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New Jersey Supreme Court Announces Framework for Requesting Criminal Background Check of Potential Juror and Calls for Judicial Conference to Explore Nature of Discrimination in Jury Selection Process

by Douglas Ankney

In a case of first impression, the Supreme Court of New Jersey announced the framework that governs when a party requests a criminal history check on a prospective juror to determine whether the juror is eligible and to ensure a fair trial. The Court also instructed the Director of the Administrative Office of the Courts to arrange a Judicial Conference on Jury Selection to explore the nature of discrimination in the jury selection process and recommend improvements. Finally, the Court reversed the defendant’s murder conviction and remanded for a new trial.

Edwin Andujar was arrested for allegedly stabbing and killing his roommate with a knife 12 times. At his murder trial, prospective juror F.G.—a Black man from Newark—was questioned extensively during voir dire. Afterwards, the State challenged F.G. for cause, citing F.G.’s friends and family members had been accused of crimes, convicted of crimes, and victims of crimes. The State also cited F.G.’s familiarity with criminal justice terminology such as “CDS” (Controlled Dangerous Substance) and “triggerlocked” (referring to a federal program implemented to reduce gun violence). Finally, the State cited the fact that F.G. was from a neighborhood where many people sold drugs.

The trial court rejected the State’s motion, explaining “I don’t think there has been any reason at all that this juror be excused for cause,” adding that F.G. “would make a fair and impartial juror.” Undeterred, the State later that day ran a criminal history check on F.G. but not on any other juror. The prosecutor then notified the trial court and defense counsel that F.G. had two prior arrests that did not result in conviction and an outstanding warrant for simple assault in municipal court. Nothing in the results disqualified F.G. from serving as a juror.

However, by the time the proceedings resumed the next day, the prosecutor had already taken steps to have F.G. arrested. After further discussion, F.G. was removed from the panel and arrested. The charges against him were dropped two months later.

The jury convicted Andujar of murder, and he appealed. The Appellate Division reversed his conviction and remanded the matter for a new trial. The New Jersey Supreme Court granted the State’s petition for certification.

The Court observed “[u]nder the Equal Protection Clause, no citizen can ‘be excluded from jury service on account of ... race.’” Powers v. Ohio, 499 U.S 400 (1991); see Batson v. Kentucky,476 U.S. 79 (1986). Jurors possess the right not to be excluded based on race. Powers. And a defendant is denied equal protection of the laws when tried before a jury from which members of the defendant’s race have been purposefully excluded based on race. Batson (citing Strauder v. West Virginia,100 U.S. 303 (1880)).

In Strauder, the U.S. Supreme Court struck down a state law that allowed only “white male persons” to serve on juries. But for a century afterwards, prospective jurors continued to be excluded from juries based upon race in a “more covert” way, typically via the exercise of peremptory challenges. Flowers v. Mississippi, 139 S. Ct. 2228 (2019). In Swain v. Alabama, 380 U.S. 202 (1965), the U.S. Supreme Court held that a defendant could not object to the State’s use of peremptory strikes in an individual case and that prosecutors were not required to explain their reasons for removing jurors in a particular case. But Batson later overruled parts of Swain.

Under Batson, defendants must first establish “a prima facie case of purposeful discrimination by showing that the totality of relevant facts gives rise to an inference of discriminatory purpose.” The burden then “shifts to the State to come forward with a neutral explanation for” the peremptory challenge. Id. The trial judge must then determine whether the prosecutors stated reasons were the actual reasons or pretextual and determine if the defendant established purposeful discrimination. Id. In Powers, the U.S. Supreme Court instructed that there’s no requirement that the defendant and the excluded juror are of the same race in order to assert a Batson challenge and further instructed that defendants have standing to raise equal protection claims for jurors excluded based on their race.

Two months after Batson, the New Jersey Supreme Court decided State v. Gilmore, 511 A.2d 1150 (N.J. 1986), which addressed a defendant’s “right to trial by a jury from a representative cross-section of the community.” The Court anchored its decision to the New Jersey Constitution, which provides greater protection of individual rights than the federal Constitution, and announced an analytical framework when examining potentially discriminatory peremptory challenges. Id.

Then in State v. Osorio, 973 A.2d 365 (N.J. 2009), the Court refined the three-step Gilmore framework as follows. Step 1: party contesting a peremptory challenge need only to present “sufficient proofs to raise an inference of discrimination.” Step 2: burden then shifts to party exercising peremptory challenge to prove a race or ethnicity-neutral reason for the challenge. Step 3: court must weigh proofs from previous two steps and determine, by a preponderance of the evidence, whether the peremptory challenge was used for unconstitutionally impermissible grounds of presumed group bias.  

The Court explained that Osorio, like Batson, was an attempt to eliminate “explicit bias” that is “consciously held.” State v. Berhe, 444 P.3d 1172 (Wash. 2019). Implicit or unconscious bias is different. “Implicit bias refers to ... attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.” Cheryl Staats et al., Kirwan Inst. for the Study of Race and Ethnicity (2015). A prosecutor’s unconscious racism may lead him to conclude a prospective Black juror is “sullen” or “distant”—a characterization that wouldn’t have come to his mind if a white juror had acted identically. Batson (Marshall, J., concurring). Both explicit and implicit bias are prohibited by New Jersey’s Constitution, Article I, Paragraphs 5,9, and 10 as well as by Gilmore, the Court stated.

The Court noted that the “courts, not the parties, oversee jury selection.” See Pellicer v. Saint Barnabas Hospital, 974 A.2d 1070 (N.J. 2009). As the Flowers Court instructed, “the job of enforcing Batson rests first and foremost with trial judges.”

Turning to the issue of performing a criminal background check on a prospective juror, the Court announced: “On occasion, it may be appropriate to conduct a criminal history check to confirm whether a prospective juror is eligible to serve and to ensure a fair trial. That decision, though, cannot be made unilaterally by the prosecution. Going forward, we direct that any party seeking to run a criminal history check on a prospective juror must present a reasonable, individualized, good-faith basis for the request and obtain permission from the trial judge. We refer to a check of a government database that is available to only one side. The results of the check must be shared with both parties and the court, and the juror should be given an opportunity to respond to any legitimate concerns raised.”

The Court made it clear that this new rule of law applies only to Andujar and to future cases, i.e., it doesn’t apply retroactively. The opinion was issued on July 13, 2021.

In the instant case, the Court found Andujar was denied his right under the New Jersey Constitution to a fair and impartial jury selected free from discrimination, The State’s reasons for seeking F.G.’s removal for cause revealed implicit bias, the Court determined. The Court explained that nothing in the record disqualified F.G. from serving on a jury, specifically stating that knowing people who have committed or have been victims of crimes a well as growing up in a high-crime area don’t disqualify a person from serving as a juror. The Court further explained that the State failed to point to any characteristic personal to F.G. that was a cause of concern or disqualifying in determining whether he could serve as a juror. Thus, the Court concluded that the State’s reasons for performing a criminal background check on F.G. failed to rebut the inference of discrimination under Osorio.

Accordingly, the Court modified and affirmed the judgment of the Appellate Division and remanded the case for a new trial. See: State v. Andujar,254 A.3d 606 (N.J. 2021). 

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