from the New Jersey Law Journal:
Defense counsel must explain why black potential jurors were peremptorily dismissed at a black employee's wrongful-termination trial, so the judge can decide whether race was a factor, a state appeals court ruled Wednesday.
The court remanded "to allow defense counsel to state the reasons for each of the disputed peremptory challenges" and determine whether those decisions were based on the "constitutionally impermissible grounds of presumed group bias."
Michael Carter, a former LabCorp employee, claimed in his suit against the diagnostic testing company that he was sexually harassed by a female coworker and terminated based on gender discrimination in violation of the state Law Against Discrimination.
During jury selection, Atlantic County Superior Court Judge Nelson Johnson called a sidebar and questioned defense counsel about how many black potential jurors had been dismissed. A defense attorney briefly responded that race had not been a factor.
The record did not show any other objections by Carter or Johnson about the selection process, the panel said, noting that there was some dispute by LabCorp as to whether defense counsel had dismissed two rather than three female potential jurors who were black.
The jury, ultimately consisting of six white males, one white female and one black female, found for LabCorp.
Carter appealed, claiming that the defense used peremptory challenges to excuse three qualified female black jurors in violation of his constitutional right to a fair and impartial jury. A fourth juror excused by the defense, also female, was white.
Appellate Division Judges Ronald Graves and Edwin Stern reversed and remanded the case for defense counsel to "explain the reasons for excluding the potential jurors."
"In the present matter, defense counsel's use of peremptory challenges prompted the trial court to address the issue sua sponte at a sidebar conference," Graves wrote.
He added that "the judge was sufficiently concerned to ask: 'Am I making myself clear?'" after drawing attention to the number of dismissed black jurors.
"Under these circumstances, there was a sufficient showing to establish a prima facie case that discrimination may have infected the jury selection process," Graves said.
He noted that State v. Osorio , 402 N.J. Super. 93 (App. Div. 2008), requires that a party must present enough evidence for a trial judge's inference that discriminatory use of peremptory challenges occurred.
On remand, Carter will have to show by a preponderance of the evidence that defense counsel used its peremptory challenges in a discriminatory manner, the panel noted.
Madeline Sherry of Gibbons in Philadelphia, LabCorp's attorney, deferred comment to Stephen Anderson, the company's vice president of investor relations, who did not return a call.
No appellate counsel appeared for Carter.
John Keefe Jr. of Keefe Bartels in Red Bank, a certified civil trial lawyer, says that while issues of group bias in jury selection do crop up in civil matters, they are more common in criminal proceedings.
"The big issue here is that the court recognizes that peremptory challenges have their limitations," says Keefe, who chairs the New Jersey State Bar Association's Civil Trial Bar Section.
"It's going to be a little bit difficult to go back and make a record this far after the fact," Keefe says of the Carter case, noting that the trial judge might have been exercising an "abundance of caution" in the jury selection process considering it was an LAD case.
Joseph Manzo, a Rockaway solo who regularly tries criminal jury cases, says the appeals decision "makes sense."
"To catch the judge's eye, it seems like there must have been something here" to indicate a questionable use of the challenges, he says.
Manzo adds that it's good practice for trial attorneys, civil or criminal, to make a short note for each potential juror dismissed by peremptory challenge, in case those dismissals are challenged.
