Metropolitan News-Enterprise


Monday, February 2, 2004


Page 3


C.A.: ‘Incomprehensible’ Excuse for Challenging Juror Requires Reversal


By a MetNews Staff Writer


Reversal of a defendant’s conviction is required where a prosecutor’s proffered reasons for excusing the only two African American prospective jurors seated were in one case “problematic” and in another “incomprehensible,” the First District Court of Appeal ruled Friday.

The court’s Div. Three, considering for the second time the case of Darrell Tyjuan Allen, again ruled his nine year prison sentence for theft, receiving stolen property, possession of a firearm, and resisting arrest was tainted by the challenges. The state Supreme Court had ordered the appellate panel’s earlier decision reconsidered in light of People v. Reynoso (2003) 31 Cal.4th 903.

“We have carefully reviewed that decision, and conclude that there are significant differences between the facts of that case and this, so that our initial conclusion remains correct,” Justice Stuart Pollak wrote in an opinion certified for partial publication.

He went on to explain:

“In Reynoso, the court’s analysis was based on the premise that the prosecutor, in the second step of the procedure for evaluating a Batson/Wheeler motion, had given meaningful ‘occupation- and demeanor-based reasons’ for excusing the prospective juror in question—.There, the prosecutor explained that he had excused [the prospective juror] because she was a customer service representative who he felt did not have enough educational experience, and because it appeared to him that she was not paying attention to the proceedings—.The prosecutor’s reasons were intelligible, and the only question was whether the trial court had satisfied its obligation to properly ensure that they were ‘sincere and legitimate.’”

Pollak noted that the prosecutor explained excusing one of two African American prospective jurors by citing her “questions as to what religious or moral convictions meant,” adding that gave rise to a concern “that she would question things that may be evident on their face.” While racially neutral, that explanation “misstates the record,” Pollak said, since the juror had merely stated she did not fully understand one of the questions on the jury questionnaire.

Even if the prosecutor’s explanation for the that challenge were accepted, the explanations for the other were “incomprehensible, and there is nothing in the record to give them content,” the justice declared.

The entire explanation the prosecutor gave, Pollak noted, was:

“The [prospective juror], her very response to your answers, and her demeanor, and not only dress but how she took her seat. I don’t know if anyone else noticed anything but it’s my experience, given the number of trials I’ve done, that that type of juror, whether it’s a personality conflict with me or what have you, but they tend to, in my opinion, disregard their duty as a juror and kind of have more of an independent thinking.”

The justice said Reynoso could not be read to mean that any reference to “demeanor” insulates a challenge from review for racial bias.

“[S]imply saying that a peremptory challenge is based on ‘her demeanor’ without a fuller description of what the prospective juror was or was not doing provides no indication of what the prosecutor observed, and no basis for the court to evaluate the genuineness of the purported non-discriminatory reason for the challenge,” Pollak declared. “‘[H]er very response to your answers,’ her ‘dress’ and ‘how she took her seat’ without additional elaboration are not responses that can be evaluated by the trial judge, and they certainly cannot be evaluated on appeal.”

Pollak said Contra Costa Superior Court Judge John F. Van De Poel “compounded” the problem by “accepting the prosecutor’s meaningless explanation.”

He reasoned:

“While Reynoso holds that the trial judge was not required ‘to make explicit and detailed findings for the record’ so long as the prosecutor’s reasons ‘are neither contradicted by the record nor inherently implausible’ and ‘nothing in the record is in conflict with the usual presumptions to be drawn’—, the Supreme Court did not there indicate that the trial court should be presumed to have properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges when the prosecutor’s explanation is so vacuous that it precludes evaluation.”

The case is People v. Allen,A093927.


Copyright 2004, Metropolitan News Company