Metropolitan News-Enterprise


Tuesday, April 9, 2002


Page 1


Ninth Circuit, Citing Bias in Jury Selection, Orders New Habeas Corpus Hearing for Convicted Murderer


By a MetNews Staff Writer


A Corona man convicted of a murder growing out of a Latino gang rivalry is entitled to a new habeas corpus hearing because the prosecutor’s use of peremptory challenges exhibited bias against blacks and Hispanics, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Joaquin Leso Fernandez is entitled the hearing on his petition for relief from his conviction for second degree murder, Judge William Fletcher wrote for the court. Fernandez is presently serving a 15-year-to-life sentence imposed in 1995.

On remand, U.S. District Judge Robert Timlin of the Central District of California, who previously denied the petition without a hearing, must review juror questionnaires and take other evidence to determine whether prosecutor’s excluded minorities on the basis of race.

The California state courts have twice rejected Fernandez’s efforts to obtain a new trial, agreeing with the trial judge that the defense did not make a prima facie showing of bias. But Fletcher agreed with Fernandez’s lawyers that the state courts used the wrong standard.

The California courts denied Fernandez’s petitions under People v. Wheeler, 22 Cal. 3d 258 (1978). Wheeler holds that a prima facie case of impermissible racial bias is made out by a showing that there is a “strong likelihood” that peremptory challenges were exercised on the basis of race.

That standard, Fletcher said, has been superseded by Batson v. Kentucky, 476

U.S. 79 (1986). Batson holds that a prima facie case of bias under the federal Constitution is made out by a showing of facts and circumstances that “raise an inference” of exclusion based on race or ethnicity.

Because the California courts apparently relied on the lower standard, Fletcher wrote, Fernandez is entitled to de novo review under Batson. That review, the appellate jurist said, requires a finding that the trial judge was wrong in not finding a prima facie showing of discrimination.

The prosecutor, Fletcher noted, struck 14 jurors—four of them Hispanic—before the defense made its Wheeler motion. After being warned by the Riverside Superior Court judge that further strikes of Hispanic jurors might result in a finding of bias, the prosecutor struck five more jurors.

None of the five were Hispanic, but two were African American—the only blacks on the panel—resulting in a second unsuccessful Wheeler motion by the defense.

Altogether, Fletcher noted, there were seven potential Hispanic jurors out of a venire of 60, meaning that 57 percent were peremptorily challenged. Hispanics thus constituted 12 percent of the venire, but 21 percent of the total number stricken and 29 percent of the number stricken prior to the first Wheeler motion, Fletcher pointed out.

Those statistics are sufficient to establish the required inference of discrimination, so the judge should have shifted the burden to the prosecution to show racially neutral reasons for the strikes, Fletcher concluded.

That conclusion is bolstered, Fletcher said, by the exclusion of the two African Americans. While the number of blacks in the panel was too small to raise such an inference in isolation, , the exclusion of a small number of members of one minority group, combined with the striking of a larger number of members of another group, may raise the necessary inference, the judge explained.

While the trial judge’s finding that there was no prima facie showing excused the prosecution from having to offer an explanation for the challenges, Fletcher went on to note, the prosecutor did cited responses to the jury questionnaires as forming at least part of the basis for his decisions.. Since the district judge did not review the questionnaires, the appellate jurist said, he is entitled to do so on remand in order to determine whether they furnish the required race-neutral explanations for the jurors’ being excused.

Senior Judge Myron Bright of the Eighth Circuit, sitting by designation, and Judge Alex Kozinski joined in the opinion.

Attorneys on appeal were Susan Azad and Katherine Davis of Latham & Watkins in Los Angeles for Fernandez and Karl Terp and Robert B. Shaw of the attorney general’s San Diego office for the prosecution.

The case is Fernandez v. Roe, 98-56927.


Copyright 2002, Metropolitan News Company