Boston Lawyer BlogAppeals Court Takes Step Backwards in Fighting Racial Discrimination in Jury Selection
More than forty-five years ago, the Massachusetts Supreme Judicial Court led the nation in combatting racial discrimination by prosecutors in jury selection. In its landmark decision in Commonwealth v. Soares, the SJC held that the use of peremptory challenges by prosecutors to exclude members of racial (or other) minorities from a jury violated a defendant’s right under the Massachusetts Constitution to trial before an impartial jury of his or her peers. Seven years later, the federal Supreme Court cited Soares in reaching a similar decision (under the principle of equal protection) in Batson v. Kentucky. Unfortunately, last week the Massachusetts Appeals Court took a serious step backwards in this area. Its decision in Commonwealth v. Lopez-Ortiz takes an artificially narrow view of what discrimination in jury selection can look like, and seeks to limit the power of appellate courts to correct it.
Jury Selection: Some Background
The process of jury selection, known as voir dire, involves a brief conversation between each potential juror, the judge, and the attorneys for both sides. During voir dire the potential juror is asked questions designed to determine if they can be fair and impartial. At the end of the questioning, attorneys have two options for removing jurors from the panel. First, the judge can excuse the juror “for cause” (usually at the request of one of the lawyers), if the judge finds that the answers suggest that the juror could not be impartial (for instance, if the juror has a close relative in law enforcement, or was charged in the past with a similar crime). In addition to challenging jurors for cause, lawyers for both sides can also make a fixed number (depending on the court) of “peremptory challenges,” which traditionally have allowed them to strike a juror without giving any reason at all.
The Soares and Batson decisions confronted the issue of prosecutors using peremptory challenges to remove members of racial or other minorities from the jury. To address the problem, the Soares court laid out the following burden-shifting procedure. Although the use of peremptory challenges was always initially presumed to be “proper,” a lawyer (usually for the defendant) could rebut this presumption by (1) pointing out a “pattern” of jurors from a certain group being struck and (2) establishing a “likelihood” that this was due to their group membership. If the judge ruled that the presumption of propriety had been rebutted, the other lawyer (usually the prosecutor) would have to supply an explanation for the strike in question, based on the individual qualities of the juror and not their group membership—an exception to the general rule that peremptory challenges require no reason. Importantly, the Soares court held that the discriminatory exclusion of a juror would be considered on appeal to be structural error—that is, a violation of such an important constitutional right that it would require an automatic overturning of the verdict and a whole new trial, regardless of the strength of the evidence.
In 2020, in Commonwealth v. Sanchez, the SJC revisited the Soares procedure and made a subtle but important change. The Court eliminated the requirement of showing a “pattern” and a “likelihood,” imposing instead a looser test, whereby the judge should demand a group-neutral explanation for a strike whenever “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (The SJC had already diluted the pattern requirement by holding that a pattern could be established by a single suspect strike.) The SJC did not go so far, however, as to completely eliminate the first step and end the requirement that the presumption of propriety be rebutted. To do that, the Court reasoned, would functionally mean that all peremptory challenges would have to be explained, thus ending the distinctive character of peremptory challenges as not “for cause.”
Jury Selection in Lopez-Ortiz
The defendant, Roberto Lopez-Ortiz, was convicted of second-degree felony-murder (in 2017, about six months before the SJC effectively abolished the crime) and sentenced to life in prison. One juror had a particularly complex conversation during voir dire:
- The juror first commented about the pool of other potential jurors: “I don’t see any Spanish people out there or anything like that and I feel that he should be, if he’s going to be, life and death like that there should be some of his people out there.” When the judge asked if this would affect his ability to be fair and impartial, the juror said, “Oh, no, no, not at all.”
- The juror described himself as “100 percent Puerto Rican” and said that he had “gone through [his] life having to deal with something like that.” (The defendant, Lopez-Ortiz, was also Hispanic.)
- When asked if he believe that Dominicans or Puerto Ricans were more likely than other people to commit crimes, the juror said: “Yeah, I don’t like those questions, I never did, I don’t think they’re proper at all.” (The judge explained that the purpose of the question was to probe whether jurors could be biased against those groups.)
- Finally, the juror also described being treated in a “very disgusting” way by police and prosecutors in Florida in a drunk-driving case, but repeatedly confirmed that this would not affect his ability to be impartial in a case in Massachusetts.
The Commonwealth moved to strike the juror for cause because of his statement about the “disgusting experience” in Florida and “his initial reaction to the make-up of the jury pool.” When the judge denied the for-cause challenge, the prosecutor then exercised a peremptory, leading the defense counsel to object on Batson-Soares grounds. The judge said she was “not persuaded there is a pattern” (the trial occurred before the SJC decision in Sanchez eliminating this requirement, as discussed above) but out of an “abundance of caution” nonetheless asked the prosecution to state its reasons. The prosecution stated that it did not believe that the juror could “be fair to the Commonwealth.” The prosecutor claimed that this had “nothing to do with this juror’s race” but rather related to “his issues that he had with police previously, his beliefs that he feels that the defendant cannot get a fair trial.” The prosecutor also described one of the juror’s answers as “flippant.” Without questioning or explanation, the judge stated that the prosecutor’s basis was “adequate and genuine” and allowed the peremptory challenge.
The Appeals Court decision in Lopez-Ortiz
In a 2-1 decision, the Appeals Court upheld the conviction, with an opinion that focused solely on the jury selection issue. Given the juror’s answers, Justice John Englander wrote for the majority, there was a legitimate concern that the prospective juror “would view the case, not through the lens of the facts presented and the law provided, but through the lens of the race of the defendant and perceived unfairness of the system.” It was moreover not an abuse of discretion for the judge to “find that such concerns about the impartiality of a prospective juror were not based on race,” and were thus “an adequate basis for exercising a peremptory challenge.”
Justice Englander also argued more generally that the ultimate question for the judge considering a Batson-Soares challenge is whether the strike was “motivated” by the juror’s membership in a protected class, which is “fundamentally a question of fact” best answered by the trial judge who personally conducted voir dire, rather than by an appellate court. Justice Andrew D’Angelo, in a concurring opinion, echoed this point, writing that the “great deference to the trial judge’s findings on whether a permissible ground for a peremptory challenge has been shown” left him “constrained” to uphold the conviction (although he criticized the trial judge for her sketchy factual findings). Taken to its extreme, this argument would severely limit the viability of Batson-Soares challenges on appeal.
Justice Englander also supported his position with an intricate argument based on the SJC’s 2019 decision in Commonwealth v. Williams, where a prospective juror was excused for cause after saying that she believed “the system is rigged against young African American males.” The SJC held that the judge erred by not questioning the juror adequately and instead simply excluding her on the assumption that her belief rendered her unable to be impartial. The SJC did not, however, analyze the erroneous for-cause exclusion in Williams as involving discrimination based on a protected class, but rather as just poorly conducted voir dire. There was no structural error (as in Soares) that would require an automatic new trial. The SJC further concluded that there was not even any prejudice to Williams, because the Commonwealth did not use all of its peremptory challenges and thus could have struck the juror anyway even if she had not been excluded for cause. In Lopez-Ortiz, Justice Englander inferred from this that the SJC would have approved of the Williams juror’s belief about the “rigged” justice system as an appropriate, race-neutral basis for a peremptory challenge. Applied to Lopez-Ortiz, this meant that the juror’s “beliefs” related to the justice system, cited repeatedly by the prosecutor in her explanation, were a race-neutral reason for the peremptory strike—however intimately connected these beliefs may have been to the prospective juror’s own background and experiences as a Puerto Rican.
Justice Rubin’s dissent
The majority opinion in Lopez-Ortiz due an unusually sharp dissent from Justice Peter Rubin. He faulted the majority for never actually considering the key question in a Batson-Soares case: whether the reasons given by the prosecutor for the strike were in fact “race neutral” or “group neutral.” This question, the justice emphasized, should receive “careful, de novo review” by an appellate panel, not deference.
The prosecutor’s reasons in this case were not actually race-neutral, in as much as they referred to beliefs that directly reflected the experiences of being a minority. “We may not ignore as judges what we know as people,” Justice Rubin wrote. “A person of color who shares a murder defendant’s race is far more likely to express concern about an all-white jury venire than anyone else.” He even pointedly quoted another SJC case for the proposition that it “would require a measure of willful intellectual blindness . . . to conclude that [a juror’s] experience of racism . . . does not correlate almost perfectly with his race and therefore serve as a surrogate for race.” The justice concluded: “If concern about an all-white jury venire trying a Latino person, or taking offense at a poisonous stereotype of Puerto Rican people means one cannot be fair in a trial of a Latino defendant, then all jurors of Puerto Rican dissent will be subject to peremptory strikes.”
Justice Rubin also addressed the majority’s perverse reading of Williams, the earlier SJC case involving expressions of race-inflected opinions about the judicial system during voir dire. He emphasized the basic teaching of the case, namely that it was error to excuse a juror (for cause) because of concern that she would not comply with an unreasonable demand to “disregard her life experiences and resulting beliefs” (specifically, that the “system is rigged against young African American males”). Justice Rubin also pointed out an important factual distinction, namely that the juror at issue in Williams was not (as far as the record disclosed) herself a person of color—in contrast to the juror in Lopez-Ortiz, who explicitly identified as Puerto Rican. The SJC certainly did not explicitly indicate in Williams that it would be permissible to use peremptory strike against a Black juror because the juror thought that the judicial system was unfair to Black people.
Although Justice Rubin’s views did not prevail at the Appeals Court, the SJC will hopefully take the case on further appellate review. The SJC should correct the misreading of its decision in Williams, overturn the harmful limitation of Soares, and ensure that Roberto Lopez-Ortiz does not spend the rest of his life in prison after an unfair trial.
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