State high court reverses 2nd death penalty in same murder case, citing biased jury selection

The state Supreme Court reversed the death penalty for a man convicted of rape, torture and murder because of improper jury selection, the same reasoning it gave for overturning the death sentence for the other man involved in the killing.

Both men were prosecuted by former Los Angeles County Deputy District Attorney Corene S. Locke-Noble, who was listed as inactive with the State Bar as of Jan. 31 and who the prosecutor's office said is no longer with the department. A public information officer for the bar said the inactive status was not due to disciplinary charges.

According to transcripts from the trial, Locke-Noble was concerned and, at times, indignant that she was being accused of being a racist. But Glen Niemy, who represented the defendant in his automatic appeal, said the prosecutor's potential racial biases, whether or not they exist, played no part in his argument before the court.

"That's not part of our appeal because that's not relevant," said Niemy, a sole practitioner from Massachusetts. "The DA wanted to win so badly, she stepped over the constitutional line. It has nothing to do with how she feels."

The high court was unanimous in agreeing Los Angeles County Superior Court Judge Tomson T. Ong erred in excluding multiple jurors at the request of Locke-Noble, but it split 4-3 in determining whether or not those exclusions were racially motivated. People v. Armstrong, 2019 DJDAR 932 (Cal. Feb. 4, 2019).

Justice Carol A. Corrigan authored the majority opinion with Chief Justice Tani G. Cantil-Sakauye. Justices Ming W. Chin and Leondra R. Kruger concurred. Justice Goodwin H. Liu wrote the dissenting opinion with Justice Mariano-Florentino Cuéllar and 2nd District Court of Appeal Justice Dennis M. Perluss, sitting pro tem, concurring.

The defendant will be granted a new penalty phase, although Niemy said he will be petitioning the court for a rehearing to seek a new trial.

"Prejudice is presumed when you have an unconstitutionally constituted jury," said Niemy. "It was clear to me what the situation was but I don't wear a robe."

Niemy's client, Jamelle Armstrong, is the second defendant associated with the rape and murder of a woman in Long Beach to have the death penalty reversed by the Supreme Court on the grounds that "multiple prospective jurors were improperly excused for cause," according to the language of the court's opinions for both Armstrong and his co-defendant. People v. Pearson (2012) 53 Cal.4th 306.

Both trials were overseen by Ong and prosecuted by Locke-Noble.

Armstrong's attorney at trial was Hurdle C. Jacke II, who is now a Los Angeles County Superior Court judge in Compton.

Niemy's argument for a retrial rests on Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court decision that held, "to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state's case against a black defendant" violates their equal protection rights.

Locke-Noble excused four potential jurors, all black men.

One in particular, identified in the California high court opinion as E.W., was of particular interest to Justice Liu during oral arguments and in his dissenting opinion. The reason the prosecution offered for excusing him was because he was an engineer, even though juror 11, who was seated, was also an engineer.

"The trial court did not probe these discrepancies, nor did it probe the prosecutor's disparate treatment of nonblack jurors who were more similar to E.W. than she suggested in explaining her strike," wrote Liu.

"Had the trial court examined these anomalies, perhaps the prosecutor could have elaborated further on her concerns," Liu added.

Ultimately, since the court was constrained to the record, the majority could not conclusively say Locke-Noble's requests were racially motivated.

"Armstrong and the dissent must do more than argue that the prosecutor's concerns might have been unfounded," Corrigan wrote. "The 'inquiry is focused on whether the proffered neutral reasons are subjectively genuine, not on how objectively reasonable they are.' (People v. Melendez (2016) 2 Cal.5th 1, 15.) The reasons must be sincere and nondiscriminatory, but they need not be universally shared."

The Los Angeles district attorney's office declined to comment on the Supreme Court's decision.

In 2013, Ong affirmed Armstrong's co-defendant's death sentence.

The state attorney general's office did not respond to requests for comment.