For the second time in three weeks, the Massachusetts Supreme Judicial Court has reversed a Suffolk County murder conviction after the trial judge failed to determine whether the prosecutor was improperly excluding black people from serving on the jury. The name of the case is Commonwealth v. Ortega.
The defendant and the victim were both drug dealers in Roxbury in May of 2012. One afternoon, the victim confronted the defendant and accused him of encroaching on his drug dealing territory. After ordering the defendant to stay away from his street, the victim punched him. The defendant left but returned later in the evening and a second confrontation ensued. The situation quickly escalated into a gunfight and the victim was killed after being shot in the back. Boston police officers recovered shell casings from two separate guns. A Suffolk Superior Court jury convicted the defendant of first-degree murder and he appealed.
On appeal, the Supreme Judicial Court concluded the trial judge had made multiple errors, including refusing to instruct the jury that they could acquit the defendant if they determined he had acted in self-defense. But the most striking issue involved the trial judge’s mishandling of the prosecutor’s use of peremptory challenges to exclude black people from the jury. A superior court case involves a long process to seat impartial jurors to listen to the evidence and render a verdict. At the beginning of the case, dozens of potential jurors are brought into the courtroom to answer questions from the judge and the lawyers in an effort to select impartial finders of fact. The judge asks the potential jurors: if they know any of the lawyers or witnesses; if they have formed opinions about the case; or if they are aware of suffering from any biases toward either party. Prior to trial, the potential jurors are also required to fill out one-page biographical questionnaires, which include information about their families, their work histories, and their prior involvement in the judicial system. With this information, the judge (with the assistance of the attorneys) excludes any potential jurors who demonstrate bias – these jurors are struck for cause. But what happens if the judge concludes a potential juror is indifferent (free from bias)? The lawyers for each party have a limited number of peremptory challenges that can be used to exclude potential jurors for no good reason. One of the rules governing the use of peremptory challenges is that a lawyer cannot kick off a juror because of his or her race. When one lawyer accuses his opponent of using race as a basis for a peremptory challenge, the judge is obligated to undergo a three-step analysis. First, the judge needs to determine if the challenging lawyer has engaged in a pattern of discrimination. Second, if a pattern of discrimination is found, the judge must demand that the lawyer offer a race-neutral reason for the challenge. Finally, the judge must determine if the race-neutral reason is adequate and genuine. If there is an adequate, genuine race-neutral reason for the challenge, it may stand. In this case, the prosecutor had used two of his four peremptory challenges against black men and was attempting to use his fifth peremptory challenge against a black woman. The judge concluded that because there was already one “female of color” on the jury, the defense attorney could not establish a pattern of discrimination. The SJC ruled that the presence of a minority on the jury does not necessarily mean the prosecutor was not continuing to engage in a pattern of discrimination (which would send a message to the prosecutor that he could discriminate against some black people as long as he didn’t discriminate against all black people). According to the SJC, the trial judge should have found a pattern of discrimination and forced the prosecutor to provide a race-neutral justification for the challenge. As a consequence of the trial judge’s failure to follow proper protocol, the SJC held that the defendant’s conviction for first-degree murder should be reversed and he should receive a new trial.
In both cases in which Boston murder convictions were reversed in the past three weeks, it was because of errors made by the trial judges and not the Suffolk prosecutors. However, in light of these two cases, the Suffolk County District Attorney might rethink how prosecutors exercise peremptory challenges.