Black man convicted for a stabbing to get new trial because judge excluded potential jurors who thought white witnesses who used the N-word might be prejudiced against blacks

The Massachusetts Appeals Court today ordered a new trial for a black man convicted of stabbing a white man by an all white jury after the judge in the case dismissed two black potential jurors who told the judge that, yes, they might think a white guy yelling the N-word was racist.

The ruling follows a decision by the Supreme Judicial Court earlier this year that seeing a bias against blacks in the justice system is not, by itself, enough to exclude somebody from a jury.

At issue today was a guilty verdict by a Plymouth Superior Court jury in 2016 against Dominick Alves, who is black, on charges he stabbed somebody at a Wareham graduation party in 2013. The events that led up to the stabbing, according to the appeals court summary of the case, started when a group of white guys began bothering a friend of Alves's and that when he told them to leave his friend alone, some of them began yelling "nigger" and "nigger boy." at him. The court continues:

Sometime later, someone who was identified as the defendant punched one of the white men in the back of the head, and ran into a crowd of over thirty people, many African-American. The adult son of the man who had been punched testified that he, the
son, ran into the crowd yelling, "Which one of you fucking niggers hit my father?"

The son grabbed an individual identified as the defendant and they began fighting. The son was stabbed. A friend of the son, the stabbing victim, testified that, after he watched the stabbing, he yelled, "Which one of you niggers just stabbed my friend." The friend also admitted that he might have posted on the website Facebook the day after the incident, "Bet that nigger is regretting it, too." And, at the very end of his testimony, he volunteered, completely unsolicited, the following: "Want to hear an old saying? . . . They say, 'Niggers come in . . . all colors.'"

At issue in Alves's appeal was the way the judge in the case excluded two potential jurors, who were black, when they acknowledged in a jury-selection interview with him that they found the use of the N-word objectionable enough it might color their thoughts towards the testimony of the people who'd allegedly used it during the incident. The judge did not then ask them if they thought they could be fair and impartial in a trial involving extensive use of the word. Through his attorney, Alves said this deprived him of a fair trial by his peers under the section of the state constitution that deals with trial issues.

In its ruling today, the appeals court agreed.

We agree; the judge's voir dire questions improperly excluded jurors holding a specific belief with respect to racial discrimination "born of the prospective juror's life experiences," and who, as a consequence, might have been particularly attentive to the racial dynamics of the case. Commonwealth v. Williams, 481 Mass. 443, 449 (2019). The consequence was that the defendant was tried by an all-white jury that did not contain a representative cross-section of the community, and whose selection denied his right to an impartial jury, in violation of art. 12 of the Massachusetts Declaration of Rights. We therefore conclude that his convictions must be reversed and the case remanded so that he may have a new trial before a properly constituted jury.

The 3-2 majority on the court elaborated:

[A]although we do not suggest the judge asked the question in bad faith, the two people of color on the jury venire who were brought up for individual voir dire were removed not for an inability to be fair or impartial, but for giving a reasonable answer to an improper question that could only be reasonably understood to be askingwhether a witness who had engaged in racist speech might be less credible when testifying against a member of the racial minority group he has indicated he despises. Because only people of color were improperly excluded from the jury, the defendant was deprived of the right to be tried by a jury representing a fair cross section of the community in violation of the Massachusetts Constitution and Declaration of Rights. So fundamental is the right to trial by a jury composed of a fair cross section of the community that, if there is no "fair cross section on the petit jury," Soares, 377 Mass. at 483, the defendant is entitled to a new trial without any need to show further prejudice. ... Thus, the defendant's conviction must be reversed, and the case remanded for a new trial before a properly constituted jury.

The court continued:

The defendant's art. 12 right to an impartial jury was also violated for another independent reason: The jury were scrubbed improperly of a group of jurors, representative of a substantial segment of society, who might have been particularly sensitive to the racial dynamics at play in the case, and whose absence may have affected the jury's assessment of the credibility of witnesses who expressed racist views toward people of the defendant's race. Indeed, eleven of the twenty-nine prospective jurors who were asked the "rephrased" question -– over one-third of prospective jurors drawn from the venire who were asked -– were struck by the judge solely for their answer.8 Treating the beliefs of prospective jurors as "in themselves disqualifying" is impermissible when the disqualification of the prospective jurors holding those beliefs would distort the composition of the jury in a way that, because of the race of the defendant, might affect the jury's judgment on an issue entrusted to them –- in this case the credibility of certain witnesses.

The two justices who dissented agreed with the majority that Alves deserves a new trial, but disagreed on the exact reasons why - they wrote that they disagreed that the question that the judge asked the two dismissed was improper, but that his constitutional failing was in not then following up with additional questioning to ensure that they could remain fair and impartial as they heard evidence and deliberated.