Monday, May 7, 2018
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Court of Appeal:
Good Reason for Challenging Juror Doesn’t Negate Bad One
Third District Declares, in 2-1 Decision, That Ousting Two Gays From Panel Based on Sexual Orientation Requires New Trial Despite Independently Valid Reasons for the Prosecution’s Rejection of Them
By a MetNews Staff Writer
The Third District Court of Appeal has declared, in a 2-1 opinion, that a gay man convicted in connection with a shooting is entitled to a new trial because two prospective jurors who are gay were excused by the prosecution partially based on their sexual orientation, even though there was a valid ground for rejecting each of them independently of that factor.
One dismissed venireman told of a close relationship with a deputy public defender who portrayed prosecutors as being on the “dark side” of the legal profession and the other, by demeanor, evinced antipathy to the prosecution.
Writing for herself and Presiding Justice Coleman Blease, Justice Elana Duarte said in an opinion filed late Thursday:
“This case is about fairness and equality in our criminal justice system. When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process. We reject the application in these circumstances of the so-called ‘mixed motive’ or ‘dual motive’ analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision. We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”
Hull’s Dissent
In a dissent, Justice Harry E. Hull Jr. objected:
“[O]verturning a conviction by an unbiased jury simply because a prosecutor was partially motivated to strike a prospective juror for an impermissible reason when the prosecutor would have legally and justifiably stricken the juror regardless of the improper motivation not only erodes public confidence in the adjudicative process, but also threatens the finality of judgments. If a defendant has received a fair trial, there is an institutional interest in protecting the finality of the court’s judgment. Theoretical imperfections ought not be treated more seriously than real deficiencies, for such skewed values would undermine confidence in the administration of justice. While I am sensitive to the appearance of perceived discriminatory bias described by the majority, I am not persuaded that a per se rule is required to address this concern or to protect the fairness—actual or perceived—of judicial proceedings.”
The case—decided anew following a grant of rehearing last year—brings into question whether the Third District failed to adhere to the state constitutional 90-day rule for determining causes by reaching its present determination eight months after it had everything before it that was to be presented.
Debt Alleged
The defendant was one Brady Dee Douglas. His former boyfriend was a male prostitute who told Douglas of having been shortchanged by a customer.
Douglas and a codefendant located the alleged debtor and wound up engaging in a high-speed freeway chase with him, with Douglas shooting at him several times with a gun, missing.
Convicted of attempted second degree robbery and other offenses, Douglas appealed. In an April 11, 2017 opinion, Hull wrote for a unanimous court in determining that a remand was required.
The prosecutor, in seeking to justify his challenges of the two gay veniremen in response to a Wheeler motion—which challenges a dismissal of prospective jurors on the basis of apparent group bias—postulated that as acknowledged homosexuals, the men would look negatively on Douglas who had not come “out of the closet” and had actually lied about his sexual orientation.
Lack of Clarity
Hull said in the 2017 opinion that “it is not apparent from the transcript whether the trial court ever considered the prosecutor’s sexual orientation-based reason let alone concluded that it was a motivating but not determinative factor in the decision to strike” the two gays from the panel. He wrote:
“To properly resolve the issue, then, we must remand the case for further proceedings so the trial court may apply a mixed-motive analysis to the peremptory challenges. On remand, the prosecutor shall have the opportunity to show that he would have stricken both jurors even without considering their sexual orientation….If the prosecutor makes the necessary showing, the challenges stand. If not, the judgment must be reversed.”
A petition for rehearing was filed by Douglas and granted. By order of July 7, 2017, Equality California, Lambda Legal, and the National Center for Lesbian Rights were afforded amicus status.
That status was also accorded the Office of Los Angeles County Public Defender on Sept. 6 of last year, and its brief was filed that day. That filing was the final event in the case until the court on Thursday ordered the case submitted, then filed its opinion the same day.
The California Supreme Court came under fire during the period when Rose Bird was chief justice for purportedly skirting the state constitutional requirement imposed on all judges of deciding cases within 90 days of submission of causes by issuing an order of submittal on the day an opinion was filed, irrespective of how long the matter had been pending following oral argument. The practice—which had been in place for more than 30 years—was formally changed in 1988 when Malcolm Lucas was chief justice, and no controversy over deviation from the 90-day rule has persisted.
There was no order filed by the Third District explaining its eight-month delay in ordering the case submitted.
The case is People v. Douglas, 2018 S.O.S. 2135.
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