Inmate Can’t Challenge Hispanic Makeup of Jury

     (CN) – A 9th Circuit judge slammed his colleagues for dismissing claims over the racial makeup of a jury in a case where defense counsel was overwhelmed by her own husband’s attempt on her life.
     Prosecutors used peremptory challenges to strike 75 percent of prospective jurors with Hispanic surnames in the 1983 trial of Constantino Carrera, facing charges that he murdered two people during a robbery.
     California challenged just 26 percent of prospective white jurors. Two people with Hispanic surnames were seated on the jury, and one was named an alternate. Carrera argued that his lawyer should have objected under the 1978 California case People v. Wheeler, which outlawed peremptory challenges based solely on race.
     After Carrera was sentenced to death, he petitioned for habeas relief in 1990. A federal judge in Fresno eventually set aside the inmate’s death sentence based on the prosecutor’s failure to correct testimony he knew was perjurious and his inducement of two jailhouse snitches, among other misconduct.
     Despite such relief, the judge refused to consider claims that Carrera’s attorney had provided ineffective assistance of counsel by failing to object to the state’s jury challenges.
     An 11-judge, en banc panel of the 9th Circuit affirmed Tuesday, finding that, under the law at the time, Carrera had to show that the prospective jurors were passed over because of a specific racial bias, and that he was fatally prejudiced by his attorney’s failure to object. He could show neither, the panel found.
     “Were we reviewing the prosecutor’s actions in a different procedural posture or under current law, we might well reach a different conclusion,” Judge William Fletcher wrote for the Pasadena-based panel. “But evaluating an ineffective assistance of counsel claim on the record before us, under Wheeler as it was interpreted in 1990, we cannot say Carrera has carried his burden of proof to show that he was prejudiced by his counsel’s failure to object to the prosecutor’s peremptory strikes. Carrera has not shown a ‘reasonable probability’ that on direct review, he would have succeeded under Wheeler in showing ‘a strong likelihood’ that challenges to Hispanic-surnamed venirepersons were made ‘because of their group association.'”
     Writing in dissent, Judge Harry Pregerson argued that Carrera’s attorney, Donnalee Huffman – who used her married name, Mendez, during the trial – had committed numerous errors and was generally unprepared and unfocused because of a conflict she was having with her husband at the time.
     “For example, Huffman was defending Carrera against a murder charge brought by the District Attorney’s Office, while also working with that same District Attorney’s Office to secure the conviction of her husband, who shot her in the arm and told her that he ‘meant to kill’ her,” he wrote. “Huffman’s divided loyalties may have dulled her vigorous representation of Carrera. Or perhaps Huffman failed to make a Wheeler motion because she was simply – and woefully – unprepared.
     “Huffman rushed to trial without an investigator because her investigator had been her husband – until the time he tried to kill her.
     “She had no money to hire a new one because she faced bankruptcy and was saddled with more than $100,000 in debt. So, she cut corners.
     “Unprepared and distracted, Huffman may not have been aware that the prosecutor’s disproportionate strikes of Hispanic jurors warranted an objection.
     “In short, the record shows one peremptory strike against a Hispanic juror that even the majority opinion concedes to be ‘problematic’ and four strikes of Hispanic jurors where there is no plausible explanation other than racial prejudice,” he added. “This record cried out for Carrera’s counsel, Huffman, to make a Wheeler objection.”

%d bloggers like this: