Metropolitan News-Enterprise


Friday, July 18, 2008


Page 3


Court Rules Prosecutor’s Peremptory Strikes Were Racially Motivated


By SHERRI M. OKAMOTO, Staff Writer


An Alameda County man charged with assaulting his mother with a knife was entitled to a new trial because the prosecutor at his criminal trial struck six African-American jury venire members on the basis of race, the Ninth U.S. Circuit Court of Appeals held yesterday.

Because the prosecutor’s proffered reasons for striking the prospective jurors also applied to unchallenged white jurors, the three-judge panel concluded this disparity in treatment rendered the claimed justifications pretextual and reversed a contrary ruling by a district judge in the U.S. District Court for the Northern District of California.

During the jury selection phase of Eric Green’s trial, the prosecutor used six of 12 peremptory strikes to strike all six African-American venire members who were called to the jury box. Green, an African-American, asserted the prosecutor had stricken these prospective jurors because of their race.

The prosecutor offered what were found to be legimate explanations for the strikes, and the judge denied a mistrial. Green was convicted.

In a 2-1 decision, Div. Two of the First District Court of Appeal affirmed. Presiding Justice J. Anthony Kline argued in dissent that the trial judge, as well as his colleagues, had erred in failing to conduct a comparative juror analysis.

U.S. District Judge Saundra B. Armstrong sided with the Court of Appeal majority, but the Ninth Circuit disagreed, citing in particular the prosecutor’s claim that he struck one juror, identified only as Deborah P., because she had visited her stepfather in prison and would likely assume imprisonment would be the outcome of this case, failed to complete two questions on the juror questionnaire, and had held five jobs suggesting she must have “problems getting along with others [and] responding to authority.”

Writing for the Ninth Circuit, Judge Carlos T. Bea concluded that the defense had met its burden of persuasion and established the prosecutor’s discriminatory intent.

He cited Miller-El v. Dretke, (2005) 545 U.S. 231, to the effect that if counsel’s proffered reason for striking a panelist applies to an otherwise-similar venire member of a different ethnicity who is permitted to serve, that is evidence tending to prove purposeful discrimination.

Bea noted the prosecutor did not strike any of six white prospective jurors whose relatives and friends had also been arrested, indicted or convicted of crimes, or who failed to answer all the questions on the juror questionnaire. He also reasoned it was not uncommon for a person to hold five different jobs over a period of roughly 28 years, as Deborah P. had.

“[O]n balance, the direct and circumstantial evidence in the record demonstrates the prosecutor’s strike of Deborah P. was racially motivated,” Bea wrote. “We further hold the California Court of Appeal’s contrary conclusion was based on an unreasonable determination of the facts in light of the evidence presented.”

He criticized the California appellate court for “merely reiterating the prosecutor’s stated reasons, and then finding they were race-neutral, without analyzing the other evidence in the record to determine whether those reasons were in fact the prosecutor’s genuine reasons,” making the same mistake for which the Supreme Court criticized the California courts in Johnson v. California, (2003) 545 U.S. 172.

Judge William A. Fletcher and District Judge Jeffrey T. Miller of the Southern District of California, sitting by designation, joined Bea in his opinion.

The case is Green v. LaMarque, 06-16254.


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