Prosecutorial laundry lists create Batson/Wheeler problems

A year ago, I claimed that People v. Gutierrez, 2017 DJDAR 5100, in which the California Supreme Court found, for only the second time in a quarter-century, that a prosecutor had discriminated during jury selection, "breath[ed] new life" into California's Batson/Wheeler doctrine. But the court's May 31 decision in People v. Hardy, 2018 DJDAR 5141, signals that defendants arguing Batson/Wheeler error still have a steep uphill appellate climb, particularly where the prosecutor gives multiple race-neutral reasons for striking a potential juror.

Striking a potential juror based on her race violates the equal protection rights of both the litigant and the juror. Under Batson v. Kentucky, after the defense has made a prima facie case of discrimination against a cognizable group (most often by showing that members of that group were disproportionately struck), the prosecution must state its group-neutral reasons for striking the prospective jurors at issue. The trial court must then make "a sincere and reasoned attempt to evaluate the prosecutor's justification[s]" and determine whether it is more likely than not that the peremptory strike was based on the impermissible factor. (Gutierrez, at 1159.)

In Hardy, the prosecutor struck every African-American juror she could, including Frank G., the only black juror considered for the main panel and, by many standards, a dream juror for the prosecution -- a 68-year-old grandfather and former Air Force officer, who held a supervisory position at Hertz in which he had to make difficult decisions, who was pro-law enforcement and who not only favored the death penalty, but thought it should be used more often. Despite acknowledging that the prosecutor's strikes "warrant[ed] close scrutiny," both because she struck all three possible African-American jurors, and because the case -- in which a black man was accused of raping and murdering a white woman -- itself had "definite racial overtones," Justice Ming Chin, writing for the majority, had no trouble accepting the trial court's "global finding" that the prosecutor's facially neutral reasons were genuine, because they were "generally supported by the record, inherently plausible, and self-evident."

In a dissent significantly longer than the corresponding portion of the majority opinion, Justice Goodwin Liu took issue with several aspects of the majority's approach, revealing (once again) that he brings greater scrutiny, skepticism and rigor to Batson analysis than his colleagues.

Hardy raises a recurring Batson/Wheeler issue: how a trial or appellate court should treat a prosecutor's "laundry list" of ostensibly category-neutral reasons for striking a juror, particularly where some appear valid and some do not. The Hardy prosecutor offered six race-neutral reasons for striking Frank G., three of which the majority conceded were "weak" or "not ... very convincing." Nonetheless, the majority accepted the trial court's cursory finding that all proffered reasons were race-neutral, employing several approaches that -- in my view, rightly -- drew fire from the dissent.

Legitimacy by Association

In particular, the majority recognized as "rather weak" the prosecutor's claim that she struck Frank G. because he was initially reluctant to serve. But his reluctance, based on work schedule concerns, was shared by other seated jurors and was fully assuaged once the judge explained that trial would not last more than two weeks. The majority found that, even though this reason standing alone appeared pretextual, it was strengthened once combined with other genuine reasons. Similarly, another weak reason to strike Frank G. -- his statement that he believed life without the possibility of parole was a worse punishment than death -- became "legitimate" when joined with other, stronger reasons.

Justice Liu's dissent points out the illogic of this approach. One reason's legitimacy does not somehow rub off on an adjacent pretextual reason. To the contrary, Liu contends: "weak reasons erode the credibility of the other reasons."

Indeed, the Hardy majority's approach seems inconsistent even with the court's own reasoning a little over a week earlier, on May 21, in People v. Smith, 2018 DJDAR 4731. There, the prosecutor gave a long laundry list of ostensibly neutral reasons for striking a disproportionate number of black jurors. The unanimous Smith court noted that such an approach raises the danger that the trial court will cut corners, "picking one plausible item from the list and summarily accepting it without considering the prosecutor's explanation as a whole." Smith further noted that a prosecutor's credibility may be "fatally impair[ed]" if some of the reasons he proffers fail to stand up to scrutiny, proving "implausible or unsupported by the facts." In Hardy, basing her strike of Frank G. in part on his initial concerns about serving, which were wholly resolved and applied equally to seated, arguably should have fatally impaired the prosecutor's credibility. But it was saved by what one might term the court's "legitimacy-by-association theory."

The Gestalt Approach to Comparative Juror Analysis

Hardy also takes an unconventional approach to comparative juror analysis: The majority first noted that "[t]here will always be some similarities between excused jurors and nonexcused jurors," before issuing a blanket finding that certain characteristics of Frank G. -- cynicism about prosecutors (though he felt similarly about defense attorneys), a false arrest (during which he said he had been treated fairly), and close professional contacts with (civil) attorneys -- "sharply distinguish[ed]" him from all other jurors. This comparative juror analysis is covered in a single paragraph that cites no specific juror. While it is undisputed that such analysis has a role at trial and on appeal, apparently it need not include actual side-by-side individual comparisons. Condemning the majority's "breezy treatment" of comparative juror analysis, Justice Liu meticulously compared Frank G. to numerous individual seated jurors, noting that the prosecutor never questioned any juror about any allegedly troubling characteristic that served as a basis for striking Frank G. This sustained analysis led Justice Liu to conclude that "it was more likely than not that the strike of Frank G. was impermissibly motivated by race."

Proving improper intent is never easy, let alone in the Batson context, where counsel has every reason to conceal her true motives. As the high court has noted, proving invidious discrimination "demands a sensitive inquiry into such circumstantial ... evidence of intent as may be available." Foster v. Chatman, 136 S. Ct. 1737, 1748 (2016). Given the difficulty of the task -- flushing out a prosecutor's covert discrimination -- it seems that rigorous (if time-consuming) comparative juror analysis is warranted.

The Role and Responsibility of Defense Counsel

Another point of contention between the majority and dissent was the proper role of defense counsel in investigating the validity of the prosecutor's explanations. After making his Batson/Wheeler motion, Hardy's trial attorney did not otherwise contest any of prosecutor's proffered reasons. The majority found this silence "significant," because it "deprived the trial court of the opportunity to consider arguments in an adversarial context" and "denied the prosecutor the opportunity to defend herself against defendant's claims that her reasons were pretextual."

Citing Gutierrez, Liu's dissent noted that under Batson and Wheeler, a prosecutor and trial court have an independent obligation to ensure that jury selection is non-discriminatory. The prosecutor must state her reasons and "stand or fall" on the plausibility of those reasons, while the trial court must clarify why it is accepting any non-self-evident reason as genuine.

Whether the majority opinion is consistent or inconsistent with precedent, after Hardy, conscientious defense counsel should plan to push back on each of a prosecutor's reasons -- or risk a reviewing court finding her silence to be a tacit concession that those reasons are valid.

Capital Cases Make Bad Law

A final point is worth noting: The majority of Batson/Wheeler claims arrive at the California Supreme Court in the vehicle of a capital case on automatic appeal -- with all the attendant pressures. A Batson/Wheeler violation constitutes structural error; reversal is required. In the capital context, this means that on remand the prosecution must decide whether to retry a decades-old case, alleging the most heinous crimes. Hardy involved a brutal rape and murder committed in 1998. (In contrast, the court's only recent reversal, Gutierrez, involved serious, but relatively recent, crimes; the defendant's conviction was only five years old.) Further, Batson/Wheeler error does not go to the merits of the case and amounts to what laypeople may consider a "technicality," despite the constitutional dimensions. In this context, the Hardy court was faced with a choice between reversing a 30-year-old conviction for terrible crimes or finding a way to accommodate what may well have been covert discrimination during jury selection.

Like they say, hard cases make bad law.