Appellate Division: Prosecutor’s Jury Selection Improperly Based on Dubious Explanations & Stereotypes

On June 29, 2021, in People v. Murray, the Appellate Division reversed the convictions of Dexter Murray, an OAD client, finding that the prosecutor at his trial exercised her peremptory jury challenges in a racially discriminatory manner. In the landmark decision Batson v. Kentucky (1986), the United States Supreme Court made clear that it is unconstitutional to exclude prospective jurors based upon their race and created a framework for establishing purposeful discrimination in the jury selection process.

In Mr. Murray’s case, the prosecutor removed four out of the five African American potential jurors available for selection on the trial jury. Mr. Murray, who was representing himself at trial, raised the Batson objection. When the prosecutor attempted to explain why she excluded every available Black juror but one, her explanations shifted over time and included the claim that she wanted to seat jurors who had “higher level jobs” and “indicated that they read.”

The Appellate Division bluntly rejected the prosecution’s explanation: “We cannot accept as race-neutral a prosecutorial explanation that was a pretext masking a discriminatory intent.” The Court, quoting earlier precedent, continued, “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so.”

In the aftermath of George Floyd’s murder, Chief Judge Janet DeFiore, commissioned the Report from the Special Adviser on Equal Justice in New York State Courts. The Special Adviser’s Report found pervasive racial discrimination in courtrooms throughout New York: “The sad picture that emerges is, in effect, a second-class system of justice for people of color in New York State.”

In recent years, New York State’s incarceration rate was 7.56 times higher for Black people than for white people.1 Within the five boroughs, the population of Rikers Island—where Mr. Murray was confined before being tried by a nearly all white jury—is comprised of approximately 90 percent people of color.2 Rikers Island bears the name of Richard Riker, who was a former slave holder and a New York judge who adjudicated Fugitive Slave Act claims.3

Fortunately, the Special Advisor’s Report diagnosed the problem and prescribed the way forward: “This is a moment that demands a strong and pronounced rededication to equal justice under law by the New York State court system.” The Appellate Division’s decision in Mr. Murray’s case is a critical place to start.

OAD attorneys Adam Murphy and Joseph Nursey had the privilege of representing Mr. Murray on appeal.

1Prison Policy Initiative, New York Incarceration Rates by Race/Ethnicity (2010), available at

2Bruce Western, Jaclyn Davis, Flavien Ganter, & Natalie Smith, “The Cumulative Risk of Jail Incarceration,” Proceedings of the National Academy of Sciences (Jan. 15, 2021), available at

3Brentin Mock, “The Dark ‘Fugitive Slave’ History of Rikers Island,” Bloomberg CityLab (July 23, 2015), available at