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Legal Myths & Reality


By Judge Joan Shkane


This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH: Lawyers choosing a jury enjoy a free-for-all in the selection of persons to serve on the jury.

REALITY: A lawyer picking a jury at a trial has a number of reasons to reject a possible juror. These are called challenges. A challenge can be for a reason, or for no reason that is spoken out loud. The number of jurors and challenges is dependent on whether the case is criminal or civil and on the seriousness of the case.

A lawyer challenging a possible juror is bound by rules. One of the most important rules, especially in a criminal case where an accused’s liberty is at stake, is that a challenge cannot be made on the basis of race, whether announced or silently. In a case in 2016, a convicted felon, who was Black, claimed on appeal of the verdict that possible jurors were excluded from the jury because of racial bias.

The law is that if a defendant raises the possibility that a challenge was used to discriminate on the basis of race, ethnicity, or sex, then the burden shifts to the prosecutor. If the challenge appears to have been used on the basis of race, then the prosecutor must show a race-neutral explanation for the challenge. Deafness, relationship to defendant or lawyer, and many other reasons that would make it improper for a juror to serve, can be used to explain a challenge. Once all sides have explained their positions, then the judge must decide the real reason for the challenge, and either grant the challenge and excuse the juror, or not.

In 2016, during a trial of burglary and possessing items stolen in the burglary, prosecutors agreed to permit three Black jurors to serve. The accused was Black. But the fourth Black possible juror was dismissed without a single side questioning the possible juror. Two more Black jurors were excluded. The defendant saw this as challenging a juror based only on seeing the juror, and seeing the accused’s race, and not on a rational basis. The defense said that the prosecutor showed a pattern of challenging Black potential jurors, FOR NO LEGITIMATE REASON. The judge erroneously said that the three Black jurors already selected were representative of the community. That is not the standard by which the legitimacy of the challenge must be judged, and never was.

The Appellate court said that there should have been a hearing on whether the prosecution had a legitimate reason to challenge the Black jurors, and the case was returned for such a hearing.

The take-away is that discrimination cannot be permitted in jury selection. Discrimination will be demonstrated by showing there is no legitimate reason to exclude a potential juror in certain cases. If this occurs, then a conviction can be reversed, and the trial started over. Fairness must always prevail.

MYTH: Impeachment of a public official is a simple, cut and dried procedure.

REALITY: The issue of impeachment of an official has been a topic of discussion ever since President Bill Clinton was impeached. In the last 25 years three U.S. presidents have been impeached. Sometimes impeachment leads to removal from office, sometimes not. Trump was impeached the second time after he was out of office, and already removed, so removal was not an immediate issue.

New York State has had little experience with impeachment. There has only been one impeachment case, and that was before an elected governor (the target of the charge) took office, not after. In 1912 William Sulzer was impeached for failing to follow the orders of party bosses. A vote was taken after debate that ended at 5 o’clock in the morning. Some of the members had fallen asleep in their chairs, so the Assembly speaker had to bang his gavel to wake them up before a vote could be taken!

The procedure in New York State is different from the federal procedure in some ways. In New York the Assembly would bring the charges, like the U.S. House of Representatives on the federal side. After an Assembly vote, if recommending impeachment, a New York case would then go to a High Court of Impeachment. This is a court of all 60 sitting state senators, with the exception of the majority leader (because the majority leader is second in the line of succession after removal of a governor, and there would be a clear conflict of interest). Joining the state senators would be the seven members of the New York State Court of Appeals, our highest court, for a total of 69 persons voting. Two-thirds (46) must vote against the official for the official to be impeached and possibly removed.

By contrast, in a federal impeachment proceeding, members of the U.S. Supreme Court, the highest federal court, have no voting role. The chief justice presides over the proceeding, but has no vote.

The New York Constitution, and some say the federal Constitution as well, is vague on what is exactly an impeachable and removable offense. The Sulzer case is not entirely helpful in discussing a possible Governor Andrew Cuomo impeachment, since Sulzer was impeached for an offense that took place after he was elected but before he became governor.

A New York impeachment juror must take an oath or affirmation to impartially try the official. The accused official can have an attorney, or, if the official is an attorney, represent him/herself. If convicted, the official could be barred from seeking statewide political office, but could run for other offices. Governor Sulzer was elected to the Assembly after his impeachment and removal from the position of governor.

In a possible Cuomo impeachment case, if he were impeached, the Lieutenant Governor, Kathy Hocul, would become Governor until 2022, the expiration of Cuomo’s term. She might also serve as Acting Governor during an impeachment trial of the Governor. She may then appoint a new lieutenant governor.

Rumors vary, and once again, time will tell.

Attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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