Opinion: Justice LaSalle blessed skin color discrimination in jury selection. That’s disqualifying.
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Hector lasalle, the current presiding justice of the appellate division, second department and governor kathy hochul’s nominee for the chief judge of the court of appeals. eagle file photo
By Vincent M. Southerland and Jason D. Williamson
Governor Kathy Hochul’s chief judge nominee has been rightly criticized for his anti-abortion, anti-union and anti-immigration opinions. But another case that came before Justice Hector LaSalle regarding the rights of the accused is worthy of equal criticism. In People v. Bridgeforth, Justice LaSalle blessed the striking of the jurors based on their skin color. Wrong as both a legal and moral matter, Bridgeforth was quickly overturned by the Court of Appeals. The decision, and its problematic reasoning, should disqualify Justice LaSalle from leading New York’s court system.
Bridgeforth concerns a dark-skinned Black man alleged to be one of several people who committed a robbery in Queens. He was convicted, but only after five “dark-skinned women” were struck from the jury by the prosecution. Mr. Bridgeforth challenged the striking of these women, who were all dark-skinned Black, Guyanese or Indian-American women. He claimed the prosecutor had discriminatorily struck them on the basis of their dark complexion, similar to his own, denying him the right to be judged by a jury of his peers and leaving him susceptible to the pervasive biases grounded in colorism.
Discrimination in jury selection is a persistent problem leading to disproportionately higher conviction rates for people of color. Throughout the 20th century, prosecutors routinely removed Black people from serving on juries, resulting in predominantly White juries that routinely punished Black people and protected perpetrators of racial violence. Likewise, juries will subject darker-skinned people to harsher punishment. In 1986, the United States Supreme Court stepped in to curtail the practice of striking jurors of color in Batson v. Kentucky by ruling that striking jurors based on race was unconstitutional.
The opinion Justice LaSalle joined in Bridgeforth ignores the obvious discrimination in the prosecution’s actions. The prosecutor could not offer a single reason for striking an Indian-American woman from the jury other than her skin color. Yet the justice joined an opinion refusing to find that “skin color” was a class protected by either the federal or state constitutions. One could be rejected from jury service because of the color of their skin. It was an opinion that quite literally did not see color.
In a courtroom, lawyers determine a person’s race almost entirely via skin color. Had Justice LaSalle’s rejection of skin color as a protected class prevailed, it would have had the perverse effect of inviting the very sort of discrimination that Batson is supposed to prevent. This would have made already difficult Batson challenges based on racial discrimination much more difficult to win, subjecting defendants to more frequent violations of their constitutional rights. Simply put, New Yorkers would not get a fair day in court.
The Court of Appeals recognized the potential harm that would flow from such an opinion. It reversed Bridgeforth in a blistering opinion, finding that the ruling Justice LaSalle’s joined would “eviscerate” the protections of Batson. After specifically noting Mr. Bridgeforth’s dark complexion as well as the complexions as the struck jurors, the Court of Appeals discussed the fact that both New York’s Constitution and Civil Rights Law differentiate “race” and “color.” “Color must be distinguished from race,” Judge Sheila Abdus-Salaam wrote, because “persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity.”
Unfortunately, Justice LaSalle’s decision to concur in Bridgeforth and his broader Batson jurisprudence is emblematic of his cramped view of civil rights and troubling decision-making. Of 12 Batson challenges that Justice LaSalle heard as an appellate judge, he sided with the prosecution in 11 of them. In these cases, Justice LaSalle was prepared to deprive people of a fair jury of their peers. He even refused to overturn a conviction after the lower court found a Batson violation, finding the violation to be too minimal despite a clear violation of the defendant’s constitutional rights.
New Yorkers deserve a chief judge who will recognize the full scope of rights afforded to us under the Constitution. Justice LaSalle’s record in Bridgeforth and beyond makes clear he is not the person for the job.
Vincent M. Southerland is an assistant professor of Clinical Law at NYU School of Law and the co-faculty director of the NYU Law Center on Race, Inequality, and the Law. Jason D. Williamson is executive director of the NYU Law Center on Race, Inequality, and the Law.
