Metropolitan News-Enterprise


Thursday, June 14, 2001


Page 3


S.C. to Review Ruling on Race-Based Peremptory Challenges by Defendants


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to decide whether a defendant is entitled to a new trial when his or her own lawyer makes race- or gender-based peremptory challenges and the judge fails to declare a mistrial.

All of the high court’s justices except Stanley Mosk voted to grant review in People v. Willis , 01 S.O.S. 909, decided by Div. One of this district’s Court of Appeal on Feb. 16, a court official said.

The appellate panel granted a new trial to Edward Willis, a parolee found in possession of about $5 worth of rock cocaine by Long Beach police as he stood by a gas station’s cashier window at 1:20 a.m.

He had previously been convicted of drug possession, five robberies, grand theft, and assault with a deadly weapon, and was sentenced to 25 years to life in prison under the three-strikes law.

Willis, an African American, claimed that the jacket in which the drugs were found had been borrowed the night before and that the drugs in it were not his. Willis’ trial attorney, Deputy Alternate Public Defender Ken Rutherford, initially objected to the entire jury venire on the ground there were no African Americans—and according to Rutherford, no member of an ethnic minority at all—among the first 12 jurors called.

Los Angeles Superior Court Judge Arthur Jean Jr. overruled the objection, saying there was no showing of impropriety in the selection of the venire. After Rutherford used 11 peremptory challenges, seven of them against white males, the prosecutor objected and made a “Wheeler motion based on the defense. . . kicking male whites.”

Jean found a prima facie case of race and gender bias, rejecting the defense’s explanations for the challenges, but the prosecutor said he didn’t want the venire stricken because that would only benefit the defense. Jean agreed not to strike the panel, but admonished Rutherford against continuing to strike white males for race- or gender-based reasons.

Rutherford, however, used eight of his next nine peremptories to strike white males; Jean rejected his explanations and announced he was imposing monetary sanctions against defense counsel, although he later lifted them.

Jean should have declared a mistrial, Justice Ruben Ortega wrote for Div. One, once he concluded that the defense was systematically excluding jurors based on race and gender.

The defense is not precluded from raising the issue on appeal, the justice explained, because the  rule prohibiting the use of peremptory challenges to remove potential jurors solely due to race or gender is designed both to assure the accused a fair trial and to enhance public respect for the jury system.

If these principles are violated, Ortega said, “the fundamental nature of the protected rights and the judicial system’s obligation to protect them” requires that the judge quash the venire and start jury selection anew. If the judge fails to do so, he or she commits reversible error, Ortega said, regardless of which party raises the objection.

Ortega also concluded that the trial judge’s failure to quash the venire was not subject to the harmless error rule, and that defense counsel didn’t invite error, since it was the prosecutor who said he didn’t want the venire quashed.

Justice Miriam Vogel concurred separately, while Justice Robert Mallano dissented.

The defendant, he argued, was convicted by a jury “of five White females, two Asian females, one African-American male, a male who appeared to be White or  Hispanic, and three White males,” and “ought to be estopped from complaining that the jury which convicted him had fewer White males than it should have had, as that was his own doing.”

In other actions yesterday, the high court:

Agreed to decide whether the Los Angeles Superior Court may proceed to hear an action in which an employer is seeking a declaration that a covenant not to compete,  which an employee signed with his former employer in another state, is unenforceable under California public policy.

Div. One of this district’s Court of Appeal held that the Minnesota law allowing covenants not to compete is contrary to California public policy, that California has a materially greater interest than Minnesota in enforcing its law, and that the suit should be allowed to proceed because it was filed prior to a Minnesota suit involving the same parties and issues. The case is Advanced Bionics Corporation v. Medtronic, Inc., 88 Cal.App.4th 594A.

Denied review of a March 8 ruling by this district’s Court of Appeal holding that a private property owners group formed to administer a business improvement district is a legislative body subject to state open meeting laws. Div. Three upheld an injunction  requiring the Hollywood Entertainment District Property Owners Association to comply with the Ralph M. Brown Act in Epstein v. Hollywood Entertainment District II Business Improvement District, 104 Cal.Rptr.2d 857.

Depublished a March 5 ruling by the Fourth District Court of Appeal’s Div. One allowing a suit against Thousand Oaks attorney Jenny Scovis, the law firm of Scovis and Scovis, and clients represented by the firm for allegedly disseminating a falsified version of the confidential criminal record of an adverse party.

The appellate panel held in Randall v. Scovis, 87 Cal.App.4th 631, that the litigation privilege does not bar an action against a litigant or an attorney for disseminating the contents of an illegally obtained confidential document.

Denied review of an April 10 Third District Court of Appeal ruling that the immunity of Native American tribes from tort liability extends to acts committed by tribal employees off the reservation. The ruling throws out a Shasta Superior Court action brought by a bartender who claims she was injured when attendees threw gifts into the crowd at a party given by the tribe for employees of its Win River Casino.

The case is  Redding Rancheria v. Superior Court, Hansard RPI.


Copyright 2001, Metropolitan News Company