Work Product Privilege Yields to Right to Unbiased Jury

Wednesday, April 10, 2019

Page 1

Court of Appeal:

Work Product Privilege Yields to Right to Unbiased Jury

Panel Won’t Disturb Order That Prosecution Surrender Jury Selection Notes To Lawyer Handling Habeas Corpus Petition for Slayer on Death Row

By a MetNews Staff Writer

A criminal defendant’s constitutional right to an unbiased jury trumps the prosecution’s work product privilege, the Fourth District Court of Appeal held yesterday, denying a writ petition by the San Diego Office of District Attorney contesting an order to turn over to a convicted murderer’s habeas counsel the prosecution’s jury selection notes.

“Here, constitutional concerns are at odds with the alleged statutory protections of an attorney’s work product,” Justice Richard D. Huffman of Div. One wrote. He declared:

“Given the unique context of the situation and the importance of avoiding discrimination in jury selection, we cannot conclude the trial court abused its discretion.”

1994 Convictions

The real party in interest, Bryan Maurice Jones, was charged in 1992 with the first degree murders between 1985 and 1986 of four prostitutes, three of whose bodies were allegedly tossed by him into trash dumpsters, and two of which were set on fire. He was convicted in 1994 on two counts of first degree murder, as well as other felonies, with the jury hung as to the two other murder counts.

Jones was given a death sentence on Sept. 19, 1994.

Among the grounds he raised in his automatic appeal to the California Supreme Court was that his Batson/Wheeler—pursuant to the California Supreme Court’s 1978 decision in People v. Wheeler and the U.S. Supreme Court’s 1986 ruling in Batson v. Kentucky—was improperly denied. Jones’s counsel made the motion after the prosecution used peremptory challenges to excuse two female prospective jurors who were, like Jones, African Americans.

Prosecutor Provides Reasons

Then-San Diego Superior Court Judge Laura P. Hammes (now retired) found a prima facie case of group bias, shifting the burden to the prosecution to show race-neutral reasons for the challenges. The deputy district attorney explained that the office used a system of numerical scoring of prospective jurors and that the two who were excused scored low, based on factors he enumerated.

Hammes said she was “completely satisfied” with the reasons given.

The motion was renewed after the prosecutor excused another female African American. Hammes found no prima facie case of bias.

The state high court, in an Aug. 26, 2013 opinion, affirmed the convictions in an opinion by then-Justice Kathryn Werdegar (now retired). With respect to the two dismissals where Hammes found a prima facie case of bias, Werdegar said it was appropriate to “defer” to her assessment as to the genuineness of the reasons.

The third juror who was excused, Werdegar noted, had been married to a man who was convicted of murder. That factor, she said, supported Hammes’s finding of no prima facie case.

Discovery Sought

Jones’s present counsel sought the jury selection notes as part of post-conviction writ of habeas corpus discovery. The lawyer is seeking to show ineffective assistance of counsel because the trial lawyer did not protest use of 13 of the prosecution’s 17 peremptory challenges in barring females from the panel, with four of the females being African Americans.

The motion was granted by San Diego Superior Court Judge Joan P. Weber; the District Attorney’s Office sought a writ, which the Court of Appeal denied on June 21, 2018; the California Supreme Court on Sept. 14, 2018, granted review and retransferred the matter to the Court of Appeal; pursuant to the order, that court ordered the Superior Court to show cause why relief should not be granted.

Yesterday, it again denied the petition.

Huffman’s Analysis

Huffman observed that a defendant seeking discovery in connection with a petition for a writ of habeas corpus is entitled to whatever materials would have been discoverable at trial.

“This includes materials the prosecution did not provide at trial because there was no specific defense request but would have been obligated to provide had there been one,” he said, adding:

“The defendant bears the burden of demonstrating the materials requested are ones to which he would have been entitled to discovery at the time of trial….In issuing the order to turn over the jury selection notes, the trial court necessarily concluded Jones met his burden of demonstrating he was entitled to them at the time of trial. Thus, to demonstrate an abuse of discretion in this case, the district attorney must demonstrate that at the time of trial, the defendant was not entitled to the jury selection notes.”

Showing Not Made

There was no such showing, Huffman said.

The requirement under Batson/Wheeler that, if a prima facie case of discrimination is established, a prosecutor explain his or her thinking in connection with the challengers “is inconsistent with the notion that circumstantial evidence of those thoughts is absolutely protected” under the work product privilege, the jurist reasoned.

He cited the U.S. Supreme Court’s 2016 opinion in Foster v. Chatman for the proposition that “[t]he ‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.’ ”

Privilege Waived

Huffman went on to say that, in any event, the privilege had been waived by virtue of the prosecutor’s reference to the jury selection notes in the course of explaining his reasons for the challenges. The jurist said:

“The core work product privilege is waived when a witness testifies as to the work product’s content….Additionally, Evidence Code section 771 requires the production of a writing used to refresh a witness’s memory while testifying if requested by the adverse party.”

But, the Office of District Attorney protested, the prosecutor was not a “witness.” Rejecting the contention, Huffman wrote:

“In a Batson/Wheeler hearing, resolution of the issues depends entirely on the reasons the prosecutor provides for exercising a peremptory challenge. Moreover, the prosecutor is the only source of information regarding his motivations, other than the jury selection notes. Thus, in this context, the prosecutor effectively serves as a witness as the term is used in Evidence Code section 771….Moreover, when the prosecutor references jury selection notes to refresh his recollection and offers details from those notes, he waives any work product protection.”

Details Revealed

He continued:

“Here, the prosecutor referenced details from the jury selection notes throughout the Batson/Wheeler hearing. He explained the prosecution had numerically evaluated jurors based on their questionnaires, and he shared the specific numeric ratings with the court, in addition to other details and observations regarding the challenged prospective jurors. These references to the jury selection notes waived any work product privilege.”

The case is People v. Superior Court, 2019 S.O.S. 1708.