The issue presented is whether the holding in State v. Gilmore, 103 N.J. 508 (1986), that prohibits the State from using peremptory challenges to strike jurors on the basis of group association, is equally applicable to defense challenges. The matter came before this court on a motion by the prosecution for a mistrial during and after the jury selection process in the case sub judice. Defendant stood before this Court on an Indictment which charged him, inter alia, with a second degree offense of Possession of a Weapon for Unlawful Purposes, a conviction which carries an automatic three-year sentence without parole. Defendant is hispanic; the two alleged victims are black. Both attorneys are white.
The import of this opinion is not whether the defense in fact impermissibly excluded, or attempted to exclude, a disproportionate number of jurors from a cognizable group, although this court held it did, but rather to supplement the court's oral opinion on the threshold issue as to whether State v. Gilmore applies to defense challenges also.
During the hearing it was noted that defense counsel had excluded two Blacks in his first three challenges when the propriety of those challenges was initially questioned by the State. The final tally was six Blacks excused in eleven challenges. The prosecution noted that the alleged victims in this matter were of the same race as the excluded jurors. A hearing was then held outside the jury's presence pursuant to the procedures outlined in State v. Gilmore, id. at 533-37.*fn1
It is clear from State v. Gilmore, 199 N.J. Super. 389 (App.Div.1985) and State v. Gilmore, 103 N.J. 508 (1986) that the primary focus of those decisions was on the guarantee set forth in Article I of the New Jersey Constitution "that a defendant in a criminal case is entitled to a jury trial by a fair and impartial jury without discrimination on the basis of race, color, ancestry, or national origin." State v. Gilmore, 199 N.J. Super. at 398; State v. Gilmore, 103 N.J. at 524 (emphasis added). As noted by Judge Coleman in State v. Gilmore, 199 N.J. Super. at 400: "[w]hile the right to a fair and impartial jury is of constitutional dimensions, the right to peremptory challenges is not." Thus, the question is whether the "right to a fair and impartial jury" is a unilateral one for the sole enjoyment of the defendant or whether the community and the victims possess that right also.
The Supreme Court specifically declined to address the issue of whether its finding equally applied to defense counsel challenges. State v. Gilmore, 103 N.J. at 532 n. 6. However, that footnote recognized that a defendant could successfully attempt to exclude minority jurors if he wished:
"[m]ore probable and not at all futile is the latter, which the California Supreme Court addressed in Wheeler:
[W]hen a white defendant is charged with a crime against a black victim, the black community as a whole has a legitimate interest in participating in the trial proceedings; that interest will be defeated if the prosecutor does not have the power to thwart any defense attempt to strike all blacks from the jury on the ground of group bias alone. [ People v. Wheeler, 22 Cal. 3d 258, 148 Cal.Rptr. 890, 907, 583 P. 2d 748, 765 n. 29 (1978)]
The argument for applying Wheeler's limitations to defense counsel is considerably stronger in the [situation where challenges are employed to eliminate or impermissibly reduce jurors who share the victim's cognizable group]." [103 N.J. at 532 n. 6.]
What is a fair trial? Black's Law Dictionary, (5th ed. 1979) defines a fair trial as: "A hearing by an impartial and disinterested tribunal; . . . [a] trial which insures substantial justice
. . . [a] trial before an impartial judge, an impartial jury, and in an atmosphere of judicial calm . . . [a]n adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice." The concept is usually discussed in terms of the accused's right, or the defendant's right, to a fair and impartial trial. The issue is, ...