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PEMBERTHY v. BEYER

September 14, 1992

GABRIEL PEMBERTHY, Petitioner,
v.
HOWARD L. BEYER, et al., Respondents.



The opinion of the court was delivered by: H. LEE SAROKIN

 Sarokin, District Judge

 Petitioner Gabriel Pemberthy seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. *fn1" He bases his claim on the State's alleged racially discriminatory use of peremptory challenges in violation of Petitioner's Sixth Amendment right to trial by an impartial jury and Fourteenth Amendment rights to due process and equal protection of the laws. Petitioner is a man of Latino descent challenging the exclusion of all Latino venirepersons from the jury chosen to hear his case. *fn2"

 FACTUAL BACKGROUND

 Voir Dire and Trial

 Petitioner's state criminal trial involved conversations recorded in Spanish and translated into English. The defendants were of Colombian descent, whereas the agents who translated the tapes were of Colombian, Cuban, and Puerto Rican descent. Defense counsel argued in various pre-trial hearings and at trial that certain Spanish idioms have different meanings in different Latin American countries, and thus, some of the State's translations were inaccurate, distorting what was said.

 At trial, the State presented one agent of Colombian descent who "corrected" the translations of the tapes. Trans. of 6/22/92 Hearing at 32 (hereinafter "6/22/92 Trans."). The defense did not produce an expert to challenge the State's translations. Instead, the defense challenged the translations via cross-examination of the agents who translated the recordings. 6/22/92 Trans. at 14-15. Thus, the proper translation of the tapes was a disputed issue of fact for the jury to resolve. The trial judge never indicated that the State's offered translation was the "official" translation for purposes of the trial. Id. at 33, 56.

 The Assistant Prosecutor assigned to the case, Thomas Simon, asked the trial judge to question each potential juror during the voir dire regarding his or her Spanish-speaking ability. Id. at 16. The judge obliged, and five venirepersons identified themselves as Spanish-speakers. The prosecutor struck each of these jurors, resulting in a jury without any Latinos. *fn3" The prosecutor acknowledged that four of these jurors -- Queseda, Casanova, Quinones and Bodet -- were Latino. The ethnicity of the fifth, Catherine Rocca, a high-school Spanish teacher, was not readily apparent and remains unknown. 6/22/92 Trans. at 18; State's Brief to App. Div. (Moncada) at 19 n.4. *fn4"

 The judge further questioned one of these jurors, Mr. Casanova, on his ability to accept the submitted translations over his own understanding of the Spanish language.

 THE COURT: Anybody among you fourteen people who speak Spanish?

 All right, sir.

 If you read and write Spanish, too.

 MR. CASANOVA: Yes, sir.

 THE COURT: How long do you speak it? How well do you speak it?

 MR. CASANOVA: Perfect.

 THE COURT: Pretty well. Okay.

 There will in this case, I know, be a lot of Spanish being spoken. It's going to be, if the jury -- if you're on this jury in this case, you're going to hear some tapes of conversations, telephone calls, and they will be in Spanish predominantly.

 I will give the jury instructions relative to the law involved in this case. There will be some interpreters in the case.

 Would you follow the law as I give it to you, and accept the interpretation as given with respect to the language, and in general follow, as best you can, the case, and not substitute your own versions of what really it's about, but accept what comes through from the Court?

 Can you do that?

 MR. CASANOVA: Certainly.

 THE COURT: See what I mean?

 MR. CASANOVA: Yes.

 THE COURT: There will be interpreters in this case. There will be a lot of discussion about the language There will probably be a lot of legal argument about the language as well.

 And would you, you feel you could be fair and not attempt to give different interpretation to the meaning of the word if, as a result of the testimony, a word is said to mean such and such, even if you . . .

 [The remainder of the testimony has not been supplied.] [1]-16 to [2]-25, Pet. Exhibit A. As is evident from the transcript, Mr. Casanova responded that he could accept and follow the court's translation.

 The judge also questioned Mr. Quesada regarding his ability to follow the court's instructions on the law, to which Mr. Quesada responded affirmatively. 6/22/92 Trans. at 24. The judge did not question Mr. Quesada regarding his ability to accept the translation. Moreover, the judge did not pursue either line of questioning with respect to jurors Quinones, Bonet, or Rocca.

  After the jury was empaneled, defense counsel moved to challenge the jury composition. *fn5" The defense charged that the prosecutor excused every juror who spoke Spanish or who looked Latino. The defense asserted that the prosecution's use of 12 of its 15 peremptory challenges to bar Blacks and Latinos from the jury (resulting in no Latinos at all and four Blacks on the jury) amounted to systematic exclusion which denied the defendant a fair trial by jury. *fn6"

 DEFENSE: The State used, from my calculation, your Honor, twelve of its 15 challenges to exclude black and Hispanic jurors.

 I think, your Honor, there is no question in my mind that from the State's point of view they sought to prevent my client from getting a jury of his peers, and that being Hispanic jurors, and that those challenges were made, your Honor, solely upon the ethnic or racial backgrounds. And, that being the fact, that they were Hispanic . . . I'm not sure if this jury, in any event, could ever deliberate in a fashion that they would give my client a fair trial.

 . . .

 I would suggest to your Honor that that is systematic exclusion, and it is that type of exclusion which is prevented.

 31T:8-25 to 31T:11-19.

 The prosecutor refused to offer a justification for these challenges. He correctly argued that at that time, there was no binding law which could compel him to disclose his motivation for his use of peremptory strikes. 31T:13-18 to 31T:13-22. In the absence of an explanation by the prosecution, the trial judge asserted the possible relevance of Spanish-speaking jurors "second guessing" the English translation of key Spanish conversations.

 THE COURT: By the way, let's get something clear for the record. I think we all agree that we all wanted to know [whether] people spoke Spanish because that was something we all agreed on. We wanted to find out that. In fact, I think it was a request put to me at the very outset.

 . . .

 THE COURT: All right.

 Because of the fact that we're going to have interpreters, and something on tape in Spanish, we at least wanted to know whether or not people might be second guessing the interpreters, or otherwise. I think it was important to know that. So, I agreed it was important to find out, so I asked all the jurors if they spoke Spanish, and several of them did.

 . . .

 THE COURT: Mr. Simon [for the State], do you want to address yourself to that?

 MR. SIMON: Only, your Honor, that I have no New Jersey case which calls for your Honor to ask an Assistant Prosecutor -- to force the Assistant Prosecutor to state why he exercised preemptory [sic] challenges.

 THE COURT: As I understand it, gentlemen, at least in this point in New Jersey, a preemptory [sic] challenge is a preemptory [sic] challenge, I have no right to say to him you shouldn't exercise that challenge, or why did you exercise that challenge. Frankly, I'm not sure that I saw systematic exclusion of any kind. It is true that there were several people who did speak Spanish, and I didn't follow that closely if they were all excused.

 You said they were?

 MR. RAINONE [for the Defense]: They were, your Honor. 31T:12-14 to 31T:14-9. The trial judge then denied the defense counsel's motion for a mistrial based upon prosecutorial discrimination.

 The jury ultimately convicted petitioner of conspiracy to distribute and to possess with the intent to distribute a controlled dangerous substance; possession of cocaine; possession of cocaine with intent to distribute; and theft of services. He is now serving a life sentence with a 25-year parole ineligibility. *fn7"

 Post-Trial Proceedings

 Petitioner filed an appeal with the Appellate Division of the Superior Court of New Jersey on October 24, 1984, which affirmed his conviction. State v. Pemberthy, 224 N.J. Super. 280, 540 A.2d 227 (App. Div. 1988). *fn8" The Supreme Court of New Jersey denied petitioner's application for Certification. State v. Pemberthy, 111 N.J. 633, 546 A.2d 547 (1988).

 Petitioner then filed a Petition for a Writ of Habeas Corpus with this court on January 5, 1989, asserting the three grounds for relief sought in his appellate applications: (1) the State violated petitioner's constitutional rights by failing to minimize and to suppress certain telephone conversations intercepted through a wiretap; (2) the affidavit filed in support of the wiretap failed to establish probable cause, thereby rendering the wiretap unconstitutional; and (3) petitioner's Sixth and Fourteenth Amendment rights to a fair trial by jury were violated by the State's discriminatory use of its peremptory challenges. *fn9"

 This court dismissed the first and second grounds for relief on the merits in an Order signed on July 27, 1989. In the accompanying Opinion, the court further ruled that the third claim had been exhausted in the State courts, and requested that the parties brief the peremptory challenge issue on the merits. On August 8, 1989, petitioner filed a notice of appeal of the dismissal of his first two claims with the United States Court of Appeals for the Third Circuit. The Third Circuit dismissed the appeal as interlocutory on November 2, 1989.

 On May 30, 1991, this court appointed counsel for petitioner for the purpose of briefing the remaining claim based on the State's allegedly discriminatory use of peremptory strikes. The parties completed briefing on March 9, 1992. Upon examining the submissions, the court realized that the prosecutor in petitioner's case had never offered his reasons for the disputed challenges in the context of a Batson hearing. Although on appeal, the Attorney General's office offered possible explanations in defense of the conviction, no court had ever examined the prosecutor's demeanor or inquired as to his actual reasons.

 Although the State Appellate Division implicitly accepted the Attorney General's justification for the prosecutor's use of peremptory challenges as presented on appeal, the Prosecuting Attorney himself did not proffer directly any justification for his peremptory strikes. Indeed, the prosecutor never offered any justification either at the time of trial or on the appeal. Rather, the trial court offered an explanation which the State explicitly adopted in its brief to the Appellate ...


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