(Reuters) – The New Jersey Supreme Court issued a remarkable opinion last week that makes vital changes to how the state court system views discrimination, and begins to address a little-known practice of conducting criminal history checks on prospective jurors.
The justices’ unanimously awarded a new trial in State v. Edwin Andujar on July 13, after reviewing Andujar’s conviction for murdering his roommate in 2014.
In doing so, the court opinion explicitly recognized unconscious racial bias as a form of illegal discrimination.
Implicit bias “is no less real and no less problematic than intentional bias,” Chief Justice Stuart Rabner wrote. “From the standpoint of the State Constitution, it makes little sense to condemn one form of racial discrimination yet permit another.”
That portion of the ruling, in and of itself, is momentous, in terms of aligning the judiciary with the abundance of social science research on implicit bias. It leaves no doubt that discrimination claims can be based entirely on unconscious bias.
And there were other noteworthy holdings.
The court set standards on when and how jurors can be subjected to background checks by prosecutors and established a process for challenging those investigations if discrimination is suspected. The justices also called for a judicial conference on jury selection — which means the ruling could eventually result in even more much-needed reform to that process.
It’s a rare and commendable decision to re-examine the longstanding, difficult questions about how to eliminate discrimination in jury selection.
Katherine Carter, public information officer for the Essex County Prosecutor’s Office, which handled Andujar’s case, told me they’re still reviewing the ruling.
“We believe the assistant prosecutor who tried the case acted in good faith based on the caselaw at the time” and “we do not believe that the prosecutor acted with any racial bias,” Carter said. “We respect the ruling of the court and will apply it during retrial and any other cases going forward.”
The undisputed facts about the proceedings make a pretty compelling case, on their own, that at least some implicit bias was at play.
One of the prospective jurors at Andujar’s trial was F.G., a Black man from Newark who worked for the East Orange Department of Public Works.
F.G. mentioned two family members who were cops. He’d grown up in a neighborhood with a lot of crime, and some of his friends had sold drugs. Crime victims also were part of his circles, including two cousins that were murdered, and a friend who was robbed at gunpoint.
“I think it just come[s] with the territory,” F.G. said.
F.G. stressed that he stayed away from criminal activity, the court said. He stated that he believed the judicial system was generally effective.
Prosecutors challenged F.G. for cause – meaning they argued he couldn’t be impartial or wouldn’t follow court instructions. They said his friends and background “draw into question whether he respects the criminal justice system,” according to the opinion.
Defense attorneys responded that F.G.’s story was typical for certain neighborhoods. The state’s position was “untenable” because it excludes too many people from places like Newark from serving on juries, Andujar’s counsel said.
The lower court rejected the prosecutors argument, saying there was no basis to dismiss F.G. for cause.
That’s when the prosecution took a turn.
County attorneys ran a criminal history check on F.G., and found an open municipal court warrant for simple assault (which includes attempting to physically harm another person, and physically threatening someone).
Prosecutors then contacted the city fugitive squad to have F.G. arrested before the next day of jury selection. When that didn’t pan out, they told the judge they were going to lock F.G. up during the next court date, and they renewed their for-cause challenge. The court ultimately arranged to excuse F.G. and have him arrested outside the other jurors’ view.
After all that, the charges against F.G. were dropped two months later. It also bears noting that an outstanding warrant doesn’t actually bar someone from jury service in New Jersey.
On appeal, the Supreme Court noted that the “practice of running background checks on prospective jurors raises a question of first impression.”
Prosecutor’s said it’s “extremely rare” for them to investigate jurors’ criminal records. But there are indications that the practice is more common than one might imagine.
I asked attorney Dennis Drasco, a member of Lum, Drasco & Positan in New Jersey, about the prevalence of the practice. Drasco has served on multiple panels and commissions to study and improve jury selection for over a decade, both with the state judiciary and with the American Bar Association.
“The problem is that a lot people don’t even realize the effect of certain practices,” Drasco said. The court’s ruling as to implicit bias “is a wake up call” that the problematic practice exists, he said.
The Supreme Court in Andujar’s case said it couldn’t question “the State’s good-faith belief that it had the authority to run the background check.” Even defense counsel didn’t formally object when the government moved to arrest F.G. — a prospective juror who wouldn’t have been arrested otherwise — as an apparent means of excluding him from the pool. (Defense attorneys did put concerns on the record that prosecutors singled out a juror for a background check, and that the move implicated constitutional due process concerns.)
The deference to the prosecutors’ move by the court and opposing counsel suggests the practice isn’t entirely uncommon, and the high court’s review of case law also shows the practice is at least generally accepted.
Iowa allows prosecutors to conduct background checks on jurors for good cause, and with a court order. At least six states allow it if prosecutors also disclose the information to defense attorneys. Just as many states, at least seven, “impose no such limits on the prosecution,” the court said.
New Jersey’s new rules require court permission before checking a juror’s criminal history – and a “reasonable, individualized, good-faith” reason to believe it might reveal pertinent information that may not be uncovered by jury questionnaires or voir dire. Certain explanations will be considered presumptively invalid, the court said, including checking jurors’ backgrounds simply because they express a distrust of law enforcement or lived in a high-crime neighborhood. And, if prosecutors move to strike a juror based on the results, the defense can still challenge that strike as discriminatory.
It’s a solid start, and the court clearly believes there’s more work to be done.
“Although the law remains the same, our understanding of bias and discrimination has evolved considerably since the nineteenth century,” the justices wrote. “It is time to examine the jury selection process” and “consider additional steps needed to prevent discrimination.”
The state’s Judicial Conference on Jury Selection will begin in the fall.
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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at firstname.lastname@example.org