A public service Blog presented to the People by the
Law Office of Vincent J. Sanzone, Jr.,
Esq., 277 North Broad Street, Elizabeth, N.J. 07207 (908) 354-7006
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.
