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State v. Gomez10/13/2005
different from other jurors and as such I believe that the basis to work has described her because she is a black woman.
THE COURT: All right, [Prosecutor's Name] the challenge is?
[PROSECUTOR]: The challenge, Your Honor, is well, the obvious reason that this young woman had a tragic circumstance occur in her life at a very young age, and as she has described for us, came into court and testified for the defense on behalf of her father. Her father was nevertheless convicted and she also described for us how her father, or her family, went to some length it sounds like to me to look at the evidence and still convinced that the evidence certainly didn't justify having her father in prison, and then once he came out of prison, the father came back to live in the household with she, and a younger sister.
THE COURT: I wasn't sure the victim or the complainant in that case was her sister?
[DEFENSE COUNSEL]: Her half-sister.
[PROSECUTOR]: And I'm not sure of half how either, I don't think it matters, but obviously our concern is the obvious one. I don't know that I need to state anymore for the record. It's just a situation that is untenable.
THE COURT: Well, it's a complex situation and I read it similar to the situation we had yesterday. I probably would deny a challenge for cause if she continued to say she could be fair. She's a credible person. She's not, I don't think she's trying to get out of this jury, but I agree with the State that if the grace of the jury is left out of it, it would be bordering on ineffective representation not to challenge her because of that. So I'll excuse her, it's not a - it's clear to me there is a valid and mutual reason. Bring her back in Pat.
You don't even have to come way back up here, I'll just tell you I've discussed it with the lawyers and I've decided I'll excuse you from this jury. Doesn't mean you're not qualified to be a juror here, you are or you wouldn't have got to this room, but as you probably know we have to turn fifty jurors into about fourteen and so we do it one at a time like this and we've just decided to excuse you from this jury. So check back in - probably tomorrow morning down at the jury office.
While the parties have framed their arguments with respect to venireperson 21 around the trial court's application of Batson, we are most troubled by the court's handling of venireperson 21 before the state exercised a peremptory strike of venireperson 21. A trial court's obligation to act to prevent discrimination, that is, to question a party's exclusion of a venireperson who is a person of color does not include a trial court on its own, initiating a peremptory strike of a venireperson. Nor is it permissible for a trial court to elicit a party's reaction to a possible strike before the strike has been made. Our rules of criminal procedure clearly put the exercise of a peremptory strike in the hands of the party seeking to exclude the venireperson. See Minn. R. Crim. P. 26.02, subd. 4(3)(b)4, 5 (allowing the defendant or the state to exercise a peremptory challenge after completing examination of a venireperson); see id. at subd. 6 (stating that "if the offense is punishable by life imprisonment the defendant shall be entitled to 15 and the state to 9 peremptory challenges"). By exercising a peremptory strike, the party "invokes the formal authority of the court" and invites the "direct and indispensable participation of the judge," who has the obligation to oversee the enforcement of the peremptory strike, including raising a Batson objection sua sponte when necessary. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624 (1991); Minn. R. Crim. P. 26.02,
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