Patterico's Pontifications

1/12/2009

Striking Obese People from a Jury

Filed under: General — Patterico @ 7:41 am



The WSJ Law Blog says:

Here’s a good one: What inquiry must a trial court undertake when a prosecutor cites “obesity” as the reason for using a peremptory challenge to strike the only African-American from the jury pool?

In the case, the prosecutor struck an overweight black juror, saying: “I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.” The judge ruled: “I’m satisfied that is a race neutral explanation, so the strike stands.”

Here’s what the Second Circuit said, according to the entry:

[S]uch a conclusory statement does not necessarily indicate — even by inference — that the trial court credited the prosecution’s explanation, especially since (i) the judge’s words suggested that the proffer of a race-neutral explanation was itself enough, and (ii) the explanation given here lends itself to pretext. (Which side is favored by skinny jurors?) Defense counsel later pointed out that several overweight jurors had been seated without objection, but the trial court rejected that further attack on the prosecutor’s motives after visually assessing the jurors’ relative obesity.

Because the trial court failed to assess the credibility of the prosecution’s explanation, it follows that there was no adjudication of Dolphy’s Batson claim on the merits. . . .

I haven’t read the case and don’t have the time at the moment. Without reading the case, I can’t criticize it. However, based on that snippet, the holding seems odd; it sounds to me like the judge did accept the explanation as valid. Otherwise why talk about other jurors’ obesity relative to that of the stricken juror?

When/if I get a chance I’ll read the case and comment, but this sounds strange to me.

19 Responses to “Striking Obese People from a Jury”

  1. If the case were some civil fast food is poison issue or a guy accused of stealing twinkies, I might buy it. The rules are clear, no preemptions based on race. The guy must be a pretty bad lawyer if he could not justify his strike better than this.

    Joe (17aeff)

  2. I’m curious whether, given your experience picking jurors, you believe there is validity to the prosecutor’s theory that overweight jurors favor defendants.

    Copyrights & Campaigns (2d68f4)

  3. I presume that such presumptions occasionally have validity.
    My wife tried to get jury duty moved to summer when she, a teacher, would be freer.
    The scheduler said that if they did that they’d have a bunch of all-teacher juries. What, exactly, was wrong with that was not specified.
    And I recall a tort lawyer bragging that, in searching for a deep pocket (the insurance company of the kid sitting in the back seat), he got a blue-collar Italian American seated because he knew/thought that type of person could be counted upon to overlook the stupidity of suing the insurance company of the kid sitting in the back seat for an auto accident caused by the driver of the other car. Something about family and so forth.
    So I don’t see a problem with obesity. Not any dumber than any other.

    Richard Aubrey (a9ba34)

  4. Is there be any situation where a juror would have standing to sue if he believed he was kicked off a jury unfairly?

    From The Runaway Jury:

    Herman Grimes didn’t move, didn’t even flinch. He just looked at whatever he could see and said, “Why?”
    “I beg your pardon.”
    “Why do I have to leave?”
    “Because you’re blind.”
    “I know that.”
    “And, well, blind people can’t serve on juries,” Harkin said, glancing to his right and then to his left as his words trailed off. “You’re free to go, Mr. Grimes.”
    Herman Grimes hesitated as he contemplated his response. The courtroom was still. Finally, “Who says blind people can’t serve on juries?”…
    “You want to serve, Mr. Grimes?” he said, trying to force a lighthearted moment as he flipped pages and looked at the wealth of legal talent assembled nearby. Mr. Grimes was growing hostile.
    “You tell me why a blind person can’t be on a jury. If it’s written in the law, then the law is discriminatory, and I’ll sue. If it ain’t written in the law, and if it’s just a matter of practice, then I’ll sue even faster.”
    There was little doubt that Mr. Grimes was no stranger to litigation … [and the judge] quickly decided to placate Mr. Grimes and deal with him later … “On second thought, Mr. Grimes, I think you’d make an excellent juror. Please be seated.”
    Herman Grimes nodded and smiled and politely said, “Thank you, sir.”

    aunursa (1b5bad)

  5. Does this open the door for skinny people to slip thru the cracks too?

    Ropelight (d40bc3)

  6. I saw this linked on Drudge:
    Husband deemed too fat to adopt…

    zmdavid (26c604)

  7. Is there be any situation where a juror would have standing to sue if he believed he was kicked off a jury unfairly?

    What damages would he claim? His life is no worse for his not being on the jury.

    Steverino (69d941)

  8. Is there be any situation where a juror would have standing to sue if he believed he was kicked off a jury unfairly?

    No (leaving aside judicial immunity). Judges are often substituted out without cause, too. Cases are not about judges or jurors. That judge should have told Mr. Grimes where he could stick his lawsuit. And if I had been a lawyer in that case, I would have peremptoried the resentful blind bat out. I don’t need his agenda when my client’s liberty is at stake.

    nk (2a3e35)

  9. Oh wait a second! This juror was black! That falls into this catagory!

    Joe (dcebbd)

  10. Another reason to get rid of that weight!

    love2008 who will now be known as Emperor7 (1b037c)

  11. It seems to me that obesity was used as a pretext to strike an African-American from the jury.

    David Ehrenstein (ca6f57)

  12. According to this book review, Stephen Adler says Gerry Spence picks jurors based in part on their weight and sex:

    Legal gunslinger Gerry Spence, in the same situation, reportedly has favored overweight jurors on the grounds that, as Stephen Adler puts it, “fat people lacked self-control and wouldn’t demand as much law-abiding discipline from others,” and also preferred men to women because “men had more experience with hell-raising and were more forgiving of it.”

    I don’t know if Spence really picked jurors like that but it wouldn’t surprise me. I know several trial lawyers who have specific, idiosyncratic ideas about juror profiles they like and don’t like.

    I haven’t read this case either but I think this was a pro se defendant. If so, my gut reaction is the result might have been different if he had been represented by counsel. Judges typically dread pro se litigants but I think appellate jurists occasionally enjoy cases by pro se criminal defendants who advance novel ideas. I call it Gideon vs Wainwright Syndrome.

    DRJ (345e40)

  13. Most habeas corpus or 1983 petitions are pro se. There is no right to appointed counsel for indigent defendants in proceedings which are not themselves as of right (usually trial and first appeal). A federal magistrate with the help of staff attorneys reviews it for merit and “briefs” it himself for decision.

    nk (2a3e35)

  14. Batson, itself, is a very narrow rule. If there is an overwhelming right, it is to a fair venire. There is no absolute right to a jury of your race or even one that fairly reflects your community. I think this case is borderline. It can go either way.

    nk (2a3e35)

  15. The Second Circuit opinion in Dolphy vs Mantello. (Registration may be required but it’s free.)

    DRJ (345e40)

  16. Here’s what it sounds like to me:

    The Magistrate found that the “trial court misapplied Batson when it accepted the prosecution’s proffered race-neutral explanation without assessing credibility or pretext.” The trial court and state appeals courts apparently held there was no requirement under Batson to “make an explicit credibility determination” regarding the prosecutor’s proffered explanation. The Second Circuit held there was and since the trial court accepted the explanation without further inquiry, it did not satisfy the Batson test.

    The fact that the defendant was black and the overweight juror was the only black on the panel was probably also a factor, as was the suggestion that there were other overweight jurors.

    DRJ (345e40)

  17. […] | Tags: crime & punishment, law & order, society Patterico links a weird story about a juror struck by the prosecutor for being obese.  Apparently the prosecutor claimed that “heavy-set people tend to be very sympathetic […]

    The Case Of The Hot Prosecutor « Rhymes With Cars & Girls (ea1fd5)

  18. Surely the reason given – “I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.” – merits question. – What is the ‘reading and past experience’ that is claimed? – Is this personal claim true? – If it is true, is it valid? Is there reputable research to support the challenge? – If it is not true, what is the underlying reason for challenge?

    Margaret Wilde (e7335e)


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