Batson / Wheeler

1. Batson / Wheeler

2. The Inconvenient Truths About Batson • Every prosecutor violates it, every judge knows it. • That doesn’t mean they are bigots ... necessarily. Batson violations usually aren’t about animus – they are about stereotyping.

3. Protected Categories Include • Race – Batson v. Kentucky • Ethnicity – Hernandez v. New York (1991) 500 U.S. 352 [“Hispanics”] • Gender – J.E.B. v. Alabama (1994) 511 U.S. 127; People v. Bonilla (2007) 41 Cal.4th 313, 341. Often overlooked! • Sexual orientation – People v. Garcia (2000) 77 Cal.App.4th 1269, 1272 • Sub-groups and combinations – People v. Young (2005) 34 Cal.4th 1149, 1173 [black women] • Skin Color [?] – People v. Bridgeforth (2016) 28 N.Y.3d 567 • Any ground incorporated by Cal. Civ. Proc. Section § 231.5

4. Code of Civil Procedure § 231.5: color discrimination…and more • State law has not recognized color discrimination. (People v. Davis (2009) 46 Cal.4th 539, 583 [“we reject defendant's contention that the trial court erred by ruling that “people of color” is not a cognizable group for Wheeler analysis. No California case has ever recognized “people of color” as a cognizable group.”]. People v. Neuman (2009) 176 Cal.App.4th 571, 579 [rejecting argument under both Batson and Wheeler].) but… • Code of Civil Procedure § 231.5 was amended in 2015. • Before it simply forbade sexual orientation discrimination. It now forbids discrimination on any basis listed in Government Code § 11135: sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation,

5. You Can Prove Discrimination in Three Easy Steps! (Or not) • The prima facie case • Inoffensive justifications • The ultimate determination

6. The Prima Facie Case • The defendant bears “only a minimal burden”(Shirley v. Yates (2015) 807 F.3d 1090, 1101) that is “not intended to be onerous” (Johnson v. California (2005) 545 U.S. 162, 170) . . . . . . yet, somehow, is hardly ever met (especially in California). See People v. Harris (2013) 57 Cal.4th 804, 882-883 (conc. opn. of Liu, J.) [“This court has improperly elevated the standard for establishing a prima facie case beyond the showing that the high court has deemed sufficient to trigger a prosecutor’s obligation to state the actual reasons for the strike”]. • The reviewing court looks at everything: “the totality of the relevant facts” Johnson v. California; “in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana (2008) 552 U.S. 472, 478.

7. Making A Record For Appeal • Get questionnaires of all jurors and fight to have race be in the questionnaire. File them in the record. • Put on the record the race/ethnicity/gender of each juror challenged and passed whenever possible. Don’t remember? Ask for judges or prosecutor’s help (or continuance). • Ask for a recess to review voir dire transcripts and questionnaires to make your argument • Express criticisms of the prosecutor’s justifications, including pointing out that they apply equally to others who are allowed to serve. • Make clear the objection is to everyone in the class who was excused (even those who were excused prior to making the motion). Judge’s may overlook objections/class members. • Renew your objection at close of jury selection based on all subsequent evidence.

8. Making A Record For Yourself -- Make It Painful To Discriminate. • Prepare in advance: look at jurors you think the DA will target and look for similarly situated jurors • Investigate jury selection history of DA in your case. • Talk to the defense attorney in last (few) cases tried, or last similar case tried (e.g. gang case, murder case, sex case, DUI). Or dissimilar. Get voir dire from cases and file them in your record if helpful. • Call PD and ask about prosecutor and office. • Ask for expert jury consultant who knows math. Ask for money. • Ask for prosecutor’s notes! Foster v. Chatman, 136 S.Ct. 1737 [prosecutor’s notes were damning]; id. at 1767 (dis. opn. of Thomas, J.) [“the Court today invites state prisoners to go searching for new ‘evidence’ by demanding the files of the prosecutors who long ago convicted them.” Yep. Let’s do it!]; Miller-El I [DA’s training manuals]; Crittenden v. Chappell, 804 F.3d 1005 [prosecutor’s notes] . • Evide Code § 771. Disclosed under Brady. • At a minimum that they be filed under seal in the record or preserved. • Ask judge’s notes be added to the record. • Go crazy -- ask for discovery.

9. Are the Numbers Enough? • Ninth Circuit: “[A] defendant can make a prima facie showing based on statistical disparities alone.” Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1091 • Cal Supremes: Yeah, right. People v. Clark (2011) 52 Cal.4th 856, 904–908, [prosecutor struck four of five black prospective jurors – no problem] • But remember the good ol’ days: People v. Turner (1986) 42 Cal.3d 711 [prima facie case established where prosecutor used two of first five peremptories against members of a cognizable group

10. Making the Numbers Sing • Exclusion Rate: Percentage of the eligible prospective jurors from group eliminated. E.g. eliminating 4 out of 5 black jurors (Lewis v. Horn (3rd Cir. 2009) 581 F.3d 92, 103) • Total (or nearly total) exclusion: Federal (and some Cal appellate cases) hold that the fact that all – or nearly all – members of the protected group were challenged can support prima facie case, even if that involves only one person, or a few folks. But Cal. Supremes (among others) hold that a “small sample size” precludes the court from relying on numbers alone People v. Bonilla (2007) 41 Cal.4th 313, 343 [two strikes can “rarely” suggest discrimination] • Comparative Strike Rate: Looking at “the proportion of a party’s peremptory challenges used against a group to the group’s proportion in the pool of jurors subject to peremptory challenge.” People v. Bell (2007) 40 Cal.4th 582, 619, fn. 4. E.g.: The prosecutor 80% of his challenges to eliminate Latinos, who are only 20% of the pool. • Probabilities: For easy cases (e.g., a long series of strikes against members of the protected group), it may be simple to calculate the odds. • Your court probably has a internal number threshold. Tell them that for misdemeanors, it should change. Code of Civil Procedure section 231 (b).

11. More About the Numbers • Order and timing of strikes: Williams v. Runnels (C.D. Cal. 2008) 640 F.Supp.2d 1203, 1215 [fact that prosecutor used three of his first four strikes to eliminate African Americans supported inference] ; cf: People v. Clark (2011) 52 Cal.4th 856, 906 [fact that prosecutor did not immediately strike black jurors was evidence that helped dispel inference of discrimination] • The ultimate composition of the jury: Some cases hold the inference dispelled because some members of the protected group remain • Why this makes little sense: “Offending counsel who is familiar with basic selection and challenge techniques could easily accept a jury panel knowing that his or her opponent will exercise a challenge against a highly undesirable juror” – giving the offending counsel another shot at bumping a juror from the protected group. People v. Motton(1985) 39 Cal.3d 596, 607–08. Say this on the record. • The federal view: The fact a member of the protected group was ultimately seated “does weigh against an inference of discrimination, but ‘only nominally’ so. ‘In denying a Batson motion, a trial court may not rely solely on the fact that some African-Americans remain on the jury.’” Shirley v. Yates, 807 F.3d at 1101-02;

12. Tells • Desultory questioning – asking minority jurors little or nothing. • Disparate questioning – asking minority jurors different things than non-minorities, and/or questioning minority jurors at markedly greater length. • But why did you strike this one? • “Nothing in the struck juror’s voir dire responses intimated a legitimate basis for removal”  Boyd v. Newland (9th Cir. 2004) 467 F.3d 1139, 1147 • Stricken juror seemingly pro-prosecution. (People v. Allen (1979) 23 Cal.3d 286, 291, fn.2.) • Comparative Juror Analysis at Step One: Ninth Circuit: Sure. Cal Supremes: No way! But not clear about what to do if raised in trial court. So after your numbers are as good as they are likely going to get, raise it yourself.

13. Interracial Features of the Crime Whether the accused, victim, witnesses, etc. are of the same or different races or ethnicities as the prospective jurors who were kicked . . . • . . . is a factor: Hernandezv. New York, 500 U.S. at 369-70 [“the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury.”] • . . . which can be important (Powers v. Ohio (1991) 499 U.S. 400, 416 [“Racial identity between the defendant and the excused person . . . may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred.”]) . . . • . . . but is not a requirement. E.g., Green v. Lamarque, 532 F.3d at 1029, 1033; Holloway v. Horn (3d Cir. 2004) 355 F.3d 707, 723

14. Step Two: “I Am Not A Racist” (I just play one on t.v.) • Prosecutor’s burden is very light: he need only offer a “race neutral reason” – and “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. at 360 • Still, sometimes not met • There must be a reason for striking the juror, not another kind of explanation . . . People v. Cisneros (2015)234 Cal. App. 4th 111, 121 [prosecutor saying that he bumped the minority juror because he preferred the next one that would be called does not cut it] • It cannot be premised on implicit bias . . . • . . . and obviously fails if it betrays overt bias • Categories that may get some play at stage 2: appearance, geography. Remember CCP 231.5

15. Step Three: All the Tools Used In Step One . . . • The numbers again: • At Step Three, “the seriously disproportionate exclusion of blacks from the jury venire is powerful evidence of intentional race discrimination.” McClain v. Prunty(9th Cir. 2000) 217 F.3d 1221, 1223; citing, Batson, 476 U.S. at 93 • The pattern and order of strikes • Questioning: (desultory, excessive, disparate) • Interracial Factors

16. (Step Three). . . Plus: Defects in the stated reasons themselves • Excuse contrary to / unsupported by the record. “[U]nless the totality of other relevant circumstances in this case suggests a contrary conclusion, the prosecutor’s factually erroneous reason can be construed as pretextual.” Castellanosv. Small (9th Cir. 2014) 766 F.3d 1137, 1148; see also, e.g., Foster v. Chatman • Strategic question: how/if to call them on it. Middle path: do it at a high level of generality. • CJA: raise it at a high level of generality • Ask for notes! Disclosure, in camera review.

17. (Step Three) Proxies For Race or Other Protected Categories • Geography: Not okay to kick a juror because the prosecutor had bad experience with “Inglewood jurors” (People v. Turner (2001) 90 Cal.App.4th 413, 420) or has a policy against selecting people from Compton United States v. Bishop (9th Cir. 1992) 959 F.2d 820, 826 but cf., People v. Williams (1997) 16 Cal.4th 153, 191 • Appearance: State v. McFadden (Mo. 2007) 216 S.W.3d 673, 675 [Batson violation where black juror was removed because she had “crazy red hair,”]. • Bilingualism. People v. Gonzales (2008) 165 Cal.App.4th 620, 630 (Cantil-Sakauye, J.) [justification that jurors spoke Spanish “expressed only ‘stereotypical assumptions about Latinos or bilinguals.”]; but see, Hernandez v. New York, 500 U.S. at 363 [reason is facially race-neutral] • Bad experiences with the cops? Sorry – that’s a “good” reason. Same with thinking that the criminal justice system is biased against black and brown people: “Skepticism about the fairness of the criminal justice system to indigents and racial minorities has … been recognized as a valid race-neutral ground for excusing a juror.” People v. Winbush (Jan. 25, 2017) ___ Cal.5th ___, ___.

18. (Step Three)Demeanor Justifications • If endorsed by trial court, generally unchallengeable. (Thaler v. Haynes (2010) 559 U.S. 43) • But if not explicitly endorsed by trial court, cannot support an otherwise suspect strike. Snyder, 552 U.S. at 479, 485-486; United States v. Rutledge (7th Cir. 2011) 648 F.3d 555, 560; People v. KhoaKhac Long (2010) 189 Cal.App.4th 826, 848 • If B.S. -- challenge demeanor based justifications. Judge’s often don’t rule on them.

19. (Step Three) Prior Discriminatory Conduct As Proof Of Bias • By the individual prosecutor: Currie v. McDowell (9th Cir. 2016) 825 F.3d 603, 610-611 • By the DA’s office: Miller-Elv. Cockrell (2003) 537 U.S. 322, 347 (“Miller-El I”)

20. Caselaw Review: The Federal Courts:Three SCOTUS Cases You Will Cite A Lot • Miller-El v. Dretke(“Miller-El II”) (2005) 545 U.S. 231 • Johnson v. California (2005) 545 U.S. 162 • Snyder v. Louisiana (2008) 552 U.S. 472

21. Caselaw Review: The Federal Courts:Some Key Ninth Circuit Cases • Kesser v. Cambra(9th Cir. 2006) 465 F.3d 351 (en banc) • Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139 • CJA appropriate at first step • State courts’ refusal to provide complete record is “unreasonable application”; no deference • Green v. Lamarque(9th Cir. 2008) 532 F.3d 1028 • If state court denied claim simply because justifications are “race neutral,” no deference owed • CJA may include comparisons to all jurors in the venire – not just the ones who were seated • Ali v. Hickman (9th Cir. 2009) 584 F.3d 1174 • Cook v. Lamarque (9th Cir. 2010) 593 F.3d 310 [Batson requires reversal if bias played a “substantial part” in prosecutor’s decision to challenge juror – petitioner need not prove that juror would have been retained “but for” the discriminatory motive [rejecting “mixed motive” analysis]

22. A Few Significant Recent Federal Cases Foster v. Chatman (2016) 136 S.Ct. 1737 • Prosecution’s notes re jury selection, obtained in discovery, evidence invidious intent • Reiterates and employs analytical tools outlined in Miller-El, including validity of CJA (even where there are differences) and the damning effect of prosecutorial misstatements

23. Shirley and Her Friends • Currie v. McDowell (9th Cir. 2016) 835 F.3d 603; Shirley v. Yates (9th Cir. 2015) 807 F.3d 1090; Johnson v. Finn (9th Cir. 2011) 665 F.3d 1063 • “The existence of grounds upon which a prosecutor could reasonably have premised a challenge does not suffice to defeat an inference of racial bias at the first step of the Batson framework.” • Currie also significant re: • when federal court must hold evidentiary hearing, and • relying on prosecutor’s past Batson violations as evidence of discriminatory intent

24. McDaniels v. Kirkland (9th Cir. 2016) 813 F.3d 770 (en banc) • Federal court reviewing State court denial of Batson claim should look at entire record that was before State trial court, even including parts that were not included in State appellate record • State courts’ failure to engage in CJA does not render decision “contrary to” or “unreasonable application of” fed law (but feds still undertake CJA to see if decision was factually unreasonable)

25. Caselaw Review: CaliforniaCasesThe Oldies (But Still Useful) • People v. Wheeler (1978) 22 Cal.3d 258 • People v. Fuller (1982) 136 Cal.App.3d 403, 420 • People v. Hall (1983) 35 Cal.3d 161 • People v. Motton(1985) 39 Cal.3d 596 • People v. Trevino (1985) 39 Cal.3d 667 disapproved by People v. Johnson (1989) 47 Cal.3d 1194 • People v. Turner (1986) 42 Cal.3d 711

26. Caselaw Review: CaliforniaCasesJustice Liu’s Crusade, part 1 • The 2013 Liu Trilogy • People v. Mai (2013) 57 Cal.4th 986, 1066-1076 (Liu, J., concurring) • People v. Harris (2013) 57 Cal.4th 804, 863-891(Liu, J., concurring) • People v. Williams (2013) 56 Cal.4th 630, 699-728 (Liu, J. dissenting)

27. Caselaw Review: CaliforniaCasesJustice Liu’s Crusade, part 2 • Subsequent Justice Liu concurrences • People v. Chism(2014) 58 Cal.4th 1266, 1338-1353 (Liu, J., concurring) • People v. Scott (2015) 61 Cal.4th 363, 409-415 (Liu, J., concurring) • People v. Jones (2013) 57 Cal.4th 899, 981-983 (Liu, J., concurring) • People v. Manibusan (2013) 58 Cal.4th 40, 106-109 (Liu, J., concurring)

28. People v. Chism(2014) 58 Cal.4th 1266 • Majority enunciates new forfeiture rule for CJA: court cannot take into consideration treatment of jurors not in the box at the time of the motion. (Chism, 58 Cal.4th at 1319.) • Justice Liu: • this rule “improperly limits comparative juror analysis” (Id. at p. 1350 (conc. opn. of Liu, J).) • Batson is “not merely an exercise in evaluating the trial court’s performance based on arguments put forth by the parties.” (Id. at p. 1351; see People v. Howard (1992) 1 Cal.4th 1132, 1155 [“we have not limited our review in such cases solely to counsel’s presentation at the time of the motion.”].)

29. People Scott (2014) 58 Cal.4th 1266: First Stage or Third Stage? • If the trial court asks for reasons but finds no prima facie case, is it a third stage case? • No. They can deny you at either stage! People v. Scott (2015) 61 Cal.4th 363, 391. • Limitation: trial court must say no prima facie case first. (Id. at p. 347, fn.1 [rule does not encompass cases where trial court “purported to rule on the first stage only after the prosecutor had already offered a statement of reasons.”].) • What if the reasons are clear evidence of discrimination? “A proffered justification that is facially discriminatory must be weighed with the totality of the relevant facts to determine whether they give rise to an inference of discriminatory purpose.” (Id. at p. 391.)

30. People v. Sanchez (2016) 63 Cal.4th 411 • Prosecutors frequently rely on prior, unsuccessful cause challenges to support a later peremptory (esp. regarding aversion to DP). But what if the prior challenge was denied because it was meritless? • “[A] specious challenge for cause might in some circumstances support an inference of bias in a prosecutor’s peremptory challenges. . . .” Id. at p. 437; cf. Crittenden v. Chappell, supra. • In reviewing a Step One (prima facie case) denial, a court may “consider, as part of the overall relevant circumstances, nondiscriminatory reasons clearly established in the record that necessarily dispel any inference of bias.” Id. at p. 435 fn.5, italics added.

31. People v. Cunningham (2015) 61 Cal.4th 609 • What if the record is not clear on the race of your juror, but defense objects to this dismissal along with challenges against (other) African-Americans? “The failure to clearly articulate” the protected class forfeits challenge. • Trial court’s use of “systematic pattern of exclusion” standard for step 1 warrants de novo review.

32. People v. O'Malley (2016) 62 Cal.4th 944 • CJA is in the eye of the beholder: how do you determine if a seated and struck juror are similarly situated? • “[W]e must ask whether there were any material differences among the jurors—that is, differences, other than race, that we can reasonably infer motivated the prosecutor's pattern of challenges.” (Id. at p. 977.) • Sounds almost decent until until they apply it. • What if the reason is not supported by the record? • The prosecutor’s “mistaken recollection” that juror had “spoken of prejudice” against police, when he had in fact denied having hard feelings about a particular incident, does not “establish . . . pretext.” (Id. at p. 979.) [Compare with Miller-El and progeny]

33. Hot Off the Presses • People v. Winbush(Jan. 26, 2017)__ Cal.5th ___ 2017 WL 371388 • Majority holding: Pretext is established under CJA only “when the compared jurors have expressed ‘a substantially similar combination of responses,’ in all material respects, to the jurors excused.” [emphasis supplied] • Justice Liu: this rule is “in tension with how the United States Supreme Court has conducted comparative juror analysis.” • “Skepticism about the fairness of the criminal justice system to indigents and racial minorities has … been recognized as a valid race-neutral ground for excusing a juror.”