“genuineness [of proffered rationale for challenge was] significantly impaired by the absence of consistency in its application to other jurors”
How later courts described this case
- “genuineness [of proffered rationale for challenge was] significantly impaired by the absence of consistency in its application to other jurors”
- "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"
- "no apparent reason" why fifty-five year old childless person would be less inclined to credit police than person of similar age who had children
- "An explanation is genuine if it is in fact the reason for the exercise of the challenge"
Written by the judges who cited it.
The opinion
Marshall, C.J.
(concurring, with whom Grcaney and Spina, JJ., join). I agree with the result reached by the court in this case. I write separately to express my concern about the continued use of peremptory challenges. This case illustrates, once again, the difficulties confronting defense counsel and prosecutors, Massachusetts trial judges and appellate courts, who struggle to give meaning to the constitutional mandate “that a jury be drawn from a fair and representative cross-section of the community.” Commonwealth v. Soares, 377 Mass. 461, 478 , cert, denied, 444 U.S. 881 (1979). See, e.g., Commonwealth v. Garrey, 436 Mass. 422 (2002); Commonwealth v. Rodriguez, 431 Mass. 804 (2000); Commonwealth v. Calderon, 431 Mass. 21 (2000); Commonwealth v. LeClair, 429 Mass. 313 (1999); Commonwealth v. Curtiss, 424 Mass. 78 (1997); Commonwealth v. Burnett, 418 Mass. 769 (1994). Despite vigilant efforts to eliminate race-based and other impermissible peremptory challenges, it is all too often impossible to establish whether a peremptory challenge has been exercised for an improper reason. I am therefore persuaded that, “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives,” Commonwealth v. Calderon, supra at 29 (Lynch, J., dissenting), it is time either to abolish them entirely, or to restrict their use substantially. See, e.g., Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Grim. L. Rev. 1099 (1994).