The Court concluded with the following in relevant part: Although no formal Batson/Gilmore evaluation was conducted before the trial court, the detailed record reveals that the circumstances surrounding F.G.’s dismissal allowed for an inference that his removal was based on race — which, again, is a slight burden to establish. F.G., a minority juror, answered all questions posed in a manner that led the trial judge to conclude “he would make a fair and impartial juror.” The State’s justifications for running the check and seeking F.G.’s removal did not rebut the inference of discrimination. In fact, the trial court had already considered and discounted the State’s reasons when the court denied its motion to remove F.G. for cause. And throughout the appellate process, the State has not provided a convincing nondiscriminatory reason for the steps it took to keep F.G. off the jury.
Finally, the evidence in the record reveals, by a preponderance of the evidence, that F.G.’s removal and the background check that prompted it stemmed from impermissible presumed group bias. The Court does not find the trial prosecutors engaged in purposeful discrimination or any willful misconduct. The record here suggests implicit or unconscious bias on the part of the State. Defendant’s constitutional right to be tried by an impartial jury, selected free from discrimination, was violated, and his conviction must be reversed.
The Court considered implicit bias as part of the Gilmore analysis in this appeal. Except for defendant, this new rule of law will apply only to future cases. New Jersey today provides far more peremptory challenges than any other state, based on a nineteenth-century law. But “there can be no dispute that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’” Batson, 476 U.S. at 96. The Court asks the Director of the Administrative Office of the Courts to arrange for a Judicial Conference on Jury Selection to explore the nature of discrimination in the jury selection process. The Court invites the legal community as a whole to take part in a probing conversation about additional steps needed to root out discrimination in the selection of juries. The case is affirmed as modified and remanded for a new trial.
An interesting issue that is likely to arise in the context of jury selection is how courts will handle a situation in which the prosecutor moves to strike for cause and then offers a different reason to strike on peremptory grounds after the basis for cause is rejected. This decision will likely encourage prosecutors to put together a list of alternative reasons that can be mechanically applied in the jury selection process in order to avoid a reasonable inference of bias. It is unlikely to have much positive effect on people’s actual bias.