Massachusetts Criminal Defense Lawyer must continue to exercise preemptory challenges when prosecutors attempt to exclude minority jurors.  A criminal defense is entitled a a jury that represents a cross-section of the community.  Cultural stereotypes are reinforced when prosecutors are allowed to rely on them to exclude jurors based on race.  The case of Commonwealth v. Dennis Rosa-Roman raises these issues.

What happened in the Rosa-Roman Case?  

On August 26, 2011, Amanda Plasse was found stabbed to death in her Chicopee apartment. Dennis Rosa-Roman was arrested for this murder, and found guilty. Although he appealed, his conviction was affirmed by the Supreme Judicial Court.  In his appeal, Rosa-Roman alleged irregularities in the jury selection process. Specifically, he alleged that a Hispanic female and an African-American female were improperly excluded by the prosecution by use of peremptory strikes (strikes not for cause) due to their race. When such an objection is raised, the trial court must conduct an inquiry as to whether there are adequate, genuine group-neutral reasons for the peremptory strike. The trial court did so; as will be seen below, the defense disagreed with the trial court’s rulings.

            During pretrial questioning, Juror 29, the Hispanic female, raised her juror card when asked “Do you have any interest whatsoever in this case or its outcome?” This question was asked to all of the jurors. When questioned individually, Juror 29 did not mention that she had raised her juror card in response to that question. When asked why she did so, she said that she was interested in the criminal justice system. When asked by the judge if she had any stake in the outcome of the case, she said she did not.

            The prosecution used one of their peremptory strikes on Juror 29. The defense objected. Juror 29 was Hispanic, and none of the four jurors who were previously seated were Hispanic. When asked for a group-neutral explanation, the prosecution responded that they had an “unsettled feeling” about Juror 29. They noted that she did not “freely volunteer” that she raised her juror card in response to a question by the court and they felt she was “very overeager” to be on the jury. The prosecution also noted that she was a single mother not receiving spousal support who worked at a fast food restaurant. The trial judge ruled that this was sufficient group-neutral grounds and allowed the peremptory strike to stand. The Supreme Judicial Court upheld this ruling. While they cautioned that the prosecution’s reasoning that a single mother working at a fast food restaurant was “overeager” to serve on a jury should be “scrutinize carefully” and that Juror 29’s confusion as to the meaning of “interest” was not in itself a group-neutral basis, they nevertheless held “While we may not have allowed this strike, we do not conclude that the judge, who was able to observe the jurors and the attorneys, erred in determining that this challenge was within the permissible range of peremptory challenges.” The Supreme Judicial Court did “remind attorneys that they should search their conscience for implicit bias and stereotypes.”

            During pretrial questioning, the potential jurors were asked if they would have trouble returning a verdict of guilty if the prosecution had proven its case beyond a reasonable doubt, but they still had lingering questions. Juror 2, an African-American female, responded that it would depend on the unanswered questions. As the prosecution continued to ask Juror 2 clarifying questions, Juror 2 maintained that she would not “be able to put the thoughts aside because [she] would still be thinking about the question that wasn’t answered,” and that although she would “try [her] hardest not to [speculate],” it “might” affect her deliberations.

            The prosecution moved to strike Juror 2 for cause. The defense objected. The trial judge sustained the defendant’s objection. The prosecution then used a peremptory strike on Juror 2. When asked for a group-neutral reason, the prosecutor said Juror 2’s answer made them feel “unsettled.” The trial judge upheld the strike. The Supreme Judicial Court affirmed this, saying that “Because the juror indicated that she might not be able to return a guilty verdict, even if the Commonwealth proved its case beyond a reasonable doubt, we determine that this was an adequate reason to use a peremptory strike. With regard to genuineness, again, here the judge was in a position to evaluate both the prosecutor and the juror’s demeanor.”

            It is notable that the Supreme Judaical Court upheld peremptory strikes based on the prosecution’s “unsettled feelings.” They had previously held that challenges based on “gut feelings” should rarely be accepted. However, it appears that, if that gut feeling is supported by other group-neutral characteristics of the juror, the peremptory strike will be upheld.  In this case, the SJC should have more vigorously scrutinized the prosecutor reasons for striking the juror as it appeared as though the reason for exercising the challenge raise issues of implicit bias against minorities serving on jurors.

           It is important for Massachusetts Criminal Defense lawyers to make a good record for the appeals courts when selecting a jury.  Jury selection can be key to the outcome of a criminal trial.  To preserve these issues for appeal a Criminal Defense Lawyer needs to balance making a good record with potentially revealing additional information that could support the challenge for cause.  It is a calculus because a defense lawyer may believe based on what was said that the judge would not allow the challenge.  Additional questioning, could make the case for excluding the juror or keeping the juror more clear but when questioning jurors it can be difficult to predict how they will respond.  The job of reading jurors and predicting how judges will rule on motions is a key part of the job of a criminal defense lawyer.  The SJC should have found the exclusion of this juror was racially based and granted a new trial.

To learn more about current issues in Massachusetts criminal law follow Attorney DelSignore on Facebook.