Habeas Corpulent

Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)

At Seth Dolphy’s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge. The prosecutor’s supposedly race-neutral explanation for striking the juror was that she was overweight: “[B]ased on my reading and past experience, … heavy-set people tend to be very sympathetic toward any defendant.” When the judge asked him if he was “saying that race had nothing to do with it,” the prosecutor agreed. The defense again objected, noting that the same prosecutor had allowed overweight people on juries in other cases. The judge sustained the strike, holding that “I’m satisfied that is a race neutral explanation, so the strike stands.”

Once his conviction was affirmed in the New York State courts, Dolphy filed a pro se § 2254 petition in federal court. A magistrate judge recommended that the petition be granted because the trial court “misapplied Batson when it accepted the prosecution’s proffered race-neutral explanation without assessing credibility or pretext.” The district court, however, disagreed, finding that the necessary credibility finding was implicit in the trial court’s rejection of the Batson challenge.

On appeal, the circuit reversed. This case involves the third step of the traditional Batson inquiry, which “requires a trial judge to make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.” The court must somehow “make clear” whether it credits the race-neutral explanation. Here, that standard was not satisfied. While the prosecution proffered a facially race-neutral explanation, it “rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant).”

The trial court’s ruling on the Batson objection made no “inquiry or finding” and simply gave a “conclusory statement” that a race-neutral reason had been offered. This did not “necessarily indicate … that the trial court credited the prosecution’s explanation.” Rather, it seemed only to indicate that the proffer of a race-neutral explanation “was itself enough.”

Accordingly, the court remanded the case to the district court for a hearing on the prosecutor’s sate of mind at the time. However, if the passage of time has made this “impossible or unsatisfactory” – the trial was in 1997 – the court should grant the petition.