Friday, June 6th, 2008


United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam)

In this “reverse-Batson” decision, the court upheld the district court’s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge. The court found no clear error in the district court’s conclusion that the challenge was based on the juror’s race.

Specifically, the circuit agreed that the defendants’ concern that the brother of the juror’s fiancé was a police officer was unjustified because (1) the juror said that this would not affect her and (2) the defense had accepted a Latino juror whose brother was a retired undercover officer. The court also rejected the defendants’ claim that the juror’s residence in Westchester County was a basis for the challenge. That juror lived in Yonkers, which the defense conceded was “more like the Bronx than Westchester” and, in any event, the defendants had seated two Latinos from Westchester. As for the defendants’ concern that the juror was “sheltered” because she still lived with her parents, the circuit accepted the district court’s observation that he juror did not seem so. Finally, the defendants’ argument that the juror was a school teacher in the Bronx was properly deemed incredible; the defendants seated an African American who was a retired Bronx school teacher.

Notably, the defendants also argued on appeal that “a black criminal defendant should not be subject to a Batson challenge” for striking white jurors because “the potential social harms identified in ‘race-related’ cases involving racial minorities … are not implicated.” The court rejected this argument, noting that the discriminatory use of a peremptory challenge violates the equal protection right of the challenged juror, and thus the harm is the same in both Batson and reverse-Batson cases.

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