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State v. Wilson6/10/1993
sonable by the norms and standards of the legal profession in New Mexico.
Courts from other jurisdictions that have considered this issue in cases presenting the same or similar facts as those presented by Defendant's case, support the Conclusion that counsel's performance was deficient when he did not make his objection in time for it to
accomplish its goal. See Ex Parte Yelder, 575 So. 2d 137, 139 (Ala. 1991) (failure of counsel to make timely Batson objection to prima facie case of purposeful discrimination by state in jury selection process is ineffective assistance of counsel and prejudice will be presumed), cert. denied, 116 L. Ed. 2d 225, U.S. , 112 S. Ct. 273 (1991); Jackson v. Thigpen, 752 F. Supp. 1551, 1562 (N.D. Ala. 1990) (counsel's failure to object at all to prosecutor's blatantly discriminatory use of peremptory challenges was not a "reasonable exercise of professional judgment" and constituted ineffective assistance of counsel); Williams v. State, 834 S.W.2d 85, 87 (Tex. Ct. App. 1992) (trial counsel's performance deficient in not raising Batson issue on timely basis); Batiste v. State, 834 S.W.2d 460, 466 (Tex. Ct. App. 1992) (same); cf. People v. Reyes, 151 A.D.2d 262, 542 N.Y.S.2d 178, 179 (N.Y. App. Div. 1989) (appellate counsel's failure to raise Batson claim on appeal, where prosecutor had peremptorily removed all Hispanic venirepersons at trial, constituted ineffective assistance of appellate counsel); ) (counsel's conduct in failing to object to seemingly discriminatory use of peremptory challenges when counsel knew Batson was pending in the Supreme Court was unreasonable under prevailing standards). What is notable about the cited cases is that none of the courts involved discussed the possible strategic reasons for untimely or missing Batson objections; rather, the courts determined that the conduct in question was objectively unreasonable and quickly turned to the harder question involved in the issue before them, that of prejudice to the defendant from counsel's deficient performance.
These courts have devised a range of approaches to analyzing the question of prejudice in their cases. The Alabama Supreme Court has taken the simplest approach by holding that prejudice will be presumed when defense counsel is ineffective for not making a timely Batson objection where the claim has merit. Yelder, 575 So. 2d at 139. Texas, on the other hand, conducts a harmless error analysis for constitutional error. See Williams, 834 S.W.2d at 85. The approach that makes the most sense to me involves tying prejudice to whether the defendant would have prevailed on his or her Batson objection. If the defendant would have prevailed, then he or she has been prejudiced by the incompetence of the trial attorney and is entitled to a new trial. See Yelder, 575 So. 2d at 139; Jackson, 752 F. Supp. at 1561-62;
I believe this approach to be the most prudent and the fairest to both parties in a criminal prosecution. Following the majority of jurisdictions, I would find that Defendant established a prima facie case of ineffective assistance of counsel based on the untimely Batson-type objection. I would remand his case for a hearing and reverse in the event the trial court found the State used its peremptory challenges to discriminate against Hispanics during jury selection.
BENJAMIN ANTHONY CHAVEZ, Judge
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