Was Juror’s Exclusion Racially Motivated? Appellate Court Orders Hearing

TRENTON – A Cape May County prosecutor’s use of a peremptory challenge that excused the only qualified African-American juror from a trial in which the defendant was African-American resulted in a state Appeals Court April 23 order for a new hearing as to the basis for that juror’s removal.
The case was argued April 10. The opinion of the court was written by Judge Michael J. Haas.
In the decision, the appellate court focused on the excusing of Juror 13, an African-American female, from the trial of Markees Pruitt. He was on trial for May and June 2009 sales of illicit drugs to an undercover investigator in Wildwood.
Pruitt, 29, is incarcerated at South Woods State Prison, Bridgeton, serving a maximum nine-year sentence imposed July 28, 2011. His charges included possession and distribution of controlled dangerous substances within 500 feet of public housing and school property.
The court wrote, “We hold that because there was only one qualified member of the cognizable group in the jury panel; the defendant was also a member of that same group; the prosecutor failed to ask the juror any follow-up questions; and, other than her race, the juror was as heterogeneous as the community as a whole, the trial judge should have required the prosecutor to explain his non-discriminatory reason for the challenge.”
“In May and June 2009, Detective Tyler Parker of the Cape May County Prosecutor’s Office was assigned to conduct an undercover investigation of illegal drug sales in Wildwood…On May 1, Detective Parker met with a confidential informant, who arranged a meeting between the detective and an individual later identified as the defendant (Pruitt).”
The detective drove an unmarked truck to a specified location where he met Pruitt, who got in, and the pair drove on as they discussed buying of CDS. The detective agreed to pay $100 for some crack cocaine.
The transaction was watched by Detective Kevin McLaughlin from a surveillance location. “After defendant left the truck, the detective followed him on foot and saw him enter the door to a second-floor apartment of an apartment building,” the court wrote.
On May 4, Detective Lakeisha Davis showed Parker a group of photographs. He selected Pruitt’s photograph as the person who had sold him the crack cocaine.
Parker made three additional undercover purchases of cocaine from Pruitt, on May 14, May 29 and June 12. All took place in the same manner. All were within 1,000 feet of school property or 500 feet of public property, the court wrote.
On June 26, police obtained a search warrant for the second-floor apartment. There they found Pruitt, a female who rented the apartment and her brother.
Police recovered a bag of cocaine from Pruitt’s pocket and a larger bag of cocaine from a trash can. Pruitt was subsequently arrested. The female testified on Pruitt’s behalf stating he was a “good friend,” but did not live with her. She believed the cocaine in her apartment “may have belonged to a former boyfriend.”
Pruitt was tried on a 13-count indictment and convicted of the following: four counts of third-degree distribution of cocaine, three counts of third-degree cocaine distribution within 1,000 feet of school property, four counts of second-degree distribution of cocaine within 500 feet of public property, third-degree possession of cocaine and possession of cocaine with intent to distribute.
In his appeal, Pruitt contended:
• “The trial judge erroneously ruled that the state was not required to give reasons for its use of a peremptory strike to remove the only African-American juror from serving in the case.
• “The sentence was excessive in light of the circumstances of the offense and the court’s erroneous analysis of the applicable aggravating and mitigating factors.
• It was improper to use the multiple controlled buys as an aggravating factor. The sentence for CDS possession should not have been imposed consecutive to the distribution sentences. Five-year sentence was excessive and unsupported by reasonably credible evidence.
When the trial judge “conducted the standard juror voir dire (questions asked of potential jurors)…Juror 13 stated she had never served on a jury before, had no close family members or friends who were in law enforcement, and knew no one who had been affected by drug or drug abuse. She also stated that she could remain impartial in light of the numerous counts of the indictment, would listen to the evidence with an open mind, and agreed that a defendant on trial did not have to prove his innocence, present any evidence, or testify on his own behalf.”
She replied that she worked at Woodbine Developmental Center for 20 years, held a high school diploma and was attending a university. Additionally, she told the court she as married with three children, and her husband was employed in Wildwood. Neither the prosecutor nor Pruitt’s defense attorney asked her any further questions.
When the requisite 14 jurors were found to be qualified, the judge asked the prosecutor if he wished to make any peremptory challenges. He replied with five, including Juror 13.
Immediately, the defense attorney sought a side-bar with the judge, and objected to the prosecutor’s use of the peremptory challenge against Juror 13, since no African-Americans would remain on the jury.
The attorney cited a Supreme Court decision (State v. Gilmore) and asked that the judge require the prosecutor to explain why Juror 13 had been excused in order to determine whether there was a valid reason or because of her race.
The prosecutor “declined to divulge his reasons for excusing the juror and argued that defendant had failed to make ‘any threshold showing’ to require him to explain the basis for his challenge.
The judge then denied the defense attorney’s motion and continued noting he was “uncomfortable” with the ruling, Nevertheless, the judge concluded Pruitt did not demonstrate “substantial likelihood” that the challenge “to the only qualified African-American juror in the jury pool was made for a discriminatory purpose and, therefore, he denied defendant’s motion.”
The judge found that “in order to establish a prima facie case,” Pruitt had to show a “substantial likelihood” that the prosecutor’s use of the challenge to Juror 13 was discriminatory. He also indicated that the defendant had not “drawn an inference of discriminatory purpose.”
The Appeals Court concluded, “He (the trial judge) mistakenly found that defendant was required to ‘establish a prima facie case by showing substantial likelihood that peremptory challenges were used for discriminatory purposes’ Thus the judge imposed a more stringent standard than Osorio (a state case) dictates when determining that defendant had not made out a prima facie case.”
The appellate court found that Pruitt had produced sufficient evidence to draw an inference that the challenge to Juror 13 had been made for a discriminatory reason. The court noted she “appeared to be” well qualified and, “unlike the other four jurors who were challenged…the reason for her dismissal was far from evident.”
According to the Appeals Court ruling, “The judge should have required the prosecutor to present a non-discriminatory explanation for striking her.” If a pattern of discrimination could be found, the defense should have attempted to demonstrate it, but in this case there was no such pattern, the court found. In this case, the court said the challenge “raised the inference needed” to require a prosecutor to give an explanation for the action. Further, it felt such a requirement would not be an “unreasonable burden” on the state, and would serve the interest of justice.
The appellate court found no reason to change Pruitt’s sentence.
“If the remand hearing does not disclose a constitutional violation, defendant’s convictions and sentence are affirmed,
“Remanded for a haring as to the constitutionality of the prosecutor’s peremptory challenge, and if found constitutional, affirmed,” the court ruled.