Racial prejudice, discrepancies, and biases are nothing new to the United States. For centuries they have persisted in every aspect of American life. It is impossible at this time, after the death of George Floyd and the worldwide protests against this crime and the systemic racial bias in policing, not to be aware of how black people are treated differently. The justice system and the courts are not insulated or immune to these problems either. While we’d like to believe that prosecutors interested in pursuing justice rather than convictions at all costs or protections imposed by the United States Supreme Court and state supreme courts would shield us from racism in the courtroom, we would be wrong. Even in New Jersey, one of the most open-minded and integrated places in the world, even in Essex County, home to the primarily black and Latino City of Newark, racial bias, is present. Whether it is intentional or accidental, whether it is overt or subtle, whether it is individualized or institutionalized, it is present.

On February 24, 2020, in State of New Jersey v. Andujar, the Superior Court of New Jersey, Appellate Division, reversed a conviction arising out of the Superior Court in Essex County because “the State performed a criminal background check on the one Black juror it unsuccessfully sought to exclude for cause, and the trial court then allowed an unverified municipal warrant to result in the juror’s exclusion.”

Before even digging into the details, this raises serious concerns. How did a jury in Essex County have only one Black person on it? For this to happen, something has to have gone wrong in the jury pool creation, in the jury selection as a whole, or in the voir dire and challenge process by the State. How did the trial judge allow this to happen?

After answering the individualized questions asked of jurors as part of the juror selection process, two assistant prosecutors made arguments as to why the juror, F.G., should not participate as a juror. Defense counsel objected, pointing out that the State’s arguments would eliminate all black men from Newark as potential jurors. The trial judge agreed and allowed F.G. to remain as a juror. The prosecutor then conducted a criminal background check on only F.G. and none of the other jurors. The prosecutor discovered a municipal warrant for F.G.’s arrest and said he would have F.G. arrested. This is, in fact, what happened. At trial, Andujar was convicted.

The Appellate Division reversed the conviction because the prosecutor clearly manipulated the composition of the jury pool based on race. The court noted the State did not confirm the warrant was actually for F.G. based on any identifier other than his name, and that New Jersey does not bar persons with municipal warrants, open charges, or non-indictable (non-felony) convictions from serving on a jury. However, the court declined to address the specific issue of whether the State is permitted to run criminal background checks on potential jurors. That issue will have to be decided another day, though, hopefully, the State would never take the actions necessary for the courts to have to reach that decision.

While ultimately, the Appellate Division prevented this injustice, possibly and probably based on race, but certainly with a racially disparate effect from occurring, it saddens me that the court even had to intervene for such an issue.

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