Photo: Jason Doiy, ALM

An appellate court ruled that a prosecutor's selective use of a background check on one black member of the jury pool, which ultimately led to the juror's expulsion after arrest warrants surfaced, must result in an overturned conviction.

In State v. Andujar, the Appellate Division on Monday said the state's actions violated the "Batson/Gilmore analysis."

In Batson v. Kentucky, the U.S. Supreme Court in 1986 recognized that the U.S. Constitution's Equal Protection Clause prohibits use of peremptory challenges to exclude jurors on account of their race, and provided a three-step framework to determine when the challenges are improperly used.

Monday's published opinion, delivered by Appellate Division Judge Mary Gibbons Whipple, held that defendant Edwin Andujar's August 2017 convictions on murder and first- and third-degree weapons charges must be overturned and the case remanded for a new trial. Andujar, 54, is accused of fatally stabbing his roommate, Thomas Parent, in 2014, according to reports.

"The compulsion to appear [for jury selection] should not include the threat of arrest if we seek to convincingly assure the citizenry that jury service is an honor and a duty," Whipple wrote.

"Record checks run because of dissatisfaction with a judge's ruling, as was done here, undermine the framework within which the trial proceeds and alters the court's exclusive province in administration of the jury venire."

"Because the court made no findings of fact concerning the prosecution's selective use of a criminal record check and granted no relief to the defense whatsoever, defendant's conviction must be reversed, his sentence vacated, and the matter remanded for a new trial," Whipple wrote.

She added that it is "not difficult to surmise that running criminal background checks only on minority jurors could result in a majority jury."

The case, on appeal from Essex County Superior Court, was argued on Jan. 15, 2020, before Whipple and Appellate Division Judges Ellen Koblitz and Hany Mawla.

Assistant Deputy Public Defender John Douard, representing Andujar, was not available to comment.

Frank Ducoat and Emily Pirro, special deputy attorneys general, argued for the state. Ducoat, director of the Appellate Section for the Essex County Prosecutor's Office, said in a phone call on Tuesday, "We strongly disagree with the decision and will be asking the state Supreme Court to review it."

Andujar contended that several missteps were taken during jury selection, including prosecutors' withholding of evidence and excessive punishment of parole ineligibility.

But the only point the panel focused on was Andujar's issue of being denied a fairly selected jury after the prosecutor conducted a record and warrant check on the only black juror who acknowledged during voir dire that he had friends and family with contacts to the criminal justice system.

Andujar contended that the handling of this juror violated his own constitutional right to a jury of his peers, and denied the juror—identified only as F.G. in the decision to protect his identity—his right to serve on the jury.

According to Monday's decision, at trial, a judge listened to the arguments of two assistant prosecutors and rejected their application to excuse F.G. from the jury pool for cause. The first prosecutor had requested that the court remove him for cause because F.G. had a number of friends and family that had been accused of crimes. Another prosecutor stated in support of a second motion for a for-cause dismissal that a background check on F.G. was performed because she had "concerns" about F.G.'s friends' involvement in criminal activity, such as selling drugs, and given his association with these individuals, whether F.G. is prejudiced toward the criminal justice system.

Whipple said the trial court failed to apply the Batson analysis, whereby: an opponent of the peremptory challenge must make a prima facie showing that the challenge was based on race; the prosecutor must then offer a race-neutral basis for striking the juror in question; and lastly the trial judge must make a determination.

According to the Appellate Division, counsel for Andujar initially did not oppose prosecutors' application for F.G.'s removal from jury selection, but requested that F.G. be arrested out of the presence of the jury pool. The court and the prosecutor agreed that the arrest would be executed elsewhere in the courthouse.

The prosecutor agreed to this plan, denied any race-based reason for the exclusion, and asserted the check was conducted because of F.G.'s acknowledgment that he associated with people who "hustle drugs," and the court's refusal to excuse him for cause, according to the court decision, which noted that her research revealed that F.G. had an open municipal warrant as well as two arrests in the past.

The court informed F.G. he was excused and directed him to a different floor. Once F.G. left the courtroom, he was arrested immediately away from other potential jurors' view, the decision said.

The court denied the defense's request for an extra peremptory challenge.

On appeal, "Defendant argues that the prosecutor's selective use of a background check, on a Black juror, as a means of making the juror unavailable, impermissibly allowed the State to circumvent a Batson v. Kentucky, 476 U.S. 79 (1986) determination. We agree," Whipple said in the opinion.

Whipple said "the trial court must be alerted to the 'basic problem' and have the opportunity to consciously rule upon it before the issue may be raised for appellate review," Whipple wrote.

"Thus, the charge of racial profiling in the selective performance of record checks was plainly in front of the trial court. Additionally, the court heard argument on issues surrounding F.G. and had ample opportunity to rule upon them. … Likewise, once F.G. was arrested, there was no point in defense counsel continuing to argue that he should be seated on the jury," Whipple wrote.

Whipple said the New Jersey Administrative Code addresses when prosecutors can run criminal record checks, and that the trial court failed to administer the Batson/Gilmore analysis and prematurely disqualified F.G. from serving on the jury.

State v. Gilmore is the 1986 state Supreme Court decision where the court adopted the Batson analysis.

"We do not presume that arrest on a municipal warrant would have made F.G. unavailable for trial," Whipple said. "New Jersey does not bar people from juries because they have been arrested, nor do we bar people who have municipal warrants or convictions for traffic violations, juvenile offenses or other non-indictable offenses."

"We reject the State's argument that defendant could not have made a colorable argument for even a prima facie case of discrimination," Whipple wrote. "F.G. was a member of a protected group, and no member of a non-protected group was subjected to a record check. It is not difficult to surmise that running criminal background checks only on minority jurors could result in a majority jury."

"Because the state performed a criminal background check on the one black juror it unsuccessfully sought to exclude for cause, and the trial court then allowed an unverified municipal warrant to result in the juror's exclusion, we now reverse," said Whipple.