State of New Jersey v. Gilmore: Procedural History
An all-white jury of six men and six women convicted defendant, a black man, of three first-degree robberies of two Hispanic gas station attendants in Union, New Jersey. During jury selection, the white assistant prosecutor removed nine black prospective jurors by challenge for cause and peremptory strike. Defense counsel, a black man, moved for a mistrial because the prosecutor removed the black venirepersons based on their race. Nevertheless, the trial judge overruled defense counsel, relying on Swain v. Alabama 1 and State v. Smith.2
Subsequently, the Appellate Division remanded for the prosecutor to state his reasons for excusing the black jurors. On remand, the A.P. gave his general criteria for using peremptory challenges and his specific reasons for excluding each black prospective juror in this case. Indeed, he wanted jurors who would ignore theatrics, more intelligent and of the professional type, and without maternal family instincts. And he applied these criteria (as well as a “gut reaction” based upon “my life experience”) to explain each peremptory challenge of a black venireperson.
Meanwhile, back at the Appellate Division, the panel interpreted the New Jersey Constitution to proscribe peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, a cognizable group, a practice designed to defeat the purpose of the representative cross section rule. 3 Additionally, the panel defined guidelines and established the procedure and burden of proof for allegations of improper peremptory challenges. Furthermore, after evaluating the prosecutor’s reasons, the Appellate Division concluded they were post hoc excuses and lacked credibility. Hence, the panel reversed the conviction, and remanded for a new trial.
State of New Jersey v. Gilmore: Question Presented
Does a prosecutor’s use of peremptory challenges to exclude potential black petit jurors violate a defendant’s constitutional right to trial by an impartial jury drawn from a representative cross-section of the community.
State of New Jersey v. Gilmore: Holding
Yes, Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution forbid a prosecutor to exercise peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias. The State, however, may peremptorily challenge such venirepersons on grounds of situation-specific bias.
State of New Jersey v. Gilmore: Reasoning
Previously I blogged about horizontal federalism here and here. Thus, the Supremacy Clause applies to the Constitution of the United States and federal law. Therefore, state courts must abide SCOTUS decisions of federal law. Nevertheless, state courts may depart from federal law based on a state constitution, so long as the state law does not violate federal law. This is so because a state constitution provides adequate and independent state grounds to preclude SCOTUS from exercising jurisdiction. Furthermore, to survey what other state courts have done under their constitution helps a state court break free of federal constitutional jurisprudence. Thus, surveying other states is an example of horizontal federalism.
Meanwhile in Washington, D.C., SCOTUS decided Batson v. Kentucky4, overturning Swain v. Alabama, after the Appellate Division reversal in State v. Gilmore. The Swain test had required proof of the prosecutor’s systematic exclusion of all Blacks in case after case over a period of time. Indeed, this immunized prosecutors’ discriminatory peremptory challenges. Consequently, courts in California5, Massachusetts6, Florida7, and New Mexico8 departed from Swain based on their state constitution. Therefore, the New Jersey Appellate Division followed suit, breaking free from the pull of federal constitutional jurisprudence.
Notwithstanding the decision in Batson, however, the New Jersey Supreme Court decided Gilmore under the New Jersey Constitution. Additionally, the Court applied the plain statement rule of Michigan v. Long.9
In addition to other instances of reliance on the courts of other States, the New Jersey Supreme Court relied on California in deciding the proper use of peremptory strikes. Accordingly, they are to be used to remove jurors who are believed to entertain a specific bias. Thus, this means a bias relating to the particular case on trial or the parties or witnesses thereto.
Article I, Paragraph 5, provides the right to trial by an impartial jury.10
Article I, Paragraph 9, guarantees the “inviolate” right to trial by jury.11
Article I, Paragraph 10, provides the right to trial by jury in criminal cases.12
Article I, Paragraph 1, prohibits sex-based discrimination.13
Indeed, these provisions guarantee to the criminal defendant an impartial jury without discrimination on the basis of religion, race, color, ancestry, national origin, or sex. Additionally, the Supreme Court spelled out the policy reasons for the representative cross-section rule. For example, it enables a diverse jury to cancel out the biases of each individual member. Furthermore, it promotes the overall impartiality of deliberations. Finally, it enhances the legitimacy of the court to the public, promotes citizen participation in government, and prevents further stigmatizing of minority groups. Indeed, no citizen possessing all other qualifications prescribed by law shall be disqualified for service as a grand or petit juror in any court on account of race, color, creed, national origin, ancestry, marital status or sex.14
Similar to the reasoning in Batson, the N.J. Supreme Court reasoned the representative cross-section rule must apply not only to venire selection but also to jury empanelment, including the peremptory strike. But the peremptory strike, unlike trial by an impartial jury, is a creature of statute. Therefore, it should not be used to undermine the Constitutional right to trial by impartial jury. Instead, it works together with the representative cross-section rule to empanel an impartial jury. Discriminatory peremptory challenges, however, contradict the purpose of the representative cross-section rule.
SCOTUS Dissenting Opinions
Although they do not carry the day in national rulings, dissenting SCOTUS ustices have an audience with state courts. Indeed, “Supreme Court dissents can and do have a significant impact upon state courts confronting the same constitutional problem the dissenter believes the Court decided incorrectly.”15 The New Jersey Supreme Court in Gilmore cited the dissenting opinions of Justices Marshall and Brennan with respect to discriminatory peremptory strikes and the Sixth Amendment.16
To raise a Gilmore challenge, the defendant must timely object, either during or at the end of jury selection, but before jury is sworn. Additionally, the defendant shoulders the burden of persuasion by a preponderance of the evidence. But the burden of producing evidence shifts between the defendant and prosecutor. Furthermore, prosecutors have a rebuttable presumption of acting for permissible reasons.
The defendant must show:
- Potential jurors wholly or disproportionally excluded were members of a cognizable group within the meaning the representative cross-section rule, and
- Substantial likelihood the peremptory challenges were based on assumptions about group bias rather than any indication of situation-specific bias.
Subsequently, the judge must decide whether the defendant made a prima facie case. If so, then a presumption of unconstitutional action falls on the prosecutor, and the burden shifts to the State to rebut the presumption.
The prosecutor must
- Provide evidence that the peremptory challenges under review were based of concerns about situation-specific bias, and
- Articulate clear and reasonably specific explanations of its legitimate reasons for exercising each of the peremptory challenges
These reasons need not satisfy the burden of a challenge for cause.
Ultimately, the trial judge must decide whether the prosecutor’s reasons are genuine and reasonable grounds for believing that potential jurors might have situation-specific biases that would make excusing them reasonable and desirable, given the aim of empanelling a fair and impartial petit jury, or, on the other hand, sham excuses belatedly contrived to avoid admitting acts of group discrimination.
The prosecutor gave his general criteria for peremptory challenges and specific reasons for exercising them here. For example, he wanted jurors who would ignore theatrics, were more intelligent and of the professional type, and did not have maternal family instincts. And he applied these criteria (as well a “gut reaction” based upon “my life experience”) to explain each peremptory challenge of a black venireperson. Although he also struck some whites, the Supreme Court decided his reasons violated the State Constitution.
Additionally, his desire for jurors without maternal family instincts discriminated against women on the basis of sex. The Court reasoned his admission that he struck all the black people because he assumed they were predominantly Baptists clearly indicates group bias, both racial and religious. Furthermore, he struck all the black people on the venire, not merely a proportion of them. Finally, he did not challenge six white women, who would have possessed maternal family instincts. Three of the six women were housewives, and two were secretaries. Therefore, these five were not of the professional type. The only difference between the six white women and two black women was racial.
Importantly, the prosecutor’s requirement of more intelligent jurors lacked credibility because the trial issue related to identification.
Thus, defendant sustained his burden of proving, by a preponderance of the evidence, that the State used its peremptory challenges in violation of Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution. Therefore, the Supreme Court remanded the case for a new trial.
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1 Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
2 State v. Smith, 55 N.J. 476, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970).
3 State v. Gilmore, 199 N.J. Super. 389 (App. Div. 1985).
4 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
5 People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, (Cal.1978).
6 Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. den., 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979).
7 State v. Neil, 457 So.2d 481 (Fla.1984).
8 State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980).
9 Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
10 “No person shall be denied the enjoyment of any civil … right, nor be discriminated against in the exercise of any civil … right, … because of religious principles, race, color, ancestry or national origin.” N.J. Const. art. I, ¶ 5.
11 “The right of trial by jury shall remain inviolate… N.J. Const. art. I, ¶ 9.
12 “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury…” N.J. Const. art. I, ¶ 10
13 Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55 (1978).
14 N.J.S.A. 2A:72-7
15 Robert F. Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result 35 S.C. L. Rev. 353, 375-76 (1984).
16 McCray v. New York, 461 U.S. 961, 963-70, 103 S.Ct. 2438, 2439-43, 77 L.Ed.2d 1322, 1323-26 (1983) (Marshall, J., dissenting from denial of certiorari).