Court tosses 3 con­vic­tions for racial bias in jury se­lec­tion

Los Angeles Times - - FRONT PAGE - By Maura Dolan

For the first time in 16 years, the Cal­i­for­nia Supreme Court has found that racial bias im­prop­erly tainted a jury se­lec­tion, prompt­ing the court to over­turn three con­vic­tions — two for at­tempted mur­der.

The unan­i­mous de­ci­sion, writ­ten by Jus­tice Mar­i­ano-Florentino Cuél­lar, ap­peared in­tended to send a clear sig­nal to pros­e­cu­tors, de­fense lawyers and the lower courts that charges of racially mo­ti­vated ju­ror ex­clu­sions must be taken se­ri­ously.

“It is not only lit­i­gants who are harmed when the right to trial by im­par­tial jury is abridged,” Cuél­lar wrote Thurs­day. “Taints of dis­crim­i­na­tory bias in jury se­lec­tion — ac­tual or per­ceived — erode con­fi­dence in the ad­ju­dica­tive process, un­der­min­ing the pub­lic’s trust in courts.”

A.J. Kutchins, a se­nior deputy state pub­lic de­fender who ar­gued on be­half of the de­fense in the Kern County case, called Thurs­day’s de­ci­sion “a real wa­ter­shed.”

“There is some­thing of a sea change in how the court is deal­ing with the con­sti­tu­tional rights of the ac­cused in crim­i­nal cases,” he said.

Sev­eral le­gal an­a­lysts at­tribute the change to the ad­di­tion of three jus­tices ap­pointed by Gov. Jerry Brown: Cuél­lar, Good­win Liu and Leon­dra Kruger.

In­stead of spurring more con­ser­va­tive/lib­eral splits, the new Demo­cratic ap­pointees ap­pear to have slowly in­flu­enced their more veteran col­leagues to take a harder look at some crim­i­nal cases, an­a­lysts said.

Kirk C. Jenk­ins, an ap­pel­late lawyer who stud­ies the court, said crim­i­nal de­fen­dants won no more than 22% of the cases at the Cal­i­for­nia Supreme Court from 2000 to 2013, but that rate has risen steadily since the Brown jus­tices joined.

Schol­ars have shown that con­ser­va­tive judges on a panel rule more mod­er­ately when lib­er­als join, and lib­er­als rule more mod­er­ately when con­ser­va­tives are added, he said.

The new ap­pointees, un­like most of the veter­ans, also hail from dif­fer­ent back­grounds. None had been a judge be­fore com­ing to the court, and the three are rel­a­tively young.

Liu, the son of Tai­wanese im­mi­grants, was a con­sti­tu­tional law pro­fes­sor at UC Berke­ley. Cuél­lar, an im­mi­grant from Mex­ico, was a pro­fes­sor at Stan­ford Univer­sity.

Kruger, an African Amer­i­can, is a for­mer fed­eral gov­ern­ment lawyer who ar­gued be­fore the U.S. Supreme Court.

Since join­ing the court in 2011, Liu has writ­ten a se­ries of con­cur­rences and dis­sents ex­press­ing con­cern that racial bias was in­fect­ing jury se­lec­tion.

He said Thurs­day’s de­ci­sion marked only the sec­ond time in more than 25 years that the court has over­turned a con­vic­tion be­cause some­one was ex­cluded from a jury for im­proper rea­sons.

Santa Clara Univer­sity emer­i­tus law pro­fes­sor Ger­ald Uel­men called the de­ci­sion “dy­na­mite” and “a pro­found change.”

The rul­ing will af­fect ev­ery crim­i­nal trial. A vi­o­la­tion of the rules, if left unchecked by the trial judge, would re­quire con­vic­tions to be over­turned, he said.

Both Liu and Cuél­lar have ex­pressed con­cern about the jury se­lec­tion process since ar­riv­ing at the court, “but I find it re­ally amaz­ing that they have now car­ried the en­tire court with them,” Uel­men said.

Dis­crim­i­na­tion in jury se­lec­tion based on race, eth­nic­ity or sim­i­lar grounds vi­o­lates the Con­sti­tu­tion, ac­cord­ing to Cal­i­for­nia’s sem­i­nal 1978 rul­ing in Peo­ple vs. Wheeler and the U.S. Supreme Court’s 1986 de­ci­sion in Bat­son vs. Ken­tucky.

But over the last cou­ple of decades, rul­ings by the Cal­i­for­nia Supreme Court have em­pha­sized the im­por­tance of de­fer­ring to trial judges, who make the ini­tial call on whether race mo­ti­vated a prospec­tive ju­ror’s re­moval.

Thurs­day’s de­ci­sion amounted to a strong state­ment that def­er­ence with­out care­ful ex­am­i­na­tion no longer would be tol­er­ated, though Cuél­lar and Liu framed their views in ways not to of­fend con­ser­va­tives.

Cuél­lar fo­cused more on the need to pro­tect would-be ju­rors from dis­crim­i­na­tion than on the rights of crim­i­nal de­fen­dants.

“The mix of Cal­i­for­ni­ans who re­port for jury ser­vice across the state changes nearly ev­ery day, but the re­spon­si­bil­ity of courts to as­sure in­tegrity in the se­lec­tion of ju­rors does not,” he wrote.

Liu cau­tioned that a vi­o­la­tion of jury se­lec­tion rules should not brand the pros­e­cu­tor “a liar or a bigot.”

“Such loaded terms ob­scure the sys­temic val­ues that the con­sti­tu­tional pro­hi­bi­tion on racial dis­crim­i­na­tion in jury se­lec­tion is de­signed to serve,” he wrote.

The rul­ing came in the case of Rene Gu­tier­rez Jr., Gabriel Ramos and Ramiro En­riquez, who were con­victed in 2011 in the nonfatal shoot­ing of Clarence Langston in Bak­ers­field.

Gu­tier­rez and En­riquez were sen­tenced to po­ten­tial life terms in prison. Ramos re­ceived a five-year sen­tence. As a re­sult of the de­ci­sion, pros­e­cu­tors will have to de­cide whether to retry them.

Lawyers for the de­fen­dants chal­lenged the prose­cu­tion’s re­moval of 10 prospec­tive ju­rors who were Latino.

The pros­e­cu­tor, who al­lowed two Lati­nos to re­main on the jury, gave rea­sons other than race for the ex­clu­sions, and the judge ac­cepted them. A Court of Ap­peal up­held the con­vic­tions.

The Supreme Court, ex­am­in­ing one of the ex­clu­sions, said the pros­e­cu­tor failed to legally jus­tify the re­moval of a Latina teacher who had rel­a­tives in law en­force­ment.

The pros­e­cu­tor said he re­moved the woman be­cause she said she was un­aware of gang ac­tiv­ity in her town. That view, the pros­e­cu­tor told the court, could be prob­lem­atic be­cause one of the de­fen­dants ad­mit­ted he was a gang mem­ber in that town.

But the Cal­i­for­nia Supreme Court said the pros­e­cu­tor had ex­am­ined the woman only briefly and his ques­tions did not re­flect any such con­cern.

The rul­ing faulted the judge, who failed to ex­plain why the prose­cu­tion’s rea­son­ing was not a pre­text for dis­crim­i­na­tion, the court said. The rul­ing also took the ap­peals court to task for fail­ing to prop­erly com­pare the panelists who were struck and those who were al­lowed to re­main.

“The obli­ga­tion to avoid dis­crim­i­na­tion in jury se­lec­tion is a piv­otal one,” Cuél­lar wrote. “It is the duty of courts and coun­sel to en­sure the record is both ac­cu­rate and ad­e­quately de­vel­oped.”

Lawyers say a de­sire to win, more than racism, af­fects how they pick a ju­ror.

Liu, in a con­cur­ring opin­ion, noted that the le­gal stan­dard of proof for find­ing a vi­o­la­tion of the ban on race-based jury se­lec­tion was “more likely than not.” That “prob­a­bilis­tic stan­dard” is not de­signed “to elicit a de­fin­i­tive find­ing of de­ceit or racism,” he said.

“In­stead, it de­fines a level of risk that courts can­not tol­er­ate in light of the se­ri­ous harms that racial dis­crim­i­na­tion in jury se­lec­tion causes,” Liu wrote.

Brian van der Brug Los An­ge­les Times

CAL­I­FOR­NIA SUPREME Court Jus­tice Mar­i­ano-Florentino Cuél­lar said bias in jury se­lec­tion, whether real or per­ceived, un­der­mines the pub­lic’s trust in courts.

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