Lewiston man seeks new trial, claims race played part in picking jury

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AUBURN — A man convicted at a July trial on gun-related felonies is seeking a new trial, claiming prosecutors excluded the only African-American from the jury pool because of his race.

If a judge agrees, that could be a violation of the Equal Protection Clause under federal law, entitling Malik Hollis, 21, who is African-American, to have his conviction vacated and get a new trial.

James Howaniec, a Lewiston attorney who represented Hollis, argued in Androscoggin County Superior Court on Friday that the only reason provided by the prosecutor during jury selection for dismissing juror No. 71 was “level of education.” That juror had completed the 11th grade, while six of the white jurors empanelled for the trial had 12th-grade educations, Howaniec said. There was no individual questioning of juror No. 71 to determine whether he lacked the necessary intellect to follow legal procedure and be able to apply the law. Howaniec said a person’s education level isn’t necessarily a reflection of intelligence or reasoning ability.

“I know someone in my family who didn’t even have an eighth-grade education and he was one of the most intelligent people I’ve ever met in my life,” he said.

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The jury pool of 107 people from whom the final 14 jurors were picked (including two alternates) for trial was all white, with the single exception of juror No. 71, Howaniec said.

“There is absolutely no other evidence on the record that the state similarly challenged white jurors because of education level,” Howaniec wrote in his motion.

Nearly half of all of the prospective jurors in the entire pool had 12th-grade educations or lower, he said. And the prosecutor had challenged several members of the pool who had higher than 12th-grade educations, he said.

Assistant District Attorney Katherine Bozeman said Friday that education level was important because she anticipated the defendant would try to show he acted in self-defense, which is a “fairly complicated” legal concept.

During jury selection for Hollis’ trial, Superior Court Justice William Stokes had believed the defense was required to show a pattern of bias or discrimination by prosecutors on the basis of race at the time Howaniec had raised his objection to jury No. 71’s dismissal. But Stokes said Friday he now believes only a single instance, and not a pattern, is necessary to show racial motivation, citing a court ruling in a Seattle case making that point.

Bozeman said she didn’t elaborate on her reasons for not wanting juror No. 71 on Hollis’ jury because Stokes hadn’t asked her to during Hollis’ jury selection.

Howaniec said, according to case law, the prosecutor is only allowed to argue her reason stated on the record during jury selection for excluding a juror and can’t add other reasons after the fact. But Bozeman argued, and Stokes agreed, that she could elaborate because he asked her to do so at Friday’s hearing. 

Stokes said Friday he should have questioned Bozeman at greater length during jury selection about her challenge to juror No. 71, beyond her concern about his education level.

Bozeman said she also had served as prosecutor in a different case that had previously picked from the same jury pool where juror No. 71 was questioned by her about his history and personal feelings involving criminal matters.

“My recollection from that voir dire of that juror is that he had a fairly nonchalant attitude towards violence that he had experienced” in his family, including domestic violence situations he had witnessed, Bozeman said. She called his statements “somewhat concerning to the state,” considering the Hollis case also involved acts of violence.

Stokes asked Bozeman: “Why take the risk” of excluding the only black juror in the jury pool in the case of a black defendant?

“Isn’t it inevitable that if the state strikes that juror, unless you have an ability to point to a very specific and credible reason other than a generalized lack of education, isn’t it inevitable that a claim can be made against the state that you’re doing it to get that person of color off the jury?”

Bozeman said she hadn’t noticed that juror No. 71 was the only person of color in the jury pool.

She said some members of the jury pool she had struck earlier from serving had higher levels of education but had “records of some sort.”

During the jury selection process, “sometimes we have to make quick decisions about who we think will or will not be people that we want on our jury.” Juror No. 71 was the juror she had the most experience with to make such a decision, she said.

The two prospective jurors she dismissed after juror No. 71 had higher levels of education than he did and had no areas of concern to her, she said.

“I was striking people for no significant reason,” she said.

Stokes said he would rule on Hollis’ motion after reviewing a transcript of the questioning of juror No. 71 from jury selection in the earlier court case.

Hollis was convicted in July by a jury in Androscoggin County Superior Court on charges of reckless conduct with a firearm and criminal threatening with a dangerous weapon.

Police said Hollis fired gunshots in the direction of several men late in the morning of May 21, 2016.

Hollis claimed the shooting was in self-defense.

Police said in court papers that when they arrived at the scene, they were directed by witnesses to Hollis’ apartment, where they found him hiding under a deflated air mattress that was lying in a third-floor hallway.

Witnesses described the person who fired the gun as someone wearing a red shirt. When he was found, he wasn’t wearing a red shirt, but other details about him matched the witnesses’ identification, police said. Officers searched the building with the consent of the landlord and found a .380-caliber pistol under a raised portion of the floor. They also found two red shirts in the bathroom of the apartment where Hollis had been staying, according to court records.

On the street where witnesses told police the shooter had been standing, officers found two spent shell casings for a .380-caliber gun.

Hollis had told police he had gotten into an argument with some men he didn’t know when he was on College Street. He said they had been harassing him recently for no apparent reason and had hit him with a stick after the argument. He said he left the men, retrieved a gun from his apartment, then returned to where the men were. He said he fired the gun in their direction, but hadn’t intended to hit anybody, only to scare them.

He identified the weapon recovered by police. He also identified one of the red shirts as the one he had been wearing when he fired the gun.

One of the men who had argued with Hollis told police he had been having ongoing issues with him over drug dealing at his College Street home, according to court papers.

The man said Hollis was armed with a stick and a rock, so the man armed himself with a metal pipe and knocked the stick and rock from Hollis’ hands. That was when Hollis ran back to retrieve his gun, the man told police.

The man yelled and three of his friends emerged from the College Street building, armed with a baton and a baseball bat, police said.

Hollis returned, drew a gun and started firing it in the direction of the men, police said.

The men fled to their College Street building and Hollis fled to his Bartlett Street apartment.

cwilliams@sunjournal.com

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