Court orders new trial for black man convicted of murder because judge let prosecutors exclude two black men from jury without much question

The Supreme Judicial Court today ordered a new trial for Anthony Robertson, convicted of fatally shooting Aaron Wornum in the head on Sumner Street in Dorchester on June 26, 2011, because the judge in the case failed to adequately consider whether the prosecution's rejection of two prospective jurors might have been racially biased.

The jury that was empaneled convicted Robertson in 2014 of first-degree murder and armed robbery after a prosecutor convinced jurors that Robertson shot Wornum several times in the head and neck and made off with a gold chain he was wearing.

At issue for the SJC were the Suffolk County District Attorney's "peremptory" rejections of two men from consideration as jurors - both sides are allowed to strike prospective jurors without giving a reason. One of the men was black, the other, born in the Dominican Republic, was the subject of an argument between the prosecution and the defense as to whether he was black or Hispanic.

In either case, Robertson's attorney argued their rejection showed a racial bias by the prosecution and asked Suffolk Superior Court Judge Patrick Brady - who died in 2016 - to probe the issue.

Brady refused, saying the fact the empaneled jurists already included several people of color showed there was no bias. He did ask the prosecutor to respond to the bias allegation about the second man - the one from the Dominican Republic. The SJC reports the DA responded to the question like this:

To be perfectly blunt and I'm going to keep my voice down, he didn't seem like the most intelligent guy. He's like a nice enough guy but he didn't seem all that intelligent.

And, most importantly, I don't consider him African-American. Whether he has African blood in him or not, I have no idea. He was born in the Dominican, I consider him Hispanic.

Brady, who noted that man had a lighter skin color than Robertson, then told the defense attorney he would go no further because the presence of two black women on the jury showed a lack of bias.

Wrong, the SJC said - Brady should have questioned the assistant DA more.

This reasoning fails for two reasons. First, the defendant was not challenging the exclusion of all black people from the jury, but specifically black men. "[A]rticle 12 proscribes the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in a group delineated by race and gender." Commonwealth v. Jordan, 439 Mass. 47, 62 (2003) (no abuse of discretion or error of law where judge found prima facie evidence of pattern of discrimination in defendant's use of peremptory challenges to strike white males). Second, the mere presence on the jury of members of the group at issue is not dispositive whether there is a pattern; the totality of the circumstances must be taken into account.

"Consideration of all relevant circumstances compels the conclusion that the defendant made the limited showing necessary to make out a prima facie showing of discrimination." Jones, 477 Mass. at 326. We conclude therefore that the judge abused his discretion in finding no pattern after the defendant's second objection to the Commonwealth's use of peremptory challenges on black men. Because such an error is structural, carrying the presumption of prejudice, we vacate the convictions and remand the case for a new trial.

Complete SJC decision (113k PDF).
Defense memorandum for a new trial (671k PDF).
DA's answer (3.4M PDF).