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Court of Appeal:
Reason Given for Barring Black Woman From Jury Was Pretextual
By a MetNews Staff Writer
A prosecutor who explained his excusal of a Black woman from a jury as stemming from the “pushback” he received in attempting to elicit a response evidencing her understanding of what was “reasonable” to deduce from circumstances, as opposed to what was merely possible, was pretextual and indicative of discriminatory intent, the Court of Appeal for this district has held in reversing a second-degree murder conviction.
Justice Lamar Baker of Div. Five wrote the opinion, in which Presiding Justice Laurence D. Rubin joined. Justice Dorothy Kim dissented, saying that she “would defer to the trial court’s implied finding that the prosecutor was credible when he proffered a race-neutral reason for his exercise of a peremptory challenge.”
The prosecutor presented the hypothetical of a mother filling a wading pool with water, her son, age 5, being clad in swimming trunks, the mother remembering that she had left her cellphone inside and instructing the boy not to go in the pool while she went to fetch the device, and coming out and finding the youngster soaking wet and there being wet footprints on the ground.
Purpose Related
He went on to explain to prospective jurors:
“So the reason I’m telling you this hypothetical is because anything is possible, but my job is to prove to you beyond a reasonable doubt. Not all doubt. A reasonable doubt.”
Under questioning as to what was reasonable to suppose happened, Juror No. 8061 said:
“The reasonable answer is that he got in the pool. I don’t know that for a fact. I’m assuming the sprinklers could have came on.”
The prosecutor used a peremptory challenge to exclude her from the panel. Faced with a Batson/Wheeler motion (based on the contention that challenges were being used with the purpose of unconstitutional discrimination), the deputy district attorney explained to Los Angeles Superior Court Judge Kelvin Filer:
“The reason I dismissed her, Your Honor, was in regards to her responses when I gave the hypothetical in regards to the reasonable versus possible. She did give pushback on what she stated was possible. And I tried to explain the reasonable issue. She basically tried to explain it away saying anything is possible. And that was one of the reasons why. “This case—obviously we’re dealing with reasonable as opposed to possible, and a juror who thinks of other possible answers away from the facts I think would present an issue. And that was the reason why I kicked her.”
Filer responded:
“All right. I mean, I didn’t keep those exact notes, but I do remember her response along those lines. So I’ll indicate that the People have provided a race neutral reason for excusing that particular juror and deny the Batson ...motion at this time.”
The judge noted that when Juror No. 8061 was excused, there were “two Black females and one other Black male at least who are in the box.”
In his opinion reversing the conviction of Salvador Salinas—whose wife had just had a rendezvous in a motel room with the man the defendant proceeded to beat to death with a metal pipe—Baker said:
“[T]he prosecution used five of the eight peremptory challenges it exercised to remove Black women from the jury panel—including a prospective juror who was a sales manager, a crime victim herself, the grandchild of a retired police officer, a friend or acquaintance of ‘a lot’ of law enforcement officers, and a prior member of a criminal jury in another case that reached a verdict….[T]he record reveals the prosecution’s decision to bar the above-described Black woman from jury service is inconsistent with the guarantees of our federal and state constitutions.”
Baker maintained that the prosecutor’s stated reason for the challenge was invalid because the venireperson did give the answer he was looking for: that “reasonable answer” was that the boy in the hypothetical had gone into the pool.
Deference Not Due
He went on to declare:
“Ordinarily, we accord due deference to a trial court’s denial of a Batson motion, but that deference is not warranted here because the trial court did not make a reasoned effort (we have no doubts about the court’s sincerity) to evaluate the nondiscriminatory justification the prosecutor offered for striking Juror 8061….So we undertake our own review of the record and see evidence indicating Juror 8061 was more likely than not excused at least because of her race (and maybe even because of her race and gender, given the facts of defendant’s offense): the ‘sheer number,’ as the trial court itself put it of peremptory challenges directed at Black women prospective jurors; Juror 8061’s background that by all appearances would make her an ideal juror for the prosecution; the obviously pretextual reason given by the prosecution for excusing Juror 8061; and the prosecutor’s on-the-record statement that another Black female prospective juror was ‘aggressive’ because she said she could think for herself.”
The jurist (who is African American) took note of the observation by Filer (who is also African American) that three Blacks were “in the box” when Juror No. 8061 was challenged, saying that this factor “is not dispositive.” He explained:
“A prosecutor’s acceptance of a jury with at least some Black members can sometimes dispel the existence of a discriminatory motive, but in this case such acceptance is equally consistent with a judgment by the prosecution that it could afford to press no further with additional strikes of Black prospective jurors—lest it become objectively undeniable that purposeful discrimination was occurring. We accordingly believe the prosecution’s possible acceptance of some Black jurors in this case is not especially probative.”
Kim’s Dissent
Kim said in her dissent:
“In my view, the prosecutor’s stated reason, that he was concerned that the juror might not follow the law on reasonable doubt, is supported by the record and not inherently implausible.”
She wrote: “The swimming pool hypothetical was meant to illustrate for the jury panel the difference between a reasonable doubt, under the applicable burden of proof, and a doubt based on speculation or matters outside the evidence. Given the juror’s responses, the prosecutor may have believed that she might entertain a doubt based on speculation (anything could have happened) or matters outside the evidence (the sprinklers could have come on). Thus, his explanation of why he excused her—out of concern that, notwithstanding her ultimate agreement on the reasonable answer, she might misapply the reasonable doubt standard—finds support in our limited record.”
The case is People v. Salinas, 2022 S.O.S. 1415.
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