State v. Saladin Thompson, unpublished opinion, App. Div. Docket No. A-5366-06T3 (March 25, 2010) – “[W]e are satisfied that defendant established a prima facie case of purposeful discrimination in the prosecutor’s exercise of peremptory challenges to excuse seven African-American prospective jurors. We therefore remand to the trial court for further proceedings pursuant to State v. Gilmore, 103 N.J. 508, 537 (1986)….[D]efendant satisfied the first step of the three-step Gilmore test and the court should have required the prosecution to proceed to articulate clear and reasonably specific explanations for the excusal of the seven African-American jurors. Id. at 537. Of her twelve peremptory challenges provided by Rule 1:8-3(d), the prosecutor excused nine jurors, seven of whom were African-Americans, as is defendant.
The use of seven of a total of nine peremptory challenges the prosecution exercised to excuse African-Americans is evidence that the prosecutor excused a cognizable class of prospective jurors. The excusal of these seven African-Americans is also evidence that the prosecutor used a disproportionate number of peremptory challenges against this cognizable group. Id. at 535-36.
We do not agree with the argument advanced by the State that the proportionality analysis is based upon the total number of African-Americans finally seated, which in this case was five. While the composition of the jurors ultimately seated is a factor the court may consider in the third step of the process in weighing whether a defendant has met the ultimate burden of proving impermissible discrimination, it is not a factor that weighs against the defendant insofar as establishing a prima facie case. Id. at 536.”