State v. King

¶1dissenting. The analysis contained in the majority opinion is neither complete nor adequate. In my view, my colleagues have not justified their decision to uphold the state’s exercise of peremptory challenges to excuse one Latino juror and two African-American jurors.

¶2What I had to say in my dissenting opinion in State v. Hodge, 248 Conn. 207, 269, 726 A.2d 531 (1999), applies with full force to the present case. “A judicial branch task force recently . . . found that there is ‘a perception of bias injury selection.’ Connecticut Judicial Branch Task Force on Minority Fairness, Full Report (April 1996) p. 42. More fully, ‘there is a concern that minorities are being removed from the chosen jury pool through the use of peremptory challenges allowed by attorneys during the selection process.’ Id. The report indicates that an overwhelming percentage of judges and attorneys recognize that minorities do not feel that they are being treated fairly. Id., p. 41. More generally, another survey conducted for the state judicial branch in 1998 revealed that 45.5 percent of the Connecticut residents polled agreed that ‘Connecticut courts discriminate against minorities.’ Connecticut Judicial Branch, Statewide Public Trust and Confidence Study (October 1998) p. 17.” State v. Hodge, supra, 270-71(Berdon, J., dissenting). These results were recently confirmed in a poll conducted by the Center *690for Survey Research and Analysis at the University of Connecticut.1

¶3“This perception of racism is not the fault of the trial judges. Rather, to a great degree, this court must assume responsibility because it narrowly shapes the protective contours of our laws regarding jury selection and has failed repeatedly to apply those limited protections in order to assure that the selection is not tainted. Instead of firmly setting out the law for the guidance of the trial courts, this court sends mixed messages, as the majority does in the present case. Even worse, when confronted with obvious cases of the state’s intentional discriminatory use of peremptory challenges in order to eliminate minorities, this court avoids reversal, as it does in this case, by affording the trial court great deference and refusing to overrule any trial court decision unless it is clearly erroneous. In short, the majority of this court does nothing more than pay lip service to the constitutional command that a peremptory challenge cannot be employed to exclude prospective jurors on the basis of race, gender or other prohibited discrimination pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and as modified by state law in State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989) (hereinafter Batson/Holloway). Indeed, since the adoption of Batsonby the United States Supreme Court in 1986, this court and the Appellate Court have reviewed claims of purposeful discrimination in the exercise of peremptory challenges in seventeen cases. Neither court, however, has ever found impermissible discrimination in the exercise of *691a peremptory challenge,2 a statistical fact that lends credence to the public perception that our judicial system fosters discrimination.” (Internal quotation marks omitted.) State v. Hodge, supra,248 Conn. 271-73 (Berdon, J., dissenting).

¶4It is against this backdrop that my disagreement with the majority must be considered. To begin with, the majority “summarize[s] the applicable law” by reciting a seven page passage from Hodge. As I explained at length in my dissent in Hodge, the toothless standard of review employed by the majority suffers from two grave infirmities: (1) it contradicts our prior jurisprudence; and (2) it is not sufficiently rigorous to detect the presence of racism. It would serve no useful purpose to cover this ground again. It suffices to say that the majority once again “ignores the heightened standard with which we review findings of factual underpinnings necessary to determine constitutional issues arising from jury selection. In State v. Ellis, 232 Conn. 691, 701, 657 A.2d 1099 (1995), Justice Norcott writing for a unanimous court held: [Bjecause of the constitutional implications of the alleged defect in the jury selection process, we will subject the findings of the trial court to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding .... State v. Ross, 230 Conn. 183, 259, 646 A.2d 1318 (1994) .... Ellisis by no means an isolated case. We have recognized this heightened review in other cases. See State v. Webb, 238 Conn. 389, 449, 680 A.2d 147 (1996); State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993). To be sure, if there is any question about our review, it clearly was put to rest in State v. Mercer, 208 Conn. 52, 58, *692544 A.2d 611 (1988): Due to the serious constitutional implications of the defendant’s claim [regarding voir dire during jury selection], we have the duty to make an independent evaluation of the circumstances. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985); State v. Piskorski, 177 Conn. 677, 685-86, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). I can conclude only that the majority either fails to take seriously Bat-son/Holloway claims or fails to understand that those claims have constitutional underpinnings. It simply is baffling that the majority is turning a blind eye to our former jurisprudence in this area.” (Internal quotation marks omitted.) State v. Hodge, supra,248 Conn. 287-88 (Berdon, J., dissenting). After conducting an “independent and scrupulous examination of the entire record”; (internal quotation marks omitted) id., 287; I am firmly convinced that the trial court should have recognized that the state’s peremptory challenges of one Latino juror and two African-American jurors violated Bat-son/Holloway.

¶5In addition, my colleagues acknowledge — as they must — that a peremptory strike violates the constitution if “persons with the same or similar characteristics but not the same race ... as the challenged juror were not struck . . . .” (Internal quotation marks omitted.) See State v. Hodge, supra,248 Conn. 222; State v. Hinton, 227 Conn. 301, 325, 630 A.2d 593 (1993). Nevertheless, the majority refuses to consider this issue, on the ground that the defendant “failed to make this claim in the trial court.” I have three responses to this claim. First, we have long reviewed disparate treatment claims for the first time on appeal. See State v. Gonzalez, 206 Conn. 391, 406-407, 538 A.2d 210 (1988). Second, we have before us a complete transcript of the voir dire in this case. Because we are therefore able to review *693a sensitive racial issue of constitutional magnitude, we should do so. Third, even the state concedes that we should review this claim in this case, at least with respect to one of the peremptory strikes that the defendant has challenged.

¶6Needless to say, the majority opinion does not come as much of a surprise. It simply adds yet another decision to the long and unbroken string of cases in which this court and the Appellate Court have declined to find impermissible discrimination in jury selection, even when they have been confronted with the most flagrant evidence of outrageous discrimination. State v. Hodge, supra,248 Conn. 272 n.4(Berdon, J., dissenting).

¶7Accordingly, I dissent.