Commonwealth v. Harris

¶1(dissenting). I dissent from part 1 of the majority opinion. Because of the prosecutor’s shameful and flagrant misuse of the peremptory challenge to exclude a juror solely on the basis of race, the defendant did not receive a fair trial. I am shocked that in this day and age (long after the noted trilogy of cases in this area1 1) prosecutors are still challenging persons peremptorily for no reason other than their ethnicity. See, e.g., Commonwealth v. Brown, 11 Mass. App. Ct. 288, 293-295 (1981). This is improper and immoral, apart from being unconstitutional.2

¶2The flimsy excuses3 offered here were so transparent that the prosecutor, obviously embarrassed, later attempted to rectify what he seemed to acknowledge as error by sug*736gesting to the judge that it might be prudent to “discharge the jury and begin again.4 *The question to be asked is, Why did the prosecutor do itl If prosecutors want trials to be fair, should not they, as well as defense counsel, try to get it right the first time? It should be the aim of all to strive earnestly to produce as close to an impeccable trial as is possible.5 See Commonwealth v. Bodden, 24 Mass. App. Ct. 135, 141 (1987) (Brown, J., concurring). Cf. Townsend v. Sain, 372 U.S. 293 (1963).

¶3Let me conclude with a notion discussed by the Supreme Judicial Court in Commonwealth v. Soares, 377 Mass. 461, 491, cert. denied, 444 U.S. 881 (1979), and mentioned by the majority here today. When defense counsel raises an objection based on ethnicity or gender to the prosecutor’s exercise of one6 or more peremptory challenges, the trial judge should be required to perform a more searching review of the prosecutor’s reasons than is required at present, see Commonwealth v. Brown, 11 Mass. App. Ct. at 292-295, otherwise prosecutors will be “free to discriminate against blacks in jury selection provided that they hold that discrimination to an ‘acceptable’ level.” Batson v. Kentucky, 476 U.S. 79, 105 (1986) (Marshall, J., concurring). The trial judge should require that the prosecutor’s grounds approximate or be the same as those needed to sustain a challenge for cause. See Brown, McGuire & Winters, The Peremptory Challenge as Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New England L.Rev. 192, 235 n.244 (1978). See *737also id.at 233 n.236. Compare Batsonv. Kentucky, 476 U.S. at 107-108. (Marshall, J., concurring). If we do not make this the test,7 we will be left with a process whereby blacks are routinely excluded from juries based upon what even a dissenting Supreme Court Justice in Batsonconceded were at best “crudely stereotypical and ... in many cases . . . hopelessly mistaken” instincts. 476 U.S. at 138 (Rehnquist, J., dissenting). Justice Marshall said it best: “[T]rial courts face the difficult burden of assessing prosecutor’s motives. . . . Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are.ill-equipped to second-guess those reasons” (citations omitted).8Id. at 105-106 (Marshall, J., concurring). For a case in point, see Commonwealth v. Kelly, 10 Mass. App. Ct. 847 (1980) (explanation based on prospective juror’s “demeanor, manner and the ‘smirk on her face’ ” found to be “an acceptable reason”).