BOSTON — In a case expected to go to the nation’s highest court, a federal appeals court this week upheld a lower court ruling about a 20-year-old Black man from Lewiston, Maine, who was convicted of two felonies by an all-white jury after the lone person of color was stricken by a prosecutor from serving on the jury.
Malik Hollis Androscoggin County Jail
The defendant’s attorney said Thursday he’s planning an appeal to the U.S. Supreme Court.
Malik B. Hollis, 26, had appealed in Maine’s highest court in 2018 the trial court judge’s decision to allow the prosecutor to strike the person of color in a peremptory challenge.
The case later made its way to federal court and was heard in April 2021 by a three-judge panel at the U.S. Court of Appeals for the 1st Circuit in Boston.
The judge who wrote that court’s opinion Tuesday said in a concurring opinion that the facts of the appeal were “concerning” and that the striking of the lone juror of color for his level of education was “troubling.”
At issue in Hollis’ appeal was whether the Maine Supreme Judicial Court applied the law or facts to the case unreasonably when it upheld the conviction of Hollis in its July 2018 ruling.
Writing for the federal appeals court in it’s 22-page decision, Judge Kermit V. Lipez wrote Tuesday that the case centers on the U.S. Supreme Court ruling in Batson v. Kentucky in 1986 in which the court held that “the equal protection clause precludes the prosecution from using its peremptory challenges to strike ‘potential jurors solely on account of their races.'”
Racial discrimination during jury selection “not only ‘compromises the right of trial by impartial jury’ but also ‘establishes state-sponsored group stereotypes rooted in, and reflective of, historical prejudice,'” Lipez wrote of the high court’s explanation for its ruling.
In order to raise such a claim, the defendant must show that the totality of relevant facts “gives rise to an inference of discriminatory purpose.” Lipez wrote.
After the defendant has made that showing, the prosecutor must “explain adequately the racial exclusion by offering permissible race-neutral justification for the strike,” Lipez wrote.
Lastly, the trial judge must decide whether the defense attorney has “proved purposeful racial discrimination,” Lipez wrote.
Hollis’ attorney, James Howaniec of Lewiston, had argued in 2018 that then-Androscoggin County Superior Court Justice William Stokes had erred a year earlier when he’d allowed an assistant district attorney to strike a Black juror — the only person of color in the jury pool — from being empaneled on the jury in a criminal case involving Hollis in which race was a prominent issue.
But Maine ’s high court had affirmed the trial judge’s decision, reasoning that “the record supports the trial court’s determination that the (prosecutor) did not engage in purposeful discrimination when it peremptorily challenged the juror,” according to court records.
Malik Hollis of Lewiston listens to his attorney, James Howaniec, during a hearing in Androscoggin County Superior Court in Auburn seeking a new trial in September 2017. Sun Journal File Photo
In May 2016, Hollis had been involved in an altercation involving four white men outside an apartment building in Lewiston.
At the trial, one of the men said he had hit Hollis with a metal handlebar, called Hollis the “N-word” and said he was “going to f—ing kill him,” Lipez wrote.
Another of the men carried an aluminum baseball bat and a third man held a baton,” Lipez wrote.
At some point, Hollis ran to his apartment, “returned with a gun and fired it into a nearby dirt pile,” Lipez wrote.
Hollis was arrested and charged with reckless conduct with a dangerous weapon and criminal threatening with a dangerous weapon; both are felonies.
None of the white men were charged.
At Hollis’ trial, Juror No. 71 was the only person of color in the pool of 32 randomly selected prospective jurors. That juror had an 11th-grade education, the lowest level of any juror in the pool, Lipez wrote.
Neither side challenged him for cause, but the prosecutor used a peremptory challenge to have him stricken from being empaneled.
Howaniec objected, saying that Juror No. 71 was a “man of color” and that “We’re trying to explore here in Androscoggin County why we’re not seeing more people of color on our juries and not seeing people of Muslim faith. We have a large Somali population. We have one person of color in the entire jury pool. I just wanted to put that on the record.”
Assistant District Attorney Katherine Bozeman told the trial judge: “I just would put that his ethnicity had no bearing in regards to why I struck him. I was looking for his level of education and other various factors that were provided in the list from the court.”
The judge said he couldn’t make a finding of “systemic” discrimination on the part of the prosecutor.
Hollis was convicted on both counts after a two-day trial in which the defense argued Hollis acted in self-defense.
He was sentenced to three years on each count, but served them concurrently, resulting in three years behind bars.
Hollis later filed a motion for acquittal or a new trial citing the so-called Batson challenge at jury selection.
The trial judge “erred” at the time of jury selection “by suggesting that it needed to see evidence of ‘systemic’ discrimination and neglecting to perform the proper analysis prescribed by” the country’s highest court, Lipez wrote.
The trial judge determined later that Bozeman’s striking of Juror No. 71 “was not exercised with a discriminatory intent or purpose,” but was done for “race-neutral” reasons, namely, the juror’s level of education, Lipez wrote.
Hollis appealed to Maine’s highest court.
Although that court expressed “skepticism of a proffered explanation for striking a juror based on low education level without individual voir dire on intelligence or education,” the high court “ultimately determined that the record supported the proposition that the state’s jury selection strategy favored jurors with more education” because of the complexities involved in understanding a self-defense instruction.
Hollis appealed to federal court, which ruled that it couldn’t hear the case.
He then appealed to the federal appeals court.
Lipez wrote that the question before his court was “whether the (state’s high court) decision affirming the Superior Court was based on an unreasonable determination of the facts.”
The Maine Supreme Judicial Court concluded that the trial judge “did not clearly err when it determined that the prosecution’s race-neutral explanation for striking Juror No. 71 — his 11th grade education — was not pretextual and thus that there was no purposeful discrimination.”
The record supports that conclusion, Lipez wrote, noting that all of the those jurors empaneled had at least a 12th grade education and that more than half had some higher education.
“Here, it is undisputed that Juror No. 71 had an 11th grade education and that all members of the seated jury had attained a higher education level,” Lipez wrote for the court. “Hollis has not developed any argument that the prosecution failed to strike similarly situated white jurors. He has not developed an argument about the similarity or dissimilarity of jurors with 11th grade versus 12th grade educations for the purposes of the Batson analysis.”
Hollis also failed to develop “any argument concerning the state’s previous use of peremptory strikes or evidence of racially disparate education levels in Androscoggin County,” Lipez wrote.
Moreover, the District Attorney’s Office had no obligation to produce evidence that it had ever struck jurors on the basis of high school education levels before the Hollis case, Lipez wrote.
“For these reasons, then, we simply cannot conclude that the (Maine Supreme Judicial Court’s) decision was based on an unreasonable determination of the facts,” Lipez wrote.
But Lipez added that “the facts of this appeal are concerning,” noting the failure of the trial judge to follow proper judicial procedures.
“In a case with explicit racial overtones, the trial court initially failed to properly apply Batson when the prosecution struck the sole juror of color for a seemingly trivial reason,” Lipez wrote.
Lipez went on to write in his own opinion that the striking of Juror No. 71 for his level of education “is troubling.”
More typically, those are allowed in “especially complex cases,” Lipez wrote.
Although the state’s high court wrote that a self-defense in Maine is “complex, there is simply no indication in the record that this was an especially complex case. And strikes based on a juror’s level of education in the absence of a clear connection to the case’s complexity may come perilously close to resembling strikes based on amorphous concepts of ‘intelligence’ that have been rejected by courts and that perpetuate deplorable and wholly unjustified racist stereotypes about Black mental acuity.”
Lipez wrote that he shared the Maine Supreme Judicial Court’s skepticism “of a proffered explanation for striking a juror based on low education level without individual voir dire on intelligence or education.”
He wrote that he questioned whether Juror No. 71’s 11th-grade education level “was a credible basis for striking him. Arguably, the distinction between an 11th-grade and a 12th-grade education level is so minimal for purposes of understanding the legal concepts at issue in Hollis’ trial and so worthless as a proxy for mental ability that Juror No. 71 was indeed treated differently than his similarly situated white peers in the jury pool.”
Moreover, Lipez wrote that the prosecutor’s further reasoning to strike that juror was because he exhibited a “nonchalant attitude towards violence” during jury selection for an unrelated domestic violence case, “only raises more questions.”
The transcript of jury selection doesn’t “in any way demonstrate the purported nonchalance,” Lipez wrote. “Nor did the prosecutor in that case raise an objection to the juror based on his attitude or pursue further questioning. If this reason had been provided at the time of the initial objection . . . and considered by the Superior Court, its utter flimsiness may well have cast doubt on the education-level rationale and the strike in general.”
Howaniec said Thursday the Hollis case is “probably the most unjust case of my (37-year legal) career out of over 10,000 criminal cases that I’ve handled. I mean, we have we have a situation where four white men in Lewiston admit to beating a black man with baseball bats and pipes and it is the black man who goes to the Maine State Prison for three years. It’s as unjust a result as I’ve seen in my entire legal career.”
Howaniec said he’s been handling the case for no fee since it went to federal court.
Howaniec plans an appeal to the U.S. Supreme Court “even though it’s a long shot.”
Hollis has served his sentence, but “we’re going to pursue it and see if we get his felony conviction vacated,” Howaniec said.
“Four levels of judges have expressed dismay at what happened, but none of them corrected the situation,” he said.
“The state is pleased that the jury’s verdict and the Law Court’s decision was upheld by the First Circuit,” Bozeman said Wednesday.
“The facts that the jury heard and unanimously accepted at trial were that a fight occurred involving the defendant and several others, the defendant retreated from that fight, and returned from his place of safety with a gun that he then fired straight towards a crowd of people,” Bozeman said. “The state believes that given the strength of the evidence presented, any jury would have convicted the defendant of these crimes. The race of Juror 71 played no role in the state’s decision to exercise a peremptory challenge.”
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