Appeals judge, ruling in NL murder case, suggests changes to jury process

Issues of race often complicate the jury selection process, as they did in the case of Evan J. Holmes, a New London man of mixed race who went on trial in Superior Court for murder in 2013.

One of the prospective jurors who walked into Superior Court Judge Barbara Bailey Jongbloed's courtroom was an African-American social worker, identified in court documents as "W.T.," who admitted he fears being stopped by police, has family members who served prison time and is aware that blacks represent a disproportionate number of inmates in jail.

Despite his assurances that he could be fair to both the state and defense, W.T. was sent home without serving on the jury after prosecutor Paul J. Narducci exercised a peremptory challenge, a legal tool that allows attorneys to strike prospective jurors without an explanation. Holmes was convicted and appealed.

The state appellate court affirmed Holmes' conviction in an opinion published this week, but one of the judges, Douglas S. Lavine, wrote a thought-provoking concurring opinion suggesting the legal process that allowed the social worker to be stricken from the jury for expressing widely held opinions is excluding from jury service a significant number of people from "suspect classes," which are groups that historically have been the targets of discrimination.

"As cases raising these issues illustrate, the price society pays by permitting prospective jurors like W.T., to be excluded is unacceptably high," Lavine wrote. "The justice system has an obligation to do everything it can to encourage participation by all segments of society, particularly those who have grown understandably suspicious of that system."

W.T., who said he had a master's degree, worked in a supervisory position for the state Department of Children and Families and volunteered inside of state prisons, was the first African-American to be interviewed by attorneys for the state and defense during jury selection.

Narducci and defense attorney William T. Koch Jr. ultimately selected two African-Americans to serve on the 12-member jury, along with one African-American alternate. The jury convicted Holmes and he was sentenced to 70 years in prison.

In his concurrence, Judge Lavine acknowledged the state's use of the peremptory challenge was proper under the prevailing law, but wrote that the case illustrates a "serious flaw" in the process that needs to be fixed in order to encourage participation in, and trust of, the judicial process by all segments of society. He suggested trial judges be given the discretion to disallow the use of a peremptory challenge when the prospective juror is part of a "suspect class," such as African-American, and the judge determines the person could be fair.

Lavine wrote that he hopes his opinion prompts discussion of the issue and cited other members of suspect classes who, under the present system, could be eliminated from service for expressing rational and fact-based views.

""What about the hypothetical female prospective juror, who is being questioned in a criminal sex assault case, who swears that she can be fair to the state and the defendant, but who has formed the opinion that police sometimes do not treat the victims of sexual assault with all the seriousness and dignity to which they are entitled?" Lavine wrote. "Or the hypothetical Japanese American prospective juror, in a civil case in which a federal employee is the plaintiff, who swears he or she could be fair to both sides, but who recounts his or her family's suffering at the hands of the federal government when subject to internment during World War II?"

Attorney Alan J. Black of Northampton, Mass., who had argued Holmes' appeal, did not return two phone messages left at his office this week.

Narducci, the New London prosecutor, said he had reviewed the appellate court opinion and Lavine's concurrence.

"I agree with the conclusion that there was a race-neutral reason for the peremptory challenge," he said. "As to the concurrence, that's really a policy decision best left to the legislature."

When Narducci exercised the peremptory challenge during jury selection, Holmes' attorney, Koch, had asserted the state's dismissal was based on race and mounted a "Batson challenge."

The U.S. Supreme Court ruled in 1986 in Batson v. Kentucky that a prosecutor could not use peremptory challenges to exclude jurors based solely on their race. James Kirkland Batson was an African-American man convicted of burglary and receipt of stolen goods by a Louisville, Ky., jury composed entirely of white jurors. Four African-Americans had been excluded from jury service when the presiding judge exercised peremptory challenges.

In defending the Batson challenge, Narducci argued he had stricken the social worker from the jury for a "race-neutral" reason.

"If a white — a Caucasian person came in and said, I don't like being followed by the cops because I see a number of cops punch friends of mine in the face, it's not because he is a Caucasian, it's because of life's experiences," he had argued. "And I think that's what I would be arguing, that the comments that were made were not because of his ethnicity or his race, but rather his — his expressed opinions. And I think it's a distinction, I think it's a legitimate distinction, but I defer to Your Honor with respect to this.''

The trial judge, Jongbloed, had agreed that the issue of negative contact with police had been found to be a legitimate, race-neutral reason for exercising a peremptory challenge and overruled the defense's Batson challenge.

k.florin@theday.com

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