January 10, 2009

Why did the prosecutor strike the only black person from the jury? Because she was so fat.

That's the reason he gave, anyway:
"I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant."

When asked whether he was saying that race had nothing to do with it, the prosecutor said "that’s correct." And the trial court ruled: "I’m satisfied that is a race neutral explanation, so the strike stands."
Is that a good enough inquiry into whether there was race discrimination? The Second Circuit said no:
[S]uch a conclusory statement does not necessarily indicate — even by inference — that the trial court credited the prosecution’s explanation, especially since (i) the judge’s words suggested that the proffer of a race-neutral explanation was itself enough, and (ii) the explanation given here lends itself to pretext. (Which side is favored by skinny jurors?) Defense counsel later pointed out that several overweight jurors had been seated without objection, but the trial court rejected that further attack on the prosecutor’s motives after visually assessing the jurors’
relative obesity.
Visually assessing the jurors’ relative obesity — discreetly put by the Second Circuit. I checked the case to see what the trial judge actually said: Some people are "a little overweight," but the excluded juror was "grossly overweight."

So now, there needs to be a hearing "to reconstruct the prosecutor’s state of mind at the time of jury selection," or if that is "impossible or unsatisfactory," a new trial. The Second Circuit signaled its disbelief, saying the decision "rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes."

Is there some research on the sympathies of fat people? One might think that they are self-indulgent and will therefore indulge others. As long as there are going to be peremptory challenges, can't the prosecution maintain folk beliefs about what fat people are like?

Too bad there was no picture of the excluded juror and the Second Circuit had to rely on the cold paper record — especially when the trial judge and the prosecutor were under social pressure to be polite. No one described in detail just how fat the excluded juror was. But the point is the judge should have asked more questions before letting the prosecutor exclude the only black juror.

(Technical law point: This was a habeas case, and 28 U.S.C. § 2254(d) only denies habeas relief “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The Second Circuit said that there was no adjudication of the claim at all, and therefore § 2254(d) did not apply.)

28 comments:

chickenlittle said...

Heavier hearts bleed more

mariner said...

"The Second Circuit signaled its disbelief, saying the decision 'rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes.'"

And the Second Circuit's decision rests equally precariously on an intuited correlation between "anything I don't like" and racial discrimination.

somefeller said...

Note to self -- eat three cheeseburgers a day for two weeks before date of jury duty.

Mr. Smarterthanyou said...

This is all a joke. Lawyers try to pick the jurors that they think they can manipulate the best.

We need to end all this jury selection crap. If the juror isn't sleeping with a party, or making money from the case or with a party, they stay on the jury.

Heck, there should be education or IQ standards if anything.

traditionalguy said...

This prosecutor knew he was wrong. Maybe he was just out to test the long required system of racial preferences given in the name of equality. It can be very frustrating to have the Black juror[s] often nullifying the other jurors because they seem to expect a different law to apply to black perpetrators in white courtroom settings.

Jason said...

Sounds like they are harassing the prosecutor. It isn't reasonable for the Second Circuit to expect everyone to analyze every decision to death. And who wants to sit on a jury if you expect the judge to comment on your weight for the record?

AJ Lynch said...

I think there is something to this intuition.

I bet grossly obese people are far more likely to be lazy and have a " woe is me I am a victim mindset".

AJ Lynch said...

Titus is an HR executive. I bet he would agree with the prosecutor.

Bart Hall (Kansas, USA) said...

Given that Ricci is now headed to SCOTUS for review it's not particularly outrageous to suggest that the Second Circuit maintains a certain institutional bias in favour of black people.

It appears at least that their finding in Dolphy v Mantello is broadly consistent with their narrow ruling in Ricci.

The affirmative action industry may finally be losing its traction.

EDH said...

Similarly, I knew a guy (6'5", 300+ pounds, sleeve tattoos) who once came to a performance of the Pittsburg Symphony dressed in a biker vest and a T-shirt that said, "Free Moustache Rides, No Fat Chicks!"

Oh, he was a hoot!

vnjagvet said...

I guess snap hunches about a juror's predispositions are no longer permitted if the juror is in a "protected category".

Preemptory no longer means preemptory.

Learning to be creative in justifying jury strikes now becomes one of the most important weapons in a trial lawyer's arsenal.

Donna B. said...

Of course lawyers want a jury amenable to their side, but physical appearance is not an indicator of intelligence, ability to reason, or ideology.

I've often heard that engineers are not favored as jurors because they are too logical.

If my experience as a juror is any indication, the judge has more influence on jurors than any of the lawyers. The jurors "belong" to the judge.

Advice to lawyers:
1) Don't piss of the jury about something entirely unrelated to the case, ie, watch your body language and facial expressions when you are not questioning the witness.
2) Don't allow your client's behavior in court to become a source of amusement to the jury.

vnjagvet said...

Good advice, Donna.

It is often non-legal matters that drive a jury. A lawyer or client who is a jerk will be deemed a jerk by at least a few jurors. Jerks then generally get treated like jerks.

traditionalguy said...

The best way to control a jury is to figure out in voire dire who will be the foreperson selected and get in good with his/her belief syste in the opening statement. The wild card is always someone from outside the local area's culture. That category now includes the 18 to 23 olds who have never had to work. Perhaps this prosecutor just could not figure out Obese people, especially Black Obese people. But the 12 person jury system is there to protect us from the dangers of Prosecutors Gone Wild. So this prosecutor needs to be told to do his work within the rules and learn by "practicing" how to evaluate all types. By the way, engineers and scientists must always be struct since they will not believe any case that is not proven to a perfection and there are no such cases.

J said...

"physical appearance is not an indicator of intelligence, ability to reason, or ideology"

I would disagree with the last, at the margins. What ever happened to peremptory challenge?

Original George said...

"Defense counsel later pointed out that several overweight jurors had been seated without objection, but the trial court rejected that further attack on the prosecutor’s motives after visually assessing the jurors’ relative obesity."

Sounds like this should be within the discretion of the trial judge. Perhaps the lady was morbidly obese, raising questions about her ability to pay attention and stay awake.

For example, here here is a fat woman. Short, too. With a bad haircut. Clearly, a liberal.

Edgehopper said...

Hm, I wonder if that was why I was struck from the first jury I got called to (it was a 2 defendant gang murder case in Cleveland, OH). Among many reasons for the strike, that is. The voir dire went:

Prosecutor: What is your profession?
Me: I'm a law student.
Prosecutor: Where at?
Me: NYU--New York University School of Law
Prosecutor: Is that in New York?

At that line, the high priced defense lawyer tried (badly) to suppress laughing hysterically. I was the only juror challenged without cause (another was challenged for cause by the defense due to extreme anti-gun biases.)

The funny part is that despite being an obese NYU Law student, I'm actually a pretty far-right law and order type, so while the prosecutor may have been right playing the law of averages, in this case he made a big mistake.

But later that week, I got called for a civil jury in front of a judge who turned out to be married to that foolish prosecutor; she told me the guy just struck all law students as a general rule.

Cedarford said...

Heck, there should be education or IQ standards if anything.

That would "discriminate" against blacks.

But it should be considered. The original jury was not "every person" but one that screened out not only minorities and the women who may not operate in a thinking but a feeling mode, but also the least educated and least productive white males.
And since those ancient days, society has grown much more complex, with very complex technical crimes or civil torts emerging that require at least a modicum of brains to even understand, let alone make a ruling on.
And the appeals courts have tended to make rulings that give deference to jurors that don't try to do their job, fall asleep, do minor misconduct or refuse to participate in deliberations.

40 years ago, a juror that ignored other jurors and did crossword puzzles would have been booted in a heartbeat. The judge let one such person stay in the Atlanta Courthouse murders (an obese black woman, coincidentally enough) stay during murder deliberations. Perhaps because she filled a "magical black quota". She voted for lieniency for the shooter, of course.

traditionalguy said... The best way to control a jury is to figure out in voire dire who will be the foreperson selected and get in good with his/her belief syste in the opening statement.

Not so. The days of people blindly following the foreperson are gone. And jury instructions prohibit the foreperson or other members of the jury from browbeating certain people (overly religious old ladies, kids who have never worked in the real world, and yes, fat black ladies of the Underclass) determined NOT to listen, wanting to acquit or give the lightest sentence possible.

But the 12 person jury system is there to protect us from the dangers of Prosecutors Gone Wild.

Grand juries are simply prosecutor's rubber stamps allowing prosecutors to go wild. Tort case juries that can be swayed by emotions, not facts, are the trial lawyer's best friend. Criminal justice juries give a far more erratic verdict, tend to punish people they are prejudiced against and favor those witnesses, complainants, or defendents they personally like.
We would do better with a Napoleonic system of 3 neutral magistrates than our present jury system.

traditionalguy - By the way, engineers and scientists must always be struct since they will not believe any case that is not proven to a perfection and there are no such cases.

Not so. Lawyers on both sides see value to them...the stereotype on us engineer, scientist, pilot, MD types as perfectionists seeing only black and white is not generally true. Except for trial lawyers working tort cases and some public defender stuck with a guilty as sin defendent, the ones they try to avoid are the emotionally inclined, ignorant people that think they are experts from watching CSI or TV Court dramas...(John Edward's kinda favorite people)
But technically accomplished people in engineering, business, the sciences do generally tend to be more conservative..

Donna B. said...

traditionalguy:
"The best way to control a jury is to figure out in voire dire who will be the foreperson selected and get in good with his/her belief syste in the opening statement."

Not sure about that. For a short trial, maybe. But the one I served on was over two weeks and the guy that got elected foreman the first day had little input except to keep us "moving along".

It wasn't a criminal trial and only 10 of the 12 of us had to agree. We were 9 and 3, the foreman one of the three. He eventually switched sides, I think merely because he wanted to go home.

theobromophile said...

Of course lawyers want a jury amenable to their side, but physical appearance is not an indicator of intelligence, ability to reason, or ideology.

I've often heard that engineers are not favored as jurors because they are too logical.


First things first: unlike almost any other aspect of one's physical appearance, fat (or at least, morbidly obese) is something that the individual has some control over. Arguably, it says a lot about the person, especially when combined with other factors (e.g. an overweight woman who is a very classy dresser may be seen as someone too busy - and successful - to have time to exercise and primp, while someone overweight and unkempt is seen as lazy).

As for engineers: logical, yes. Black and white, not so much. Maybe it's because my engineering background is in physical chemistry and polymers and nanotubes, but the only "black and white" would be those pesky carbon-based splotches that never quite come out of one's Levi's.

Donna B. said...

theobromophile:
"...unlike almost any other aspect of one's physical appearance, fat (or at least, morbidly obese) is something that the individual has some control over."

I won't argue that, but I will say it doesn't matter. Would you see it as fitting to refuse someone on the way they dressed? Say... in conflicting colors? Too bright? All in black? Dyed or spiked hair? Too much or too little makeup?

You're judging internal qualities - mental ability, fairness, and ideology by external appearance. It's nothing more than stereotyping and bigotry.

Believe me, this obese lady would have been thrilled to go home instead of spending the next two weaks paying more in parking fees than the daily rate for jurors.

I sometimes wonder if I was chosen because I tried so hard NOT to be. Lying was out of the question, but I really thought I'd relayed some conflicts and relationships with some of the parties that should have kept me off.

Mitch said...

voir dire - French for jury tampering

I know -old joke

Edgehopper said...

Donna B-

The thing is, stereotyping is what jury selection is all about. To take an extreme example, if I'm prosecuting a criminal copyright infringement case, I'm going to want to strike the 20 year old kid who the judge had to admonish to stop listening to his iPod in court. If I'm prosecuting a gang murder, I'm going to want to kick off the scary looking guy with tattoos on his neck. In a birth defect medical malpractice case, I'm going to want to strike elderly, rational men in favor of yuppie moms. And so on.

PJ said...

Hmmm. I don't think that striking a juror on ground of obesity should be presumed to be a cover for racial discrimination, even if social science says there's no correlation between obesity and acquitity. It's OK to strike a juror for an invalid reason, as long as it's not a discriminatory reason.

However, I still think the Second Circuit was right to send this back. As I understand it, the trial judge was supposed to rule on two distinct questions: (1) is the reason given for the strike discriminatory on its face? and (2) Do I (the judge) believe that the reason given was the actual reason, or do I think the actual reason was discrimination? The second question requires the judge to pass on the credibility of what the lawyer has said, something many judges find awkward or distasteful.

It seems to me that the Second Circuit has said (1) the trial judge failed to expressly rule on the second question, and (2) we don't think the answer to the second question is so obvious that we should assume that the judge's ruling on the first question was meant to decide both. So we're sending it back for the ruling that should have been made the first time.

Ann Althouse said...

PJ, there isn't an argument that it's unconstitutional to discriminate against fat people. There is a presumption of race discrimination that arises because the prosecutor struck the black person from the jury. Then the burden is on the prosecution to show that there was a racially neutral reason for striking the black person. The prosecutor said it was fatness, and the question is whether that was enough to rebut the presumption of race discrimination.

The trial judge bought the argument and the Second Circuit thought that the trial judge didn't even do enough for his decision to be viewed as an adjudication of the issue. If the Second Circuit had merely thought that the judge had decided the issue wrongly, it would have been subject to §2254(d), and the question would have been whether the trial court's decision was an unreasonable application of clearly established Supreme Court case law.

PJ said...

Professor, sorry to go inside baseball, but the thread is old. Based on what's written above, it looks to me as though the Second Circuit determined (correctly) that the trial judge never made a Batson-step-3 ruling. The judge made a step-2 ruling "I’m satisfied that is a race neutral explanation," and then he quit. He never made a finding that obesity was the prosecutor's actual reason for making the strike, a finding he was required to make in order to overcome the presumption of discrimination. So there was no step-three ruling to which deference was owed. I don't think the Second Circuit was saying that further inquiry was needed; I think they were saying further factfinding was needed. In other words, if the court had said "I credit the prosecutor's explanation as describing the true basis for the challenge," that would have satisfied the Second Circuit, even if there had been no further inquiry. If that's not correct, then I think the Second Circuit really has done something new.

Ann Althouse said...

I see your point, PJ. You're saying that the quoted sentence from the judge only means: It is race neutral to strike the the juror because she is fat. I read that sentence to mean: You have satisfied me that you had a race-neutral reason for striking her.

Shanna said...

Lawyers try to pick the jurors that they think they can manipulate the best.

I got called for Jury Duty in December and probably would have been on the jury except they asked a question about red light cameras and if we had any opinions on them and I said that I had read that they caused more accidents. I think having any sort of opinion gets you disqualified.

It does seem strange that they can strike you for no reason at all.