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16:21:14

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16:22:52

Let me just verify a few things with you.

(Proceedings at side-bar:)

THE COURT:

The plaintiffs exercised

challenges on 12, 13, and 16.

MR. GILBERT:

THE COURT:

16:22:04

got a jury.

30 seconds, counsel, then we've

16:21:44

THE COURT:

Is that correct?

Yes.

And the defendants exercised as to

11, 5, and 4.

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MR. BACEVICE:

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THE COURT:

That's correct.

So the jury I see will be seated

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number 2, number 7, number 8, number 10, number 14, 15, 20,

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and 21.

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MR. CORTES:

Yes, that's what I have.

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MR. GILBERT:

I just would like to raise a

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Batson challenge as to 5 and 11.

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African-Americans on this panel.

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THE COURT:

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MR. BACEVICE:

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MR. GILBERT:

There are very few

How many will be on the jury?

One.
And the two of them were clearly

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not subject to cause, they said they could be fair.

I think

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to have one African-American on this jury is kind of a

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disturbing situation, in that out of three peremptory

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challenges, out of all the people in this jury, they knock

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off two out of the three, and I think that shouldn't be

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16:23:03

MR. BACEVICE:

THE COURT:

MR. BACEVICE:

need to -- we went through that at length.

Mr. Gilbert even said it should be a peremptory, so it was.

16:23:20

allowed.

I believe

deceased child, so we weren't sure that she would be able to

get past her empathy for that kind of situation.

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16:24:31

Number 11, I don't know that we

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16:24:00

Go ahead.

As to number 5, our main reason is that she has a

That's our

reason.

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16:23:39

I can respond, Your Honor.

MR. GILBERT:
enough reason.

I don't think that's a good

She didn't ask to be removed.

MR. BACEVICE:

Asking for a peremptory is not

asking to be removed.
MR. GILBERT:

I don't think that's a

sufficient reason.
THE COURT:

Let's go to number 11.

The first

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step, has the party established a prima facie case that the

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challenge at issue was based on race; then next would be

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require the challenging party to give a neutral reason for

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removal; and then if they are facially neutral, of course

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you provide the challenging party opportunity to establish

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pretext, and then I have to issue a specific ruling on each

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direct question supported by findings of fact.

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I think we have gone through some of those steps.

16:25:06

They raised the issue that the jury of eight, there were

three challenges, and two of them were raised against

African-Americans who are members of a so-called particular

racial group.

The defendant has put forth facially neutral reasons

in regard to 11.

exercising the peremptory challenge were for the reasons you

argued that she should be stricken for cause.

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16:25:26

16:26:03

THE COURT:

Yes, Your Honor.

She is someone who has had

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extensive experience with law enforcement in terms of her

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family, and so forth, and you name it.

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should be released for cause, but I did think that in her

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situation there's a legitimate reason by the prosecutor to

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not want her.

I didn't think she

I think it's one of those things where you can say can

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she be fair, but she carries some -- her son was the

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subject, many times has been involved, so unless there's

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anything more -- I think you've argued pretext as well,

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Mr. Gilbert.

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MR. GILBERT:

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THE COURT:

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16:27:43

MR. BACEVICE:

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16:26:34

I assume that the issues put forth for

Yes.

So that would be my ruling.

Now, let's go with the other one.

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MR. GILBERT:

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THE COURT:

What is the number?

Five.

What was the reason given?

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16:27:49

MR. BACEVICE:
Your Honor.

MR. GILBERT:

MR. BACEVICE:

THE COURT:

MR. BACEVICE:

16:28:00

16:28:21

The fact that she has a child

I don't think she has a

deceased -- this is not the one.

MR. BACEVICE:

Yes.

Male, 44, deceased, 10A.

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Prior to having her come up here, also the racial profiling,

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but I thought she explained that quite well.

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like police, but the deceased child was our concern.

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MR. GILBERT:

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MR. BACEVICE:

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MR. GILBERT:

A 44-year-old.
A child in terms -- not a child

She never said that was a

problem.

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She seemed to

in terms of under 18.

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MR. BACEVICE:

No, I thought no need to bring

up something that was obviously so painful.

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16:28:50

Deceased child.

What did she say about that?

MR. GILBERT:

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16:28:30

I'm sorry?

who is deceased.

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9

Deceased children -- child,

THE COURT:

I'm going to sustain this

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challenge.

I never have done this before, but really it

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never occurred to me based on the reading of her background,

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nor I did not hear anything in the questioning that suggests

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that the mere fact that she has a child who is deceased that

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would prevent her from being able to serve as a juror.

16:29:13

I don't follow that logic, that because a person has

someone who is deceased they wouldn't be able to serve.

have had many people serve, and also in cases involving

death, so I think that's a broad -- I didn't get that.

16:29:57

16:30:47

16:31:00

So going back to where we

were before, when showing a prima facie violation of race,

let me go again back to the context.

African-American.

Three challenges, two

The jury has only a limited number in the

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panel.

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them we weren't going to get to here.

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16:30:27

So let me just go back.

We

I don't know what the full panel was, but most of

The reason articulated was that she had a deceased

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son, and then that's a facially neutral reason, but

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Mr. Gilbert's argument is that's pretext, that in fact there

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is nothing that suggests that she would have trouble being a

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juror because she has a deceased son, and no facts would

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bring that out.

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those we explored very clearly with her, and she said no,

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she said she could be fair.

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issues raised here.

And the other issues about police and all

So those issues were not the

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MR. BACEVICE:

Your Honor, if I may, like I

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said, I didn't feel the need to raise it.

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a deceased child, I knew she was going to get a peremptory

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challenge.

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dealing with a deceased person, and it's the family that's

As soon as I saw

There was no doubt about it in my mind.

We're

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bringing the action.

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16:31:14

MR. GILBERT:
causes.

MR. BACEVICE:

MR. GILBERT:

MR. BACEVICE:

16:32:08

I felt no need to put her

The only other African-American

juror on this panel, you wait until after you make the

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peremptory to then come back and cite something in the

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questionnaire that was never discussed when she was up here.

MR. BACEVICE:
has nothing to do with race.

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it.

It's a peremptory.

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THE COURT:

My reason

I felt no reason to discuss

Okay.

Well, I'm going to sustain

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the challenge on that one.

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reasons that might have sufficed more than that one, you

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know; the fact that people who had contact with police and

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so forth, even if they say they can be fair and those kinds

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of things, but to say that the fact she had somebody who is

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deceased --

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16:32:27

You didn't ask about it.

MR. GILBERT:

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16:31:39

That's true.

through that.

16:31:26

It could have been natural

I think that there are other

MR. BACEVICE:

A child, Your Honor, not just

someone she knew.

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THE COURT:

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it's even a young child.

But this is not a -- I don't think

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MR. GILBERT:

THE COURT:

MR. BACEVICE:

didn't feel the need to put her through that.

pretty obvious to me to not put her through that.

THE COURT:

MR. GILBERT:

16:34:05

It seemed

I'm granting the motion on that.

And Judge, I think they

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THE COURT:

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MR. BACEVICE:

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have a problem with the rest of the jury.

THE COURT:

Do you have another?

I don't have another.

I don't

So we will keep 5 since I

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sustained the Batson challenge with regard to 5.

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22 is not a juror, so it would be 2, 5, 7, 8, 10, and 14,

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15, and 20.

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MR. GILBERT:

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THE COURT:

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16:33:51

Again, I

waive --

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16:33:17

We'd have to ask her.

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16:32:49

Do we know when the person was

deceased?

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16:32:37

44.

That means

Can you repeat that, Judge?

2, 5, 7, 8, 10, 14, 15, and 20.

That's eight, right?

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MR. BACEVICE:

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THE COURT:

Yes, sir.

So I'm here to make these calls.

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I know lawyers have their positions, and I respect that, and

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I have to make hard calls all day, and keep doing that and

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do the best I can.

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MR. GILBERT:

And I'm not saying Jack is a

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MR. BACEVICE:

THE COURT:

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16:34:18

racist or anything, I just think he was wrong on that issue.

Let's not even approach it like

that.

MR. GILBERT:

MR. BACEVICE:

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That's fine.

No.
That's fine, Your Honor.

understand.
THE COURT:

All right.

Okay.

So go ahead and

sit down, and we'll seat the jury and let everybody go.