Trial Law: Hunting for Jurors
County Court, Sullivan County New York: People v. Robar
Vice President Dick Cheney did it. So too did Robert Robar. Both hunters fired their weapons and struck another hunter. Vice President Cheney’s shot landed him the punch lines on late night TV. Robert Robar’s shot landed him in criminal court.
Robar was hunting on his own property in Sullivan County. Terry Pelton, a trespassing, camouflage-dressed hunter, was stalking deer at the same time. Robar thought he was too. When it moved, he fired. Only it wasn’t a deer.
Pelton was shot in the buttocks and groin. He was not wearing blazing orange or red safety colors to alert other hunters to his presence and as soon as Robar realized he shot a man, he ran to Mr. Pelton, “picked him up and brought him straight to a hospital.” Nevertheless, he was charged with assault in the shooting and his case eventually proceeded to trial.
It is undisputed that the defendant in a criminal action has a right to a jury of his peers. Apparently, for reasons unexplained, Mr. Robar was not looking for hunting buddies to judge his actions. Instead, his attorney used every opportunity and peremptory challenge to excuse jurors who were licensed active hunters (one wonders how their special knowledge would have influenced their thinking, but apparently Robar’s lawyer did not want to find out). On behalf of the state, the Assistant District Attorney trying the case wanted hunters on the panel, and raised a Batson challenge for their systematic elimination from the jury by the defense. An odd case of logic shot to pieces.
The novel issue the court confronted was whether hunters “are a Batson class of protected citizens.” Batson originally held that black people are “a cognizable and protected class of person and a member of said class cannot be denied as a juror based on race alone.” That ruling has been expanded over the years to include Hispanics, Asians, Italian Americans, women and Muslims to name just a few protected classes.
Not only do criminal defendants have a right to a jury of their peers, but so too do the People of the State of New York. Since New York “regulates and licenses this class and this class specifically requires Second Amendment U.S. Constitutional protection,” hunters can be considered some type of protected class. Aware that hunters as a group are not quite the same caliber as say, Hispanics or Muslims, the court created a new class of jurors whose elimination from the panel by peremptory challenge would be considered a Batson-like violation.*
Since excluding hunters was now a Batson-like violation against a fair trial, the People’s Batson challenge was granted (but first deemed by the court to be a Batson-like challenge) and a mistrial was declared.
A long time ago a peremptory challenge by a trial attorney was used for any purpose. Then its use was narrowed to any purpose but the wrong purpose. If that list of proscribed challenges isn’t long enough, we now have the hybrid Batson-like challenge. And if experience is the guide, this hybrid has the potential to bypass its progenitor with even more classes of protected hobbies, professions and skills than the original could ever have anticipated.
If this keeps up, trial attorneys will be hunting for satisfactory reasons to excuse any hostile juror before they ever pull the trigger. Whether this ensures a fair trial, a politically correct trial or a trial by one’s peers is anyone’s guess. But clearly, peremptory challenges are in the courts' sights.
(*On April 28, 2011, the Third Department got the last word on this subject, at least for now: "The fact that hunters may exercise their Second Amendment right — a right certainly not limited to hunters or conferred upon them because they are hunters — does not morph them into a cognizable group for equal protection purposes..." Accordingly, "We reject County Court's unsupported conclusion that the highlighted language was intended to extend Batson's protections to hunters. There is no authority for the proposition, dubious at best, that they are a cognizable group on par with race, ethnicity (or ethnic origin), gender or other status whose exclusion implicates heightened equal protection concerns and scrutiny..." Matter of Robar v. LaBuda. )
