BILLY MASH V. COMMONWEALTH, 2010-SC-000584-MR, To-be-published, March 22, 2012, Affirming -
Evidence presented was insufficient to support a fair cross-section challenge to the jury panel. A juror’s negative demeanor was a sufficient race-neutral reason for the prosecutor’s use of a peremptory challenge to strike the juror from the venire. Although not an element of first-degree sodomy, the Commonwealth produced sufficient evidence of penetration to meet the unnecessary specific element of the jury instruction. No evidentiary foundation was presented for an instruction on sexual abuse.
TRIAL TIP: Unfortunately, an attorney cannot just show up the morning of trial, decide there are not enough minority jurors, and move to strike the panel. Information must be collected ahead of time concerning the relevant underrepresentation for a number of jury panels, and statistical evidence should be presented. If there is a statistically proven underrepresentation over a period of time, only then would the state have to change the way it selects people for jury service. Because this is a systemic issue, and because of the size of such an undertaking and the number of cases it would affect, trial attorneys are advised to work closely with their Directing Attorney, Regional Manager, and Trial Division Director in order to challenge county practices that result in underrepresentation of an identifiable minority on jury panels.
Contributed by Susan Balliet