On certification to the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 93 (2008).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In 2001, Oscar Osorio and a minor were arrested by police for engaging in illegal transactions outside an abandoned house in Newark, New Jersey. Osorio was charged with various drug offenses. During jury selection at Osorio's April 2002 trial, the prosecutor used her first six peremptory challenges to strike four African American jurors and two Hispanic jurors. Defense counsel objected, requesting that the panel be discharged and that they begin again in light of what appeared to be an impermissible use of the prosecutor's peremptory challenges to exclude minority participation on the jury. The trial judge denied the request but cautioned the prosecutor and stated that any subsequent challenges would be scrutinized more seriously. The prosecutor used her very next peremptory challenge to strike another African American from the jury panel, precipitating another objection from defense counsel. At sidebar, the trial judge was satisfied with the prosecutor's explanation that Juror Number 11 was excluded for sleeping during the majority of jury selection, which created a concern for the juror's attention level during trial. At the conclusion of trial, Osorio was convicted on several drug charges and sentenced to an aggregate term of imprisonment for seven years, subject to an aggregate five-year period of parole ineligibility.
The Appellate Division affirmed Osorio's convictions and sentence but remanded the matter to the trial court for the prosecutor to justify the use of her peremptory challenges. The panel determined that the trial court had violated the principles set forth in State v. Gilmore and State v. Watkins by failing to require the prosecutor to come forward with evidence that the use of her first six peremptory challenges to excuse minority jurors was justifiable on the basis of situation-specific bias. The appellate panel reasoned that the prosecutor's use of her first six peremptory challenges to excuse minority jurors constituted prima facie evidence that she used those challenges in a discriminatory manner and that once that finding had been made, the trial court should have required the prosecutor to provide situation-specific reasons for the exercise of those peremptory challenges. The matter was remanded to the trial court for a Gilmore hearing to determine that if the State satisfied its burden of proving that the exercise of the contested challenges was justifiable on the basis of concerns regarding situation-specific bias. If so, the trial court would then have to determine whether Osorio has carried the ultimate burden of proving, by a preponderance of the evidence, that the State exercised its peremptory challenges on constitutionally impermissible grounds of presumed group bias.
On the remand conducted more than three years after the disputed jury selection, the prosecutor referred to her original notes to provide to the court the non-race specific and non-discriminatory reasons why she excused the first six jurors: 1) Juror Number 4, an African-American male, had a brother who had been arrested for narcotics; 2) Juror Number 8, an African-American female, had been a victim of car theft, had both a friend and relative in law enforcement, and had a brother convicted of a crime and incarcerated for two years in State prison; 3) Jurors Number 9 and Number 10, both Hispanic females, were giggling and "high-fiving" the dismissal of another juror, and were making faces; 4) Juror Number 12, an African-American female, with two relatives in law enforcement, felt the person or persons responsible for her father's murder "got off;" and 5) Juror Number 14, an African-American male, was sleeping and not paying attention during jury selection. The trial judge, who had not retained his own trial notes and had no separate recollection of the original jury selection process, accepted without qualification the explanations put forth by the State without hearing from Osorio's trial counsel. The trial court concluded that Osorio had not carried the burden of proving by a preponderance of the evidence that the prosecutor exercised peremptory challenges on unconstitutionally impermissible grounds. Osorio's attorney moved to supplement the record and for reconsideration, focusing on the two Hispanic females, which was denied by the trial court.
On appeal, the Appellate Division reversed Osorio's convictions and remanded for a new trial, finding that the State used its peremptory challenges in a discriminatory manner. The panel noted the trial court's failure to consider whether the prosecutor extended even-handed consideration to the circumstances that a relative had been a crime victim -- the purported reason for excusing Juror Number 12 -- to non-minority whites. The panel also found fault with the trial court' failure to consider the composition of the jury that was ultimately selected to try Osorio. The panel remanded for a new trial rather than a second Gilmore hearing because more than six years had elapsed since the trial and no additional information could be elicited to further explain the prosecutor's exercise of the questioned peremptory challenges.
The Supreme Court granted certification.
HELD: The Court slightly refines the methodology to be applied in gauging bias claims in the jury selection process, reaffirming that a three-step process must be employed whenever it has been asserted that a party exercised peremptory challenges based on race or ethnicity. Step one requires that, as a threshold matter, a party contesting the exercise of the challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity, which can be established through sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. The trial court must ascertain whether the explanations are pretext or present a reasoned, neutral basis for the challenge. Once that analysis is completed, the third step is triggered, requiring the trial court to weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of the peremptory challenge has proven that the challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
1. The standard established in State v. Gilmore -- that the presumption in favor of the constitutionality of a peremptory challenge can only be rebutted if it is demonstrated that there is a "substantial likelihood" that a peremptory challenge was based on a constitutionally infirm basis -- requires updating. Johnson v. California, decided nineteen years after Gilmore, clarified and moderated that standard, making clear that the burden to overcome the presumption of constitutionality of a peremptory challenge exercise is far less exacting than was originally stated in Gilmore. Under Johnson, a defendant satisfies the requirements of the first step by producing evidence sufficient to draw an inference that discrimination has occurred. The Court imports the Johnson modification into the standard applicable to the first step of the Gilmore test. (Pp. 13-19)
2. As now modified, the standard can be satisfied in various ways. Among the factors a court must look to are whether: the prosecutor struck most or all of the members of an identified group from the venire; the prosecutor used a disproportionate number of peremptory challenges against the group; and the challenged jurors are the same race as the defendant. If a party contesting the exercise of a peremptory challenge satisfies its initial burden and rebuts the presumption of constitutionality, the second Gilmore step is triggered. The burden then shifts to the party exercising the challenge to come forward with evidence that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias. The proponent of the challenge must articulate clear and reasonably specific reasons for exercising each of the questioned challenges. (Pp. 19-22)
3. Once step one and step two of Gilmore have been met, the third step comes into play, requiring the trial court to determine whether the party contesting the peremptory challenge has carried the ultimate burden of proving, by a preponderance of the evidence, that the proponent of the challenge exercised it on constitutionally impermissible grounds of presumed group bias. The court must consider whether the reasons proffered in defense of the challenge are reasonably relevant to the particular case on trial or its parties or witnesses. The proffered reasons for the exercise of the challenge must be shown to have been applied even-handedly to all prospective jurors. The court must also look to the overall pattern of the exercise of the peremptory challenges and the composition of the jury ultimately selected to try the case. (Pp. 22-25)
4. In this case, the trial court did not engage in the three-step analysis Gilmore mandates. In the circumstances presented here, the remand hearing was nothing more than the quintessential "too little, too late." On the current record, the Court refrains from making a determination whether the State's peremptory challenges in fact were impermissibly grounded on group bias or were properly the subject of situation-specific biases. In view of the passage of time, the incompleteness of the record, and the absence of a searching judicial review, there is no other reasonable or significant alternative to the remedy ordered by the Appellate Division - vacating Osorio's conviction and remanding the case for a new trial. (Pp. 25-28)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE RIVERA-SOTO'S opinion.
The opinion of the court was delivered by: Justice Rivera-soto
One of our most cherished rights is the right to trial by a fair and impartial jury. We zealously guard that right by, among other things, requiring that the jury selection process be free of racial or ethnic taint. When it has been discerned that impermissible bias has infected the selection of a jury, we have not hesitated to excise that cancer and require a new trial, one where prejudice and hatred have no place.
We refine slightly the methodology to be applied in gauging bias claims in the jury selection process, reaffirming that a three-step process must be employed whenever it has been asserted that a party has exercised peremptory challenges based on race or ethnicity. Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
In 2001, defendant Oscar Osorio and a minor were observed by the police as they engaged in illicit drug transactions outside an abandoned house in Newark. Defendant and his juvenile accomplice were arrested, and defendant was charged with various drug offenses. During jury selection at defendant's April 2002 trial, the prosecutor used her first six peremptory challenges -- striking jurors numbers four, eight, nine, ten, twelve and fourteen -- to strike four African-American jurors and two Hispanic jurors. Those actions gave rise to the following objection from defense counsel at sidebar:
[DEFENSE COUNSEL]: Judge, I'm always hesitant to bring up this subject, but so far the Prosecutor has exercised four [peremptory challenges] against African Americans and two against Hispanic females. My client is a Hispanic male. I'd ask that this panel be discharged, and we start the process over. My client has a right to be judged by his peers and not to have certain groups of people excluded.
THE COURT: I understand your request, and [defense counsel] is accurate in his description of the race and nationality of the individuals [the prosecutor] did excuse, but as we were going through it I, generally, without making complete notes, could see for the most part that there were other reasons in which those individuals could have been excused ---whatever the motives are. I think because of that, that I'm going to deny your request. I will, however, in light of the prima facie evidence, give the appropriate caution to the State in that regard, and to indicate to you, [prosecutor], that your subsequent --- don't feel you ...