Appellate Courts Must Conduct Comparative Juror Analysis

Friday, July 25, 2008

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Appellate Courts Must Conduct Comparative Juror Analysis—S.C.

By STEVEN M. ELLIS, Staff Writer

Appellate courts evaluating whether a prosecutor’s stated reasons for peremptorily challenging a prospective juror are truth or pretext must conduct a comparative juror analysis, even if one was not conducted below, the California Supreme Court held yesterday.

Citing recent U.S. Supreme Court precedent, the court ruled that comparing the answers of stricken jurors to those of retained jurors was evidence that must be considered on a defendant’s claim that a prosecutor exercised a peremptory challenge based on race where the record is adequate to permit the comparisons.

However, noting that comparative juror analysis is most effectively considered in the trial court given the evidence’s inherent limitations, and ruling that defendants who wait until appeal to request a comparative analysis will receive only limited review, with deference given to a trial court’s finding of no discriminatory intent, the court upheld Arthur Lourdes Lenix’s convictions for murder and attempted murder.

Murder Conviction

Lenix, an African American, was convicted in the Kern Superior Court for fatally shooting Lamar Rufus behind a Bakersfield convenience store in 2002, and for shooting at, but missing, Rufus’ cousin, Curtis Rufus. He was sentenced to a total indeterminate term of 50 years to life in prison, and consecutive determinate terms totaling 21 years.

On appeal, Lenix argued that the prosecutor violated his right to equal protection under the U.S. Constitution, and his right to trial by jury drawn from a representative cross-section of the community under the California Constitution, when the prosecutor exercised a peremptory challenge against a prospective African-American juror.

During the jury-selection process, a female prospective juror who was African-American indicated to the prosecutor that her sister’s husband had been murdered in a gang-related homicide that remained unsolved. She also indicated, after raising her hand to indicate she had received a traffic ticket, that she did not know whether she had deserved the ticket, but had “just went along with it.”

Peremptory Challenge

After accepting the panel both before and after defense counsel exercised a peremptory challenge to excuse the only other African-American panelist, the prosecution exercised a peremptory challenge to excuse the woman.

The defense then argued pursuant to the U.S. Supreme Court’s decision in Batson v. Kentucky (1986) 476 U.S. 79, and the California Supreme Court’s decision in People v. Wheeler (1978) 22 Cal.3d 258 that the challenge was racially motivated, and therefore improper.

Under Batson, a trial court is required determine whether a defendant has made a prima facie showing that the prosecutor exercised a race-based peremptory challenge. The burden then shifts to the prosecutor to demonstrate a race-neutral reason, and the court then determines whether the defendant has proven purposeful discrimination, but the ultimate burden of persuasion regarding racial motivation always rests with the opponent of the strike.

After a jury containing six Caucasians, four Hispanics and two Filipinos was selected, Kern Superior Court Judge Arthur E. Wallace accepted the prosecutor’s explanation that the woman’s account of the traffic ticket made him believe there was more to the story than she had disclosed.

Wallace also accepted the prosecutor’s statement that he was concerned that the woman’s brother’s involvement in a gang-related homicide might raise negative repercussions because the prosecutor said that it was his experience that victims of gangs were often, albeit not always, gang members themselves, and denied the defendant’s motion.

The Court of Appeal rejected the defendant’s subsequent argument that the federal and state constitutions required it to conduct a comparative juror analysis, but the California Supreme Court, in an opinion by Justice Carol A. Corrigan, concluded to the contrary.

Circumstancial Evidence

Pointing to the U.S. Supreme Court’s decisions in Miller-El v. Dretke (2005) 545 U.S. 231, and its decision earlier this year in Snyder v. Louisiana, Corrigan wrote that reviewing courts must consider all circumstantial evidence bearing on a trial court’s finding regarding discriminatory intent—including comparative juror analysis—where the defendant so requests and the record is adequate.

However, Corrigan cautioned that such evidence is most effectively considered in the trial court, and wrote that deference would be given to a trial court’s finding of no discriminatory intent on appeal. She further wrote that appellate review would be circumscribed, with findings reviewed on the record as of the time of the trial court’s ruling, and that a reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.

Turning to Lenix’s specific claim, Corrigan said that Wallace’s finding that the prosecution’s proffered explanations for challenging the woman were not pretexts was both reasonable and supported by substantial evidence.

She wrote in reference to the traffic ticket that the woman, by raising her hand, necessarily identified the experience as negative, and that her answers supported the prosecution’s inference that the woman was not completely forthright and may have harbored resentment.

Examining the prosecution’s second proffered reason, Corrigan—noting that gang-affiliation was at issue in the trial—also opined that the prosecutor had been entitled to rely on his experience.

Chief Justice Ronald M. George, and Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin and Carlos R. Moreno concurred in Corrigan’s opinion.

Baxter, joined by Chin, wrote separately to emphasize that he read the U.S. Supreme Court’s opinions as reserving the issue whether reliance on comparative juror analysis could be deemed procedurally defaulted if not raised at trial, and that nothing in the majority’s opinion would preclude enforcement of such a rule if adopted by the high court.

Moreno also wrote separately, characterizing the prosecutor’s second explanation as inherently dubious given the prosecutor’s failure to ask the woman about her brother-in-law’s status as a possible gang member. Nevertheless, he agreed with the majority that the other reasons provided sufficient justification for the peremptory challenge.

The case is People v. Lenix, 08 S.O.S. 4397.