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Court of Appeal:
Cursory Acceptance of Juror Dismissal Was Insufficient
Humes Says Prosecutor’s Reasons for Use of Peremptory Strike Fail to Stand Up to Scrutiny
By a MetNews Staff Writer
Div. One of the First District Court of Appeal held yesterday that reversal of a conviction is required where the trial judge cursorily denied a motion challenging as racially discriminatory the prosecutor’s exercise of a peremptory strike against a prospective juror—a Black woman in her 30s—without any discussion of reasons and the prosecutor’s purported justifications for the strike were troubling, unsupported by the record or insignificant.
Presiding Justice Jim Humes wrote the opinion reversing the judgment of conviction entry of which was ordered by Alameda Superior Court Judge Allan Hymer. Justice Kathleen M. Banke and Alameda Superior Court Judge Arturo Castro, sitting on assignment, joined in the opinion.
Appealing his conviction was David G. Arias, who was found guilty by a jury in 2021 of forcible lewd acts on a child in violation of Penal Code §288(b)(1) and aggravated sexual assault of a child in violation of §269(a)(4) for sexually abusing his live-in girlfriend’s minor daughter.
Hymer sentenced Arias to 15-years-to-life on the aggravated sexual assault charge and imposed and stayed a term of eight-years-to-life for the remaining charge.
The prosecutor’s stated reasons for exercising the peremptory challenge against A.W., the prospective juror, were that she was likely to “empathize” more with defense experts than with a prosecution expert because she held a doctorate in higher education and organizational change, she expressed concerns about implicit bias and unfairness in the justice system, and she was “pretty opinionated” and might be reluctant to deliberate.
Batson/Wheeler Motion
Humes explained that a motion to challenge a party’s peremptory strike requires a three-step process.
The jurist remarked that the defendant must first make a prima facie showing that the prosecution exercised the challenge based on race, then the prosecutor must offer nondiscriminatory reasons for the challenge, and finally, the trial court must determine whether the prosecution’s stated justifications are credible or whether the defendant has shown purposeful race discrimination.
Humes noted a presumption in favor of finding that the prosecutor uses peremptory challenges in a constitutional manner and that “great deference” is given to a trial judge’s ability to distinguish real reasons from sham excuses. However, he said, when a prosecutor’s reasons are either unsupported by the record, inherently implausible, or both, more than just a blanket finding that the reasons are sufficient is required.
The jurist wrote::
“Here, the trial court found that the defense made a prima facie showing of discrimination, the prosecutor offered her reasons for striking A.W., and the court accepted those reasons without comment and denied the… motion. As a result, the issues on appeal are whether the prosecutor’s reasons were facially neutral at the second stage of the analysis and whether the court erred by uncritically crediting them at the third stage of the analysis.”
Humes rejected Arias’ assertion that the prosecutor’s reasons were not facially neutral, but took issue with Hymer’s conclusory ruling and said:
“[W]hen a trial court fails to make a sincere and reasoned effort to evaluate the prosecutor’s reasons for a peremptory strike, we need not defer to the court’s finding that the reasons were genuine. Here, the prosecutor’s three stated reasons for striking A.W. were unsupported, dubious, or unpersuasive.”
Empathy Toward Defense
Humes found the prosecutor’s first reason—that A.W. was more likely to agree with defense experts—to be without support on the record, remarking:
“The prosecutor justified her desire to avoid jurors with Ph.D.’s in so-called ‘soft sciences’ on the basis that the defense’s ‘anticipated expert witnesses...[had] Ph.D.’s in soft sciences themselves,’ and she was ‘concerned with jurors who may have a similar level of education and may empathize with those experts.’”
He acknowledged that the two defense experts, Bradley McAuliff and Alex Schmidt, both held doctorate degrees in psychology, but pointed out that the prosecution’s expert witness, Anthony Urquiza, also held a doctorate in the same field. Given the similarities between the degrees held by all experts, he said:
“Especially given that A.W. did not have a degree in psychology herself, we do not see how any finer distinctions between the areas in which each expert practiced or testified suggested A.W. would ‘empathize’ more with the defense experts than with Dr. Urquiza.”
He continued:
“Here, the trial court utterly failed to probe the higher education reason, which lacks record support and plausibility. As a result, we do not defer to the court’s implicit finding that it was genuine.”
Strong Opinions
Humes was unpersuaded that the prosecutor’s concern about A.W. being opinionated could sway the analysis and commented:
“[T]he prosecutor characterized A.W. as ‘pretty opinionated,’ because A.W. ‘indicated that when she forms an opinion, she holds it strongly and she didn’t see herself changing her mind. She might not change her mind…[s]he told [defense counsel] when she’s back there deliberating.’”
He found that reason insufficient, noting that two jurors who were eventually empaneled acknowledged that they stick to what they believe even if others do not agree. The presiding justice commented:
“Although we are not persuaded by Arias’s attempts to undermine the prosecutor’s final reason for striking A.W., the record demonstrates that the reason could not have been a central one for the strike. Not only was it the last reason given, but the prosecutor questioned very few prospective jurors about their willingness to deliberate. Most such questioning was done by defense counsel, who asked only some jurors about the issue. Thus, the record suggests that the prosecutor was not motivated to identify and remove jurors who might be reluctant to deliberate.”
Implicit Bias
Humes pointed out that although the exercise of a peremptory challenge based on an expressed concern about unfairness in the criminal justice system is now presumptively invalid under Code of Civil Procedure §231.7(e)(i), effective Jan. 1, 2023, the governing law at the time of the jury trial held was that such concerns were considered race-neutral.
“The ultimate question at the third stage of…analysis is whether the defendant proved purposeful racial discrimination by a preponderance of the evidence….Here, none of the prosecutor’s reasons for striking A.W. stand up to scrutiny….”
Humes commented:
“[W]e are disheartened by the prosecutor’s desire to reject jurors who were concerned about implicit bias and fairness in the justice system….
“Jurors should be encouraged to guard against the possibility that their decisions will be affected by bias, implicit or otherwise.”
The case is People v. Arias, A164789.
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