State high court affirms death penalty with 2 justices’ dissents

The state Supreme Court affirmed the death penalty in two cases Monday despite pointed dissents from Justice Goodwin H. Liu and a recent U.S. Supreme Court decision by Justice Brett Kavanaugh finding the Mississippi Supreme Court erred in upholding a murder conviction due to prosecutors' use of peremptory challenges.

Justice Mariano-Florentino Cuellar wrote a separate dissent in one of the cases but a clear state high court majority sided with prosecutors.

In one case, a black man convicted of killing a white man and later sexually assaulting a white woman faced a jury trial before Sacramento County Superior Court Judge Peter Mering, who has since retired. During jury selection in 1992, the prosecutor said he ran a criminal background check on some of the jurors and discovered one of them, a black man, had lied about not having a criminal record.

Defendants Joe Edward Johnson's defense lawyer raised a Batson/Wheeler challenge under Batson v. Kentucky (1986) 476 U.S. 79, wondering if the prosecutor had done similar checks on all of the jurors. The prosecutor declined to say. Mering declined to require the prosecutor to explain his reasoning.

In the end, three black jurors were seated on the jury after the prosecution exercised three of its 17 peremptory challenges on African-American prospective jurors -- a higher percentage of exclusions than for non-black jurors.

Chief Justice Tani Cantil-Sakauye, who wrote the majority opinion, said the prosecutor's challenges did not rise to the level of requiring further inquiry because the "strike rate" barely exceeded the percentage of African-Americans among prospective jurors.

"We conclude, based on the entire record, that defendant has not shown that the totality of relevant facts creates an inference of discriminatory intent. Considered in the context of the entire jury selection process, the prosecutor's strikes do not support an inference of discrimination," Cantil-Sakauye wrote. People v. Johnson, 2019 DJDAR 10845.

Liu, who has frequently dissented in affirmances of the death penalty over the dismissal of black jurors, wrote the prosecutor's "evasive" answers to defense queries raised questions.

"Even assuming the prosecutor was under no obligation at that point to disclose how he had selected jurors for background checks, it is suspicious that he did not simply answer 'no' when directly asked whether he 'just checked all the black prospective jurors,'" Liu wrote. "If the prosecutor had not targeted only black jurors, why didn't he say so?"

Cuellar, in his separate dissent, expressed concern the ruling could be used as a road map for prosecutors to avoid Batson inquiries, which bar the use of race as a factor in picking a jury.

In the second case, appellate lawyer Richard Jay Moller of Redway appealed the conviction of his client, Robert Boyd Rhoades, on murder, sodomy and murder by torture charges. The defendant and victim were white, but the prosecutor eliminated four black women, leaving none on the jury. People v. Rhoades, 2019 DJDAR 10879.

Moller said black women are regarded as less likely to support the death penalty, but he said none of the prospective jurors said they would be unwilling to hand out such a punishment.

Justice Leondra Kruger, writing for a 6-1 majority, outlined reasons why the prosecutor might not have wanted those women on the jury, including misgivings about the death penalty based on their religious beliefs. But Liu said the prosecutor never posited "credible, race-neutral reasons" for the strikes, and that it wasn't the court's role to speculate about what the reasoning might have been.

In June, the U.S. Supreme Court struck the murder conviction of Curtis Flowers after Mississippi prosecutors used peremptory challenges to eliminate all but one black juror. Liu cited the case in his dissent. Flowers v. Mississippi, 17-9572, 588 U.S. ___ (2019). Kavanaugh wrote the majority opinion.

Chief Deputy State Public Defender Barry P. Helft said writ petitions would be filed with the U.S. Supreme Court in the Johnson and Rhoades cases.