New Jersey Supreme Court refines State v. Gilmore, 103 N.J. 508 (1986), “the Gilmore Jury Preemptory Challenges”, in the recent case, State v. Andrews, ___ N.J. ____ (2013)

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In Andrews the Supreme Court held that the trial court in addressing whether the State or the Defense improperly uses a preemptory challenge to remove a juror based on race, the trial judge can be given more flexibility in fashioning a remedy.

Specifically,  in the Andrews case the trial court determined that the State had established a prima facie case that the defense had excluded a number of jurors based on race.  Accordingly, the burden shifted to the defense to give the court an articulable reason for the decision to eliminate the white juror.  When defense counsel could not give a reason for the decision to eliminate the juror, the trial court overruled the preemptory challenge of the defense and seated the juror. 

The defendant was convicted and appealed, arguing that the trial court exceeded its authority in seating that juror.  The appellate division agreed and held that based on Gilmore the trial court was constrained to discharge the entire panel and start anew with jury selections.

The high court disagreed and held that the Gilmore bright-line is unworkable, and that the trial court can be more flexible in remedying the situation. 

Therefore, the Supreme Court held that Gilmore is accordingly modified and that the trial court is permitted to do any of the following on a case-by-case basis:

1.      Dismissing the empanelled jury member(s) and the venire and beginning jury selection anew;

2.        Reseating the wrongfully excused juror(s), if these juror(s) are still available and not tainted by the preemptory challenge;

3.        Reseating the wrongfully excused juror(s) and ordering forfeiture by the offending party of his or her improperly exercised peremptory challenge(s);

4.        Permitting trial courts to require challenges to prospective jurors outside the presence of the jury; granting additional peremptory challenges to the aggrieved party;

5.        A combination of these remedies as the individual case requires. Every decision to invoke a remedy must assure a fair trial to all and elimination of the taint of discrimination.

From the prospective of this criminal defense attorney it appears that trial judges will now grant Gilmore applications more frequently based on the options now available to them.