Messiah v. Duncan, Docket No. 04-5311-pr (2d Cir. Jan. 19, 2006) (Cabranes and Sack) (Jacobs, concurrence): The Circuit rejects a § 2254 petitioner’s Batson challenge to his state murder conviction. Petitioner Messiah claimed principally that the trial judge failed to rule on his Batson challenge with respect to the prosecutor’s strike of an African-American juror named Woodbury. The record showed that at the first round of jury selection, the prosecution used peremptories against 5 panelists, including Woodbury. Defense counsel objected, claiming that the striking of Woodbury was racially motivated. The court then asked the prosecutor to explain why he struck Woodbury, and he responded that he removed Woodbury because he was a social worker and had a wife who worked for a law firm. After a brief exchange between defense counsel and the court on a somewhat unrelated topic, the court announced, “That’s five, five by the People,” and moved on with jury selection.
The Circuit concluded that on this record, the trial court sufficiently ruled on Messiah’s Batson claim. The third step of the “BatsonThree Step,” Op. 10, “requires a trial judge to make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.” Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). This generally “requires that the trial judge explicitly adjudicate the credibility of the non-moving party’s race neutral explanation for peremptorily striking potential jurors.” Id. However, a judge need not engage in “a talismanic recitation of specific words in order to satisfy Batson,” Galarza v. Keanne, 252 F.3d 630, 640 n.10 (2d Cir. 2001), and “must simply make clear whether he credits the non-moving party’s race-neutral explanation for striking the relevant panelist.” Op. 16.
The Court thus concluded that an “unambiguous rejection of a Batson challenge will demonstrate with sufficient clarity that a trial court deems the movant to have failed to carry his burden to show that the prosecutor’s proffered race-neutral explanation is pretextual.” Op. 17. Although the “prefer[ence]” is for the “trial court to provide express reasons for each credibility determination” at the 3rd Batson stage, “the trial court is not compelled to make intricate factual findings in connection with its ruling in order to comply with Batson.” Id. Thus, “[a]s long as a trial judge affords the parties a reasonable opportunity to make their respective records, he may express his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a clear rejection or acceptance of a Batson claim.” Id. And reading the trial judge’s statement that “That’s five, five by the people,” to mean that he accepted all five of the prosecution’s strikes (including that against Woodbury), the Court rejected petitioner’s argument.
Judge Jacobs concurred in the result, but did not join the majority opinion because he believes that a trial judge must “explicitly adjudicate the credibility of the non-moving party’s race neutral explanations for peremptorily striking potential jurors” at the 3rd Batson stage, Concurrence 2 (emphasis in original), and that this particular judge’s barebones acceptance of the prosecution’s peremptories did not satisfy this standard. Judge Jacobs concurred in the dismissal of Messiah’s § 2254 petition, however, because he found that defense counsel “failed to object to the prosecutor’s non-discriminatory rationale, and thereby failed even to precipitate a step-three Batson adjudication under New York law.” Id.
In People v. Allen, 86 N.Y.2d 101, 111 (1995), the New York Court of Appeals held that “the ultimate burden of proof [borne by the party claiming a violation of Batson] is not satisfied if he raises no claim of pretext” after the adverse party “proffers a race-neutral reason for the relevant strike at step two of the Batson inquiry.” Op. 12. A similar rule exists in this Circuit for federal trials. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (“Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.”).
Judge Jacobs explained that on this record, Messiah failed to abide by Allen‘s “preservation” requirement because defense counsel did not directly respond to the prosecutor’s race-neutral explanation for striking Woodbury. His petition should therefore be dismissed on this ground.