Because a black man was wrongly dismissed from the jury, a new trial was requested.
By Theo Emery
Associated Press Writer

BOSTON – The state’s highest court on Friday ordered a new trial for a man convicted by an all-white jury because, the court unanimously ruled, a black man was wrongly dismissed from the jury pool during the jury selection process.

Three of the Supreme Judicial Court judges indicated in a concurring opinion that it may be time for peremptory challenges – which allow attorneys to weed out jurors before they’re seated – to be abolished or sharply restricted because the practice poses problems for seating racially balanced juries that represent a cross-section of the community.

Last year, the state appeals court threw out Luis Maldonado’s 2000 conviction for illegal firearm possession and being an armed career criminal. The SJC took up the case on appeal to address some of the nettlesome problems that peremptory challenges pose.

“Because the juror was impermissibly excluded on the basis of his race, Maldonado was denied his constitutional right to a jury selected free from discrimination,” Associate Justice Robert J. Cordy wrote in the unanimous ruling.

Peremptory challenges are a standard part of seating juries. In most jurisdictions around the country, lawyers for both plaintiffs and defendants are allowed a specific number of such challenges, which they can use to remove people from a jury pool without giving a reason.

After their peremptory challenges are exhausted, they must give reasons for objecting to jurors.

But the Supreme Court has ruled that peremptory challenges must be race-neutral, and that judges cannot accept sham explanations from attorneys who may actually be trying to stack a jury, such as by making it entirely white.

The SJC ruled that Suffolk Superior Judge Maria I. Lopez, who resigned Monday because of an unrelated controversy, should not have accepted the prosecutor’s explanation for wanting the 55-year-old man – the last black person left in the jury pool – off the jury.

The prosecutor, who had argued that the juror could be biased because he was unmarried and childless, denied that the juror was being dismissed because he was black. The SJC said that Lopez was not skeptical enough of the prosecutor’s reasons, and did not adequately document why she accepted the exclusion.

In a separate, concurring opinion, Chief Justice Margaret H. Marshall and Associate Justices John M. Greaney and Francis X. Spina indicated that all three felt that such peremptory challenges should be abolished entirely or restricted.

It is often impossible, Marshall wrote, to tell if jurors are being dismissed for a constitutionally proper reason.

“I am therefore persuaded that… it is time either to abolish them entirely, or to restrict their use substantially,” she wrote.

The use of peremptory challenges in jury selection has been criticized for years. In the 1986 case of Batson vs. Kentucky, the U.S. Supreme Court weighed in on a case in which all black people in the jury pool were dismissed using peremptory challenges, creating an all-white jury that convicted the man. The Supreme Court ruled that the challenges were illegal.

In that case, then-Supreme Court Justice Thurgood Marshall in a concurring opinion questioned whether peremptory challenges should be abolished. The issue has arisen regularly since, said Harvard Law School Professor Charles Ogletree.

Ogletree, who is cited in the SJC opinion, called Friday’s ruling an “important wakeup call,” but said it was unlikely that the state would abolish peremptory challenges any time soon.

He read the ruling as a challenge from the court to seek new ways of crafting unbiased juries, such as allowing more time for individual questioning of jurors, a process known as “voir dire.”

“This is a case that will reverberate in other states and federal court about the continued practice of striking people on the basis of their race,” he said.

Paul Martinek, editor of Lawyers Weekly USA, said that the ruling was not surprising, because the SJC has on several occasions expressed deep concern about the possibility of abuse of peremptory challenges.

But he said that the three-judge concurrence indicated that eventually the court could throw out peremptory challenges. If the court did, it would become the first state in the nation to do so, he said.

“They didn’t take the big step that would have made this case truly groundbreaking, but they inched in the direction of abolishing (peremptory challenges) entirely,” he said.

Ivan Mercado, the attorney for Maldonado, couldn’t be reached for comment on Friday.

Lopez, who faced suspension for her handling of the unrelated case of a transgendered child molester, resigned Monday.

AP-ES-05-23-03 1841EDT