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Exclusion of juror for support of BLM was discriminatory

The People, Plaintiff and Respondent, v. Sheldon Vaughn Silas et al., Defendants and Appellants. (Cal. Ct. App., Sept. 17, 2021, No. A150512) 2021 WL 4236771

Summary: Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and Linda Chaney, all of whom are Black, were tried for crimes related to the murders of Christopher Zinn and Brieanna Dow, who were also Black. The  prosecutor used peremptory strikes against three Black prospective jurors, including one who expressed support for Black Lives Matter. Defendants brought Batson/Wheeler motions to challenge the exclusion.

T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)

“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” (Batson v. Kentucky (1986) 476 U.S. 79, 89.)

A Batson-Wheeler motion is motion made by one of the parties claiming that the other party has exercised a challenge against a juror based on the juror’s membership in a cognizable group (i.e., “an identifiable group distinguished on racial, religious, ethnic, or similar grounds[.]” (People v. Wheeler (1978) 22 Cal.3d 258, 276.)

The trial court denied the motions. The  seated jury, which had two Black members, returned convictions on all the charged crimes.

The Court of Appeal concluded  that the Batson/Wheeler motion involving the prospective juror who expressed support for Black Lives Matter was improperly denied. Defendants established a prima facie case of discrimination at the first stage of the Batson/Wheeler analysis. The prosecutor’s proffered reasons for the strike—that the juror was hostile when asked about supporting Black Lives Matter and had “anti-prosecution issues”—should not have been credited. Insufficient evidence supported  the conclusion at the third stage of the analysis that the peremptory strike was not “ ‘motivated in substantial part by discriminatory intent.’ ” (Foster v. Chatman (2016) 578 U.S. 1023, 136 S.Ct. 1737, 1754 (Foster).) The court found that the error was structural and reversed the judgments and remanded for a new trial.

Batson/Wheeler Framework and peremptory challenges to remove prospective jurors based on group bias

 “The prosecution’s use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and [the defendant’s] right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Blacksher (2011) 52 Cal.4th 769, 801.) The discriminatory use of peremptory challenges harms not only defendants but also “the excluded jurors and the community at large,” as it “forecloses a significant opportunity to participate in civic life” and “ ‘undermine[s] public confidence in the fairness of our system of justice.’ ” (Johnson v. California (2005) 545 U.S. 162, 172 (Johnson); Powers v. Ohio (1991) 499 U.S. 406, 409.) “The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.”10 (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)

Three-step analysis of Baston/Wheeler claim- People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez)

  1. The defendant “must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” “Discriminatory purpose” … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected … a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’ ” (Hernandez v. New York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.). Nonetheless, the prima facie case is a “ ‘low threshold,’ ” requiring a showing only that “ ‘discrimination may have occurred.’ ” (People v. Johnson (2019) 8 Cal.5th 475, 538.)
  2. If a defendant makes a prima facie showing, the burden shifts to the prosecutor to “state nondiscriminatory reasons for the challenges.” (People v. Hardy (2018) 5 Cal.5th 56, 75; Gutierrez, supra, 2 Cal.5th at p. 1158.) The prosecutor’s reasons need not be “persuasive, or even plausible. ‘At this … step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ ” (Purkett v. Elem (1995) 514 U.S. 765, 767–768 (per curiam).)
  3. If the prosecutor provides a facially adequate explanation for the challenge, “the trial court must decide whether the [defendant] has proven purposeful discrimination,” which requires a showing that it was more likely than not that the challenge was “ ‘motivated in substantial part by discriminatory intent.’ ” (Foster, supra, 578 U.S. 1023, 136 S.Ct. at p. 1754; Gutierrez, supra, 2 Cal.5th at p. 1158.) Here, the focus is on “the credibility of the prosecutor’s neutral explanation. Credibility may be gauged by examining factors including but not limited to ‘ “ ‘the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” ’ ” (Gutierrez, at p. 1168.) “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (People v. Lenix (2008) 44 Cal.4th 602, 612–613.)

“[A]ll of the circumstances that bear upon the issue of racial animosity must be consulted’ ” to evaluate a Batson/Wheeler motion. (Foster, supra, 578 U.S. 1023, 136 S.Ct. at p. 1748.) The relevant circumstances on which a defendant may rely include not only “the record of jury selection” in the trial at issue but also “historical evidence” from past trials. (Flowers v. Mississippi (2019) 588 U.S. __, 139 S.Ct. 2228, 2245, 2248.)

Insufficient evidence supported  the trial court’s first-stage ruling

The record here supports an inference of discriminatory purpose. The prosecutor questioned Juror 275 about Black Lives Matter and suggested an antipathy toward the movement. The prosecutor’s questions to  Juror 275 about Black Lives Matter were insensitive and were inaccurate and inflammatory in linking

the Black Lives Matter movement to rioting and property destruction. After engaging in this biased questioning, the prosecutor used Juror 275’s understandable negative reaction to it as an alleged race-neutral reasons for challenging the juror.

All relevant circumstances should be considered when determining whether a prima facie case of discrimination is established. The court was incorrect in saying that, even if it “had found a Batson/Wheeler violation in the first jury selection,” its “task [was] to give [the prosecutor] a fresh start as to what she has done specifically in this selection process.” Prosecutors are not entitled to “a fresh start” when it comes to deciding whether they have acted with a discriminatory purpose in exercising peremptory challenges. There was evidence that the Contra Costa County District Attorney’s Office in general, and this prosecutor in particular, had in the past exercised peremptory challenges on the basis of race.

Remedy 

Although the prosecutor offered some race-neutral reasons for striking Juror 275, the Court of Appeal  must still evaluate whether the reasons related to Black Lives Matter were facially valid. In People v. Douglas (2018) 22 Cal.App.5th 1162 (Douglas), the Third District Court of Appeal adopted the per se approach, which requires reversal “when a party offers multiple rationales for a peremptory strike, only some of which are permissible,” because of “the taint from the impermissible reason(s).”

The court held that the denial of the Batson/Wheeler motion as to Juror 275 “was unreasonable in light of the record of voir dire proceedings” (Gutierrez, supra, 2 Cal.5th at p. 1172), because the record lacks evidence on which the trial court could have concluded that the challenge to Juror 275 was not “ ‘motivated in substantial part by discriminatory intent.’ ” (Foster, supra, 578 U.S. 1023, 136 S.Ct. at p. 1754.)

The prosecutor’s reasons for striking Juror 275 were either unsupported or based on inappropriate questioning about Black Lives Matter. The ultimate issue is ‘whether it was more likely than not that the challenge was improperly motivated.’  This standard was satisfied here and  “defendants were denied their right to a fair trial in violation of the equal protection clause of the federal Constitution and their right to a trial by a jury drawn from a representative cross-section of the community under the state Constitution.”

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