Commonwealth v. Roberto Lopez-Ortiz

APPEALS COURT

COMMONWEALTH vs. ROBERTO LOPEZ-ORTIZ

Docket:

23-P-295

Dates:

March 28, 2024 – February 12, 2025

Present:

Rubin, Englander, & D'Angelo, JJ.

County:

Middlesex

Keywords:

Constitutional Law, Jury. Jury and Jurors. Practice, Criminal, Jury and jurors, Challenge to jurors.

Indictments found and returned in the

Superior Court Department on April 3, 2014.

The cases were tried before Kathe M.

Tuttman, J.,

David J. Nathanson (Mark W. Shea also

present) for the defendant.

Jamie Michael Charles, Assistant District

Attorney, for the Commonwealth.

Lori J. Shyavitz, Leah R. McCoy, &

Oren Sellstrom, for Lawyers for Civil Rights & others, amici curiae,

submitted a brief.

ENGLANDER, J. In 2017, the defendant was convicted of

felony-murder in the second degree, with the predicate felony being unarmed

assault with intent to rob. The murder

occurred after the defendant and several accomplices attempted to rob the

victim at the victim's apartment in Lowell.

On appeal the defendant raises several issues, all but one of which we

dispose of this day in an unpublished memorandum and order pursuant to our Rule

23.0.

This opinion addresses the final issue the

defendant raises, as to which the panel is not unanimous. The defendant argues that the prosecutor

improperly utilized a peremptory challenge to strike a prospective juror

(designated juror no. 3) because of the juror's Hispanic ethnicity, and that

the judge erred in allowing that strike over the defendant's objection. The prosecutor provided a lengthy explanation

for the strike during jury selection, and the defendant contends that the

reasons given were "not race neutral," citing in particular that the

prosecutor, in explaining the strike, referenced statements by the juror

regarding the apparent lack of Hispanic people in the jury venire. The dissenting judge in this court also

claims that the prosecutor's reasons were not race neutral, citing the

prosecutor's references both to the jury pool comments, as well as the juror's

objection to a question on the juror questionnaire.[1] We perceive no error in the judge's decision

to allow the peremptory strike. As

discussed below the prosecutor's reasons were not based on race, but upon the

juror's answers and observed demeanor, which reasons the judge specifically

found were both "genuine" and "adequate." As we discern no error, the judgment is

affirmed.

Background. 1. The

crime. The evidence at trial showed that

on December 18, 2013, the defendant, Roberto Lopez-Ortiz, and three others, including

Jonathan Rivera and Donte Okowuga, decided to commit a robbery. Okowuga had two guns, one of which he gave to

Rivera prior to the attempted robbery.

Testimony differed on whether Rivera thereafter gave the gun to the

defendant.

The four men drove to the victim's

building and entered it, encountering the victim in the entrance to his

apartment. The men entered the

apartment, at which time Okowuga pointed a gun at the victim while the other

men, including the defendant, attacked him.

The victim managed to get away and ran out of the apartment.

Three of the men thereafter left the

building. The victim returned to the

building, where the fourth man, who had remained just outside the apartment,

shot and killed the victim. The

defendant testified that Okowuga was the assailant who stayed behind at the

victim's apartment, whereas Rivera and Okowuga testified that the defendant had

remained behind.[2]

2.

The jury selection process. The

trial took place in February and March of 2017.

During the second day of jury empanelment the trial judge directed questions

to the venire as a whole, including whether there was "anything about the

nature of this case as I've described it to you that would affect your ability

to be a fair and impartial juror."

Juror no. 3 raised his hand to this question.

The trial judge then questioned juror no.

3 individually, beginning by asking why the juror indicated that the nature of

the case might affect his ability to be fair and impartial. Juror no. 3 replied:

"Because I

looked at the jury pool and I don't feel that [the defendant] has his peers out

there. I don't see any Spanish people

out there or anything like that and I feel that he should be, if he's going to

be, life and death like that there should be some of his people out there."[3]

The trial judge clarified that her

question was whether there was "anything about the nature of the case as I

described it that would affect [juror no. 3's] ability to be a fair and

impartial juror," to which juror no. 3 responded, "Oh, no, no, not at

all."

The trial judge also inquired about juror

no. 3's answer to question 18 on the juror questionnaire, which asked, "Do

you believe that Dominicans or Puerto Ricans are more likely to [sic] than

other members of ethnic groups to commit crimes?" Juror no. 3 had written: "No.

I do not approve of this question."

Juror no. 3 replied, "I don't like those questions, I never did, I

don't think they're proper at all."

The trial judge then explained that the purpose of the question was to

determine whether the venirepersons were biased or prejudiced and asked,

"Does that help you understand the reason for the question?" Juror no. 3 responded, "Sure."

The judge asked about a driving under the

influence case that the juror disclosed on his confidential juror

questionnaire, and asked when it had occurred.

Juror no. 3 said, "I had gone to Florida, that was maybe four years

ago and one in Maine around '13."

The judge asked him, "[H]ow were you treated by the police and the

prosecutors who were involved in handling your matters?" The juror replied, "Down in Florida very

disgusting." The judge then asked,

"And how about in Maine?" to which the juror responded, "Very

nice." The judge asked, "Would

your experiences with either of those cases affect your ability to be fair to

both sides in this case?" The juror

said, "Not at all because I'm in Massachusetts."

The judge then allowed follow-up

questioning by the parties, and the prosecutor asked, "If you were seated

on the jury and you felt that the rest of the panel did not adequately make up

a jury of the defendant's peers; would that affect your ability to be fair and

impartial as a juror in this case?"

The juror said, "No, not at all, I'd put that aside." The prosecutor then asked, "So, you

would be able to put aside any beliefs that you had?" The juror replied, "Yes, I would,

correct."

The trial judge found juror no. 3 to stand

indifferent, but the prosecutor subsequently challenged the juror for

cause. In doing so, the prosecutor

stated several reasons:

"The fact

that, I think he gave a number of answers that were troubling. The fact that he had what he described as a

disgusting experience when he had an incident in Miami, as well as his initial

reaction to the make-up of the jury pool.

"While he

did answer a question saying that he could put that aside, he had to think

about it for a while. That gives the

Commonwealth pause about whether he really can be fair and impartial to both

sides in this case given what he came in with.

Clearly some dis[d]ain about even the question that is on the

questionnaire. And even when you

explained to him the reason for the question, I believe it was No. 18, his

response was just, 'Sure,' it didn't seem to the Commonwealth that he was

satisfied with the reasons why that question was there."

The trial judge

declined to excuse juror no. 3 for cause, but concluded her ruling by stating,

"If you want to exercise a peremptory you may do so."

The prosecutor then exercised a peremptory

challenge. The defendant objected and

raised a "Soares" challenge, arguing that the peremptory was based in

part on juror no. 3's Hispanic ethnicity.

See Commonwealth v. Soares, 377 Mass. 461, 488-489 , cert. denied, 444

U.S. (1979), overruled in part by Commonwealth v. Sanchez, 485 Mass. 491

(2020). The trial judge stated that she

did not find a pattern, and additionally stated that the reasons provided by

the Commonwealth for the for-cause challenge were an adequate and genuine

explanation for the peremptory. Out of

"an abundance of caution," however, the trial judge asked the

prosecutor to state her reasons for the peremptory.

The prosecutor stated:

"Your Honor,

as previously stated, the reason for the Commonwealth's objection and use of

the peremptory, is that the Commonwealth does not believe that this juror can

be fair to the Commonwealth. It has

nothing to do with this juror's race particular to him, it is based on the

answers to the questions that he came in here and stated and indicated his

issues that he had with police previously, his beliefs that he feels that the

defendant cannot get a fair trial.

"And while

he said that he could put that aside, the Commonwealth does not believe that he

is in a position to give the Commonwealth a fair trial based on his

beliefs. Again, going back to the

questionnaire where he was, he seemed upset or offended in some way about the

particular question, No. 18, 'Do you believe that Dominicans or Puerto Ricans

are more likely than members of other ethnic groups to commit crimes?' And even upon your explanation, it is the

Commonwealth's opinion that he did not seem satisfied by saying very

flippantly, 'Sure.' And that his

attitude coming into this trial, again, having nothing to do with his race,

gives the Commonwealth concern and pause and that is why the Commonwealth has

exercised a peremptory."

The trial judge

then explicitly found that the above rationale was both "adequate"

and "genuine."

Discussion. On appeal, the defendant argues that the

trial judge erred in allowing the Commonwealth to strike juror no. 3. The State and Federal Constitutions forbid a

party from exercising a peremptory challenge on the basis of a juror's

race. See Soares, 377 Mass. at 486,

488-489 . See also Batson v. Kentucky,

476 U.S. 79, 89 (1986). The court in

Soares held that there was "a legitimate and significant role for the

peremptory challenge," but that the use of peremptory challenges to

exclude members of discrete groups on the basis of that affiliation violated

art. 12 of the Massachusetts Declaration of Rights. Soares, supra at 485-486, 488 .

The law of peremptory challenges has

evolved some since Soares, and can be summarized as follows. If a peremptory challenge is objected to, the

trial judge must apply a burden-shifting analysis. "We generally presume that peremptory challenges

are made and used properly during jury selection." Commonwealth v. Kalila, 103 Mass. App. Ct.

582 , 587 (2023), quoting Commonwealth v. Mason, 485 Mass. 520 , 529 (2020). A party who challenges a peremptory strike

must overcome the presumption of propriety by showing that "the totality

of the relevant facts gives rise to an inference of discriminatory

purpose." Sanchez, 485 Mass. at

511, quoting Johnson v. California, 545 U.S. 162, 168 (2005).

If the judge finds that the challenging

party has met his burden in showing an inference of discrimination, the burden

shifts to the party seeking to exercise the peremptory challenge to proffer a

"bona fide" nondiscriminatory justification for the peremptory. Kalila, 103 Mass. App. Ct. at 587-588. A bona fide explanation is one that is both

"genuine" and "adequate."

Commonwealth v. Maldonado, 439 Mass. 460, 464 (2003). The Supreme Judicial Court explained the

standard as follows:

"An

explanation is adequate if it is 'clear and reasonably specific,' 'personal to

the juror and not based on the juror's group affiliation' (in this case race),

and related to the particular case being tried.

Challenges based on subjective data such as a juror's looks or gestures,

or a party's 'gut' feeling should rarely be accepted as adequate because such

explanations can easily be used as pretexts for discrimination. An explanation is genuine if it is in fact

the reason for the exercise of the challenge. . . . An explanation that is perfectly reasonable

in the abstract must be rejected if the judge does not believe that it reflects

the challenging party's actual thinking."

(Emphasis added; citations omitted.)

Id. at 464-465 .

We review a judge's decision to allow a

peremptory challenge for abuse of discretion (or other error of law). See Mason, 485 Mass. at 530. An abuse of discretion occurs when the trial

judge made "a clear error of judgment in weighing the factors relevant to

the decision, such that the decision falls outside the range of reasonable

alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169 , 185 n.27

(2014). In doing so we give great

deference to the findings of the trial judge, who saw, heard, and participated

in the exchange with the prospective juror.

See Kalila, 103 Mass. App. Ct. at 590, and cases cited ("We of

course give deference to the fact finding of trial judges, who see and hear the

witnesses and the counsel in real time in the court room").

In this case, the trial judge found that

the justification provided by the Commonwealth for its peremptory challenge was

both adequate and genuine.[4] As noted,

the prosecutor began her explanation by stating that "the Commonwealth

does not believe that this juror can be fair to the Commonwealth." It bears emphasis that in response to the

judge's question to the venire, "[i]s there anything about the nature of

this case as I've described it to you that would affect your ability to be a

fair and impartial juror?" the juror himself raised his hand. When asked why, the juror stated:

"Because I

looked at the jury pool and I don't feel that [the defendant] has his peers out

there. I don't see any Spanish people

out there . . . and I feel that he should be, if he's going to be,

life and death like that there should be some of his people out there."

The prosecutor cited this answer both

times that she provided an explanation for her concerns about the prospective

juror, and she cited other answers the juror gave as well. As set forth above, the prosecutor also cited

an experience the juror had with police in Florida that the juror described as

"disgusting." And, the

prosecutor cited concerns about the manner in which the juror answered

questions, which would not be apparent from the cold transcript that we review

on appeal. The prosecutor noted that

while the juror subsequently stated that he could put aside his concerns about

the make-up of the jury pool, the juror "had to think about it for a

while." The prosecutor also cited

the way the juror responded to questions and statements from the judge, which

the prosecutor described as "flippant[]."

It was not an abuse of discretion for the

judge to find that the above reasons were "adequate" -- that is,

"clear and reasonably specific, personal to the juror and not based on the

juror's group affiliation, . . . and related to the particular case

being tried" (quotation omitted).

Maldonado, 439 Mass. at 464-465 .

Indeed, a fact-based concern that a juror cannot be fair and impartial

is the sine qua non of the pretrial juror evaluation process. Many years ago in Soares, the Supreme

Judicial Court reaffirmed the legitimacy of peremptory challenges as a means of

"assuring the parties 'that the jurors before whom they try the case will

decide on the basis of the evidence placed before them, and not

otherwise.'" Soares, 377 Mass. at

485 , quoting Swain v. Alabama, 380 U.S. 202, 219 (1965). In light of the above answers, the prosecutor

may well have been concerned that juror no. 3 would view the case, not through

the lens of the facts presented and the law provided, but through the lens of

the race of the defendant and perceived unfairness of the system. The judge could certainly find that such

concerns about the impartiality of a prospective juror were not based on race,

and are an adequate basis for exercising a peremptory challenge.

The Supreme Judicial Court's opinion in

Commonwealth v. Williams, 481 Mass. 443 (2019), supports this conclusion. In Williams, a prospective juror was excused

for cause after saying that she believed "the system is rigged against

young African American males." Id.

at 444 . The court held that the judge's

assessment of the juror's impartiality was "incomplete," because the

judge's questioning had failed to recognize that the juror's general belief about

the system would not necessarily render her incapable of being impartial in the

case at bar -- more questioning was required.

Id. at 446-447 . However -- and

importantly for this case -- the court held that the defendant was not

prejudiced by the exclusion of the juror for cause, because the Commonwealth

had a peremptory challenge available for use at the end of jury selection,

which challenge could have been used for the prospective juror. Id. at 453-454 . In so holding, the court implicitly recognized

that although the juror's expressed belief that the criminal justice system is

rigged against a racial group was insufficient to excuse a juror for cause,

such an expressed belief would be an adequate basis to exercise a peremptory

challenge. See id.[5]

In short, the trial judge did not abuse

her discretion, or commit an error of law, in finding and ruling that the

prosecutor's reasons were adequate.[6]

The defendant argues that the prosecutor's

concern as to juror no. 3's impartiality derived from the fact that juror no. 3

and the defendant were both Hispanic, and thus that the prosecutor's concern

was "not race neutral," because "the prosecutor's argument

assumed that the juror's shared race would cause him to be biased." The defendant's argument, however, misstates

what the prosecutor said and what the judge found. The prosecutor stated that her concerns arose

from juror no. 3's statements regarding the makeup of the venire and thus the

possible unfairness of the trial, the juror's prior experiences with the

police, and also the manner in which the juror answered questions. These concerns arose out of facts personal to

the juror, and the judge found them adequate and genuine. See Maldonado, 439 Mass. at 464 . The record

does not show that the prosecutor's concern as to impartiality was based upon

juror no. 3's race.[7]

The dissent goes all out in criticizing

the result we reach, but the dissent suffers from several basic flaws. Most importantly, the dissent ignores the

findings of the trial judge, treating them as irrelevant. But we are not engaged in de novo

review. The question of counsel's

"genuineness" is a question of fact.

See Maldonado, 439 Mass. at 465 ("An explanation is genuine if it

is in fact the reason for the exercise of the challenge"). The question of "adequacy" is more

of a mixed question of law and fact, but there can be no denying that the

adequacy determination has a significant factual component; in making an

adequacy determination a trial judge must determine and evaluate what reasons

are actually being advanced, based on a colloquy with counsel (and often, the

juror) that is unstructured and often shifting.

Most important, the ultimate question for the judge is whether the

party's strike was "motivated . . . by," or "based on"

the prospective juror's race (here, ethnicity).

See Flowers v. Mississippi, 588 U.S. 284, 303 (2019), quoting Foster v.

Chatman, 578 U.S. 488, 513 (2016) ("The ultimate inquiry is whether the

State was 'motivated in substantial part by discriminatory intent'");

Commonwealth v. Burnett, 418 Mass. 769, 771 (1994). The question of motivation is fundamentally a

question of fact, and the trial judge is far better positioned to make that

determination than we are on appellate review.[8] See Burnett, supra ("the judge must

. . . decide whether the challenges were exercised improperly because

they were based on the juror's membership in a discrete group. Once the judge decides that an adequate

reason exists for exercising the challenge, an appellate court will accord

substantial deference to the decision if it is supported by the record").[9]

Unconstrained by the judge's findings, the

dissent conducts its own de novo review of what the prosecutor said. For example, the dissent states that "in

this Commonwealth where a Latino man is struck for expressing concern about an

all-white[10] jury hearing a Latino's murder trial, that strike is 'based on

race.'" Post at

(Rubin, J., dissenting). But this statement is erroneous on two

fronts. First, the dissent's

characterization is not a fair summary of what the prosecutor actually

said. As discussed above, the prosecutor

was concerned about the substance and manner of the juror's answers to several

questions, writ large. The prosecutor specifically cited, for example, the

juror's demeanor when he was asked if he could "put . . .

aside" the make-up of the jury pool.

Picking through paragraphs of reasons to isolate two of the prosecutor's

statements takes them out of their larger context and recasts the thrust of the

prosecutor's expressed concerns. And

second, the dissent is wrong when it suggests that its proposition must be

accepted as a matter of law. Rather,

under our cases the prosecutor's statements must be evaluated for whether the

strike is motivated by race, and we as an appellate court do not do our own

fact finding. The trial judge found that

the reasons given were genuine and adequate, and on this record that was

neither an abuse of discretion nor an error of law.[11]

In sum, the trial judge did not err in

allowing the Commonwealth's peremptory challenge of juror no. 3. The judgment and the order denying the

renewed motion for a new trial are affirmed.

So ordered.

D'ANGELO, J. (concurring). Because we grant great deference to the trial

judge's findings on whether a permissible ground for a peremptory challenge has

been shown, I feel constrained to concur in the majority's decision. See Commonwealth v. Kalila, 103 Mass. App.

Ct. 582 , 590 (2023) ("We of course give deference to the fact finding of

trial judges, who see and hear the witnesses and the counsel in real time in

the court room"). I, like Justice

Lowy in his concurring opinion in Commonwealth v. Sanchez, write separately to

urge the Supreme Judicial Court to reevaluate the three-step analysis

established in Commonwealth v. Soares, 377 Mass. 461, 492 , cert. denied, 444 U.S. 881 (1979), overruled

in part by Sanchez, 485 Mass. 491 (2020), and eliminate the first step

requiring a prima facie showing that a challenge is based on race or other

protected status. See Sanchez, supra at

517 (Lowy, J. concurring). Additionally,

I wish to emphasize the need for clear and concise findings in matters related

to alleged race-based challenges during jury selection.

Discussion. 1.

Batson-Soares challenges. Article

12 of the Massachusetts Declaration of Rights, and the Sixth and Fourteenth

Amendments to the United States Constitution, guarantee a criminal defendant

"the right to a trial by an impartial jury." Commonwealth v. Susi, 394 Mass. 784, 786

(1985). See Soares, 377 Mass. at

492 . Pursuant to these same protections,

the Commonwealth may not exercise a peremptory challenge on the basis of race

or other protected classes. See Sanchez,

485 Mass. at 493.[1]

"A challenge to a peremptory strike,

whether framed under State or Federal law, is evaluated using a [three-step]

burden-shifting analysis" (quotation and citation omitted). Commonwealth v. Ortega, 480 Mass. 603, 606

(2018). "First, the burden is on

the objecting party to establish a 'prima facie showing of impropriety'

sufficient to 'overcome[] the presumption of regularity afforded to peremptory

challenges.'" Commonwealth v.

Henderson, 486 Mass. 296 , 311 (2020), quoting Commonwealth v. Robertson, 480

Mass. 383, 390-391 (2018). If the judge

finds that a prima facie case has been established, "the burden shifts to

the party attempting to strike the prospective juror to provide a group-neutral

reason for doing so." Commonwealth

v. Jones, 477 Mass. 307, 319 (2017).

Finally, the judge must "evaluate[] whether the proffered reason is

adequate and genuine" (quotation and citation omitted). Robertson, supra at 391 .

Trial judges have extraordinary tasks

during jury trials. Selecting a jury can

be time consuming and arduous depending on the circumstances. Currently, in determining whether a prima

facie case of discriminatory impropriety has been established, a judge must

consider all relevant circumstances, including all of the excluded jurors and

the similarities in their race, differences compared to the challenged juror,

and the composition of the jurors already seated. See Batson v. Kentucky, 476 U.S. 79, 96-97

(1986). This can prove a herculean task

-- especially if jury selection spans numerous days. Much of our appellate analysis over the years

has been spent deciding whether a judge abused their discretion in finding that

a prima facie showing has been made.[2]

Additionally, the first step in the

analysis forces judges to find "that the challenging attorney may have

engaged in discriminatory conduct."

Sanchez, 485 Mass. at 517 (Lowy, J., concurring). Such a task "often requires the judge to

make a finding of discriminatory intent concerning an attorney whose ability

and integrity the judge respects based on years of the judge's

experience." Id. "One can understand a judge's reticence

to do so, and perhaps even a fellow attorney's as well, in the face of what

appears to be minimal evidence of discriminatory purpose." Id.

Recently, the Supreme Judicial Court

described the first step of the analysis in greater detail:

"As to the

first step of the Batson-Soares inquiry, the presumption of propriety is

rebutted when the totality of the relevant facts gives rise to an inference of

discriminatory purpose. Specifically,

the inquiry is merely a burden of production, not persuasion. Because establishing a prima facie case of

impropriety is not an onerous task, we have long cautioned that judges should

think long and hard before they decide to require no explanation from the

prosecutor for the challenge and make no findings of fact." (Quotations and citations omitted.)

Commonwealth v.

Carter, 488 Mass. 191 , 196 (2021).

Notably, however, the court has

"persistently urged, if not beseeched" judges to elicit group-neutral

explanations regardless of whether the first prong of the inquiry has been

satisfied. Sanchez, 485 Mass. at 515

(Lowy, J., concurring).

Judges, like the one in this case, should

not spend time determining whether the burden of persuasion of step one has been

met. It is often a time consuming,

clumsy, and difficult endeavor.

Therefore, it is time for the first step of this analysis to be

eliminated.[3] Once an attorney objects

to a peremptory challenge arguing that it is race based, the burden should

immediately shift to the challenging party.

If the challenge is not race based, the attorney who seeks to have the

juror excluded should immediately provide the reason. This should not be difficult because there

should not be any discriminatory intent involved. The judge should carefully observe what

happens next, because

"[t]he

[attorney's] own demeanor -- the furtiveness of a glance, the hesitation in

giving a response, or the frantic reading of the juror questionnaire before

proffering an explanation may provide valuable clues as to whether even a sound

reason for the challenge is genuine or merely a post hoc justification for an

impermissibly motivated challenge."

Commonwealth v.

Maldonado, 439 Mass. 460, 466 (2003).

In this case, the trial judge went to

great lengths to decide whether a prima facie showing was made and reiterated

this fact repeatedly. The judge

emphasized that she did not find a pattern in the challenges. Under this suggested approach to eliminate

the first inquiry following the invocation of a peremptory challenge, the judge

would turn to the challenging party to provide the reason(s) for the challenge

immediately. Such an approach would

spare the judge from the complicated and difficult inquiry into the objecting

party's prima facie showing. Instead, it

would place the burden on the challenging party to immediately give an answer

as to why they challenged the juror.

2.

Findings. Ultimately, the trial

judge has the difficult task of making factual and credibility determinations

of an attorney's explanation for a peremptory challenge. See Commonwealth v. Prunty, 462 Mass. 295,

313 (2012) (judge's decision on ultimate question of discriminatory intent

represents finding of fact). The Supreme

Judicial Court has explained that

"[t]he

determination whether an explanation is bona fide entails a critical evaluation

of both the soundness of the proffered explanation and whether the explanation

(no matter how sound it might appear) is the actual motivating force behind the

challenging party's decision. In other

words, the judge must decide whether the explanation is both adequate and

genuine.

"An

explanation is adequate if it is clear and reasonably specific, personal to the

juror and not based on the juror's ground affiliation . . . and

related to the particular case being tried.

Challenges based on subjective data such as a juror's looks or gestures,

or a party's gut feeling should rarely be accepted as adequate because such

explanations can easily be used as pretexts for discrimination. An explanation is genuine if it is in fact

the reason for the exercise of the challenge.

The mere denial of an improper motive is inadequate to establish the

genuineness of the explanation. An

explanation that is perfectly reasonable in the abstract must be rejected if

the judge does not believe that it reflects the challenging party's actual

thinking." (Quotations and

citations omitted.)

Maldonado, 439

Mass. at 464-465 .

Therefore, a judge is "obligated to

make a specific determination or specific findings, in some form"

regarding the adequacy and genuineness of an attorney's proffered reasons for a

peremptory challenge. Commonwealth v.

Benoit, 452 Mass. 212, 221 (2008).

In this case, the trial judge requested

that the prosecutor provide a race-neutral reason for exercising a peremptory

challenge as to juror no. 3. The

Commonwealth responded:

"Your Honor,

as previously stated, the reason for the Commonwealth's objection and use of

the peremptory, is that the Commonwealth does not believe that this juror can

be fair to the Commonwealth. It has

nothing to do with this juror's race particular to him, it is based on the

answers to the questions that he came in here and stated and indicated his

issues that he had with police previously, his beliefs that he feels that the

defendant cannot get a fair trial.

"And while

he said that he could put that aside, the Commonwealth does not believe that he

is in a position to give the Commonwealth a fair trial based on his

beliefs. Again, going back to the

questionnaire where he was, he seemed upset or offended in some way about the

particular question, No. 18, 'Do you believe that Dominicans or Puerto Ricans

are more likely than members of other ethnic groups to commit crimes?' And even upon your explanation, it is the

Commonwealth's opinion that he did not seem satisfied by saying very

flippantly, 'Sure.' And that his

attitude coming into this trial, again, having nothing to do with his race,

gives the Commonwealth concern and pause and that is why the Commonwealth has

exercised a peremptory."

The majority writes that, "[i]n this

case, the trial judge found that the justification provided by the Commonwealth

for its peremptory challenge was both adequate and genuine." Ante at . Although the judge did use that phraseology,

it was primarily in conjunction with the judge's initial finding that there had

not been a showing of prima facie pattern.

Specifically, the judge stated:

"That said,

I will state that in the Court's view based on what [the prosecutor] already

said about her reasons for requesting an excuse for cause of this juror,

although I didn't find it sufficient for a basis for cause I do find it

sufficient if I were to find a pattern I would find there was an adequate and

genuine rationale that has nothing to do with the ethnicity of this juror

because of the reasons [the prosecutor] put on the record previously. So, that is my ruling, I am not finding a

pattern.

". . .

"Okay, but,

[defense counsel], remember I have not asked the Commonwealth to justify their

exercise of a peremptory because I have not found that a pattern has been

established, so that's where we are in terms of this exercise. What I did state was, if we got to that point

I was persuaded that there was an adequate and genuine reason. We haven't even gotten to that point because

on the record that is before me based on my observations of this juror and the

entire course of this empanelment, I am not persuaded that there is a

pattern."

I agree that it was not an abuse of

discretion for the judge to find that the above reasons were

"adequate." However, the judge

should have made more clear and concise findings regarding the prosecutor's

reasoning regarding the challenge. The

judge simply concluded that "the Commonwealth [was] entitled to make a

decision on the basis of body language and other observable characteristics of

a potential juror." The judge went

on, "[T]he Commonwealth . . . may exercise a

peremptory on the basis of information that they legitimately believe would

make that person a juror who could not be fair to both sides."

When an attorney challenges a juror --

even partially -- based on their answers being "flippant[]" or on

their attitude, the judge should make specific and clear findings. Demeanor-based reasons "should rarely be

accepted as adequate because such explanations can easily be used as pretexts

for discrimination." Maldonado, 439

Mass. at 465-466 . Based on a transcript

alone, an appellate court cannot ascertain the veracity of the attorney's

perceptions. Thus, we need the benefit

of substantial judicial findings regarding observations made of the jurors and

attorney alike.

RUBIN, J. (dissenting). As the court majority correctly indicates, a

peremptory challenge based even in part on race or ethnicity violates the State

and Federal constitutional rights of the defendant.[1] Race- or ethnicity-based challenges (what

courts refer to collectively as race-based challenges) are so serious a matter,

that "a Batson-Soares error constitutes structural error" requiring

in every case vacatur of the conviction and a new trial. Commonwealth v. Jones, 477 Mass. 307, 325-326

(2017).[2]

In this case, at least some of the

prosecutor's given reasons for her peremptory challenge were race based, not

race neutral. That should be the end of

the inquiry. Other arguably race-neutral

reasons, whether legitimate or not, put forward by the prosecutor do not

protect the peremptory strike from invalidation, or disentitle the defendant to

a new trial with a jury selection process not tainted by a peremptory challenge

in part motivated by race.

To reach the contrary result, the court

majority abdicates our well-settled responsibility to determine which proffered

reasons are race- or other protected group-based. Contrary to the teaching of the Supreme

Judicial Court, the majority explicitly renders the protection in this

Commonwealth against racial discrimination in jury selection weaker,

eliminating decades of antidiscrimination law by freeing a party from the need

to articulate a race- or other group-neutral explanation for its peremptory

strike after a judge has found a prima facie case of discrimination. See ante at n.6. It thus critically weakens the protections

against discrimination set out by the Supreme Judicial Court in Commonwealth v.

Soares, as broadened in Commonwealth v. Sanchez, and these cases' progeny. See Commonwealth v. Soares, 377 Mass. 461 ,

cert. denied, 444 U.S. 881 (1979), overruled in part by Commonwealth v.

Sanchez, 485 Mass. 491 , 511 (2020).

Given this court's unfortunate and unwarranted action, it will be up to

the Supreme Judicial Court to restore Massachusetts antidiscrimination law to

what it was before today's decision.

Background. To begin with, the facts of the crime of

which the defendant was convicted are described in part in the body of the

majority opinion in a way that may cast him in a false light. To the extent that any the facts are

relevant, the jury in this case concluded that the defendant was not armed and

was not the shooter. He was acquitted of

murder in the first degree, armed home invasion, and armed assault with intent

to rob. He was convicted, rather, of

unarmed assault with intent to rob, and, with that as the predicate crime,

felony-murder in the second degree, a judge-made crime "of questionable

origin," that "eroded the relation between criminal liability and

moral culpability," and that ceased to exist in this Commonwealth 187 days

after the defendant's conviction, but for which he was sentenced to, and is now

serving a sentence of, life imprisonment (quotations and citations

omitted). Commonwealth v. Brown, 477

Mass. 805, 825, 826, 832 (2017).

1.

Facts about jury selection.

During the general voir dire portion of jury empanelment, juror no. 3

raised his hand in response to a question about whether anything about the

nature of the case would affect his ability to be fair and impartial. When asked by the judge at individual voir

dire why he raised his hand, the juror said,

"Because I

looked at the jury pool and I don't feel that [the defendant] has his peers out

there. I don't see any Spanish people

out there or anything like that and I feel that he should be, if he's going to

be, life and death like that there should be some of his people out

there."

When the judge

pointed out, "The question though was there anything about the nature of

the case as I described it that would affect your ability to be a fair and

impartial juror," the juror said, "Oh, no, no, not at all."

The judge asked the juror to explain the

extent of his contact with persons of Hispanic descent. The juror said,

"Well, I'm

100 percent Puerto Rican and I try, you know, it's, I grew up here as a young

kid so I'm kind of, how would you say, not pro this or pro that because now I

don't appear to be Hispanic, but I've gone through my life having to deal with

something like that so."

The judge

clarified that the question was what sources of contact the juror had had with

persons of Hispanic descent, and he said, "Oh, family, friends, music,

everything, I try to stay into the community still."

The judge said, "Question 18 asks,

'Do you believe that Dominicans or Puerto Ricans are more likely

. . . than other members of ethnic groups to commit crimes?' You checked, 'No. I do not approve of this

question.'" The juror replied,

"Yeah, I don't like those questions, I never did, I don't think they're

proper at all." The judge explained

the need for the question was to ensure that no one had a personal bias or

prejudice that might make them unqualified to serve. She then asked, "Does that help you

understand the reason for the question?"

The juror responded, "Sure."

The judge asked the juror about a driving

under the influence case that was mentioned on the confidential juror

questionnaire, and asked when it occurred.

The juror said, "I had gone to Florida, that was maybe four years

ago and one in Maine around '13."

The judge asked him, "[H]ow were you treated by the police and the

prosecutors who were involved in handling your matters?" The juror replied, "Down in Florida very

disgusting." The judge then asked,

"And how about in Maine?" to which the juror responded, "Very

nice." The judge asked, "Would

your experiences with either of those cases affect your ability to be fair to

both sides in this case?" And the

juror said, "Not at all because I'm in Massachusetts."

The judge then allowed follow-up

questioning by the parties, and the prosecutor asked, "If you were seated

on the jury and you felt that the rest of the panel did not adequately make up

a jury of the defendant's peers; would that affect your ability to be fair and

impartial as a juror in this case?"

The juror said, "No, not at all, I'd put that aside." The Commonwealth then asked, "So, you

would be able to put aside any beliefs that you had?" The juror replied, "Yes, I would,

correct." The judge found that the

juror could be fair and impartial and that he stood indifferent.

The Commonwealth moved to strike the juror

for cause on the ground "that he had what he described as a disgusting

experience when he had an incident in Miami, as well as his initial reaction to

the make-up of the jury pool." The

judge found the juror fair and impartial and that he stood indifferent, and she

denied the motion. The prosecutor then

exercised a peremptory challenge.

The defendant objected on Batson-Soares

grounds. See Batson v. Kentucky, 476

U.S. 79 (1986); Soares, 377 Mass. at 486 .

The judge said she found no "pattern" of discrimination, also

stating, "I do recognize a pattern can be demonstrated with a single

challenge." The defendant requested

that the judge ask the Commonwealth its race-neutral reason for the

challenge. The judge said, "I'm not

persuaded there is a pattern but in abundance of caution I will ask the

Commonwealth to state its reasons for the record." The prosecutor then responded:

"Your Honor,

as previously stated, the reason for the Commonwealth's objection and use of

the peremptory, is that the Commonwealth does not believe that this juror can

be fair to the Commonwealth. It has

nothing to do with this juror's race particular to him, it is based on the

answers to the questions that he came in here and stated and indicated his

issues that he had with police previously, his beliefs that he feels that the

defendant cannot get a fair trial.

"And while

he said that he could put that aside, the Commonwealth does not believe that he

is in a position to give the Commonwealth a fair trial based on his

beliefs. Again, going back to the questionnaire

where he was, he seemed upset or offended in some way about the particular

question, No. 18, 'Do you believe that Dominicans or Puerto Ricans are more

likely than members of other ethnic groups to commit crimes?' And even upon your explanation, it is the

Commonwealth's opinion that he did not seem satisfied by saying very

flippantly, 'Sure.' And that his

attitude coming into this trial, again, having nothing to do with his race,

gives the Commonwealth concern and pause and that is why the Commonwealth has

exercised a peremptory." (Emphases

added.)

Without any

further questioning and without any specific factual findings, the judge said,

"I find that the Commonwealth has identified, for the same reasons they

previously identified, a rationale for the exercise of this peremptory that is

both adequate and genuine."

Discussion. The procedure for addressing a Batson-Soares

challenge to a peremptory strike is well known.

"A challenge to the peremptory strike of a potential juror is subject

to a three-step burden-shifting analysis.

See Batson, 476 U.S. at 94-95 ; Soares, 377 Mass. at 489-491 ." Commonwealth v. Jackson, 486 Mass. 763 , 768

(2021). In the usual case,

"[f]irst, to rebut the presumption that the strike was proper, the

challenger must make out a prima facie case that it was impermissibly based on

race or other protected status by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose" (quotation and

citations omitted). Id. Second, if the challenger makes that showing,

the burden shifts to the party exercising the challenge to provide a

"race-neutral" (or other-protected "group-neutral")

explanation for it. Id. See Commonwealth v. Carter, 488 Mass. 191 ,

192 (2021). "Third and finally, the

judge must then determine whether the explanation is both 'adequate' and

'genuine'" (quotation and citation omitted). Jackson, supra at 768.

Trial judges are "strongly encouraged

to ask for an explanation as questions are raised regarding the appropriateness

of the challenges. A judge has the broad

discretion to do so without having to make the determination that a pattern of

improper exclusion exists" (quotation and citations omitted). Commonwealth v. Lopes, 478 Mass. 593, 598

(2018). Where, as in this case, the

Commonwealth has given a purportedly race-neutral explanation for a challenged

peremptory strike, and the trial judge has ruled on whether the strike was

motivated by race, "the preliminary issue of whether the defendant had

made a prima facie showing" –- on appeal what is ordinarily required at

the first step of the analysis –- "becomes moot." Commonwealth v. Carleton, 36 Mass. App. Ct.

137, 141-142 , S.C., 418 Mass. 773 (1994), quoting Hernandez v. New York, 500

U.S. 352, 359 (1991) (plurality opinion of Kennedy, J., in which Rehnquist,

C.J., and White and Souter, JJ., joined).

The initial question we face therefore is

the second-step one, whether the reasons put forward by the Commonwealth for

the strike are race neutral. As

described above, see supra at &

n.1, a strike motivated even in part by race is impermissible. We "make our own [de novo] determination

whether the Commonwealth's reasons for the challenge were race-neutral"

(citation omitted). Commonwealth v.

Rodriguez, 457 Mass. 461, 473 (2010).

See Paulino v. Harrison, 542 F.3d 692, 699 (9th Cir. 2008) ("At

Batson's second step, the question of whether the state has offered a

'race-neutral' reason is a question of law that we review de novo");

United States v. Mulero-Algarin, 535 F.3d 34, 39 (1st Cir. 2008) ("A

district court's determination of the facial adequacy of the government's

proffered explanation for withholding a substantial assistance motion presents

a question of law that, logically, engenders de novo review"); United

States v. Smith, 534 F.3d 1211, 1226 (10th Cir.), cert. denied, 555 U.S. 1058

(2008) ("When considering a Batson claim, we review de novo whether the

proffered explanations were race-neutral").

The majority's first error, and one that

substantially weakens the protection of defendants and jurors against

race-based peremptory strikes, is its rewriting of the law articulated in

innumerable cases over several decades to eliminate the requirement that in the

face of a prima facie case of discrimination, or on request of the judge, the

party seeking to strike the juror state a race-or other group-neutral

explanation for the strike. See

Commonwealth v. Grier, 490 Mass. 455 , 458 (2022) (party defending challenge must

provide "group-neutral explanation"); Commonwealth v. Kozubal, 488

Mass. 575 , 581 (2021), cert. denied, 142 S. Ct. 2723 (2022) (same);

Commonwealth v. Carter, 488 Mass. 191 , 196 (2021) (same); Commonwealth v.

Sanchez, 485 Mass. 491 , 493 (2020) (same); Commonwealth v. Long, 419 Mass. 798,

807 (1995) ("group-neutral reason").

This requirement has been part of antidiscrimination law for

decades. See, e.g., Trevino v. Texas,

503 U.S. 562, 565 (1992) (Batson "announced the now familiar rule that

when a defendant makes a prima facie showing that the State has exercised its

peremptory challenges to exclude members of the defendant's racial group, the

State bears the burden of coming forward with a race neutral

justification"). Yet the court

eliminates the requirement that at the second step of analysis the party

defending the strike articulate a race- or group-neutral justification for

it. See ante at

.

The court majority writes instead that "[i]f the judge finds that

the challenging party has met his burden in showing an inference of discrimination,

the burden shifts to the party seeking to exercise the peremptory challenge to

proffer a 'bona fide' nondiscriminatory justification for the peremptory

challenge. Kalila, 103 Mass. App. Ct. at

587-588. A bona fide explanation is one

that is both 'genuine' and 'adequate.'

Commonwealth v. Maldonado, 439 Mass. 460, 464 (2003)." Ante at

.

The court's entire analysis then purports to relate only to genuineness

and adequacy.

As myriad cases, including those quoted

above, hold, in order for the party defending the strike to meet its step-two

burden under Soares, and for there even to be a need to proceed to step three

of the analysis, its articulated justification must be race or other group

neutral. See Sanchez, 485 Mass. at 493

(under both State and Federal law, proffered reason must be "group

neutral" -– if it is, judge must determine whether it is adequate and

genuine). The majority never considers

whether the proffered reasons given by the prosecutor were "race

neutral" or "group neutral," in its entire analysis. In a final footnote the majority states,

again contrary to law, that the phrase "race neutral" refers not to

the proffered justification, but to the judge's ultimate conclusion about

whether there was discriminatory intent.

Indeed, the majority suggests that applying step two of the

Batson-Soares analysis as it has been articulated for decades to require a

race-neutral justification for the peremptory strike before proceeding to the

questions of genuineness and adequacy, would be to implement "a new and

different standard." Ante at

n.11. The majority's suggestion of

unfamiliarity with step two of the Batson-Soares analysis is, to say the least,

difficult to understand.

In response to this dissent, the majority

does drop a footnote where it states that "an appellate court reviews

counsel's stated reasons only for whether those reasons are racially

discriminatory (that is, not 'race neutral') on their face. But that review is quite limited." Ante at n.8.

This incorrect assertion, however, that at the second step we look at

the proffered reasons only "on their face" is just another elliptical

way of eliminating the careful, de novo review of those reasons at the second

step required under the law of this Commonwealth to prevent racial

discrimination in jury selection. See,

e.g., Commonwealth v. Prunty, 462 Mass. 295, 313 (2012) ("An explanation

that is 'race neutral' on its face is nonetheless unacceptable if it is merely

a proxy for a discriminatory practice" [citation omitted]). Indeed, even the Supreme Court plurality that

the majority cites for its supposed statement of law recognized that some

facially race-neutral proffered justifications will not meet the requirement of

step two because they must "be treated as a surrogate for race." Hernandez, 500 U.S. at 371 (plurality

opinion).

The court further insists that we are not

engaged in de novo review because the race neutrality of a given proffered

reason is not a question of law to be reviewed de novo, but one of fact,

requiring deference to the trial judge's conclusion. See ante at n.8. This is a serious error. It amounts to an abdication of our long-settled

role in protecting against discrimination by engaging in de novo appellate

review of the race-neutrality of proffered justifications for a peremptory

challenge when a prima facie case has been made out that it is racially

discriminatory.

This is, indeed, a particularly inapt case

in which to announce incorrectly that we must defer to the trial judge's

finding of race neutrality because it is a question of fact, since the judge

here did not, in fact, find each of the Commonwealth's reasons race

neutral. The entire finding of the trial

judge given after the Commonwealth proffered its justifications for the strike

is quoted above: "I find that the

Commonwealth has identified, for the same reasons they previously identified, a

rationale for the exercise of this peremptory that is both adequate and

genuine." A close reading of the

majority opinion reveals that it is these findings of adequacy and genuineness

to which the court defers –- not a finding, that it ultimately does not claim

was made, that each reason was race neutral.

Having skipped the critical question of

reviewing whether the reasons given were as a matter of law race-neutral –-

indeed having stripped the question from the legal analysis –- the court

majority focuses as described only on what it calls the "factual

findings" of the trial judge with respect to the genuineness and adequacy

of the prosecutor's proffered reasons for the strike. Ante at

.

But these are questions that may not

properly be reached if the party exercising the strike has not, at the previous

step of analysis, met its burden by proffering race-neutral reasons for the strike. See supra at

(quoting description of proper

procedure in Jackson, 486 Mass. at 768).

Of course this makes sense. If a

race-based (rather than race-neutral) reason is "genuine," which is

indeed a question of fact, it is not a permissible basis for a peremptory

strike. As for adequacy, the court

majority concedes that it contains subsidiary questions of law. But one of them, in fact, is whether the

proffered reason is race neutral.

Maldonado, 439 Mass. at 464-465 ("An explanation is adequate if it

is 'clear and reasonably specific, 'personal to the juror and not based on the

juror's group affiliation' [in this case race] . . . and related to

the particular case being tried").

I turn therefore to the proper initial

step-two question whether, as a matter of law, any of the reasons put forward

by the Commonwealth were based on race.

And of course, contrary to the assertion of the court majority, I engage

in no fact finding. Ante at

.

Before us, the Commonwealth defends only

one of the reasons given by the prosecutor at trial, the prosecutor's asserted

concern about the juror's interactions with police, particularly the one in

Florida he described as "disgusting."[3] But accepting that reason as race neutral

does not resolve the case, because even if the challenge was motivated only in

part by race, it would be impermissible.

The Commonwealth does not mention the alleged "demeanor" or

"flippancy" of the juror –- reasons that "should rarely be

accepted as adequate because such explanations can easily be used as pretexts

for discrimination," Maldonado, 439 Mass. at 465 -466 –- although the court

majority does. Nonetheless, even if

these reasons were before us and adequate to support a peremptory strike,

because the strike was at least in part motivated by race, the analysis would

be the same.

The Commonwealth does not attempt to

defend as race neutral the prosecutor's assertion that the juror could not be

"fair" to the Commonwealth because of his "beliefs that he feels

that the defendant cannot get a fair trial." Although that argument is thus waived,

because the court majority upholds the strike, I must address it.

First, juror no. 3 did not even say what

the prosecutor said he did. He said that

if a Latino person was going to be tried for murder, his jury should include

some Latino people, and indeed the reason the prosecutor gave explicitly for

her for-cause challenge was precisely the juror's reaction to the all-white

jury venire present that day.[4] The

prosecutor also said that she was striking the juror because he "seemed

upset or offended in some way" that jurors in this criminal case were

being asked if members of the juror's specific ethnicity –- not merely Latino,

but Puerto Rican –- are, as a well-known racist stereotype asserts, prone to

criminality.

Neither of these reasons is race

neutral. A person of Puerto Rican or

Dominican descent is the person most likely to be upset about seeing what

appears to be an all-white jury about to try a Puerto Rican or Dominican

American defendant for murder. And a

person of Puerto Rican or Dominican descent is likely to be the most offended

by a question in a government court room asking, "Do you believe that

Dominicans or Puerto Ricans are more likely than members of other ethnic groups

to commit crimes." Indeed, if you

asked all people of Puerto Rican descent whether they shared the juror's

offense at the stereotype, you would likely find overwhelming, maybe unanimous,

agreement with it.

Under art. 12 of the Declaration of Rights

as construed in Soares and its progeny, in this Commonwealth where a Latino man

is struck for expressing concern about an all-white jury hearing a Latino's

murder trial, that strike is "based on race." See, e.g., Prunty, 462 Mass. at 313 . In Prunty the Supreme Judicial Court stated:

"In this

case, defense counsel based his challenge on an assumption that an individual

who had suffered racism would feel subtle biases against an alleged

racist. This assumption, however, is

undoubtedly 'based' on race, and therefore provides an illegitimate basis for a

peremptory challenge. See Georgia v.

McCollum, [ 505 U.S. 42 ,] 59 [1992]. It

would require a measure of 'willful intellectual blindness,' Love v. Yates, 586

F. Supp. 2d 1155, 1180 (N.D. Cal. 2008), for us to conclude that Juror 16's

experience of racism (particularly the race-specific examples described by the

judge in his questioning) does not correlate almost perfectly with his race and

therefore serve as a 'surrogate for race.'

Hernandez v. New York, [ 500 U.S. 352 ,] 371 [1991]."

Prunty,

supra. The same is true where a Puerto

Rican man is offended by a question asking jurors if they agree that Puerto

Ricans are prone to criminality, or expresses concern about an all-white jury

venire in a trial of a Latino defendant.

That some white people may share these

concerns does not make the strike race-neutral.

A Black person's residence in a primarily Black neighborhood, for

example, has been held to be a proxy for race, despite some white people living

there, too. See, e.g., United States v.

Bishop, 959 F.2d 820, 822 (9th Cir. 1992) (impermissible to strike Black juror

because he lived in Compton). As amici

Lawyers for Civil Rights, and others, put it in their brief, a "critical

evaluation of the[se] . . . justifications . . . shows that they were

based on Juror No. 3’s [race] . . . and thus were not

race-neutral."

We may not ignore as judges what we know

as people: A person of color who shares

a murder defendant's race is far more likely to express concern about an

all-white jury venire than anyone else.

Likewise such a person is far more likely to take and express offense at

a vicious stereotype about his own people.

Thus, although the prosecutor said that the juror "seemed upset or

offended in some way about the particular question, No. 18, 'Do you believe

that Dominicans or Puerto Ricans are more likely than members of other ethnic

groups to commit crimes?'" we know why the juror was upset. This is a racist stereotype that has led to

violence against and injustice toward Puerto Ricans in the United States, and

the juror was Puerto Rican.

"The growing

Hispanic and Latino population . . . has encountered varied sources

of discrimination. See, e.g.,

Commonwealth v. Buckley, 478 Mass. 861, 878 (2018) (Budd, J., concurring)

(Hispanic drivers are stopped more often by police than Caucasian drivers);

Bradley v. Lynn, 443 F. Supp. 2d 145, 148, 149 (D. Mass. 2006) (finding

disparate and adverse impact on Hispanic candidates for entry-level firefighter

positions); Kane v. Winn, 319 F. Supp. 2d 162, 179 (D. Mass. 2004) (citing

statistics that Latinos are overrepresented in country's prison population, and

'Latino youths are incarcerated at twice the rate of [Caucasian] American

youths')."

Commonwealth v.

Colon, 482 Mass. 162, 179-80 (2019). The

Commonwealth's objections were thus not race neutral.

Oddly, the Commonwealth does not even

discuss, much less defend, these proffered reasons, relying instead entirely on

Commonwealth v. Williams, 481 Mass. 443 (2019).

But that is not a Batson-Soares case at all and says nothing about

strikes of jurors of color on grounds that are race-based. In fact, nothing in that case or its record

indicates that the juror who stated her opinion that the "system is rigged

against young African American males" was a person of color. Williams, at 449. Putting aside that juror no. 3 did not say

what the juror in Williams said, the actual holding of Williams is that the

judge erroneously struck the juror for her "inability to disregard [her]

life experiences and resulting beliefs."

Id. at 452 . She said those

beliefs were formed when "[she] worked with . . . low income

youth in a school setting. [She] worked

a lot with . . . teenagers who were convicted of drug

crimes." Id. at 444 . In dictum, the court did say that the juror

might nonetheless have been struck peremptorily by the Commonwealth. Id. at 453-454 . But it certainly did not opine on whether

that peremptory strike would survive a possible Soares claim if the juror were

a person of color.[5] There was in fact

no claim made in the trial court or the Supreme Judicial Court that the juror

was struck by the judge on the basis of her race, which, again, was not even

indicated in the record. Indeed, the

Supreme Judicial Court said that "[i]n contrast [to Soares], here, the

prospective juror was not struck due to being a member of a discrete

group." Id. at 456 . Williams thus does not "indicate that

striking a juror based on the juror's expressed belief that the criminal

justice system is rigged is not racially discriminatory on its face." Ante at

n.5. It couldn't, because we

don't even know the race of the juror.

Williams is thus literally irrelevant to this case.

As to the court majority, although it

purports to recognize that a strike motivated even in part by race is

impermissible, rather than addressing whether the two reasons described above

are as a matter of law race neutral, it says my assessment of them takes them

"out of their larger context," and thus misses the "thrust"

of the prosecutor's concerns, which were about the juror's responses throughout

voir dire "writ large." Ante

at .

This unjustified, newly-minted approach for assessing reasons

articulated by the prosecutor amounts to little more than an obfuscatory way of

saying the court majority without warrant will ignore some of the actual,

specific justifications for the strike explicitly articulated by the

prosecutor.

The actual "context" in which

these justifications were given was that the prosecutor was asked to justify on

a race-neutral basis her peremptory strike of a Puerto Rican juror. The prosecutor articulated, as required, her

reasons for the strike. Two were race

based.

That the majority concludes that the

peremptory strike was nonetheless permissible, first by eliminating from our

analysis the foundational requirement that the prosecutor's justifications be

race neutral, and then by the use of verbal formulae that amount to asserting

without any legal or factual basis that the prosecutor really didn't mean what

she said, is disappointing. It seems to

me like less than should be expected of our court.

The court majority repeatedly states that

the juror was struck because of the Commonwealth's "concern that [the]

juror [could not] be fair and impartial."

Ante at . Of course the judge, who herself found the

juror impartial, did not say that in her finding. But in any event every race-based strike is

borne of what might be characterized a "concern about" the juror's

partiality. The party exercising the

strike thinks the juror will vote in favor of the other side because of the

juror's race. See, e.g., Thompson v.

United States, 469 U.S. 1024, 1026 (1984) (Brennan, J., dissenting) (before it

was overruled by Batson, Swain v. Alabama, 380 U.S. 202, 221 [1965], had

"h[eld] that the State may presume in exercising peremptory challenges

that only white jurors will be sufficiently impartial to try a Negro defendant

fairly"). The court majority says

that "[i]n light of the [juror's] answers, the prosecutor may well have

been concerned that juror no. 3 would view the case, not through the lens of

the facts presented and the law provided, but through the lens of the race of

the defendant and perceived unfairness of the system." Ante at

.

If concern about an all-white jury venire trying a Latino person, or

taking offense at a poisonous stereotype of Puerto Rican people means one

cannot be fair in a trial of a Latino defendant, then all jurors of Puerto

Rican dissent will be subject to peremptory strikes.

Under art. 12, the trial judge erred in

allowing the Commonwealth's peremptory challenge of juror no. 3. Therefore, the defendant's conviction should

be vacated and the case remanded for a new trial. With respect, I dissent.

footnotes

[1] We

acknowledge the amici brief submitted by Lawyers for Civil Rights, the

Massachusetts Association of Hispanic Attorneys, the Jewish Alliance for Law

and Social Action, and Citizens for Juvenile Justice.

[2] As indicated,

the jury convicted the defendant of felony-murder in the second degree, with

the predicate felony being unarmed assault with intent to rob. They acquitted the defendant of murder in the

first degree, armed home invasion, and armed assault with intent to rob.

[3] The defendant

was Hispanic and juror no. 3 also identified as Hispanic, as he made clear

during his voir dire.

[4] As the trial

judge ruled on the ultimate question of whether the Commonwealth's peremptory

challenge was discriminatory, her findings as to whether the defendant showed a

prima facie case of discrimination are "no longer of

consequence." See Commonwealth v.

Carleton, 36 Mass. App. Ct. 137, 141 , S.C., 418 Mass. 773 (1994).

[5] The dissent

contends that our citation to Williams is inapt because Williams is not a

Soares case, and does not discuss the race of the prospective juror. The dissent states that the Williams court

"certainly did not opine on whether that peremptory strike would survive a

possible Soares claim if the juror were a person of color." Post at

(Rubin, J., dissenting). But Williams does indicate that striking a

juror based on the juror's expressed belief that the criminal justice system is

rigged is not racially discriminatory on its face (i.e., is race neutral); the

relevance of Williams is that the court's opinion indicates that the reason

given would have been an adequate basis for a peremptory challenge --

regardless of the race of the prospective juror.

[6] There also

was no error in the judge's finding that the prosecutor's reasons were genuine.

The trial judge is uniquely positioned to make a determination as to

genuineness, while the appellate courts are not. See Maldonado, 439 Mass. at 466 ("while

appellate courts may be equipped to some extent to assess the adequacy of an

explanation, they are particularly ill-equipped to assess its

genuineness"). Here the defendant

urges us to conclude on appeal that the prosecutor acted from discriminatory

intent, and that the intent was shown by alleged misstatements of the record

and differential questioning of juror no. 3.

Based on our review of the prosecutor's statements, we perceive no clear

error in the trial judge's finding that the prosecutor's justifications were genuine.

[7] The

prosecutor's comments appear to be directed in part at the juror's demeanor

throughout questioning, and the prosecutor referenced specific examples of the

juror's demeanor several times in the reasons she stated to the judge. As noted, the judge found these reasons

genuine. The judge correctly noted that

the Commonwealth may "make a decision on the basis of body language and

other observable characteristics of a potential juror, that they may interpret

differently from the [c]ourt." See

Commonwealth v. Caldwell, 418 Mass. 777, 779 (1994) ("A juror's demeanor

and reactions during the voir dire may constitute a sufficient basis for

peremptory removal . . . . However, the prosecutor must

have articulated, on the record, an explanation for the challenge that was not

vague and general"). See also

Williams, 481 Mass. at 453 ("Judges are expected to, and indeed must, use

their discretion and judgment to determine whether a prospective juror will be

fair and impartial based on verbal and nonverbal cues" [emphasis added]).

Here, the prosecutor's references to

demeanor were not vague and general, but involved specific examples of how the

juror responded to particular questions.

These details allowed the judge to evaluate the genuineness of the

reasons given.

[8] The dissent

nevertheless claims that the question whether a proffered justification is

"race neutral" is reviewed de novo, citing primarily Federal cases

dealing with the second "step" of the Federal Batson analysis. But under the Federal analysis that second

step review is quite limited -- an appellate court reviews counsel's stated

reasons only for whether those reasons are racially discriminatory (that is,

not "race neutral") on their face.

The United States Supreme Court has stated the test thusly:

"A neutral

explanation in the context of our analysis here means an explanation based on

something other than the race of the juror.

At this step of the inquiry, the issue is the facial validity of the

prosecutor's explanation. Unless a

discriminatory intent is inherent in the prosecutor's explanation, the reason

offered will be deemed race neutral."

(Emphasis added.)

Hernandez v. New

York, 500 U.S. 352, 360 (1991) (plurality opinion). See Purkett v. Elem, 514 U.S. 765, 767-768

(1995) (quoting with approval the Hernandez plurality opinion and stating

"[t]he second step of this process does not demand an explanation that is

persuasive, or even plausible"). No

case suggests a more searching de novo review under Massachusetts law.

While the dissent appears to be arguing,

at least in part, that it considers the prosecutor's stated reasons to be

discriminatory on their face, that position cannot be squared with the tests,

or the holdings, of Hernandez and Purkett.

The prosecutor's stated reasons here addressed juror no. 3's

impartiality as evidenced by his answers and demeanor; the prosecutor's

statements cannot be said to demonstrate discriminatory intent on their face.

[9] The dissent's

reliance on Commonwealth v. Prunty, 462 Mass. 295 (2012), is misplaced for

precisely this reason. Prunty is a case

where the trial judge declined the defendant's peremptory challenge of a juror,

finding that defense counsel's reasons were in fact based on race. Id. at 302 .

In affirming, the Supreme Judicial Court emphasized the need to defer to

the trial judge's findings -- as we do here.

See id. at 309-314 .

[10] As is

reflected in the transcript, the jury venire was not "all-white," and

it appears the petit jury was not either, although the record as to the race of

the jurors is by no means complete.

[11] There are

places where the dissent seems to be suggesting that the prosecutor's reasons

were not "race neutral" for the simple reason that the prosecutor

referenced answers by the juror that discussed race (ethnicity). The dissent's reasoning in this regard is

faulty. If, as here, a juror (or a

questionnaire) raises issues of race or ethnicity, the prosecutor is not

precluded from addressing the juror's statements, as they might bear on the

juror's ability to be impartial. As

indicated, the actual question for the judge is whether the strike was

motivated by, or "based on," race.

See Flowers, 588 U.S. at 303 ; Burnett, 418 Mass. at 771 . The fact that a party references issues of

race raised by a juror during the colloquy of course does not ipso facto render

the party's reasons discriminatory, or not "race neutral." As discussed in note 8, supra, "race

neutral" simply means an explanation that is not based on (motivated by)

the race of the juror; it is not some new and different standard for

determining whether a peremptory strike is appropriate.

footnotes for concurring

[1] See Batson v.

Kentucky, 476 U.S. 79, 89 (1986) ("the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their

race").

[2] See

Robertson, 480 Mass. at 390 (reviewing "judge's finding that there was no

prima facie showing of a discriminatory pattern for an abuse of

discretion"); Jones, 477 Mass. at 325 (determining judge abused her

discretion in finding that defendant made necessary prima facie showing of

discrimination); Commonwealth v. Issa, 466 Mass. 1, 11 (2013) (concluding

"judge did not abuse his discretion in finding that the defendant had

fallen short of making a prima facie case of bias"); Commonwealth v. Lugo,

104 Mass. App. Ct. 309 , 313 (2024) (reviewing "judge's decision relative

to a peremptory challenge for an abuse of discretion"); Commonwealth v.

Carvalho, 88 Mass. App. Ct. 840, 843 (2016) (determining judge did not abuse

his discretion in finding that "a prima facie showing of impropriety was

made").

[3] Other States

have eliminated step one of the analysis in order to combat race-based

peremptory challenges. Some have gone

further and created presumptively invalid reasons for a peremptory

challenge. This concurrence merely

suggests eliminating step one. It does

not attempt to go further as other States have done.

Washington adopted a court rule listing

presumptively invalid reasons for a peremptory challenge. See Wash. Rule of General Application 37(h)

(2018). Subsequently, California passed

legislation with the same sentiment: to

provide a list of reasons "presumed to be invalid" for a peremptory

challenge. See Cal. Civ. Pro. Code

§ 231.7 (e) (effective 2020). In

2022, the New Jersey Supreme Court amended its rules of court to include a list

of "reasons [that] are presumptively invalid" as a justification for

a peremptory challenge. N.J. R. 1:8-3A

(2022 comment).

footnotes for dissenting

[1] See Foster v.

Chatman, 578 U.S. 488 , 513 n.6 (2016) (noting that Supreme Court had "not

previously allowed the prosecution to [prevent invalidation of a strike by]

show[ing] that 'a discriminatory intent [that] was a substantial or motivating

factor' behind a strike was nevertheless not 'determinative' to the

prosecution’s decision to exercise the strike" [citation omitted]);

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252,

265-266 (1977) (equal protection clause, which prohibits intentional racial

discrimination, "does not require a plaintiff to prove that the challenged

action rested solely on racially discriminatory purposes"); Commonwealth

v. Long, 485 Mass. 711 , 726 (2020) (where traffic stop is "motivated at

least in part by race" it "violate[s] the equal protection principles

of arts. 1 and 10" of Massachusetts Declaration of Rights); id. at 736

(Gants, C.J., concurring) ("it is the unanimous view of this court that

. . . judges should suppress evidence where a motor vehicle stop is

motivated, even in part, by the race of the driver or passenger").

[2] The Supreme

Judicial Court has abandoned any distinction between discrimination on the

basis of race and discrimination on the basis of ethnicity. See Commonwealth v. Colon, 482 Mass. 162, 179

(2019).

[3] Without

specifying what they were, the Commonwealth does also say in its brief

conclusorily that the prosecutor "articulated several justifiable,

non-race-based reasons for Juror No. 3 to be excused. The trial judge properly exercised her

discretion in accepting these proffered justifications and allowing the

peremptory challenge."

[4] The

transcript indicates that, although two Latino jurors were among the venire on

the first day of jury selection, on the second day, when juror no. 3 was

present, he was the only Latino person in the venire.

[5] It thus did

not "indicate[] that the reason given would have been an adequate basis

for a peremptory challenge -- regardless of the race of the prospective

juror," ante at n.5, if the peremptory strike was challenged under Soares.