Metropolitan News-Enterprise


Friday, April 5, 2002


Page 1


Bias in Jury Challenges Does Not Always Require New Panel—S.C.


By KENNETH OFGANG, Staff Writer/Appellate Courts


A trial court may, with the consent of or waiver by the complaining party, fashion an alternative remedy for racial or gender bias in the exercise of peremptory challenges, rather than dismiss the jury venire, the state Supreme Court ruled yesterday.

The high court unanimously overturned a decision by Div. One of this district’s Court of Appeal, which held that Edward Willis was entitled to a new trial on a cocaine possession charge.

The case was sent back to the Court of Appeal so that the panel may consider other arguments raised by Willis, who was sentenced to 25 years to life under the three-strikes law.

The Div. One panel had ruled that Willis was entitled to a new trial because his own lawyer improperly struck potential jurors on the basis of race and gender and the trial judge failed to declare a mistrial.

Over a dissent by Justice Robert Mallano, Justice Reuben Ortega—joined by Justice Miriam Vogel—concluded that the remedy of a new jury venire cannot be waived or dispensed with once the court concludes that a prima facie showing of bias has been made and that counsel who made the challenge has failed to articulate race- and gender-neutral reasons for doing so.

There can be no waiver, Ortega concluded, because the Wheeler/Batson 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.

But Justice Ming Chin, writing yesterday for the high court, said that alternative remedies, such as monetary sanctions or the reseating of improperly stricken jurors, are a permissible remedy if the complaining party—in Willis’ case, the prosecution—consents or acquiesces.

Juror Rights

“Although [U.S. and California supreme court] cases may protect the rights of persons of all races to serve as jurors, they do not assure any particular juror the right to be seated, or reseated, on a particular jury,”  Chin wrote. “Moreover, to the extent the court has retained control over improperly discharged jurors and can reseat them, their rights are indeed vindicated.  And if some improperly dismissed jurors are no longer available to serve, dismissing the remaining jurors and calling a mistrial does little to vindicate the rights of those excluded….On balance, it seems more appropriate, and consistent with the ends of justice, to permit the complaining party to waive the usual remedy of outright dismissal of the remaining venire.”

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., had previously been convicted of drug possession, five robberies, grand theft, and assault with a deadly weapon.

Willis  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 is black, and his 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.

Objection Overruled

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 agreed, 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. After Rutherford 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.

In concluding that alternative remedies are practical necessities, Chin cited People v. Williams, (1994) 26 Cal.App.4th Supp. 1. In that case, the Los Angeles Superior Court Appellate Department approved a procedure adopted by Los Angeles Municipal Court Judge Ronald Schoenberg—who has since retired—under which each peremptory challenge was made at sidebar, with an explanation by counsel of the reasons, and the judge ruled on each one individually.

The procedure was adopted in order to avoid a third successive mistrial in a drunk driving case. Schoenberg and the judge who had the case before him had already quashed two venires after finding that the defense attorney was systematically excluding members of distinct racial groups-whites in the first instance and Asian Americans in the second.

“We think the benefits of discretionary alternatives to mistrial and dismissal of the remaining jury venire outweigh any possible drawbacks,” Chin said.

The case was argued in the Supreme Court by Tara M. Mulay of San Francisco, by appointment, for the defendant and Deputy Attorney General April S. Rylaarsdam for the prosecution.

The case is People v. Willis, 02 S.O.S. 1647.


Copyright 2002, Metropolitan News Company