People v. Davis

• Citation: 142 Misc.2d 881,537 N.Y.S.2d 430
• Parties: The PEOPLE of the State of New York v. Larry DAVIS, Defendant.
• Decision Date: 15 December 1988
• Court: United States State Supreme Court (New York)

Page 430

537 N.Y.S.2d 430

142 Misc.2d 881

The PEOPLE of the State of New York v. Larry DAVIS, Defendant.

Supreme Court, Bronx County Part 24.

Dec. 15, 1988.

Office of Paul Gentile, Bronx Dist. Atty. by William Flack and Brian Wilson, for the People.

William M. Kunstler, Lynne F. Stewart, New York City, for defendant.

BERNARD J. FRIED, Justice:

Defendant, a black man, is charged with the attempted murder of nine white and Hispanic police officers. During the first three rounds of jury selection, defense counsel peremptorily challenged all eight white prospective jurors who had not been excused for cause. Thus, at the end of the third round, six black and Hispanic jurors had been selected and sworn, and an additional two black jurors selected. At this point, the People moved, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to require the defense to provide racially neutral explanations for their peremptory challenges of white prospective jurors. I granted the People's motion, holding that the procedures of Batson apply to the defense, and that in accordance with those procedures, defense counsel was required to satisfactorily explain the suspect peremptory challenges. I heard the defense explanations, over the People's objection, both in camera and ex parte. Concluding that at least three of the eight explanations of the suspect challenges were not legitimately racially-neutral, I held that the People had established a case of purposeful discrimination, in violation of federal and state law, and therefore discharged the entire venire, including the six sworn jurors.

During the subsequent (second) jury selection, defense counsel was required to, and did, provide non-pretextual, and legitimate racially neutral reasons for their peremptory challenges of nine white prospective jurors. A jury of eleven blacks and one white was selected as jurors although, at the defense request, they were not sworn so that they might be discharged if an appellate court ordered that the first six sworn jurors be reseated. Although no appellate court ordered that the first six sworn jurors be reseated ¹, I subsequently discharged the second twelve selected, but unsworn, jurors when the defense moved, on grounds unrelated to Batson, for what was described as a "mistrial", and the People consented to that relief.

At the commencement of the third jury selection, a defense motion to be relieved of my prior Batson ruling which required defense counsel to satisfactorily explain their peremptory challenges of white prospective jurors was denied.

This opinion, is being filed to explain my reasons for each of these Batson-related rulings.

I. Batson Procedures Apply To The Defense

Peremptory challenges, although long believed to be an integral part of the jury trial system, are not of constitutional dimension. Hayes v. Missouri, 120 U.S. 68, 71-72, 7 S.Ct. 350, 351-52, 30 L.Ed. 578 (1887); Batson, 476 U.S. at 108, 106 S.Ct. at 1729 (Marshall, J., concurring); People v. Lobel, 298 N.Y. 243, 82 N.E.2d 145 (1948). In New York, such challenges are a privilege granted by statute, which fixes the number of peremptory challenges available in a particular case and the manner in which they may be used, and defines them as "an objection to a prospective juror for which no reason need be assigned," (C.P.L. § 270.25[1] ). In Batson, however, the Supreme Court limited the prosecutor's use of peremptory challenges, holding that the Equal Protection Clause of the Fourteenth Amendment prohibited a state prosecutor from exercising peremptory challenges solely on the basis of race. The Court required the defendant to first make a prima facie showing of purposeful discrimination by the prosecutor, and, once that showing was made, the burden shifted to the state to rebut the inference of discrimination by articulating non-pretextual, racially-neutral reasons for the suspect peremptory challenges. The threshold issue, here, is whether these procedures also apply to the defense, thereby limiting a defendant's exercise of peremptory challenges. For the following reasons, I conclude that under both the federal and state constitutions, as well as a matter of state law, a defendant's exercise of peremptory challenges is so limited.

A. Equal Protection

Batson held that a state prosecutor's racially discriminatory use of peremptory challenges was prohibited by the Equal Protection Clause of the Fourteenth Amendment. Defendant argues that the Equal Protection Clause cannot be the basis for the same restriction on defense peremptories since the actions of defense counsel do not constitute "state action" which is a substantive requirement of all equal protection claims. I reject this argument for the reasons stated in People v. Muriale, 138 Misc.2d 1056, 526 N.Y.S.2d 367 (Sup.Ct., Kings Cty, 1988 [Juviler, J.] ) and People v. Gary M., 138 Misc.2d 1081, 526 N.Y.S.2d 986 (Sup.Ct., Kings Cty., 1988 [Kramer, J.] ), but see Matter of Holtzman v. Supreme Court, 139 Misc.2d 109, 526 N.Y.S.2d 892 (Sup.Ct., Westchester Cty., 1988 [Rosato, J.] ). The implementation of racially discriminatory defense peremptory challenges constitutes state action, not because the defense attorneys are paid by the state pursuant to County L. Art. 18-B ², but rather, because the trial judge and other state officials must participate, facilitate and acquiesce in the racial discrimination. Matter of Wilson, 59 N.Y.2d 461, 476, 465 N.Y.S.2d 900, 452 N.E.2d 1228 (1983); Muriale, 138 Misc.2d at 1062, 526 N.Y.S.2d 367. As Judge Juviler explained in Muriale:

When the clerk asks the defendant to exercise peremptory challenges, defense counsel--an officer of the court and a member of the Bar established by the State, whose profession is regulated by the courts--calls the jurors' names or numbers out, and the judge accepts the challenges. Then in open court the judge or clerk orders the excluded jurors to leave, and they are guided out of the room by uniformed court officers or deputy sheriffs. The jurors perceive the judge as the person who is responsible for the conduct of the trial, and although they do not know whether the prosecutor, the defense lawyer or the judge is rejecting them, they do know that officials of the State are telling them to leave. Under these circumstances, if all the black jurors--say, nine or ten--were asked to leave but only one or two whites out of the dozen were excluded, a perception that the Court was engaging in discrimination would be reasonable. If a black juror so excluded were to stop at a privately owned coffee shop in the lobby of the courthouse and were denied service because of his race, "State action" would be found. See Burton v. Wilmington Parking Auth., 365 U.S. 715[, 81 S.Ct. 856, 6 L.Ed.2d 45]. The same finding applies to racially motivated exclusion of the juror from the trial. (Id. 138 Misc.2d at 1062-63, 526 N.Y.S.2d 367)

To me, this reasoning, as well as that of Gary M., is entirely persuasive. Therefore, I held that the implementation of racially discriminatory defense peremptory challenges constitutes state action prohibited by the Fourteenth Amendment.

B. The New York State Constitution

The Equal Protection Clause of Article 1, Section 11 of The New York State Constitution is at least coextensive with the Equal Protection Clause of the Fourteenth Amendment, Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 513, 87 N.E.2d 541 (1949), cert. denied, 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385 (1950); Under 21, Catholic Home Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1 (1985) and therefore also prohibits state action implementing racially discriminatory defense peremptory challenges. Muriale, 138 Misc.2d at 1063, 526 N.Y.S.2d 367; Gary M., 138 Misc.2d at 1094-95, 526 N.Y.S.2d 986. The state constitution, however, goes further than the federal constitution and prohibits discrimination by private persons as well. Art. 1, Section 11 of the New York 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 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. (Emphasis added.)

As this provision applies to private persons, it is violated by private acts of discrimination infringing upon the "civil rights" of another. Dorsey, 299 N.Y. at 531, 87 N.E.2d 541. (See also Civil Rights L. § 40-c(2) which codifies this state constitutional provision). Those "civil rights" are rights "elsewhere declared", in the constitution, by statute, or at common law. In this case, defense counsel's action of peremptorily challenging jurors on the basis of their race deprives the excluded jurors of their civil right of jury service. Jury service is a recognized civil right because it is a "privilege of citizenship" guaranteed to each member of the state in Article 1, Section 1 of the New York State Constitution. Gary M., 138 Misc.2d at 1095, 526 N.Y.S.2d 986, and cases cited therein. Moreover, jury service is a civil right expressly protected by Civil Rights Law, § 13, which provides:

No citizen of the state possessing all other qualifications ... 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, and any person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for any of the causes aforesaid shall ... be deemed guilty of a misdemeanor ...

Consequently, I conclude that racially discriminatory peremptory challenges, whether exercised by the defense or by the prosecution, unconstitutionally deprive prospective jurors of their civil right not to be disqualified from jury service solely on...