People v. Morant

ADDITIONAL CASES The People of the State of New York, Plaintiff v. Santiago Valdez, Defendant; 5477/1995 DECISION AND ORDER OF THE COURT “The Constitution forbids striking even a single prospective juror for a discriminatory purpose” (Foster v. Chatman, __ US __, 136 S Ct 1737, 1747 [2016] [internal quotation marks omitted]), for such purposeful discrimination during jury selection, among other harms, “undermine[s] public confidence in the fairness of our system of justice” (Batson v. Kentucky, 476 US 79, 87 [1986]). In a typical case where a Batson violation is alleged, it can be difficult for the trial judge, or an appellate court, to determine whether the prosecutor’s use of peremptory strikes “was motivated in substantial part by discriminatory intent” (Flowers v. Mississippi, __ US __, 139 S Ct 2228, 2244 [2019] [internal quotation marks omitted]). After all, “[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and…courts are ill-equipped to second-guess those reasons” (Batson, 476 US at 106 [Marshall, J., concurring]). But that is not so in these two cases, which were both tried by the same former assistant district attorney, Christopher J. McGrath. Over twenty years after defendants Paul Morant and Santiago Valdez were convicted in separate trials, the same jury discrimination “cheat sheet” — a smoking gun evincing pernicious and invidious discrimination clearly designed to eviscerate the constitutional right to be tried by a jury of one’s peers — was discovered in the People’s files for both cases. This abhorrent document identifies “good” Black neighborhoods; advises against selecting Hispanic or Jewish jurors; suggests not selecting Italian American jurors in cases in which the defendant is an Italian American; and counsels against choosing too many women. The cheat sheet also scores for jury selection purposes — on a scale from one to five, with one being the least favorable and five being the most favorable — seemingly every neighborhood in Queens County, a county often recognized as one of the most diverse in the country. When McGrath was asked about these newly discovered notes, in an interview with members of the District Attorney’s Office, he did not disclaim using them. To the contrary, he candidly admitted consulting them during voir dire in Morant’s and Valdez’s trials — a fact that is borne out by his own detailed voir dire notes. As a result of these disturbing revelations, the People, represented by the Conviction Integrity Unit (recently established by District Attorney Melinda Katz), and the defense jointly move to vacate both defendants’ judgments of conviction. For the reasons that follow, the Court grants the motions. FACTS AND PROCEDURAL HISTORY Paul Morant, who is Black, and Santiago Valdez, who is Hispanic, were both convicted, after jury trials, of very serious crimes. Morant was convicted of attempted first-degree murder, as well as other lesser related charges, stemming from the October 30, 1995 shooting of Police Officer Keith Schweers. Morant was sentenced, as a persistent violent felony offender, to an aggregate term of 25 years to life in prison. Valdez was convicted of two counts of depraved indifference murder, in connection with a shooting that occurred on July 24, 1993. Valdez fired several shots through the closed door of an after-hours club after he was denied entry. Two men — Danny Velez and Arley Zapata — were killed. Valdez was sentenced to an aggregate term of 40 years to life in prison. At Morant’s and Valdez’s trials, the People were, as mentioned, represented by then-ADA Christopher McGrath. Morant’s and Valdez’s trial attorneys did not raise any Batson challenges during jury selection. Nor were any Batson issues raised in their respective direct appeals (see People v. Morant, 276 AD2d 646 [2d Dept 2000], lv denied 96 NY2d 737 [2001]; People v. Valdez, 277 AD2d 262 [2d Dept 2000], lv denied 96 NY2d 764 [2001]). Although the parties’ papers are not particularly clear on this point, it appears that McGrath’s jury selection notes came to the attention of the District Attorney’s Office as a result of a Freedom of Information Law request (Public Officers Law art 6) submitted by one or both of the defendants. As it turned out, the People’s files in both cases contained copies of the same three-page document concerning jury selection.¹ The first page of the document is an annotated list of Queens neighborhoods. Most of the neighborhoods are given a numerical score between one and five. For some neighborhoods, there are additional comments. For example, next to Howard Beach, there is a note that says, “Good but other B’s will fight them”; next to Far Rockaway, the document states: “Good if good solid B person.” College Point and Whitestone are described as “blue collar” neighborhoods (the phrase “white trash” is crossed out). Bayside is described as “prof, Jew, midd[le] class.” Cambria Heights, Hollis, St. Albans, Laurelton, and Springfield Gardens are listed underneath the heading “Good B Neighborhoods.” Beneath the heading “Yes,” Richmond Hill, Ridgewood, Glendale, Woodhaven, Maspeth, Middle Village, Ozone Park, Howard Beach, St. Albans, Laurelton, Woodside, and Sunnyside are listed. St. Albans and Laurelton are starred. The second page of the document contains a number of specific suggestions for selecting jurors, many of which are unambiguously based on considerations of race, gender, ethnicity, and religion. Along these lines, there are notes that say: “don’t want to[o] many females”; “stay away from…grandmotherly types” and “mother types”; “[n]o Hispanics (unless citizen from other country. Will hate bad reputation of Amer. Hisp.)”; and “[n[o Italians if ? [defendant] [is] Italian.” A notation that states “No Jews” is crossed out. Choosing “white jurors that are like W’s” (presumably an abbreviation for witnesses) and “established whites” is, on the other hand, encouraged. Members of the District Attorney’s Office met with former ADA McGrath and questioned him about these notes, though the timing and scope of that meeting is unclear from the parties’ submissions to this Court. According to the People, McGrath indicated that “he consulted the Jury Selection Notes [described above] during voir dire [in these cases] and…would have placed a copy of these notes in his trial file.” He also, apparently, explained the one-five neighborhood scoring system. In January of this year, the District Attorney’s Office’s newly formed Conviction Integrity Unit (CIU) began evaluating these cases. (The parties’ submissions do not indicate for how long, at that point, the District Attorney’s Office had been aware of McGrath’s problematic jury selection practices.) The CIU reviewed notes McGrath took during voir dire, which cross-reference the race-, ethnicity-, and gender-based cheat sheet for jury selection. They also reviewed the transcripts of the voir dire proceedings and, where necessary, conducted additional investigations into the races and ethnicities of some of the struck jurors. The CIU became convinced that what McGrath had, in essence, already admitted was true: that he had egregiously violated Batson in both cases, by purposefully using his peremptory challenges in a discriminatory manner. At some point, attorneys from the law firm Covington Burling agreed to represent the defendants pro bono. The parties now jointly move to vacate the judgments of conviction, under section 440.10 (1) (f)² and (h) of the Criminal Procedure Law. DISCUSSION Before addressing the merits of these Batson claims, a brief discussion of the unique, if not sui generis, procedural posture of these motions is in order. Ordinarily, allegations of discrimination in the jury selection process are resolved (at least initially) during voir dire by applying the three-step, burden-shifting procedure first articulated in Batson and described in detail below. Among other advantages, that process allows the party accused of discrimination to provide a non-discriminatory reason for striking a particular juror, at a time when the lawyer is in the best position to do so (see People v. Smocum, 99 NY2d 418, 423-24 [2003] ["underscore(ing) the importance both of trial court attention to each of Batson's well-articulated, sequential steps, and of trial counsel attention to placing their objections on the record"]). As recounted above, that did not happen in either of these cases. The Court is unaware of any case in which a conviction has been vacated or reversed on Batson grounds when the issue was not raised at all during jury selection. And there are obvious reasons to be wary of entertaining such claims in the absence of a contemporaneous objection and the development of the sort of record that such an objection facilitates — which is why the Appellate Division rarely reviews unpreserved Batson claims pursuant to its interest-of-justice authority (see People v. Watson, 141 AD3d 23, 31-32 [1st Dept 2016] [Friedman, J., dissenting]; but see People v. Harris, 151 AD2d 961 [4th Dept 1989]). The People, however, do not raise any of those concerns here. Nor do they invoke any of the procedural bars contained in CPL 440.10 (see, e.g., CPL 440.10 [3] [a]). Instead, they have joined in the motions to vacate, because, as they explain, they “cannot defend a conviction so…tainted by unconstitutional discrimination.” Turning to the merits, “[t]he Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race…or on the false assumption that members of his race as a group are not qualified to serve as jurors” (Batson, 476 US at 86 [internal citation and footnote omitted]). In Batson, the Supreme Court dealt not with Reconstruction-era state laws that prohibited Blacks from serving on juries, but with the subtler practice of prosecutors using peremptory strikes, which “traditionally may be used to remove any potential juror for any reason — no questions asked” (Flowers, 139 S Ct at 2238), to achieve the same result. Batson set forth a three-step approach for resolving whether a prosecutor’s exercise of peremptory strikes against prospective jurors is substantially motivated by discriminatory intent. The first step requires the defense to make “a prima facie showing that the peremptory strike was used to discriminate” (People v. Bridgeforth, 28 NY3d 567, 571 [2016]). “[I]f that showing is made, the burden shifts to the [prosecutor] to articulate a non-discriminatory reason for striking the juror.” At that point, “the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual” and whether “purposeful discrimination” has been shown (id.). In the years since Batson was decided, its reach has expanded significantly. Today, “[a] defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races…. Moreover, Batson now applies to gender discrimination, to a criminal defendant’s peremptory strikes, and to civil cases” (Flowers, 139 S Ct at 2243 [internal citations omitted]; see also Hernandez v. New York, 500 US 352, 355 [1991] [applying Batson to claim of discrimination against Latino prospective jurors]). The New York Court of Appeals, for its part, “[has] adopted Batson under the State Constitution and [held that it] prohibit[s] discrimination against prospective jurors by either the People or the defense ‘on the basis of race, gender or any other status that implicates equal protection concerns’” (Bridgeforth, 28 NY3d at 571, quoting People v. Luciano, 10 NY3d 499, 502-503 [2008]). Most recently, the Court held that “color is a classification upon which a Batson challenge may be lodged” (Bridgeforth, 28 NY3d at 571). In these two cases, the parties believe that there is “persuasive evidence [that] unconstitutional discrimination” motivated former prosecutor McGrath’s use of peremptory strikes against prospective jurors. The Court agrees. For starters, there is the jury selection instruction sheet, which is something of a smoking gun. As thoroughly recounted above, this abhorrent cheat sheet contains numerous recommendations for selecting jurors that are totally at odds with Batson and the cases that have expanded on Batson’s core holding. Simply stated, whoever created the cheat sheet, as well as whoever relied on it during the jury selection process, “appeared to proceed as if Batson had never been decided” (Flowers, 139 S Ct at 2246). Indeed, the document explicitly instructs prosecutors to discriminate on the basis of race (“Get white jurors that are like W’s”); gender (“don’t want to[o] many females”; “stay away” from “grandmotherly” and “mother types”); religion (“No Jews”); and ethnicity (“No Hispanics”; “No Italians if ? [is] Italian”). Other aspects of the document are only slightly less overtly discriminatory. For example, it identifies certain “good” Black neighborhoods, which would appear to imply that, if a prosecutor had to choose some Black jurors — which, in a place as diverse as New York City, is almost inevitable — they should try to avoid Blacks from other “bad” parts of Queens County. And, as the Ninth Circuit has recognized, “where residence is utilized as a surrogate for racial stereotypes — as, for instance, a short-hand for insensitivity to violence — its invocation runs afoul of the guarantees of equal protection” (United States v. Bishop, 959 F2d 820, 826 [9th Cir 1992], overruled on other grounds by United States v. Nevils, 598 F3d 1158 [9th Cir 2010]; see also People v. Payne, 88 NY2d 172, 187 n 2 [1996] [noting that "[a] neighborhood linkage may…be a factor ultimately to be weighed into the determination whether a proffered reason (for using a peremptory strike) is pretextual”]). By the same token, a number of neighborhoods that, in the mid-1990s, likely would have been characterized as white and working class — including Ridgewood, Maspeth, Middle Village, Ozone Park, Howard Beach, and Woodside — are listed under the approving and double-underlined heading “Yes.” Similarly problematic (and equally reprehensible) is the suggestion that a Black resident of Far Rockaway might be an acceptable juror, but only if he or she is a “good solid [Black] person.” The idea of seeking out “good solid” Blacks from Far Rockaway seems to be based on the offensive premise that upstanding Black citizens from that neighborhood are the exception, rather than the rule. In the People’s affirmations, they carefully lay out how these discriminatory instructions were put into practice during Morant’s and Valdez’s trials. They do this, in large part, by utilizing detailed notes that McGrath took during jury selection in each of these cases — notes which the People describe as “strike sheets” (see People v. Watson, 169 AD3d 81, 84 [1st Dept 2019] [Manzanet-Daniels, J.], quoting Jonathan Abel, Batson’s Appellate Appeal and Trial Tribulations, 118 Colum L Rev 713, 738 [2018] ["'(t)here is no better evidence of a prosecutor's (discriminatory) intent than her notes from jury selection'"]). These notes generally include the race and gender of each of the prospective jurors, as well as what neighborhood in Queens they were from. McGrath also documented his and defense counsel’s use of peremptory strikes. The People point out that, in these notes, McGrath frequently includes the numerical scores given to particular neighborhoods in the instruction sheet. More damningly, though, they indicate that, in Morant’s trial, McGrath used peremptory strikes against five Black prospective jurors, seven female prospective jurors, and two Jewish prospective jurors. (McGrath used ten peremptory strikes in Morant’s trial, so apparently some of the struck jurors fell into more than one of these categories.) In Valdez’s trial, the People assert, McGrath used a total of seven peremptory strikes — six against Black prospective jurors, and one against a Hispanic prospective juror. All of this easily establishes “a prima facie showing that [at least some of] the peremptory strike[s] [were] used to discriminate” (Bridgeforth, 28 NY3d at 571). In a normal case, under the three-step Batson analysis, the burden would shift to the People to offer credible, race-neutral bases for striking the jurors in question. The People, however, have chosen not to do that here — and understandably so. It is difficult to defend the indefensible when the goal is to pursue justice. For one thing, when confronted with this evidence of discrimination, McGrath appears not to have distanced himself from it. Instead, he reportedly admitted using the discriminatory instructions during jury selection in these cases (compare Foster, 136 S Ct at 1745 [in post-conviction proceeding, trial prosecutors denied making notations on venire list that were suggestive of racial discrimination]). Moreover, if McGrath made any attempts to offer non-discriminatory explanations for his peremptory strikes, the People do not recount them. To be sure, the passage of time would have made that difficult. But McGrath could have reviewed his own notes and the transcripts of the voir dire proceedings to try to reconstruct his reasons for striking particular prospective jurors. Certainly, one would expect a prosecutor who knew that he had not engaged in discrimination during jury selection to welcome the opportunity to clear his name. That there were apparently no efforts along these lines speaks volumes. That being the case, the Batson inquiry need go no further. “Batson’s burden shifting framework requires the nonmovant, here the People, to come forward with some non-discriminatory reason for striking each juror, which the prosecutor fails to do when she or he provides no reason at all” (Bridgeforth, 28 NY3d at 576). Defendants therefore prevail on their Batson claims and the parties’ joint motions must be granted. Given the rather extraordinary circumstances of these cases, however, the Court feels compelled to make a few additional observations. The Court in Batson emphasized that discriminatory jury selection practices do not just harm the defendant on trial; they also harm wrongly excluded jurors, since, “[o]ther than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process” (Flowers, 139 S Ct at 2238). “The harm from discriminatory jury selection [further] extends…to touch the entire community. Selection procedures that purposefully exclude black persons [and other protected groups] from juries undermine public confidence in the fairness of our system of justice” (Batson, 476 US at 87). That is certainly true here. Queens is, by some measures, the most diverse large county in the United States (Selim Algar, Queens is crowned nation’s most diverse large county, NY Post, July 4, 2019, available at https://rb.gy/p32pwf). And that tremendous diversity is a point of pride for the Borough. Unfortunately, in these cases, a former assistant district attorney, as the representative of the (former) elected District Attorney of Queens County, conducted jury selection based on the assumption that many of the groups that account for that diversity could not be relied upon to “consider fairly or sympathetically the State’s case” or “lack[ed] the intelligence, experience, or moral integrity…to be entrusted with that role” (Batson, 476 US at 104-05 [Marshall, J., concurring] [internal citation and quotation marks omitted]). In McGrath’s view, it seems, this county’s diversity was a liability to be minimized or avoided, not an asset to be celebrated. It may be tempting to minimize the significance of the disturbing revelations central to these motions by writing McGrath off as a lone “bad apple” or by noting that these cases were tried nearly a quarter of a century ago.³ But, with respect to the latter point, suffice it to say that Batson — a monumental decision which should have transformed jury selection practices in every prosecutor’s office in the country — was decided a decade before Morant’s and Valdez’s trials. With respect to the former point, the Court, of course, need not decide — at least for now — the important question of whether the unlawful jury selection practices in which McGrath engaged in these cases are isolated occurrences, as opposed to evidence of a more pervasive problem. That issue may have to be resolved, though, since McGrath surely tried other cases (see Flowers, 139 S Ct at 2245 [noting the significance in a Batson analysis of "historical evidence of the State's discriminatory peremptory strikes from past trials in the jurisdiction"]). And, even more troublingly, he may not have been the only assistant district attorney using the discriminatory cheat sheet to select juries in Queens County. The Court is gratified that the District Attorney’s Office has committed to conducting a thorough investigation to uncover the origins of the Batson-violative instructions and the full extent of their use. Such an investigation is a necessary step in repairing the considerable damage to the public’s confidence in the criminal justice system that revelations like these inevitably inflict. The Court is optimistic that the Conviction Integrity Unit will endeavor to answer these remaining questions, even though the process of doing so may be uncomfortable. In the short time that the CIU has been in existence, it has done extraordinary work confronting past wrongdoing, even when the consequence of doing so is the vacatur of a conviction in a very serious case. Finally, the Court would be remiss not to acknowledge a harm that occurs when Batson violations are discovered so belatedly, as they were in these cases: victims, their families, and witnesses may be robbed of whatever closure they might have experienced when those responsible for serious wrongdoing were convicted after jury trials. The possibility that discrimination in jury selection, whenever it is discovered, could upend criminal convictions that were long thought to be settled should serve as a powerful deterrent to prosecutors not to engage in it. * * * In Justice Marshall’s concurring opinion in Batson, he proposed eliminating altogether the use of peremptory challenges — that is, prohibiting their use by both the prosecution and the defense in criminal trials. Justice Marshall acknowledged that the use of peremptory strike by defendants has long been considered “one of the most important of the rights secured to the accused” in the American justice system (Batson, 476 US at 107 [Marshall, J., concurring], quoting Pointer v. United States, 151 US 396, 408 [1894]). But he was willing to sacrifice that non-constitutional right in exchange for the eradication of the discriminatory use of peremptory strikes by prosecutors. One reason for this was Justice Marshall’s belief that, even under the newly defined Batson protocol, judges would be unable to root out the improper use of peremptories. Not only could prosecutors easily concoct “facially neutral reasons for striking a juror” in response to a Batson challenge (id. at 106). But, less nefariously, subconscious racism might, unbeknownst to the prosecutor, be the impetus for forming negative impressions about certain jurors (id.). These observations resonate here. We know now, beyond any doubt, that discrimination infected the jury selection process in Morant’s and Valdez’s trials. But, at the time, the prosecutor’s motives were not even questioned. Perhaps Justice Marshall was correct that peremptory challenges are simply incompatible with a fair, non-discriminatory system of selecting juries? He certainly had good reason to doubt that the parties in a criminal trial would be able to “meet” the “challenge” imposed by Batson (id.). In sum, the parties’ joint motions to vacate the judgments of conviction are granted. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to counsel for the defendants and to the District Attorney’s Office. Dated: December 10, 2020