People v. Bridgeforth

Garcia, J.

(concurring). I agree with the majority that reversal and a new trial are warranted in this case. I write separately because application of our well-established mootness doctrine precludes us from revisiting whether defendant met his step-one burden of identifying a pattern of discrimination against a cognizable group. It is therefore unnecessary to reach the issue of whether “skin color of a prospective juror is a cognizable classification” for purposes of a Batson challenge (majority op at 570).

L

The Supreme Court in Batson set forth a three-step process for determining whether peremptory strikes are racially discriminatory (Batson v Kentucky, 476 US 79, 96-98 [1986]). Step one requires two elements to make a prima facie showing of race discrimination: the moving party must demonstrate (1) that members of a cognizable racial group have been excluded from the jury, and (2) that “facts and other relevant circumstances” support an inference of impermissible discrimination (People v Childress, 81 NY2d 263, 266 [1993]).

After the moving party has established a prima facie showing, the burden shifts to the nonmoving party to provide a race-neutral explanation for its challenged peremptory choices (Batson, 476 US at 96-97). At step three, the trial court determines whether the defendant has shown purposeful discrimination and consequently, whether or not to seat the challenged juror (id. at 98).

Twenty-five years ago, the Supreme Court first applied the mootness doctrine in the Batson context by declining to review *578“the preliminary issue of whether the defendant had made a prima facie showing” at step one (Hernandez v New York, 500 US 352, 359 [1991 plurality]). In Hernandez, the prosecutor immediately “defended his use of peremptory strikes without any prompting or inquiry from the trial court” and, “[a]s a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination” (id.). The Supreme Court reasoned that, where the nonmoving party “has done everything that would be required of him if the [moving party] had properly made out a prima facie case, whether the [moving party] really did so is no longer relevant” (id., citing Postal Service Bd. of Governors v Aikens, 460 US 711, 715 [1983]). That is, once a party “has offered a race-neutral explanation for the peremptory challenges” at step two, step one “becomes moot” (Hernandez, 500 US at 359).

This Court has adopted the mootness doctrine as an integral part of our Batson jurisprudence. Once a party has proffered a race-neutral reason on the record, the sufficiency of the prima facie showing becomes moot (see People v Hecker, 15 NY3d 625, 652 [2010], citing People v James, 99 NY2d 264, 270 [2002]; People v Smocum, 99 NY2d 418, 422 [2003]; People v Payne, 88 NY2d 172, 182 [1996]).

In People v Payne and its companion cases involving “reverse Batson” challenges, the defendants argued that the trial courts erred at step one in concluding that the prosecution had “shown a prima facie case of discrimination merely by noting that all of the challenged jurors were white” (88 NY2d at 181-182). This Court did not address or resolve whether white prospective jurors constituted a cognizable group or whether the striking of white jurors raised an inference of discrimination because the trial courts’ subsequent rulings “on the ultimate issue of purposeful discrimination and pretext moot this first-step issue” (id.). Similarly, in People v Hecker and its companion case, People v Black, we did not review whether the defendants met their prima facie burden because “[o]nce a party has placed its race-neutral reasons on the record,” step one “becomes ‘moot’ ” (People v Hecker, 15 NY3d 625, 652 [2010] [citations omitted]; see also id. at 666-667 [Smith, J., concurring in People v Black and dissenting in People v Hecker]).

There are sound policy reasons for our strict adherence to the mootness doctrine. We have explained that, “to revisit the adequacy of the step one showing unnecessarily evades the *579ultimate question of discrimination” (Hecker, 15 NY3d at 652; Smocum, 99 NY2d at 422). Moreover, the mootness doctrine effectuates Batson’s ultimate purpose “to provide assurance . . ; that criminal judgments are not tainted by invidious discrimination” (Hecker, 15 NY3d at 652).

Today, in reaching the merits of step one, the majority abandons this well-established policy.

IL

In this case, defendant raised an initial Batson challenge, asserting that “[t]he district attorney has now perempted [sic] all the female black women and I don’t believe there are valid reasons other than their face [sic] and their gender that they have been challenged.” The prosecutor immediately asked the trial court if he could respond and, upon the court’s approval, sought defendant’s clarification as to which specific women he was challenging. Defendant specified, “the black or dark-colored, the Guyanese women that are included in that.” The prosecutor objected to the group classification stating: “Judge, we are either going to do Guyanese or African American, can’t do black or skin color.” Ultimately, the purported cognizable group apparently included four African-American women and a fifth female juror—the relevant juror in the instant appeal. It is apparent that the court and the parties all believed this juror was Guyanese when, in fact, her juror questionnaire indicates that she was born in India.

Notably absent from the record is any ruling by the trial court regarding the contours of the “cognizable class” or which particular jurors should be included within it. Rather, as the majority makes clear, the prosecutor moved past step one and plunged forward into step two, without any ruling from the trial court regarding whether the purported group of jurors did (or did not) constitute a cognizable class (see majority op at 574).1

At step two, the prosecutor began by claiming, “I have reasons for everybody.” The People then set forth race-neutral reasons for striking the four African-American women. With regard to the fifth juror—the juror now at issue—the prosecu*580tor had trouble remembering why he struck her. Without specifying a race-neutral reason, the People simply concluded: “I believe the People have reasons” and “I haven’t gotten rid of all [the] Guyanese people on this panel or gotten rid of all . . . African Americans on this panel.”

Despite “trying to remember why [he] got rid of [the disputed juror],” the prosecutor never provided any race-neutral reason—or indeed any reason—for striking her from the panel. It is beyond dispute that a prosecutor may not rebut the defendant’s case by “merely . . . denying that he had a discriminatory motive” (Batson, 476 US at 98), yet the trial court accepted the People’s strikes as to four of the challenged jurors, including the juror now at issue.

Accordingly, the trial court’s failure to seat this juror was error and our mootness doctrine precludes us from revisiting step one of the Batson protocol.

H-d I—I HH

In a reformulation of our mootness doctrine, the majority asserts that mootness is inapplicable because the court did not make an “ultimate determination” regarding the juror at issue (majority op at 575-576 n 2). Even if this was a correct application of our mootness doctrine—and it is not2—the majority’s conclusion is factually wrong. Of course, the trial court’s “ultimate determination” regarding the juror at issue was made eminently clear when it refused to seat her (majority op at 576).3 Morever, in making its step three determination, the trial court explicitly stated that it found a discriminatory purpose as to one of the five challenged jurors—an African-American woman who was ultimately seated—and specified *581that this seated juror was “[t]he only one” the court “really questioned,” so defendant’s “challenge [was] denied” (emphasis added). The majority’s conclusion that “the trial court failed to reach the ultimate issue” is both inaccurate and irrevelant (see majority op at 576).

IV.

Having disregarded our mootness doctrine, the majority dramatically expands our Batson jurisprudence beyond what any court has done before (see e.g. People v Davis, 46 Cal 4th 539, 583, 208 P3d 78, 116 [2009] [rejecting “(a)t the outset” defendant’s claim that “people of color” can be a cognizable group]; Gray v Brady, 592 F3d 296, 302 [1st Cir 2010] [holding that “minorities” cannot constitute a cognizable group under Batson]). Indeed, only the Second Circuit has recognized that distinct racial and ethnic groups may be combined for Batson purposes, but notably, that court did not rule that “dark skinned” could be its own cognizable group (see Green v Travis, 414 F3d 288, 297 [2d Cir 2005]). In People v Smith, this Court “reject[ed] appellant’s argument that, regardless of race, ‘minorities’ in general constitute a cognizable racial group” (81 NY2d 875, 876 [1993]).

The majority chooses this case—a case with a garbled record at a moot stage of the proceeding—to hold that “skin color” is a cognizable class for purposes of Batson. Such a monumental ruling should occur only after careful consideration, and on a record that properly presents the issue and contains a step one ruling for our review. Instead, the majority announces its holding without the benefit of a call for amicus briefing and without any discussion of the wide-ranging ramifications of its decision in the Batson context and beyond. Moreover, the only “guidance” offered to trial courts is that they should somehow “decide whether the individuals identified . . . share a similar skin color” (majority op at 574). The majority’s vague assurance that these determinations can be made “in the same way” they are made “about race, gender, and ethnicity classifications” supplies little concrete or practical instruction for lower courts tasked with creating a record that allows for meaningful appellate review (majority op at 574).

In this case, the People failed to provide a race-neutral reason for striking the juror at issue and, accordingly, the trial court erred by failing to seat her. Our analysis should begin and end at that.

*582Chief Judge DiFiore and Judges Pigott, Rivera, Stein and Fahey concur; Judge Garcia concurs in result in a separate concurring opinion.

Order reversed and a new trial ordered.

. The court’s disordered ruling is perhaps unsurprising, as varied versions of the purported “cognizable class” were asserted by defense counsel. Defendant never clearly or consistently articulated any “cognizable group” for purposes of step one of the Batson procedure.

. The majority’s new “ultimate determination” requirement is unsupported by our existing case law, which makes clear that “[o]nce a party has placed its race-neutral reasons on the record, . . . the sufficiency of the prima facie showing becomes ‘moot’ ” (Hecker, 15 NY3d at 652 [citations omitted]; majority op at 575). Instead, the majority’s approach now mandates appellate review of a step one holding even though an on-the-record reason for striking the juror has been provided—no matter how inadequate or pre-textual that reason may be. Such a result undermines the purpose of the mootness doctrine, which is designed to prevent courts from “evad[ing] the ultimate question of discrimination” (Hecker, 15 NY3d at 652).

. The majority claims that the mootness doctrine is inapplicable because “the trial court failed to reach the ultimate issue as to the juror in question” (majority op at 576), yet holds that “the trial court committed reversible error by not seating the juror” (majority op at 577). These irreconcilable rulings go unexplained.