Massachusetts Supreme Judicial Court Reverses Murder Conviction Due to Unexplained Exclusion of Black Person from Jury, Despite Sufficient Evidence Otherwise to Convict

SUMMARY: The Massachusetts Supreme Judicial Court (SJC) reversed a conviction for murder. Despite finding that there was sufficient evidence to support the conviction, the SJC found that the Superior Court had abused its discretion and created a constitutional structural error by failing to require the prosecution to give an adequate and genuine race-neutral reason for excluding a certain black person from the jury. The SJC also instructed the Superior Court on issues relating to jury instructions, inadmissible hearsay, and the Fifth Amendment’s bar on self-incrimination.

Jury.Box_
Jury selection and bias.

CASE NAME: Commonwealth v. Jones, 477 Mass. 307 (2017)

DECISION: Unanimous 4-0 (quorum), reversing the Superior Court and vacating the convictions.

JUSTICES/JUDGES:

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RELEVANT FACTS:

  • The defendant was convicted of shooting a man in the middle of the afternoon who was sitting in a car with another person (the car-witness). The victim was killed while the car-witness was also shot and had to be hospitalized.
  • The primary issue at trial was the identity of the shooter.
  • The car-witness did not see the shooter or a gun. Instead, after a few seconds of shock, the car-witness saw a person walking calming away from the scene after the gunshots were fired, and who ignored the car-witness’s yells for help. The car-witness did not see the person’s face.
  • The defendant had grown up in the neighborhood where the shooting took place; frequently visited; and had been in the neighborhood the day of the shooting. After the shooting, the defendant avoided the neighborhood because police presence had increased.
  • Other witnesses (none of whom saw the actual shooting, but heard the shots) described seeing black men of various descriptions leaving the scene, some running and some walking. Several of the witnesses recalled seeing the defendant near the scene shortly after the shooting, and his physical description and clothing roughly matched the description by the car-witness of the person fleeing the scene. One witness identified the defendant as the person running through the park near the shooting a few seconds after it occurred. A few others identified the defendant as being near the scene shortly around the time of the shooting.
  • The cell site location information indicated that the defendant’s cell phone was in the area at the time of the shooting, despite the defendant’s claims that he was at home, which was not in that cell site area.
  • The defendant refused to go to the hospital to be viewed by the car-witness, despite offering to do a test for gunshot residue on his hands.
  • The defendant claimed he was left-handed, but was observed signing a document with his right hand.
  • During jury selection, the prosecution used peremptory challenges to exclude six black people as jurors. One black person was seated on the jury.
  • The defendant challenged the prosecutor’s exercise of the peremptory challenge on the last (sixth) black potential juror. The Superior Court, persuaded by the presence of one black person already allowed on the jury (whom the prosecution had not moved to exclude) declined to require the prosecution to give an “adequate and genuine race-neutral” reason for the strike.
  • On appeal, the defendant argued :
    • That the evidence was insufficient to convict him;
    • That he received ineffective assistance of counsel;
    • That numerous errors required reversal, including:
      • That the Superior Court failed to require the prosecution to explain why it used a peremptory challenge to exclude a black juror;
      • That the Superior Court improperly allowed the admission of evidence as to the defendant’s refusal to go to the hospital to be shown to the surviving witness and as to a police radio broadcast describing the shooter;
      • That the Superior Court incorrectly instructed the jury that circumstantial evidence would suffice while failing to instruct that mere presence was not enough;
      • and that the Superior Court improperly limited the defendant’s cross-examination of a witness.
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Michael Weatherly of the TV show Bull: jury selection expert, extraordinaire

OPINION:

  • The SJC found that there was sufficient evidence to find the defendant guilty: “While not overwhelming, the evidence would have permitted the jury to infer guilt from the combination of the defendant’s presence in the area of the shooting, his consciousness of guilt, and the similarity between his clothing and the clothing worn by the sole person seen fleeing the scene.
  • “A conviction may rest exclusively on circumstantial evidence, and, in evaluating that evidence, we draw all reasonable inferences in favor of the Commonwealth…A conviction may not, however, be based on conjecture or on inference piled upon inference.”
  • The SJC did find that the Superior Court abused its discretion by declining to require the prosecutor to provide an adequate and genuine race-neutral reason for excluding a black person from the jury using a peremptory challenge, and thereby vacated the conviction.
  • “The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights prohibit a party from exercising a peremptory challenge on the basis of race.”
  • “Peremptory challenges are presumed to be proper, but rebutting the presumption of propriety is not an onerous task….[overcoming the presumption is ] merely a burden of production, not persuasion.”
  • The SJC found that the raw numbers of blacks excluded before the challenged exclusion—i.e. five excluded before the challenge to the sixth exclusion—was not conclusive, standing alone.
  • However, the percentage struck by the time of the sixth exclusion—i.e. five blacks excluded to one seated—was enough to secure a prima facie showing of improper race discrimination. Also, on the record, there was also no obvious race-neutral reason for the sixth strike. As a result, the Superior Court should have required an explanation from the prosecutor.
  • Because the error on the peremptory challenge was a structural error, prejudice was presumed, and the conviction had to be overturned, necessitating retrial.
  • The SJC briefly discussed the other issues raised by the defendant and how they should be handled on retrial:
    • Proof that the defendant had refused to go to the hospital to be viewed by the car-witness was tenuously admissible; the only way it could be admitted and not violate the defendant’s fifth amendment rights against self-incrimination would be if the defendant elicited testimony that created the impression of full cooperation with the police.
    • The police radio broadcast, relaying the car-witness’s description of the suspect, should not have been played, as it was inadmissible hearsay.
    • The Superior Court had given the jury the correct instructions on circumstantial evidence.
    • The Superior Court is not required to give an instruction to the jury that the defendant’s mere presence at the scene is not enough to convict. The Superior Court, however, is permitted to give such an instruction if it so chooses.

ANALYSIS:

  • The SJC reiterated that while the Federal and state inquiries into juror exclusion have different focuses, the outcome is the same; it is a distinction without a difference in Massachusetts. There must be, at the heart, an adequate and genuine protected class-neutral reason for the exclusion.
  • It is important for counsel to both note the protected classes, and, if a member of the class is excluded from the jury via a peremptory challenge, to object immediately and make a prima facie showing for a protected-class-neutral reason from the prosecution for the exclusion.
  • Even though a member of a protected class is already seated on a jury, that is no bar to overcoming a the presumption of propriety to a peremptory challenge of another member of the class. Non-exhaustive factors to be considered in making the prima facie showing of wrongful class-based discrimination are:
    • Number and percentage of group members already excluded.
    • The possible objective group-neutral explanation for the strikes
    • Similarities between non-class member people who have also been struck
    • Differences between struck members of the class
    • Whether those excluded are members of the same class as the defendant or victim
    • And the current jury composition.
  • Once a trial court fails to force a prosecutor to give an adequate and race-neutral reason for a strike, that ends any further inquiry; the conviction must be vacated as a structural constitutional error for which prejudice is presumed.
  • The evidence was deemed otherwise sufficient despite no motive asserted, no one seeing the defendant commit the crime, and no weapon found—literally no smoking gun. It is important for counsel to realize that circumstantial evidence, when presented in toto, can be sufficient to find guilt, and to challenge even the most minute of circumstantial evidence.
  • The defendant attempted to analogize Commonwealth v. Mazza, 399 Mass 395 (1987) to claim that his mere presence could not be used to infer guilt. The SJC rejected the analogy because, in Mazza, the defendant’s presence at the scene of the crime had not occurred at the time of the crime, and so could not be used to prove guilt. Here, there was evidence the defendant was at the scene at the time of the crime, and thus could be used to infer guilt.

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