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As America’s Waistline Expands, Will More Defendants Be Acquitted?

January 11, 2009

According to a Judge and prosecutor in the Northern District of New York, this could well be true, but here’s the rub–it’s all relative. You see, Seth Dolphy, an African-American, was on trial for drug, weapon, and attempted assault charges. The prosecutor used one of his peremptories to strike the only black juror on the panel. On a Batson challenge, the prosecutor explained that:

[B]ased on my reading and past experience, . . . heavy-set people tend to be very sympathetic toward any defendant.

(Emphasis added.)

Ergo, overweight people are not qualified to sit on criminal juries.

But on a Batson inquiry, the clarity of excess lbs is lost because, upon further inquiry it is discovered that it’s all relative. How so? It turns out that the prosecutor did not have a pattern of striking overweight people from juries. The trial judge, however, determined that was “neither here nor there,” because the government can disqualify overweight people as a class since it has apparently been written that they are more sympathetic to defendants. Consequently, the trial court ruled the prosecutor’s peremptory was race neutral. Barely passes the straight-faced test, but there’s still more to the story . . . .

Ultimately, two of the seated jurors were overweight. When defense counsel moved for a mistrial at the conclusion of jury selection based on Batson, the Second Circuit eloquently explains what transpired:

The trial court observed that “overweight is a subjective term,” tactfully suggested that the judge and defense counsel were both “a little overweight” and could stand to lose a few pounds, and opined that the excluded juror was (by contrast) “grossly overweight.”

Dolphy v. Mantello, pg. 5 (CCA 2 Slip Op.).

To summarize, it is reasonable to posit that people who are grossly overweight, as compared to the weight of the judge, defense counsel, and prosecutor in a given case, will be more sympathetic towards any defendant whatsoever.

According to this reasoning, it is only those with protuberant bellies on panels before thin judges, defense counsel, and prosecutors who need balk at being subjected to the examination that is jury selection. And we wonder why people try to avoid jury service?

In any event, the foregoing exchange was not viewed with a jaundiced eye until the case made it to the Second Circuit on collateral attack. It was then that a court finally applied the third prong of Batson, to wit: Reviewing the record to determine whether the trial court considered the credibility of the prosecutor’s purportedly race neutral explanation (i.e., the discriminatory intent prong).

Specifically, the Second Cicruit reiterated that a Batson analysis does not permit a trial court to accept a prosecutor’s proffered race-neutral explanation in conclusory terms, but requires a credibility determination of the asserted justification for the strike. Thus, for example, when faced with a Batson challenge, a prosecutor may not strike Barney from a panel because he’s big-boned simply because the judge, defense counsel, and prosecutor have “evolved” and thus have smaller builds. As the Second Circuit astutely inquires, “which side is preferred by skinny jurors?”

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