AUGUSTA — A lawyer for a Lewiston man convicted last year of two felonies sought Tuesday to convince the state’s highest court that the trial judge mistakenly allowed the prosecutor to strike the only person of color from the jury.

Malik Hollis, 22, who is African-American, was convicted at trial of reckless conduct with a dangerous weapon and criminal threatening with a dangerous weapon, each charge punishable by up to five years in prison.

During jury selection, Androscoggin County Assistant District Attorney Katherine Bozeman struck Juror No. 71, an African-American, as one of her peremptory challenges. All of the nearly three dozen other prospective jurors in the pool were Caucasian.

Defense Attorney James Howaniec objected to Bozeman’s action, noting Juror No. 71 was the only person of color in the jury pool.

Bozeman told the judge that the prospective juror’s race had nothing to do with her thinking to strike him from the final jury. She said she had focused on his education level and other information provided by the court. Juror No. 71 had an 11th-grade education, the lowest of the 32 in the pool.

Justice William Stokes ruled at that time that he couldn’t make any finding that the prosecutor’s action had been taken for racial reasons. He noted that there hadn’t been anything systematic in her actions and that she could have had legitimate reasons for striking the only potential juror of color.

Although the jury was instructed in the possibility that Hollis had been acting in self-defense, he was convicted of both felonies.

Howaniec later filed a motion for acquittal or a new trial, claiming Bozeman had struck juror No. 71 for racial reasons. Following a hearing on that motion, Stokes ruled in favor of Bozeman but wrote in his order that he erred during jury selection by not taking Howaniec’s objection through a three-step process established in the case of Batson v. Kentucky in which “the Constitution forbids striking even a single prospective juror for a discriminatory purpose.”

Howaniec appealed Stokes’ ruling to the Maine Supreme Judicial Court, which heard oral arguments Tuesday.

Several of the high court’s seven justices seized on the notion of peremptory strikes during jury selection and how they can be abused.

“Peremptories are often based on hunches and broad assessments of humanity,” Chief Justice Leigh Saufley said. “They may well be founded in either conscious or unconscious biases. Is it time for us to eliminate peremptory challenges?”

Howaniec responded that several justices have raised that possibility, including U.S. Supreme Court Justice Stephen Breyer.

Justice Ellen Gorman noted that there are legal complexities involved in a self-defense instruction.

“Why is it wrong for a prosecutor to want to try to gauge the cognition of the jurors to be chosen by looking at education levels?” she asked.

Howaniec said that would have been OK if more probing questioning had been done at the time of jury selection to help determine that juror’s level of understanding of complex issues. But that wasn’t done. Revisiting the matter of why juror No. 71 was struck after the fact only gives the state a greater period of time to think up more legitimate reasons for the state’s peremptory striking of that juror, he said.

Justice Donald Alexander asked whether the four men — all of them white — who initially attacked Hollis at College and Bartlett streets in Lewiston had been charged with any crimes.

Howaniec said they hadn’t.

“Is that a pattern that exists in Lewiston?” Alexander asked.

“Well, it’s certainly a concern,” Howaniec said.

“This is a highly racially charged case,” he told Alexander. “And the one minority in a room full of 110 white people was excluded.”

When asked about the lack of charges against Hollis’ pursuers, Bozeman said there had been a factual dispute with contradictory accounts as to how the altercation started.

Bozeman said Justice Stokes followed the proper legal course in responding to Howaniec’s objection to the striking of juror. No. 71, by making an initial finding, then exploring it further at a hearing.

She said Stokes observed her actions and demeanor and gauged her reasons for striking the juror to be credible and proper.

Bozeman said the case only became racially charged when witnesses began to testify at trial and those clues hadn’t been apparent in discovery beforehand.

Hollis retreated to the safety of his apartment after the altercation, retrieved a gun, and returned to the street where he “opened fire on a crowd of people.”

She said she knew the case would hinge on the notion that he was trying to defend himself.

“Self-defense is confusing,” she said. “The instructions can be complicated and the state’s striking of juror No. 71 was part of a larger strategy to try and have a more highly educated jury. This was proper and was not racially motivated.”

Alexander suggested that less educated jurors would be more desirable for trials because they would be more open to influence by the attorney’s skills.

Bozeman said she disagreed with that strategy, “especially in cases where I do expect that there’s going to be complicated jury instructions. And I would like a jury that I think is going to be able to understand those, be engaged in those and be engaged throughout the course of a multiple-day trial.”

Saufley highlighted the fact that the defendant was a person of color and that a single person in the large jury pool was a person of color. She asked Bozeman: “Shouldn’t we establish a very firm line that requires a serious (questioning of jurors) before a single person of color available to sit on a jury is struck on the basis of some hunches by the prosecution?”

Saufley went on to note that Maine is among the states that have the least diverse populations, but it is becoming a more diverse state.

“We are beginning to see a lot of that in our courtrooms,” Saufley said. “Is it time for this court to establish some of those bright lines?”

Bozeman said she believed Justice Stokes took the appropriate measures in considering whether race played a role during jury selection and concluded it hadn’t.

Saufley asked Bozeman whether it’s time for the courts to do away with peremptory strikes in an effort to create fairer trials for defendants and prosecutors.

Alexander said that could make for lengthy jury-selection processes.

The court’s ruling is not expected any time soon.

cwilliams@sunjournal.com

Malik Hollis listens to his lawyer, James Howaniec, during a September hearing at Androscoggin County Superior Court in Auburn. (Sun Journal file photo)