Tuesday, November 1st, 2005

Circuit Finds No Right to Cross-Examine at Batson Hearing

Abdul Majid and Bashi Hameed v. Leonard A. Portuondo, Robert Kuhlmann, Docket Nos. 03-2608, 03-2610 (2d Cir. October 26, 2005)(Oakes, Kearse, Sack, op. by Sack). In a very long opinion that doesn’t really say much, the Court found no constitutional right to cross-examine witnesses at a Batson hearing.

In 1986, Majid and Hameed, represented by William Kunstler and our own Mark Gombiner, were convicted of murdering a New York City police officer. During jury selection, the prosecutor exercised perempetory challenges against twelve of the fifteen African-American members of the venire (and against two African-American alternates), and six of the thirty-six others. During the trial, the Supreme Court decided Batson v. Kentucky. On appeal, the defendants successfully argued that the prosecutor’s conduct raised an inference of purposeful discrimination, and the Appellate Division remitted the case to the trial court for a hearing.

The hearing took place in 1992, some six years after the verdict, and before a different judge, since the original trial judge had retired. The judge who conducted the hearing allowed both sides to call witnesses, but held, over objection, that only the court would be permitted to cross-examine them. The prosecutor testifed as to his reasons for striking the 14 African-Americans, giving detailed explanations that he said were based on his notes of the voir dire and his recollection of the trial. As the hearing progressed, the court invited the defense attorneys to submit cross-questions to the court, but the defense attorneys declined, fearing that this would deprive them of the “benefit of the adversary system.” In the end, the prosecutor was cross-questioned by the judge, but not by defense counsel.

In a written opinion, the judge held that the prosecutor had testified truthfully and had provided credible, race-neutral reasons for his challenges. The Appellate Division affirmed, and the New York Court of Appeals granted leave and also affirmed. In that that case, People v. Hameed, which was decided in 1996, the court held that the trial court’s denial of cross-examination at the Batson hearing was within its discretion and did not violate the Confrontation Clause.

The defendants’ 1997 habeas corpus petition was denied by Judge Weinstein in 2003, who held that there was no clearly established Supreme Court law giving a defendant the right to cross-examination at a Batson hearing, and that the state court’s “quasi-inquisitorial” approach was a full and fair way of determining the facts.

The Circuit had no trouble affirming. It noted that there was no “Supreme Court case law suggesting that an individual has a right to cross-examination in a Batson hearing, either as a result of the Confrontation Clause” or through the Batson decision itself. More disturbing, perhaps, is the Court’s dicta that “there also remains doubt whether the defense enjoys the even more rudimentary right to be allowed access to the prosecution’s race-neutral explanations in the first place,” language that is accompanied by an approving reference to a Fourth Circuit decision upholding an ex parte Batson examination.

The Court also rejected the defendant’s fall-back position that requiring cross-examination would be necessary to effectuate Baton’s own holding that there be a “meaningful inquiry” into the prosecutor’s reasons. Here, the Court concluded that the “bar” is “low[]” when it comes to trial courts setting their own Batson procedures.

Lastly, the Court rejected a claim that the state court’s fact-findings were unreasonable, absent “clear and convincing evidence” that this was so.

There is one thing about this case that does stand out however — the persistence of Mark Gombiner, who has been representing Mssrs Majid and Hameed for more than twenty years. Keep up the good work, Mark!

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