48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (emphasis supplied). Although disparate impact does not conclusively prove discriminatory purpose, Hernandez, 111 S. Ct. at 1867, courts may consider the impact on the racial group in question as evidence of a pretext for racial discrimination. Id. at 1868. Therefore, the fact that blanket, undifferentiated exclusion of Spanish-speaking jurors will exclude virtually every member of the Latino community, in addition to other Spanish speakers, can contribute towards a finding of discriminatory purpose.
The State's argument that the prosecutor also struck a potentially non-Latino Spanish teacher does not dissuade the court from its conclusion of pretext. Aside from the possibility that Ms. Rocca may well have been Latino, the fact that Ms. Rocca was swept into the prosecutor's category of strikes does not minimize the prosecutor's admission that he did not care what any Spanish-speaking person had to say given his assumptions about bilingual Spanish speakers. For the same reason, the additional, acceptable, non-discriminatory bases for striking Ms. Quinones does not diminish the prosecutor's admission regarding juror Quesada. The Third Circuit has ruled that "the exclusion of one [member of the defendant's racial group] from the jury on the basis of race is sufficient to require a new trial pursuant to Batson." Harrison v. Ryan, 909 F.2d 84 (3d Cir. 1990) (holding that a new trial is warranted for a petitioner for habeas corpus where the prosecutor could not remember his justification for one Black juror at the Batson hearing). Thus, the intentional discriminatory strike of even one juror justifies setting aside the conviction. The strike of juror Quinones, even if justified, does not refute pretext with respect to jurors Casanova, Quesada, Bodet, and (possibly) Rocca. Similarly, the facts surrounding juror Rivera and the two Portuguese jurors do not refute pretext where the court finds purposeful discrimination with respect to other excused jurors. See generally U.S. v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (leaving some members of racially cognizable group on jury does not defeat prima facie case).
In this case, given the clearly foreseeable race-differential impact of striking Spanish-speaking jurors, coupled with all of the aforementioned inconsistencies and lack of credibility with respect to the prosecutor's racial distinctions, the court makes the specific factual finding that the prosecutor at petitioner's trial purposefully intended to discriminate against Latinos.
As the foregoing citations reflect, the Supreme Court has recently recognized what judges and lawyers have known for decades: Peremptory challenges have been used to discriminate with the acquiescence of the courts. Peremptory challenges traditionally have been based upon stereotypes, bias and prejudice and the insulting assumption that membership in a particular race, religion, nationality, gender or occupation is a reliable predictor of a juror's ultimate verdict.
With the recognition of this prevailing practice, the Supreme Court has attempted to establish a procedure to combat it. Counsel engaged in apparently discriminatory challenges are required to furnish non-discriminatory explanations for their peremptory strikes. As a result, the discriminatory practices are unlikely to diminish; rather, the ingenuity of counsel to explain their actions is likely to expand. Furthermore, the procedure places the trial judge in the awkward position of determining the credibility of the explanations proffered by counsel. It will require the trial court, as the court does here, frequently to make findings which impugn the integrity of honorable and dedicated prosecutors such as Mr. Simon. This decision imputes bad motives to him where none may have existed.
The issue presented here requires the court to determine under what circumstances an apparently relevant and otherwise acceptable reason is merely a surrogate for discrimination or a pretext for it. The complexity and subtlety of such inquiries and the need to explore the credibility of counsel should cause us to reexamine the need to retain peremptory challenges. Although they clearly serve a useful purpose in permitting the parties an active role in jury selection and a means for discharging unacceptable prospective jurors where it is difficult to articulate a challenge for cause, they also provide a means of skewing random jury selection, insulting those who are discharged without reason or explanation, and a vehicle for promoting discrimination in an institution dedicated to its destruction.
As detailed above, the court finds that the prosecutor at petitioner's trial has offered a race-based reason for striking at least three Latinos from the jury at petitioner's trial. Accordingly, under the applicable law, the court must set aside petitioner's conviction. In addition, even if the prosecutor's explanation were to be considered race-neutral, the court finds that the proffered explanation is in fact a pretext for the prosecutor's race-based peremptory strikes.
For the foregoing reasons, the court will grant petitioner's application for a writ of habeas corpus. Counsel for the petitioner should submit an appropriate order consistent with this Opinion, and the court will enter a compatible order in the case of Moncada v. Rafferty, et al., Civ. No. 89-1276 (HLS). The court will enter these orders, subject to objections by the Respondent, unless within 90 days, the State indicates its intention to re-prosecute the petitioners or files a notice of appeal from this court's orders, in which case these orders will be stayed pending determination of the appeal.
H. LEE SAROKIN, U.S.D.J.
Date: September 14, 1992