While conscious or intentional mistreatment of minorities is typically the province of a relatively small number of bigots who live among us, it is the insidious existence of unrecognized, unconscious, or implicit racial bias in our society which has and continues to systemically threaten and undermine the achievement of racial justice for all. However, a major step in the right direction toward addressing implicit racism in the New Jersey courts was recently taken by the New Jersey Supreme Court when it issued its unanimous decision in State v. Andujar, 2021 N.J. LEXIS 733 (2021), calling for the Judiciary to arrange for a Judicial Conference on Jury Selection to convene sometime in the Fall of 2021 to explore the nature of discrimination in the jury selection process.

Following a first-degree murder conviction, Defendant Edwin Andujar appealed his conviction, arguing he was denied the right to a fair trial because race discrimination infected the jury selection process. The appeal focuses on the jury selection process at trial regarding F.G., a Black male from Newark, New Jersey. During voir dire, – the process of questioning potential jury members for their suitability for jury service – F.G. was questioned extensively on his relationship with the criminal justice system and his affiliation with family and close friends who have been accused of or victims of crime.

The State challenged F.G. for cause and asked that he be removed, noting his “background,” “lingo” used about the criminal justice system, and close ties to individuals engaged in criminal activity call into question whether F.G. respects the criminal justice system. The defense countered, stating “it is not a hidden fact that living in certain areas you are going to have more people who are accused of crimes, more people who are victims of crime,” and to “hold it against [F.G.] that these things have happened . . . to people that he knows . . . would mean that a lot of people from Newark would not be able to serve.” The trial court overruled the prosecutor’s application, finding F.G. would make a fair and impartial juror. The prosecution then conducted a criminal history check on F.G., revealing that there was a warrant out for his arrest and that the State would be taking F.G. into custody the next day. The State then renewed its application to remove F.G. for cause, and successfully did so without objection and arrested F.G. On appeal, Defendant and his amici curiae contended the use of discriminatory background checks on prospective jurors violates the State and Federal Constitutions, particularly equal protection, due process, and the right to a trial by a jury comprised of a fair cross-section of the community.

The State Supreme Court held that the prosecutor failed to present a characteristic personal to F.G. that caused concern, and instead impermissibly argued that because F.G. lived in a neighborhood where he was exposed to criminal behavior, ergo, he must have done something wrong himself or lacks respect for the criminal justice system. By performing a criminal history check on F.G. and setting his arrest in motion, the State evaded Batson/Gilmore and along with the evidence from the trial court record, an inference that his removal was based on race was created.

The prosecution failed to raise a non-discriminatory reason for the use of the criminal history check and subsequent arrest to keep F.G. off the jury. While purposeful discrimination was not found, the State Supreme Court determined that evidence in the record suggested an implicit or unconscious bias on behalf of the State. Prior to this holding, the State had the unilateral ability to conduct criminal history checks on prospective jurors. It was the abuse of that power that led the Court to lay out the framework to be followed for future background checks. The Court went on to opine that any party seeking a criminal history check on a prospective juror must first get permission from the trial court by presenting a reasonable, individualized, good-faith basis to believe that a record check might reveal pertinent information unlikely to be uncovered through voir dire. Opposing counsel must be notified of the request, and if an objection is made, both sides must be given the opportunity to be heard. The results of the background check must be shared with all parties and the court. If the results raise legitimate concerns about a prospective juror’s ability to serve, then the juror should be afforded an opportunity to explain the results of the background check before a decision is made.

In State v. Andujar, the Court concluded defendant Andujar was denied his right under the State Constitution to a fair and impartial jury selected free from discrimination. The judgment of the Appellate Division was affirmed, Andujar’s conviction was overturned, and the case was remanded for a new trial.

In closing, the Court stated, “[t]he criminal justice system rests on having cases decided by impartial jurors, who are drawn from a representative cross-section of the community and selected free from discrimination. To give meaning to those principals, we must acknowledge that discrimination can infect the existing jury selection process. And we must take steps to address that serious problem.” (emphasis added). The Court called for a Judicial Conference on Jury Selection to convene with legal experts, scholars, and interested advocacy groups to participate and “enhance ‘public respect for our criminal justice system and the rule of law’ by ‘ensur[ing] that no citizen is disqualified from jury service because of . . . race’ or other impermissible considerations.”

If you believe you have been the victim of discrimination, do not hesitate to call the attorneys at Mashel Law at (732) 536 6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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