civil Rights Law. Making this distinction is necessary to serve the purpose of Batson, which recognized that discrimination in the selection of jurors violates “a defendant’s right to equal protection because it denies him [or her] the protection that a trial by jury is intended to secure” (476 US at 86). Where individuals are excluded from jury service on the basis of their skin color, the defendant is denied the right to a trial by a jury of his or her peers, which is meant to reflect the community in which the defendant lives. As we stated in People v Kern, jury service is a principal means of participation in government, and has been used as an instrument of public justice, requiring that “ ‘the jury be a body truly representative of the community’ ” (75 NY2d at 652, quoting Smith v Texas, 311 US 128, 130 [1940]). “ ‘For . . . discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government’ ” (id.). We therefore extend the application of Batson to challenges based on color to ensure that the jury is not used as a tool to accomplish such discrimination.

Recognizing that a Batson challenge may be premised on skin color does not conflict with our holding in People v Smith (81 NY2d 875 [1993]). There, we rejected the defendant’s contention that a Batson challenge may be based on the exclusion of “minorities” in general, regardless of race (id. at 876). Using peremptory strikes to exclude “minorities”—a category that includes a vast and varied group of individuals that is subject to change based on census and other demographic data based on population—is quite different from excluding potential jurors because they share a similar skin color. Skin color is generally an immutable characteristic.

When a movant seeks to meet his or her prima facie burden of demonstrating that a peremptory strike was used to discriminate by showing that multiple members of a cognizable group were excluded, the movant may meet the prima facie burden by demonstrating that the perempted potential jurors have a similar skin color, for example, dark-colored as was alleged here.¹ That is a much narrower showing than for an overall classification as a “minority,” and does not rest on racial identity, but on color, which, as stated, is separate and distinct from race under the State Constitution and the Civil Rights Law. Indeed, there is no indication that members of minority groups generally were excluded from the jury in this case, as the record demonstrates that four of the seven seated jurors prior to the Batson challenge belonged to minority groups. Rather, defendant’s challenge was specific to the People’s use of peremptory strikes to exclude dark-skinned women—a color classification.

In cases where the People or a defendant makes a Batson challenge on the basis of color, it is for the trial court, using the existing Batson protocol, to decide whether the individuals identified as part of that group share a similar skin color, in the same way the trial court makes determinations about race, gender, and ethnicity classifications. It is within this framework that we analyze the Batson challenge in the case before us.

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Defendant, a dark-complexioned African-American male, along with several other individuals, was involved in a robbery-in Queens. As a result, defendant was charged with one count of robbery in the first degree and two counts of robbery in the second degree. During voir dire, the prosecutor used peremptory challenges to exclude a number of potential jurors. One of those jurors, the subject of this appeal, was a dark-complexioned Indian-American woman. Defense counsel lodged a Batson challenge as to five of the prosecutor’s peremptory strikes, stating: “The district attorney has now perempted all the female black women and I don’t believe that there are valid reasons other than their face and their gender that they have been challenged.” Defense counsel specified that she was referring to “[t]he black or dark-colored [women],” noting that “the Guyanese women [were] included in that” group. The People responded “Well, Judge, we are either going to do Guyanese or African American, can’t do black or skin color, Judge. But I have reasons for everybody.” The trial judge did not make a step one finding. The prosecutor, however, immediately proceeded to supply reasons for four of the excluded potential jurors. When it came to the juror at issue, the prosecutor stated: “I’m trying to remember why I got rid of her,” but ultimately failed to provide a reason for striking her participation on the jury. Defense counsel again noted her objection, and in response to the trial judge’s prompting to give specific reasons for why the People’s explanations were pretexts, defense counsel stated that the woman “did not indicate that there was any reason why she would not be fair and impartial.” The prosecutor replied that whether the potential juror would be fair and impartial is not the relevant inquiry, but rather whether there was a non-discriminatory reason for perempting the juror. The court agreed with the prosecutor on the requisite inquiry and then proceeded to seat one of the other black female jurors included in the group of black or dark-colored women the prosecutor perempted. The juror at issue here, however, was ultimately not seated.

As an initial matter, we reject defendant’s argument that the issue of whether he made out a prima facie case of discrimination at step one of the Batson protocol is moot and should not be revisited on appeal because the court moved past that threshold inquiry. In Hernandez v New York, the Supreme Court of the United States held that whether the movant on a Batson challenge made a prima facie showing of discrimination becomes moot when the opposing party presents a nondiscriminatory reason for the use of a peremptory strike “and the trial court has ruled on the ultimate question of intentional discrimination” (500 US 352, 359 [1991]). We have adopted that mootness framework, holding in People v Payne that we need not review the prima facie showing made at step one “because the subsequent rulings by the trial courts ... on the ultimate issue of purposeful discrimination and pretext moot this first-step issue” (88 NY2d 172, 182 [1996]; see People v Smocum, 99 NY2d 418, 423 [2003] [holding that “(the) issue became moot when the People stated their reasons and the court ruled on the ultimate issue”]). We recently reiterated this proposition in People v Hecker, where we held that “[o]nce a party has placed its [non-discriminatory] reasons on the record . . . the sufficiency of the prima facie showing becomes moot” (15 NY3d 625, 652 [2010] [internal quotation marks omitted], citing Hernandez, 500 US at 359, and Smocum, 99 NY2d at 423).² Here, the prosecutor gave non-pretextual reasons for perempting some potential jurors, but gave no reason for perempting the juror at issue. Because the trial court failed to reach the ultimate issue as to the juror in question, defendant’s challenge is not moot.

Defendant argues that “contrary to the People’s position, dark skin color is a cognizable class and, indeed, must be one unless the established protections of Batson are to be eviscerated by allowing challenges based on skin color to serve as a proxy for those based on race.” We agree with defendant. By arguing that the prosecutor used five of his peremptory strikes to exclude black or dark-colored women, which encompassed the juror at issue here, defendant made a prima facie showing that the People were allegedly discriminating against dark-colored women, thus satisfying step one of the Batson protocol (see 476 US at 96-97).

At step two of the Batson protocol, the prosecutor was required to provide a non-discriminatory reason for perempt-ing the juror at issue. Defendant contends that the juror should have been seated when the prosecutor could not recall why he struck her. It is clear from the record that the prosecutor failed to provide a reason for why he excluded the juror, stating he could not recall. The prosecutor’s failure to give a specified reason for why the juror was perempted fails to satisfy the step two requirement. Batson’s burden shifting framework requires the nonmovant, here the People, to come forward with some non-discriminatory reason for striking each juror, which the prosecutor fails to do when she or he provides no reason at all. Consistent with this analysis, when faced with this circumstance, the Appellate Division Departments have held that a failure to recall is insufficient to satisfy step two of Bat-son (see People v Wilson, 73 AD3d 606, 607-608 [1st Dept 2010]; People v Dove, 172 AD2d 768, 768-769 [2d Dept 1991], lv denied 78 NY2d 1075 [1991]; People v Bozella, 161 AD2d 775, 775-776 [2d Dept 1990]). Thus, the prosecutor’s failure to recall why he struck the juror was insufficient to meet his burden at step two. Despite this failure, the trial court did not seat the juror at issue. We hold that because defense counsel met her prima facie burden by alleging that the prosecutor was excluding dark-colored female prospective jurors, and the prosecutor did not give a non-discriminatory reason for excluding one of those jurors, the trial court committed reversible error by not seating the juror.

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Defendant s additional argument that the evidence presented by the People was insufficient to convict him of first-degree robbery is unpreserved for our review. Because the courts below erred in holding that defendant failed to meet his prima facie burden under Batson, defendant must be re-tried, and therefore, we do not reach defendant’s remaining argument. Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

Footnotes

1

. Movant’s burden would be the same whether the challenge is to one prospective juror of a cognizable group or more than one. As we have recognized, “[t]here are no fixed rules for determining what evidence will . . . establish a prima facie case of discrimination” (People v Bolling, 79 NY2d 317, 323-324 [1992]). A “pattern” of discrimination is not always required, as Batson is applicable where the challenge is directed at a single juror of a cognizable group (see People v Smocum, 99 NY2d 418, 421-422 [2003]).

2

. Defendant, relying on Hecker, argues that once step two of the Batson protocol is completed the issue of whether a prima facie case of discrimination was made becomes moot. That is incorrect. In two of the companion cases in Hecker, we stated that the issue became moot because the trial courts proceeded to steps two and three of the Batson protocol, demonstrating that we require an ultimate determination by the trial court before the issue becomes moot (see 15 NY3d at 652). Additionally, Hecker relied upon Hernandez, Payne and Smocum, all of which require an ultimate determination by the trial court before the issue becomes moot.