Prosecutor’s Record on Jury Strikes Alarms 9th Circuit

     (CN) — In a divided ruling, the Ninth Circuit ruled Wednesday that a prosecutor with a history of race-based peremptory strikes wrongly kept a black woman off a jury, and reversed a man’s murder conviction for a third time.
     Reversing a federal judge’s habeas corpus petition denial for accused murderer Aldridge Currie, two appellate judges said prosecutor David Brown violated the Equal Protection Clause by using a peremptory challenge to strike a black prospective juror in his third attempt to prosecute Currie for killing a drug dealer.
     Brown had twice prosecuted Currie, a black man, for the 1995 shooting death of Santos Maldonado. According to court records, the two had argued over a gun on July 12, and later that day, Currie approached Maldonado while he sat in his car and asked how much methamphetamine he could purchase for $100.
     Currie told Maldonado he had the money around the corner and left. He returned and shot Maldonado in the neck, then robbed him of the drugs, some money and a gold chain.
     Brown got a conviction in California state court the first time, which the Ninth Circuit overturned based on Brown’s use of peremptory challenge to remove three black women from the jury. A peremptory challenge, unlike a challenge for cause, allows attorneys to exclude jurors for no stated reason.
     The panel noted that using them to exclude the women violated Batson v. Kentucky, a 1986 U.S. Supreme Court case where the high court ruled that peremptory challenges could never be used as “purposeful racial discrimination to bar African Americans from juries.”
     The Ninth Circuit again found Brown violated Batson during the first retrial in 2009 by striking three black prospective jurors, and on Wednesday, the appeals panel found that Brown flouted Batson a third time by striking a black female prospective juror named Jones at Currie’s second retrial
     During voir dire, Brown questioned Jones about answers she gave on her jury questionnaire, which had asked “whether the fact that Currie had been arrested and ‘charged with these crimes’ caused Jones to be ‘biased against him’ or think he ‘is probably guilty of something,'” court records show.
     Jones answered “no” to each question, and wrote in the comments, “no I don’t know what his [sic] is accused of and he is presumed not guilty until proven.”
     Brown also focused on Jones’ answers to two other questions, which asked whether she or any family member or close friend had ever been arrested or had been a victim, witness or defendant in a criminal matter. Jones had answered “yes, for drug related issues” to the first question, and “no” to the second, according to court records.
     Brown used a peremptory challenge to strike Jones from the jury panel and Currie’s lawyer moved for a mistrial under Batson. The motion was denied, the trial proceeded and Currie was convicted.
     The state appellate court said the lower court had appropriately rejected Currie’s Batson claim, finding ” ‘[s]ubstantial evidence supports the trial court’s stated conclusion that juror J[ones] was not a desirable panelist for the prosecution because she had two relatives who had been arrested for drug offenses, and that consequently, no prima facie case had been made.’ “
     Writing for the majority Wednesday, Judge Marsha Berzon said she was concerned that the trial judge had proffered his own rationale for Brown’s challenge before Brown had a chance to speak.
     “It stated that although it had ‘no reason to disbelieve [Jones] that she believes that [her family members] were treated fairly and would not hold that against the people in the present case,’ it did not ‘believe that the prosecutor is required to take the risk that either subconsciously or during the presentation of evidence her feelings may change in light of the very close relationship she has with two people who have been prosecuted,’ ” Berzon wrote.
     Brown then said his reasons were “‘exactly as stated by the court.’ “
     Berzon said Brown’s credibility was questionable, considering his adoption of the judge’s race-neutral reasoning.
     “In this instance, it is not only the same office, but the same prosecutor, who brings a history of Batson violations with him,” Berzon wrote. “Ordinarily, we give significant deference to a trial judge’s assessment of a prosecuting attorney’s credibility. But where a trial court offers reasons before the prosecutor has spoken, it undermines the court’s ability to assess that credibility.”
     Berzon then went on to lay waste to Brown’s explanations. Turning to Jones’ answer of “yes” to the question about a family history of drug problems, Berzon pointed out another juror had noted a history of marijuana, cocaine and methamphetamine addiction, but was still seated. Other prospective jurors had also stated sympathy on their questionnaires for those who used illegal drugs.
     “The seating of all these jurors further undermines the plausibility of the notion that Brown was particularly concerned about seating jurors who might be sympathetic to a defendant whose crime involved purchasing drugs,” Berzon wrote.
     Though Jones had marked “no” on the question regarding criminal matters but had later indicated that she had friends and family members who had been arrested for drug crimes, Berzon found Jones’ answers were not inconsistent, as Brown claimed.
     “If Jones’s family member had been arrested but not charged with a crime, for instance, these two answers would be wholly compatible,” she wrote.
     Finally, Berzon said Jones’ statement that she did not know what Currie “is accused of” was entirely innocuous, though Brown had used that answer to strike her.
     The Ninth Circuit remanded the case with an instruction to release Currie from custody unless the state decides to retry him. Judge William A. Fletcher joined Berzon in the majority ruling.
     Judge Carlos Bea dissented from the panel majority, saying he was perplexed by the majority’s attack on Brown adopting the trial judges’ explanations for striking Jones.
     “The fact that the prosecutor later agreed with the judge’s reasoning is unremarkable. If anything, the agreement between the judge and the prosecutor is an indication that there was, in fact, a clear race-neutral justification for the strike,” Bea wrote.
     Bea also said the majority had downplayed the fact that Jones was the only prospective juror whose brother and cousin were arrested for drug crimes.
     “The majority today tells the people of California that they must thrice try Currie for murder, or set him free,” he concluded. “I cannot join them in this task.”
     Brown did not immediately respond to an email and phone request for comment Wednesday afternoon.

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