For second time in three weeks, court overturns Dorchester murder conviction because of questions over possible racial bias in jury selection

The Supreme Judicial Court today vacated George Ortega's conviction for the 2012 murder of Steven Fuentes on Leyland Street in Dorchester, saying the judge in the case should have should have pressed prosecutors more on their decision to try to exclude a black woman from the jury - and should have told the jury to consider whether Fuentes's death was a case of self defense.

On Aug. 31, the state's highest court overturned another Dorchester first-degree murder conviction because of questions about possible racial bias during jury selection.

The Suffolk County District Attorney's office said it will likely ask the court to reconsider both rulings.

A Suffolk Superior Court convicted Ortega of first-degree murder in 2015.

The SJC said Suffolk Superior Court Judge Linda Giles should not have let prosecutors reject a prospective juror who was a black woman without explanation after she had already warned them about possible bias when they had earlier rejected a black man.

With that first prospective juror, the judge asked prosecutors to prove they were not seeking to reject him simply because of his race; she agreed to let him be excluded because of his "failure to accurately disclose his criminal history on his jury questionnaire," the court said. But with the woman, the judge rejected a request from Ortega's attorney that the prosecution make a similar effort to prove non-racial bias because they had already allowed another black woman on the jury. Giles should have pushed prosecutors to provide the same proof as with the man to ensure they were not rejecting her because of her race.

A spokesman for Suffolk County District Attorney Dan Conley said his office will ask the court to take a second look:

The SJC inexplicably chose to omit from its decision the fact that [the woman]'s brother had been arrested by Boston Police, prosecuted by the Suffolk DA's office, convicted by a Suffolk County jury, and imprisoned by a Suffolk County judge. The trial prosecutor exercised his challenge only after she had disclosed this information and stated her belief that it was unfair. These facts, all on the record before the high court and part of the prosecution brief, clearly explain the prosecutor's actions and support the judge's finding that those actions were proper.

The facts supporting the prosecutor's reasoning in this case are especially important because District Attorney Conley mandates that his staff approach their cases honestly and ethically, without bias or prejudice. Suffolk prosecutors recognize that the fairness of a trial at every stage, including jury selection and composition, is every bit as important as the verdict. They recognize and embrace their duty to protect the integrity of the process and they receive constant training to ​help them do so. The high court and the public should know that our first duty is to the interests of justice, and that we strive to pursue them with the highest levels of fairness and integrity.

In the federal courts, post-conviction peremptory challenge claims like this can be resolved through evidentiary hearings where lawyers and judges can testify to their decision-making processes. If those processes are fair and proper, as the trial prosecutor's was in this case, there's no need to vacate the jury's verdict -- or unfairly impugn the integrity of a respected and ethical lawyer. Massachusetts courts should consider the same method rather than proceeding directly to the "nuclear option" of reversal on incomplete evidence.

But even if that had not happened, the court said it had to overturn the verdict because Giles made another critical mistake at the end of the trial, by rejecting a request from Ortega's lawyer that the jury be instructed to consider whether Ortega shot Fuentes in self defense as the two pot dealers argued over whether Fuentes was infringing on Ortega's turf.

The SJC said testimony had raised valid questions about the prosecution case and the jury should have been told they could consider Ortega's self-defense argument:

Specifically, there was testimony from which the jury could infer that the victim not only escalated the confrontation by displaying a gun, but also tried to shoot the defendant before the victim himself was shot. This evidence, considered in combination with testimony concerning the confrontation between the victim and the defendant earlier that day, would be sufficient to permit a rational jury to find a reasonable doubt whether the defendant had a reasonable and actual belief that he was in imminent danger of being killed or seriously injured.

The DA's office argues against this, as well:

First, Ortega was the aggressor who showed up on the victim’s street with an armed group, seeking to avenge a prior slight. Second, the courts have historically required evidence that the defendant actually feared for his life or safety at the time he used deadly force, not just that he could have been afraid. No such evidence emerged in Ortega’s case.

The court described the events leading to Fuentes's death to bolster its argument:

On the afternoon of May 24, 2012, the victim confronted the defendant regarding the defendant's drug dealing activities on Leyland Street in the Roxbury section of Boston, which the victim regarded as part of his drug territory. The victim was angry that the defendant was selling drugs in his territory and accused the defendant of "trying to take all the money." During that confrontation, the victim told the defendant that he did not want the defendant coming around Leyland Street, called the defendant a "snitch," and punched him. In response, the defendant reached toward his waist -- a gesture arguably understood to mean that person was carrying a firearm - before leaving Leyland Street without further confrontation.

Later that evening, the defendant returned to Leyland Street. The victim approached the defendant, who was standing on the street in front of 23 Leyland Street, and an argument ensued. As the argument escalated, the men began to gesture toward one another as if they were going to fight "up and up" (i.e., without weapons).

The testimony about what happened in the moments prior to the shooting, as with much of the testimony, is in conflict. Viewing the evidence in the light most favorable to the defendant, as we must for this analysis, the jury could have reasonably found as follows. The defendant told a man who had appeared beside him in the street to "look out" for individuals standing on the stairs of the two nearest row houses. Around that same time, the victim's brother departed from one of the row houses and stood on the front steps of 23 Leyland Street; he was holding something in his left hand and had another object tucked into the waist band of his shorts. The victim then moved back toward the row houses and walked away from the crowd toward the area between 19 and 23 Leyland. The victim returned moments later and called out, "It's jammed," after which the defendant started jogging backwards and shooting in the direction of the victim. Somewhere between six and ten gunshots rang out, mostly from the direction of the defendant. The initial shots sounded like they were being fired from the center of the street, followed by a number of shots fired from the entryway of 23 Leyland Street. The victim's brother was standing in the entryway at the time of shooting. The victim was struck with a bullet that entered his lower back and passed through his left lung before leaving through his shoulder.

After being shot, the victim ran toward 19 Leyland Street, where he collapsed on the front steps and died from the gunshot wound to his lower back.

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