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Conviction is overturned because juror expressed alarm about black men in her neighborhood

A New Jersey appeals court has reversed the carjacking conviction of two black men because a judge failed to remove a juror who revealed a “deeply rooted, latent racial bias” after being seated.

The New Jersey Appellate Division said its opinion was intended to provide guidance of “a zero tolerance policy” to trial judges dealing with the issue of racial profiling. The Bergen County Record has a story on the decision (PDF), issued on Monday, while the Legal Profession Blog provides highlights.

During deliberations, the juror told two other jurors she was concerned because she saw two black men in her neighborhood that morning and she feared they may have some kind of sinister connection to the trial. The two other jurors suggested the juror tell a sheriff’s officer securing the jury, who told the judge.

The juror told the judge that she saw “two dark black fellas” come out of a park as she was getting into her car at about 7 a.m. “I was concerned about my well-being,” she told the judge. “I don’t know if, you know, I was going to be stalked someplace, because I mean I don’t know these people. They certainly don’t live around there, and they don’t hang around there.” She went on to tell the judge she was worried the men would stalk her if she found the defendants guilty.

The woman assured the judge that the incident wouldn’t affect her deliberations. The judge allowed her to continue on the jury, telling defense counsel, “We cannot deal at the jury selection level with subconscious behavior. We tell the jury that we understand, that we expect to some extent people have developed certain prejudices, some fixed ways of thinking. … The fact that they might does not exclude them from service as jurors.”

The judge also offered “impromptu, sua sponte ‘instructions’ to the jury,” saying he wanted to create a record about a juror expressing concerns about blacks in her area. “I don’t think that’s even an expression of racism,” the judge said.

The appeals court said the judge abused his discretion by failing to remove the juror. “Even more disturbing,” the appeals court said, was the trial judge’s reaction to the juror’s revelations. “The judge was not only oblivious to the juror’s unmistakable racial bias, but he actually endorsed the juror’s misguided apprehensions.”

The appeals court ruled in the case of Rashon Brown and Malik Smith, who had received sentences of more than 20 years in prison.