By Michael Booth, From New Jersey Law Journal

A judge presiding over the carjacking trial of two African-American men should have immediately removed a white juror after she expressed concern and nervousness about seeing black men in her neighborhood, a New Jersey appeals court ruled Aug. 31.

The three-judge Appellate Division panel also had harsh words for the trial judge, Union County Superior Court Judge Joseph Donohue, whom it said, in effect, acknowledged to the jury that racial prejudice in a juror was an “unavoidable reality of life.”

Appellate Division Judges Jose Fuentes, Victor Ashrafi and Amy O’Connor ordered a new trial for the men—Rashon Brown of East Orange and Malik Smith of Newark—on charges of armed robbery and carjacking because the woman, identified only as Juror 4, was allowed to remain on the panel.

“Racial bias is repugnant to any notion of fairness or impartiality; it is the antithesis of justice under the law,” Fuentes wrote for the court in the combined cases.

Brown is serving a 25-year sentence and Smith is serving a 23-year sentence for the Dec. 8, 2011, carjacking and robbery of Evelyn Arroyo-Maultsby in Hillside.

Prosecutors said Brown showed Arroyo-Maultsby a handgun before he and Smith forced her out of the car. When the two men fled the scene she called the police, who located the stolen vehicle with the men inside less than five minutes later.

After a brief car chase both suspects ran out of the car in opposite directions, prosecutors said. Brown ran from the car with a gun in his hand, which he dropped during the foot chase. Police found him a short time later hiding under a pile of garbage on a porch near the stolen car. Smith escaped that day but was later identified and arrested, prosecutors said.

The jury deliberated over the course of two days before convicting the two men.

On the second day of deliberations, Juror 4 told two jurors, Juror 5 and Juror 12, that she was “‘concerned'” and “‘nervous'” because she saw two African-American males emerge from a park near her house as she was preparing to drive to the Union County Courthouse, according to the appeals court’s opinion.

“‘They certainly don’t live here, and they don’t hang around there,'” Juror 4 said, according to the opinion.

She then expressed worry that the presence of the men may have been somehow connected to the trial, the opinion said.

Juror 5, who worked in Juror 4’s neighborhood, agreed that the presence of the men was strange because the area “‘mostly is Italian and white people. There really are no black people around there,'” according to the opinion.

Juror 4, at the urging of the other two jurors, spoke to a sheriff’s officer about her concerns, and the officer relayed her concerns to Donohue, who was presiding over the trial, the opinion said. Donohue questioned the three jurors, who insisted that the incident would not affect their impartiality.

Fuentes said that based on those facts, the appeals court was “compelled” to reverse.

“When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based solely on the race of the participants, she revealed a deeply rooted, latent racial bias that required her removal from the jury,” Fuentes said. “Her initial instinctive, subliminal association of race with criminality or wrongdoing far trumped her subsequent assurances of impartiality.”

Donohue, he said, erred in believing her “self-serving” denial of prejudice.

And, Fuentes said, Donohue, in his later instructions to the jury, appeared to give legitimacy to Juror 4’s “irrational, racist” fear of seeing two African-American men in her neighborhood by indicating the fear was justifiable and understandable.

“‘It would be unusual for someone who is black to be in that area,'” he said, according to the opinion. “‘I don’t think that’s even an expression of racism.'”

“These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African-American defendants,” Fuentes said. Juror 4’s remarks should have been “immediately repudiated” and she should have been removed from the jury, he said.

Fuentes said racial prejudice continues to be a “pernicious” problem in the jury selection process.

“Like all things designed by the human mind, the pretrial jury selection process is not perfect,” he said.

“This requires our colleagues at the trial level to be in a constant state of vigilance throughout a jury trial for signs of racial bias or other extraneous matters that may affect a juror’s impartiality,” Fuentes said.

He equated Juror 4’s fears with racial profiling, which for years had been an accepted technique by the police for identifying potential criminal suspects.

“We have unequivocally condemned this specious and hateful practice when it was used by the law enforcement community in the state to target minorities as they traveled our highways,” Fuentes said. “We must adopt the same policy of zero tolerance when a version of such an odious concept contaminates, to any degree, the jury’s deliberative process.”

Brown’s attorney, former assistant deputy public defender Karen Truncale, has retired since the appeal was filed and could not be reached for comment. Smith’s designated counsel, Montclair solo Monique Moyse, did not return a call seeking comment.

Mark Spivey, a spokesman for Union County prosecutor Grace Park, said Park declined to comment.

Photo: Jason Doiy

For more on this story go to: http://www.njlawjournal.com/id=1202736097797/Judge-Should-Have-Removed-Racially-Biased-Juror-Court-Says#ixzz3kgT3WoOh