Systematic Abuse: Latinos Take a Step Back

Hernandez v. New York, 500 U.S. 352 (1991)

LUIS JASSO

Durante la selección del jurado, el fiscal del estado de Nueva York utilizó impugnaciones perentorias para excluir a los posibles jurados Latinos.1 El abogado de Hernández se opuso a las impugnaciones perentorias, alegando que violaron la cláusula de igual protección.2 El fiscal continuó explicando que los miembros del jurado que hablaban español necesitarían un traductor y que era posible que no se adhirieran a la traducción.3 Esto podría afectar a los demás miembros del jurado y es la razón de su exclusión.4 El tribunal sostuvo que los fiscales habían ofrecido una explicación suficiente de raza neutral para las impugnaciones perentorias y rechazó la objeción de Hernández a la violación de la cláusula de igual protección.5 Dionisio Hernandez was convicted of attempted murder and possession of a weapon in a New York Court.6 During the trial, the state prosecutor used peremptory challenges to exclude several Spanish-speaking jurors.7 Defense counsel did not contest two of these challenges because the jurors in question had close family relationships with criminals.8 The other two, however, were the subject of a Batson challenge.9 The prosecutor did not wait for the defense to make a prima facie case of discrimination under Batson and instead volunteered his reasoning to the court.10 The prosecutor explained that the two jurors who were bilingual did not respond confidently when questioned.11 Instead, they would look away and respond hesitantly, especially when asked if they would adhere to the translator as the final arbiter, to which they replied that they would try.12 Accordingly, the prosecutor deemed it necessary to exclude these jurors to prevent their having an undue impact on the rest of the panel.13 The prosecutor denied any knowledge regarding the ethnicity of the jurors and denied any motive to remove them on a racial basis.14 Hernandez appealed.15 In deciding whether the peremptory challenges violated the Equal Protection Clause, the Court used the three-part test established in Batson v. Kentucky: First, a defendant must make prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.16

1.Hernandez v. New York, 500 U.S. 352, 356 (1991). 2. Id. at 355. 3. Id. at 356-57. 4. Id. at 371. 5. Id. at 372. 6. Id. at 355. 7. Id. at 356. 8. Id. 9. Id. 10. Id. at 356. 11. Id. at 357. 12. Id. 13. Id. 14. Id. at 356. 15. Id. at 358. 16. Id. at 359. 4

The Court held that because the prosecutor had offered his reasoning, there was no need to analyze whether Hernandez had made a prima facie showing of discrimination under Batson’s first prong.17 Accordingly, the Court moved to the second prong, noting that while the prosecutor’s criterion for exclusion would result in disproportionate removal of Latino jurors, it was race-neutral in character.18 Although it was reasonable that the jurors might have difficulty accepting the translator’s rendition of Spanish-language testimony, that difficulty would nevertheless support a valid for-cause challenge, and the challenges thus did not violate the Equal Protection Clause.19 Finally, the defense could not prove purposeful discrimination under Batson’s final prong because there was sufficient evidence to credit the prosecutor’s claims that he did not know which jurors were Latinos and that he had no motive to exclude Latinos from the jury.20 Only three of the challenged jurors could be identified with confidence as Latinos, and the prosecutor had offered a sufficient explanation for two of those challenges.21 Therefore, the prosecutor’s peremptory challenges did not violate the Equal Protection Clause.22 In his dissent, Justice Stevens argued that the prosecutor’s use of peremptory challenges in a way that unfairly impacted Latino jurors was sufficient evidence to show discriminatory intent.23 In addition, Justice Stevens noted that Spanish speakers could help the judge to ensure that the translator was translating properly.24 In Stevens’s view, the jurors’ exclusion was a clear violation of the Equal Protection Clause and allowed the prosecutor’s reasoning to stand simply because it was not discriminatory on its face.25 The Court ruled improperly based on its unwillingness to see the effects of its decision on the case at hand or on similar cases in the future. Under this ruling, a Spanish-speaking defendant might stand trial in a courtroom where all Latinos are excused from the jury based on their proficiency with the Spanish language. Denying such a large segment of the population the ability to serve on a jury—especially in a state like New York, where a substantial portion of the population is Latino—could lead to unfair rulings against minorities in general and Latinos in particular. But more generally, excluding one of the country’s largest minority groups from jury service can only result in an imbalanced justice system. What would happen if a translator were to make a mistake or insert an opinion regarding the evidence? What if the translation omits or adds additional phrasing, or changes the wording to seem more or less favorable in English than in the original language? Without a mechanism to correct these errors, the answer would be an inequitable administration of justice. Allowing a multilingual juror to remain provides an avenue to identify and correct such problems and would ultimately serve the interests of justice. Courts must reconsider this issue. Until then, decisions like Hernandez represent a step back for Latinos in the never-ending journey to reach the equality promised in the American dream.

17. Id. at 358. 18. Id. at 363. 19. Id. at 362-63. 20. Id. at 370. 21. Id. at 372. 22. Id. 23. Id. at 379. 24. Id. 25. Id.