Liu dissents in death penalty affirmance over dismissal of black jurors

The state Supreme Court affirmed a death penalty verdict Thursday for a defendant convicted of rape and torture in an opinion in which the lone dissenting justice questioned the legitimacy of the jury selection process.

Justice Goodwin Liu contended the prosecution improperly dismissed every prospective black juror in a trial multiple justices agreed had "definite racial overtones."

"In this day and age, we are unlikely to encounter direct evidence of purposeful discrimination in jury selection," Liu wrote in his dissent. "But discrimination is no less real for being subtle."

The primary issue being appealed was whether the prosecution excused prospective jurors because of their disapproval of the death penalty and negative perspective on law enforcement or because they were black and would sympathize with the defendant, Warren Justin Hardy, who is also African-American and sentenced to death row by a Los Angeles jury in 2002.

The prosecution contended their dismissal of three potential black jurors was appropriate and in line with lawful jury selection methods.

"The reasons were generally supported by the record, inherently plausible, and self-evident," wrote Ming W. Chin, who authored the opinion. "Some, at least, were strong and have a firm basis in accepted trial strategy." People v. Hardy, 2018 DJDAR 5141.

The prosecution used three of its five peremptory challenges to dismiss three African-American jurors, one of whom was the only black juror available during that part of jury selection.

Two of the jurors were dismissed because of their objection to the death penalty. The other potential juror, Frank G., was struck for indicating he thought police "are not always truthful and tend to exaggerate," knowing several other attorneys and refusing "to smile at (prosecutors), although he smiled for the defense," according to the opinion.

Susan K. Shaler, who represented Hardy and is under appointment by the state Supreme Court, and Deputy Attorney General Michael J. Wise could not be reached for comment. Los Angeles County Superior Court Judge John David Lord presided over the trial.

Chin wrote Lord had no obligation to inquire further into the prosecutor's reasons for dismissing the jurors and the defense chose not to challenge it.

But Liu claimed that Lord did not make a "sincere and reasoned attempt to evaluate the prosecutor's reasons."

The justice said the dismissal of Frank G. was particularly egregious because he "should have been an ideal juror in the eyes of a prosecutor seeking a death sentence."

Frank G. indicated on the questionnaire that he favored the death penalty, had no social or religious convictions that would prevent him from imposing the sentence and that he didn't believe in the impact of mitigating factors when considering how childhood experiences affect a person's development, Liu wrote.

"In light of all of the relevant circumstances -- including the answers given by Frank G. and other jurors on their questionnaires and during voir dire, the fact that the prosecutor did not question Frank G. about several concerns she identified as reasons for striking him, and her apparent lack of concern about nonblack jurors with similar traits -- I cannot affirm the trial court's ruling, which is devoid of any reasoned evaluation of the prosecutor's reasons for the strike," Liu wrote.

He wrote separate, concurring opinions in two death penalty cases since 2016 and a dissenting opinion in 2015 due to concerns about allegedly discriminatory jury selection.