9th Circuit considers possible race bias in jury selection

Did the California Supreme Court unreasonably fail to find race discrimination in a death penalty case where the only three black prospective jurors were struck?

Elizabeth A. Dorsi of Farella Braun & Martel LLP argued Friday before the 9th U.S. Circuit Court of Appeals that the high court should have granted her client's Batson/Wheeler claims and not relied without question on the prosecutor's reasoning for striking those jurors before trial.

Court filings show the Santa Clara County district attorney said the three jurors were stuck because they expressed extreme anti-prosecution and anti-death penalty feelings, as well as anti-police bias. Walker v. Davis, 19-15087 (Cal. App. 9th Dist. Filed Jan. 14, 2019).

"The state Supreme Court simply doesn't look back to the record and recognize that many of these justifications are either pretextual or are undermined by the record," Dorsi said.

Her client, Marvin Walker, was convicted in 1980 of first-degree murder and two counts of assault with intent to murder for shooting three liquor store clerks in San Jose, killing one who was 15. He was also convicted of assault to commit murder and robbery stemming from the sexual assault and shooting of a young woman in another event. The two cases were joined at trial and in 1981 he was sentenced to death.

According to court filings, of the 155 potential jurors in Walker's venire, three were black. And they were all removed by way of peremptory challenges by the prosecution.

On appeal in 1985, the California Supreme Court vacated Walker's death sentence, commuting it to life without parole. People v. Walker, 41 Cal. 3d 116. But in subsequent requests, the court twice rejected Walker's claim that the elimination of all three black potential jurors constituted discriminatory jury selection.

Dorsi argued Friday it was unreasonable for the Supreme Court to accept the prosecutor's reasons why the strikes were genuine without conducting its own comparative analysis.

Senior 6th U.S. Circuit Judge Ronald L. Gilman, sitting by assignment, asked why police bias was considered as a factor for removing these jurors when excessive force wasn't a part of this case.

Deputy Attorney General Bruce Ortega said from a prosecutor's point of view, anti-law enforcement bias is always a reason to reject a juror in criminal cases.

"In this case, there were going to be police witnesses," he said, referring to an undercover officer who purchased a gun from Walker. "So, I think on the facts of this case, bias against law enforcement would be a legitimate reason for the prosecutor to excuse jurors."

One stricken juror the three-judge panel focused on in Friday's arguments said he would consider the death penalty but would have a hard time favoring it "at the drop of a hat" because having that control would affect him personally, court records show.

"Saying that you don't want to impose the death penalty at the drop of the hat seems like a pretty reasonable thing to say," said 9th Circuit Judge Susan P. Graber. "And it would be sort of appalling if someone said the opposite. ... So I'm not sure that it is objectively reasonable to say that that is an inappropriate level of concern about the death penalty."

Ortega responded that the trial court found the prosecutor's reasoning was credible in that particular strike, adding the prospective juror's anti-law enforcement comments were a valid concern that "he wouldn't be a good juror in a death penalty case."

Gilman asked why the record shows that a white juror who said she outright couldn't consider the death penalty was empaneled with the understanding that she could participate in the guilt phase but not the penalty phase.

"Why was she allowed to do it and not any of these black jurors?" Gilman asked.

Ortega said he doesn't know why the prosecutor, who he said had two more peremptory strikes at the time, didn't use one against this person.

"But isn't it a permissible inference that he used them selectively based on race?" Graber asked. "Isn't that the most reasonable inference?"

Ortega said he didn't think so.

"Reasonable minds can differ on whether the prosecutor was offering pretext," he said.

In rebuttal, Dorsi argued that the trial prosecutor's strikes were pretextual and that should be enough grounds for the circuit to issue a writ for her client's Batson/Wheeler claims. If the panel finds a Batson violation, the case will be remanded for retrial.

Senior 9th Circuit Judge John C. Wallace also sat on the panel.