Terrance Carew v. Robert Morton, Superintendent, Downstate Correctional Facility

In Batson v. Kentucky, 476 U.S. 79 (1986), this Court held that racially motivated peremptory challenges by the government violate the equal protection rights of a defendant and undermine public confidence in the judicial system. As such, whenever a defendant prevails on a Batson claim, the court ---- must impose a remedy—lest it preside over a trial tainted by racial discrimination. In the decision below, the Second Circuit acknowledged this well-settled principle. Yet when asked to apply it to a situation in which defense counsel made two successful Batson claims but allowed them to go unremedied, it took the unprecedented position that such a failure was excusable because it may have been part of some undisclosed defense strategy. In its view, requiring that attorneys demand a remedy after prevailing on their Batson claims would “trap” them between “competing obligations—Batson on the one hand, the client’s best interests on the other.” Defense counsel must be able to strategically forego a Batson remedy, excuse the government’s racial discrimination, and have their clients appear before juries empaneled in violation of the Equal Protection Clause so as to avoid this “tension,” says the Second Circuit. The question presented is as follows: Whether an attorney has necessarily provided ineffective assistance of counsel when, after making successful Batson claims, he fails to insist on a remedy and allows his client to be tried by a jury selected by racially discriminatory means?