“The Carew Principle”
No Per-Se Duty on Defence Counsel to Pursue a Batson Remedy – Court of Appeals for the Second Circuit, 2025

1. Introduction

In Carew v. Morton, the United States Court of Appeals for the Second Circuit confronted a recurring tension in criminal litigation: How far must defence counsel go to rectify the prosecution’s racially discriminatory peremptory strikes once the trial judge is unable (or unwilling) to cure the violation? At stake was petitioner Terrance Carew’s federal habeas challenge to his New York state conviction for attempted murder and related offences, premised on an unremedied Batson violation during jury selection.

The appeal required the Court to navigate two doctrinal thickets—procedural default in habeas practice and ineffective assistance of counsel under Strickland. Ultimately, the panel (Sack, J.; Lynch & Lohier, JJ.) held that defence counsel’s decision to forgo any further Batson remedy, after the trial judge inadvertently released two improperly-struck Black jurors, did not constitute constitutionally deficient performance. Hence, Carew could not overcome his procedural default, and his petition failed.

2. Summary of the Judgment

• Procedural Posture: State conviction → affirmed on direct appeal (ineffective-assistance claim rejected) → § 2254 petition denied (E.D.N.Y.) → appeal.
• Key Holding: A criminal defendant does not automatically receive ineffective assistance relief when counsel strategically elects not to press for a Batson remedy. There is no per-se rule obligating counsel to demand a cure that could prejudice the client.
• Disposition: District court’s denial of habeas relief affirmed; certificate of appealability had been granted solely on the ineffective-assistance/Batson nexus.
• Concurrence: Lohier, J., underscored the unresolved question whether trial courts hold an independent duty to impose a remedy sua sponte when confronted with a clear Batson violation.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The panel harmonised these authorities to craft a narrow rule: while Batson violations are structural, the Strickland deficiency prong still requires proof that “no competent lawyer would have” declined to seek a remedy. Because multiple legitimate tactical reasons existed (aversion to mistrial, concern about resentful returned jurors, satisfaction with empanelled jury, unused defence strikes still available), Sack, J., held that the presumption of reasonableness remained unrebutted.

3.2 Court’s Legal Reasoning

1. Procedural Default Framework. The state appellate court found Carew’s Batson claim unpreserved. New York’s contemporaneous-objection rule is an “adequate and independent state ground”, triggering default in federal habeas.
2. Cause and Prejudice via Ineffective Assistance. To lift the bar, Carew had to prove ineffective assistance.
3. Strickland Prong One – Deficiency. The panel assumed arguendo that a Batson violation existed, then asked whether counsel’s conduct fell outside professional norms. Applying Dunn v. Reeves, it stressed the defendant’s burden to negate “any” strategic rationale. Possible rationales were abundant; absence of explicit record evidence of strategy does not carry petitioner’s burden.
4. Declined to Create a Per-Se Rule. The Court resisted Carew’s invitation to hold that failure to pursue a remedy is ipso facto deficient, emphasising counsel’s primary loyalty to the client, not to abstract public interests. Imposing an absolute duty would “trap defence counsel between competing obligations.”
5. Strickland Prong Two – Prejudice. Having found no deficiency, the Court expressly avoided the prejudice question and the circuit split over whether a structural Batson error automatically satisfies the prejudice component.

3.3 Impact of the Judgment

• Clarifies Defence Autonomy. Reaffirms that tactical waiver of potential constitutional claims, including Batson remedies, can be legitimate.
• Raises the Strategic Stakes. Counsel must weigh Batson objections against the risk of mistrial or an unknown new jury. The decision empowers, but also burdens, defence attorneys to make conscious, documented strategy calls.
• Trial Judges on Notice. The concurrence signals an unresolved duty of trial courts to act sua sponte when Batson is plainly violated, foreshadowing possible future litigation.
• Habeas Litigation. Petitioners seeking to convert unpreserved Batson errors into ineffective-assistance claims now face a steeper climb in the Second Circuit.
• Professional Guidance. Ethical and CLE materials will likely stress documenting the strategic calculus when bypassing Batson cures, to foreclose later collateral attacks.

4. Complex Concepts Simplified

5. Conclusion

Carew v. Morton carves out an important doctrinal niche: it confirms that counsel’s failure to press for a remedy to a proven Batson violation is not automatically ineffective assistance. The “Carew Principle” preserves substantial strategic discretion for the defence bar, even in the shadow of racial discrimination claims, while nudging responsibility toward prosecutors and trial courts to police discrimination proactively. As Judge Lohier’s concurrence intimates, the next frontier will test whether trial courts may—and perhaps must—step in sua sponte when racial bias infects jury selection. Until then, Carew stands as a robust affirmation of strategic autonomy under the Sixth Amendment.