Opinion
Case No.: CV 98-10318 JLS
2021-09-30
Ronald Anthony JONES, Petitioner, v. Ron BROOMFIELD, Acting Warden, California State Prison at San Quentin, Respondent.
DEATH PENALTY CASE
ORDER GRANTING RELIEF AS TO CLAIM 4(1) PURSUANT TO PETITION FOR WRIT OF HABEAS CORPUS
JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
Jury selection in Petitioner's 1991 trial was incurably tainted by race-based discrimination. On federal habeas review, on the record, and under clearly established federal law, as discussed at length in the pages that follow, the Court determines that Petitioner is entitled to a new trial. I. BACKGROUND
Petitioner Ronald Anthony Jones ("Petitioner") is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, Los Angeles County, following his April 11, 1991 conviction on charges of first-degree murder, kidnapping for robbery, second-degree robbery, forcible rape while acting in concert, and forcible oral copulation. The jury found true the special circumstances that the murder was committed during the commission of the crimes of robbery, kidnapping, rape and oral copulation, and that Petitioner personally used a firearm to commit the murder. (CT 2141-46, 2152-54.) On May 7, 1991, the jury recommended that Petitioner be sentenced to death. (CT 2276, 2278.) The court accepted the jury's recommendation and sentenced Petitioner to death on June 4, 1991. (CT at 2325-30.)
On January 29, 1998, the California Supreme Court affirmed Petitioner's conviction and death sentence. People v. Jones , 17 Cal.4th 279, 70 Cal.Rptr.2d 793, 949 P.2d 890 (1998). The United States Supreme Court denied certiorari on October 13, 1998. Jones v. California , 525 U.S. 932, 119 S.Ct. 343, 142 L.Ed.2d 283 (1998). On November 4, 1997, while the initial appeal was still pending, Petitioner filed his first petition for writ of habeas corpus in the California Supreme Court. (Dkt. No. 208-33 through 208-37.) On December 16, 1998, the state court denied the petition on the merits and on procedural grounds. (Dkt. No. 209-3 .) On October 26, 2000, Petitioner filed his second state petition for writ of habeas corpus (his "exhaustion petition") in the California Supreme Court. (Dkt. Nos. 209-4 through 209-53.) The state court denied the exhaustion petition on the merits and on procedural grounds on March 28, 2001. (Dkt. No. 209-54 .)
Petitioner filed the operative federal habeas corpus petition in this matter on October 26, 2000. (Dkt. No. 37 ("Pet.").) Respondent filed an Answer to the petition on November 24, 2008, and Petitioner filed a Traverse on June 15, 2009. (Dkt. Nos. 116 & 123.)
On July 8, 2009, this Court signed the parties' proposed order on their Joint Stipulation Regarding Schedule for Filing Petitioner's Evidentiary Hearing Motion and Joint Litigation Plan. (See Dkt. Nos 124-25.) The parties subsequently began conducting discovery, and the Court authorized one extension of the discovery deadline. (Dkt. No. 142.) On April 19, 2011, Respondent filed a Motion to Stay Remaining Discovery in light of Cullen v. Pinholster , and the Court issued a minute order on April 20, 2011, ordering the parties to conduct no further discovery pending determination of the impact of Pinholster and other recent United States Supreme Court decisions. (Dkt. Nos. 147-48.)
563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
On September 28, 2012, Respondent filed his Brief Re: The Impact of Harrington v. Richter and Cullen v. Pinholster on the Claims and Subclaims in the Petition for Writ of Habeas Corpus and a renewed Motion to Dismiss on Procedural Default Grounds. (Dkt. No. 153.) On April 1, 2013, Petitioner filed a Motion for Partial Summary Judgment on Claim Four, Subsection One, of His Petition for Writ of Habeas Corpus, and an Ex Parte Application for Order for Suspension of Briefing Schedule Pending Outcome of Motion for Partial Summary Judgment. (Dkt. Nos. 161 ("MSJ") & 162.) Respondent filed an Opposition to the ex parte application on April 2, 2013, and the Court denied the application on April 9, 2013. (Dkt. Nos. 164 & 168.) Respondent subsequently filed an Opposition to Petitioner's Motion for Partial Summary Judgment on April 30, 2013, and Petitioner filed a Reply on May 14, 2013. (Dkt. Nos. 172-173 ("Opp.") & 175 ("Reply").) On June 10, 2013, Petitioner filed his Brief Re: 28 U.S.C. § 2254(d) , Harrington v. Richter , and Cullen v. Pinholster , and Opposition to Motion to Dismiss. (Dkt. No. 179.) Respondent filed a Reply on December 6, 2013, and Petitioner filed a Sur-Reply on February 14, 2014. (Dkt. Nos. 192 & 194.)
562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
Because of nature of habeas proceedings, as a general rule, neither motions to dismiss under Rule 12(b)(6) nor summary judgment motions under Rule 56 are particularly appropriate. See Anderson v. Butler , 886 F.2d 111, 113 (5th Cir. 1989) (modern habeas corpus procedure has the same function as an ordinary appeal); O'Neal v. McAninch , 513 U.S. 432, 440, 442, 115 S.Ct. 992, 130 L.Ed.2d 947(1995) (federal court's function in habeas corpus proceedings is to "review errors in state criminal trials" (emphasis omitted)). Motions for summary judgment are generally unnecessary because petitions may be decided immediately by the Court following submission of the pleadings provided no material issues of fact exist. See 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure , § 17.3 (1988) ("The habeas corpus statute authorizes—indeed, it seems to require—the court treat the petition itself as the equivalent of a petitioner-initiated summary judgment motion ...."); cf. Rizzolo v. Puentes , No. 119CV00290SKOHC, 2019 WL 1229772, at *1 (E.D. Cal. Mar. 15, 2019) ("Because the Court's analysis of the merits of a habeas petition is equivalent to a summary judgment motion, motions for summary judgment are inappropriate in federal habeas cases.") (internal alteration marks and quotation marks omitted).
Nevertheless, because the merits briefing on the present matter is complete, because Petitioner's constitutional rights were clearly violated, and because the relief granted herein is long overdue, the Court construes the parties' briefing on Petitioner's motion for partial summary judgment as additional merits briefing on Claim 4(1). As set forth below, the Court grants Petitioner relief thereon.
II. LEGAL STANDARD FOR FEDERAL HABEAS REVIEW
Because Petitioner's original § 2254 habeas petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified in 28 U.S.C. § 2254 , applies to Petitioner's claims. Woodford v. Garceau , 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (holding that applicability of the AEDPA depends on whether the petitioner filed an application for habeas relief seeking an adjudication on the merits before or after the AEDPA's effective date). Under the AEDPA, a state prisoner whose claim has been "adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) ; see Richter , 562 U.S. at 98, 131 S.Ct. 770.
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have separate and distinct meanings. Williams v. Taylor , 529 U.S. 362, 404-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Supreme Court has explained that a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from our precedent." Id. at 405-06, 120 S.Ct. 1495 ; see Lockyer v. Andrade , 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (same). A state court decision is an "unreasonable application" of federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Williams , 529 U.S. at 413, 120 S.Ct. 1495 ; Andrade , 538 U.S. at 75, 123 S.Ct. 1166. "The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous.... The state court's application of clearly established law must be objectively unreasonable." Andrade , 538 U.S. at 75, 123 S.Ct. 1166 (internal citation omitted); see Richter , 562 U.S. at 101, 131 S.Ct. 770. The United States Supreme Court made clear in Richter that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision." Richter , 562 U.S. at 101, 131 S.Ct. 770 (quoting Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).
Where a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers the claim de novo. See Panetti v. Quarterman , 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (when section 2254(d) is satisfied, "[a] federal court must then resolve the claim without the deference AEDPA otherwise requires"); Wiggins v. Smith , 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ; Frantz v. Hazey , 533 F.3d 724, 737 (9th Cir. 2008) (where a federal court concludes that a petitioner has satisfied § 2254(d), it "review[s] the substantive constitutionality of the state custody de novo").
In making this assessment, a district court must ascertain the reasonableness of the decision by a state supreme court based on the record that was before the state court that adjudicated the claim on the merits. See Pinholster , 563 U.S. at 180-81, 185 n.7, 131 S.Ct. 1388. Factual determinations by state courts are generally presumed to be correct, and petitioners bear the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) ; Cudjo v. Ayers , 698 F.3d 752, 762 (9th Cir. 2012) ("[T]he statement of facts from the last reasoned state court decision is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.") (internal quotation marks omitted).
In applying these standards, a federal court looks to the last reasoned state court decision on the claim presented. See Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192 , 200 L.Ed.2d 530 (2018) ; Ylst v. Nunnemaker , 501 U.S. 797, 804-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). For those claims where there is only a summary denial, a petitioner can satisfy § 2254(d) by showing that " ‘there was no reasonable basis’ for the California Supreme Court's decision." Pinholster , 563 U.S.at 188 (quoting Richter , 562 U.S. at 98, 131 S.Ct. 770 ).
III. OVERVIEW OF PETITIONER'S BATSON CLAIM
Petitioner claims that his constitutional rights, including his constitutional right to equal protection under the law, were violated when the prosecutor used four of the People's twelve peremptory strikes to remove all prospective jurors who were (or who appeared to be) of the same race as Petitioner. (See Pet. at 107-21.) Specifically, in Claim 4(1) of his federal habeas corpus petition, Petitioner argues that during jury selection in his 1991 capital trial, the prosecutor improperly removed all four Black prospective jury members from the venire in a manner prohibited by, inter alia, Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petitioner further contends that the trial court violated his state and federal constitutional rights when it denied his Wheeler / Batson motions, finding defense counsel failed to make a prima facie case of purposeful racial discrimination in challenging the prosecution's exercise of peremptory challenges. It is undisputed that the prosecutor in this case used four of his twelve peremptory challenges to exclude all four prospective Black jurors from serving on Petitioner's jury. (MSJ at 1; see Opp. at 6-26.) Petitioner contends that, on the existing record, he is entitled to relief under Batson as a matter of law. (MSJ at 7.)
To clarify the use of terms to describe race herein, the Court notes the following: As to Petitioner, in his MSJ, Petitioner first identifies as an "African American," but also later refers to himself as "a black man." (Compare MSJ at 3 with id. at 5.) As used herein, those terms should be understood as interchangeable. The Court understands that the preferred usage is to use the term "Black," and to capitalize the first letter. As used, "Black" is meant to be broader and more inclusive term than "African American." See, e.g. , Elaine Izadi, "Why hundreds of American newsrooms have started capitalizing the "b" in "Black ," The Washington Post, June 18, 2020. Portions of the transcript are in all caps, but other portions are in upper and lower case. The Court quotes the transcript as if the entire record were transcribed in upper- and lower-case letters, but "Black" is uniformly capitalized, in conformity with current usage, regardless of how it appears in the original.
At the time made, the motions raised by defense counsel were pursuant to California's rule, similar to Batson , as set forth in People v. Wheeler , 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Thus, at the time, they were referred to as Wheeler motions. The Court refers to them herein as Batson / Wheeler motions because, at least as to Batson 's first step, the Wheeler test has been expressly invalidated by the United States Supreme Court. Johnson v. California , 545 U.S. 162, 169, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)
The record establishes the following: Petitioner, at the time a young Black man, was tried in 1991 for the rape and murder of a young white woman, Lois Haro. (RT 626.) Jury selection took one month. Specifically, Hovey voir dire was conducted from February 19, 1991 through March 13, 1991, and general voir dire continued through March 18, 1991. (See RT 1-2529.) In the middle of this time period, on or about March 3, 1991, a now-infamous video was recorded of four white, uniformed Los Angeles police officers savagely beating an unarmed and unresisting Black man, later identified as Rodney King. The video was widely televised in the days that followed.
This references the procedure specified in Hovey v. Superior Court , 28 Cal.3d 1, 80-81, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980), which required an initial separate voir dire of each prospective juror in death penalty cases.
As Hovey voir dire proceeded, the trial court inquired of each group of jurors whether, given that Petitioner and his codefendant were both "young Black male[s]" and the victim "a young white female," any of the jurors "believe[d] he or she would feel any racial prejudice or bias in this matter." (See e.g. , RT 626, 689, 714, 820, 840-41, 895-96, 936, 1022, 1058, 1128, 1152, 1210-11, 1258, 1331, 1404, 1466, 1548, 1650-51, 1694, 1786-87, 1843, 1977, 2044, & 2130-31.) Not a single prospective juror raised his or her hand to answer the question in the affirmative. During Hovey voir dire, the race of the defendant and the victim was frequently revisited. (See e.g. , RT 677-78 ("Can you be fair to Mr. Jones as a Black man?" ... "Can you be as fair to him as you could a white person similarly charged?" ... "Lois Haro was white. Does that make any difference to you?" ... "Does the race of the victim mean anything to you?"); RT 728 ("Did you have substantial contact with Black people and do you still in your career?" ... "Do you have any feelings about Black people as criminal defendants, people charged with violent crime? This is sort of an ascending scale. People charged with rape, people charged with rape of a white woman, people charged with rape and murder of a white woman?"); RT 751 ("If Lois Haro was Black and Ronald Jones was white, would it be the same for you?"); RT 862-63 ("In your own life – and this is kind of a nosy question; because of what we're doing, I have to ask – have you ever had any kind of incidents with Black people, unpleasant incidents, that, in fairness, I ought to know about?"... "As honestly as you can, tell me whether or not you would be more comfortable if Ronald Anthony Jones was either white or Hispanic. Would you be more comfortable, more sure of your ability to be fair, if, instead of being Black, he was white or brown?" "Would it make a difference to you whether Lois Haro was Black, white, brown or oriental?"); RT 921 ("Can you say with confidence that you would feel exactly the same way about this case if my client was white, the victim was Black?"); RT 1302 ("Can you be race-neutral in this case?" ... "Can you honestly look me in the eye and say that it makes no difference to you whether or not it's the defendant that's white or the victim that's white?").
Additionally, during general voir dire, defense counsel asked:
- "Can you truthfully say in your own life, the way you look at the world and the people in the world, that you are completely 100 percent free of racial prejudice or bias of any kind? 100 percent?" (RT 2237.)
- "When you see a person for the first time and you're sizing him up – ‘What do I think of this man? What do I think of this woman?’ – does their race, their background, enter into it at all with you?" (RT 2237.)
- "Does it form any part of your initial impression of somebody, because they are Black they must be like this? Or they appear to be Asian so they must be like that? In some fashion?" (RT 2237.)
- "How many people agree with Mr. A[ ], looking into their own soul, they come out about where he is? They are 100 percent free of any racial prejudice?" "How many side with Mr. [G] [that no one is 100 percent prejudice free on anything]?" (RT 2238.)
- "Whatever your feelings are, they don't impact on your ability to be fair to a young Black male charged with crimes against a young white female; fair enough?" (RT 2240.)
- "Would each and all of you promise me that, if you become jurors in this case, that racial prejudice will not enter into your individual deliberation and that you will prevent as best you can it from becoming a topic of discussion as far as whether or not the defendant is guilty or innocent of the crimes, and report anything back to the court if it comes up, because it's not supposed to be? Will you all promise me that?" (RT 2242.)
- "A Caucasian victim. A Black defendant. And you are a Caucasian. You still say yes and look me right in the eye and do it?" (RT 2343.)
- "You know that there's a cross-racial attack alleged here... You know that there is prejudice in the world.... A juror could potentially use that prejudice and it could influence his verdict." (RT 2343-44.)
Thus, issues of race were repeatedly addressed during voir dire. The prospective jurors were questioned repeatedly regarding their attitudes toward race generally and regarding their ability to be fair to a Black man accused of raping and murdering a white woman particularly. The prospective jurors were expressly asked to assess whether they could exclude race as a factor in their deliberations. In short, the prosecutor, the defense counsel, and the trial judge were all acutely aware of the manner and degree to which race could factor into the jury's determination regarding Petitioner's guilt and/or punishment.
Out of approximately 65 prospective jurors who had been deemed qualified and who had survived challenges for cause, only four were Black: DC, EH, EA and JS. (MSJ at 7.) DC was the first of the four to be called to the jury box, and the seventeenth prospective juror called overall. (RT 2313.) The prosecutor questioned her on a Friday afternoon but had to wait until the following Monday morning to exercise the People's next available peremptory challenge, the People's fourth peremptory challenge overall, to excuse her. (See RT 2313-18, 2329.) EH was the twenty-fourth prospective juror called. (RT 2362.) After questioning EH, the prosecutor excluded him with his next peremptory challenge, his seventh overall. (RT 2370.)
After these two prospective jurors were stricken by the prosecutor, defense counsel made a motion under Wheeler , noting that "[w]hen we finished selecting our jury pool, there were four people that appeared to me to be Black. Two of them have come to the box... The prosecutor has excused both. I think it's incumbent on him at this point to explain why." (RT 2370-71.) He added, "I think in a case of this nature, where there is a cross-racial assault, it's crucial we have a true representation of all segments of the community, and they're being systematically eliminated." (RT 2371.) In response, the trial court found "[no] evidence of discrimination that would require the prosecutor to give reasons why he has excused these two individuals." (RT 2372.) It nevertheless offered the prosecutor the opportunity to give his reasons for the strikes "simply as a courtesy if he wishe[d] to exercise it," and explicitly "not because the court [saw] ... prima facie evidence of discrimination which would require him to come forward with explanations." (RT 2372.) After noting his position that "the case law [did] not require it," the prosecutor provided his reasons for excusing the jurors. (RT 2372.) The trial court then denied the Wheeler challenge without further comment. (RT 2373.)
After the defense exercised its seventh peremptory, EA was seated in the jury box. (RT 2385-86.) After questioning, the prosecutor struck EA with his next peremptory strike, his eighth overall. (RT 2394.) Defense counsel renewed his Wheeler motion, arguing that the prosecutor was "summarily excusing every Black juror we have" and noting "the burden is on him to explain why he is doing what he's doing." (RT 2394-95.) Replying to defense counsel again, the trial court stated it did "not see any type of pattern of racial discrimination exhibited by the prosecutor at all." (RT 2395.) Indeed, without asking the prosecutor to offer his actual reasons for striking EA, the trial court itself stated a "number of grounds" upon which the prosecutor could have permissibly exercised a peremptory challenge before giving the prosecutor the opportunity to comment. (RT 2395-96.) The prosecutor first stated that he agreed with everything the court suggested before articulating an additional reason for the strike. (RT 2396.) Defense counsel thereafter pointed out that "three of the last five peremptory challenges issued by the People have been against Black jurors" before the trial court denied the motion for mistrial pursuant to Wheeler. (RT 2397.)
Immediately following the denial of defense counsel's second Wheeler motion, the court invited counsel to remain at the bench to talk about any potential future strike of the sole remaining Black prospective juror, JS. (RT 2397-98.) The prosecutor stated that he did intend to excuse JS based upon his views of the death penalty. (RT 2398.) At this point, defense counsel stated: "My worst suspicions have been confirmed. The People, in a case involving an alleged savage sexual assault by a Black man against a white woman, fraught with peril, now propose to systematically eliminate from this jury each and every remaining prospective Black juror." (RT 2399-400.) He also suggested that the last strike was "the most egregious" because "[JS] is everybody's ideal of a middle-of-the-roader. He has told us repeatedly and emphatically that he can go both ways [as to penalty]." (RT 2400.) Counsel went on to suggest that the prosecutor "could always come up with some objection to somebody" and argued that "numerous people" sitting in the jury box "had expressed more reservations about the death penalty than [JS] ha[d]." (RT 2400.) He further noted that other Black prospective jurors were let go for "reasons of economics" and some "have gone because they happen to know people involved in the case." (RT 2400-01.) Overall, defense counsel noted that the consequence was "a statistically disproportionately low number of Blacks among us ... and [that] now it's about to go down to zero, and that voice will not be heard in this jury room." (RT 2401.)
Finding "no evidence of any type of racially discriminatory motives on behalf of the prosecution," the trial court denied "[t]he motion for mistrial under Wheeler , regarding the anticipated exercise of a peremptory challenge against [JS]." (RT 2401-02.)
On this record, Petitioner makes his Batson claim. Application of the relevant federal habeas standards first require examination of the California Supreme Court decisions on direct appeal and in state habeas proceedings.
IV. THE CALIFORNIA SUPREME COURT'S HABEAS DECISION
Petitioner presented his Wheeler / Batson claim to the California Supreme Court on direct appeal. (Dkt. No. 208-15 , Appellant's Opening Br. at 41-55.) The California Supreme Court denied the claim on the merits, finding that Petitioner failed to establish a prima facie case of group bias in the prosecutor's exercise of his peremptory challenges. The court held that Petitioner had not demonstrated a "strong likelihood that the [prosecution] ha[d] excluded one or more jurors on the basis of group or racial identity." Jones , 17 Cal.4th at 294, 70 Cal.Rptr.2d 793, 949 P.2d 890 (internal quotation marks omitted) (emphasis added). The state court then went on to find that the record suggested nonracial reasons for each of the four challenges to the Black prospective jurors. Id. at 294-95, 70 Cal.Rptr.2d 793, 949 P.2d 890. The court outlined the evidence supporting the trial court's rulings for each excusal and credited the trial court's finding of "no strong likelihood of [impermissible] bias" in the prosecutor's decisions. Id. at 295, 70 Cal.Rptr.2d 793, 949 P.2d 890 (emphasis added). The California Supreme Court did not discuss a comparative juror analysis to determine whether "Black prospective jurors were singled out for special scrutiny." Id. Rather, the court summarily rejected Petitioner's argument that such evidence existed, and instead found "there [was] evidence to support the [trial] court's rulings on the four Black prospective jurors in question" and to "reject [Petitioner's] claims of Wheeler error." Id. The California Supreme Court found no basis for overturning the trial court's ruling finding Petitioner failed to make a prima facie case of discrimination.
V. CLEARLY ESTABLISHED FEDERAL LAW: THE FEDERAL CONSTITUTION REQUIRES THAT A STATE'S PEREMPTORY CHALLENGES BE EXERCISED IN A RACE-NEUTRAL MANNER
The central holding of Batson , which was decided in 1986 but which rested upon legal principles preceding it by more than 100 years as set forth in Strauder v. West Virginia , has been consistently reaffirmed by the United States Supreme Court in the 35 years since it was decided. See, e.g., Flowers v. Mississippi , ––– U.S. ––––, 139 S.Ct. 2228, 2243 , 204 L.Ed.2d 638 (2019) ("In the decades since Batson , this Court's cases have vigorously enforced and reinforced the decision, and guarded against any backsliding."); Snyder v. Louisiana , 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; Miller-El v. Dretke (Miller-El II") , 545 U.S. 231, 125 S.Ct. 2317 (2005) ; Johnson v. California , 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ; cf. Batson , 476 U.S. at 89, 106 S.Ct. 1712 ("The principles announced in Strauder never have been questioned in any subsequent decision of this Court."). "The Constitution forbids striking even a single prospective juror for a discriminatory purpose." Flowers , 139 S. Ct at 2244 ; cf. Foster v. Chatman , 578 U.S. 488, 136 S. Ct. 1737, 1755 , 195 L.Ed.2d 1 (2016). ("Two peremptory strikes on the basis of race are two more than the Constitution allows.").
See Batson , 476 U.S. at 85, 106 S.Ct. 1712 ("More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded.") (citing Strauder v. West Virginia , 100 U.S. 303, 25 L.Ed. 664 (1880) ).
In Batson , the Supreme Court outlined a three-step burden-shifting framework for evaluating claims of discrimination in the exercise of peremptory challenges. At step one, the moving party bears the burden to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson , 545 U.S. at 170, 125 S.Ct. 2410. Once the proponent makes out a prima facie showing, at step two "the burden shifts to the [prosecutor] to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes." Id. at 168, 125 S.Ct. 2410 (internal quotation marks omitted). Finally, at step three, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." Id. (internal quotation marks omitted). "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett v. Elem , 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam ).
VI. THE STATE COURT'S APPLICATION OF AN UNCONSTITUTIONAL LEGAL STANDARD REQUIRES DE NOVO REVIEW UNDER SECTION 2254(d)(1)
On direct appeal, the California Supreme Court determined that Petitioner failed to demonstrate a prima facie case of discrimination in the prosecutor's use of peremptory challenges. Under 28 U.S.C. § 2254(d)(1) , this Court cannot grant relief on Petitioner's Batson claim unless the state court's rejection of the claim was "contrary to" or "involved an unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d)(1) .
Here, Petitioner argues, and Respondent concurs, that the California Supreme Court's decision on this claim is not entitled to deference under § 2254(d)(1) because the court applied an impermissibly stringent test in rejecting his claim of Batson error. (MSJ at 32-34; Opp. at 2.) As discussed below, in 2005, the United States Supreme Court expressly invalidated California's Wheeler test as unconstitutional and inconsistent with Batson , but at the time when Petitioner's direct appeal and state habeas petitions were decided, California courts routinely applied the Wheeler test.
In Wheeler , decided eight years before Batson , the California Supreme Court interpreted Article I, section 16 of the California Constitution to prohibit race-based peremptory challenges. People v. Wheeler , 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Just as the Supreme Court would later do in Batson , the Wheeler court defined a procedure for trial courts to use to evaluate claims of discrimination in peremptory challenges. Batson and Wheeler both require a defendant to make a prima facie showing of discrimination, but while Batson requires only that the defendant "raise an inference" of discrimination, Wheeler required a higher showing: that the defendant "show a strong likelihood" that the prosecutor had excluded prospective jurors for discriminatory reasons. See Wheeler , 22 Cal.3d at 280, 148 Cal.Rptr. 890, 583 P.2d 748 ; cf. Batson , 476 U.S. at 96, 106 S.Ct. 1712.
The Ninth Circuit analyzed the tension between Batson and Wheeler just two years after the California Supreme Court affirmed Petitioner's conviction. In doing so, in Wade v. Terhune , 202 F.3d 1190, 1196-97 (9th Cir. 2000), the Ninth Circuit noted that after the California Court of Appeals decided People v. Bernard , 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486 (1994), which interpreted Wheeler , California state courts "applied a lower standard of scrutiny to peremptory strikes than the federal Constitution permits." Wade , 202 F.3d at 1196-97. Thus, at the time Petitioner's direct appeal was decided by the California Supreme Court, California courts routinely applied an unconstitutionally high standard for establishing discrimination in a prosecutor's use of peremptory strikes. In the words of the Ninth Circuit:
The California Supreme Court ... routinely insist[ed], despite Batson , that a defendant must show "a strong likelihood" of racial bias. Its consistent practice [was] to cite Batson and Wheeler together as controlling law but to quote the "strong likelihood" language from Wheeler rather than the "raise an inference" language from Batson.... Batson is, of course, the law of the land. California law may give greater protection to criminal defendants than is required by the federal Constitution, but it cannot give less. Yet this is precisely what the California courts ... [did] when they follow[ed] the Wheeler "strong likelihood" test in determining whether a prima facie case [had] been established.
Wade , 202 F.3d at 1197 (internal citations omitted). In analyzing the record before it, the Ninth Circuit observed:
[T]he Wheeler "strong likelihood" test for a successful prima facie showing of bias is impermissibly stringent in comparison to the more generous Batson "inference" test. Indeed, when the California
Court of Appeal resolved the direct appeal in ... [ Wade ], it followed the literal language of Wheeler and characterized its test for a prima facie case as "not easy." ... It wrote, "The ‘strong likelihood’ phrase conveys the clear message that the test is not an easy one (a message we take to heart in the present case) ...."
Id. (citation omitted).
Eventually, in 2005, in Johnson v. California , one of the cases cited above as reaffirming Batson 's central holding, the United States Supreme Court would expressly invalidate Wheeler 's "strong likelihood" standard as violative of the federal Constitution. Johnson , 545 U.S. at 169, 125 S.Ct. 2410 (" Batson ... provides no support for California's rule."). But as set forth in the procedural history recited above, both Petitioner's direct appeal and his state habeas petitions were decided before Johnson , and the state courts therefore applied the since-invalidated Wheeler standard. Because the California Supreme Court used an erroneous and overly stringent legal standard to evaluate whether Petitioner had raised an inference of discrimination, this Court must evaluate Petitioner's Batson claim without the deference normally accorded to the decision of state courts under AEDPA. As the Ninth Circuit instructed in Wade :
[w]here the California courts follow the "strong likelihood" language of Wheeler without any indication that they are actually applying a "reasonable inference" test consonant with Batson , they apply an incorrect legal standard. In such a case, [the federal court] need not—indeed, should not—give deference to their determination that a defendant has failed to establish a prima facie case of bias.
Wade , 202 F.3d at 1197 ; see also Paulino v. Harrison ("Paulino II") , 542 F.3d 692, 698 (9th Cir. 2004) ("[T]he California Court of Appeal's application of the incorrect legal standard for evaluating the prima facie case of discrimination takes this claim outside of the AEDPA frame-work and requires [the court] to review it de novo."); Williams v. Runnels , 432 F.3d 1102, 1109 (9th Cir. 2006) ("[W]here the state court used the ‘strong likelihood’ standard for reviewing a Batson claim, the state court's findings are not entitled to deference and ... review is de novo."). Here, as in Paulino II, Williams , and Wade , [b]ecause the California [Supreme Court] followed the ‘strong likelihood’ test of Wheeler rather than the ‘inference’ test of Batson ," the Court must review de novo Petitioner's Batson claim. Wade , 202 F.3d at 1197.
Moreover, although not specifically argued by the parties, the trial court's weighing of the evidence at Batson 's step three is also flawed in a manner that "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" under § 2254(d)(1). The trial court's discussion of the reasons for striking the four Black prospective jurors reveals that it was unaware of the necessity that it consider only the actual reasons for the prosecutor's exercise of a peremptory challenge. See Batson , 476 U.S. at 98, 106 S.Ct. 1712 ("The prosecutor ... must articulate a neutral explanation related to the particular case to be tried.") (emphasis added); cf. Wheeler , 22 Cal.3d at 282, 148 Cal.Rptr. 890, 583 P.2d 748 ("[T]o sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses ....").) As discussed below, this is most strikingly illustrated by the trial court's volunteering of reasons for striking EA (that is, her supposed animus toward police) and by the trial court's additional reasons, not given by the prosecution, to justify striking JS. (See RT at 2395-96 (EA), & 2397-99 (JS).)
With these points in mind, the Court considers Petitioner's Batson claim de novo, applying the correct legal standard at all three steps. In this process, the Court looks to the record as it was before the state court. See Pinholster , 563 U.S. at 180-81, 185 n.7, 131 S.Ct. 1388. Moreover, the Court is mindful that to the extent its analysis requires reference to the trial court's factual determinations, Petitioner must rebut these findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) ; Cudjo , 698 F.3d at 762.
VII. BATSON ANALYSIS
A. Step One of the Batson Analysis: Prima Facie Case
The first of the Batson inquiries requires a defendant to "raise[ an] inference of purposeful discrimination," also referred to as "a prima facie case of purposeful discrimination," by establishing three elements. Batson , 476 U.S. at 96-97, 106 S.Ct. 1712. The Court in Batson stated:
[T]he defendant first must show that he is a member of a cognizable racial group[;] ... that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race[; and] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
Id. at 96 (internal citation omitted); see Boyd v. Newland , 467 F.3d 1139, 1143 (9th Cir. 2006) (breaking down Batson 's first step as these three separate elements: "(1) [T]he prospective juror is a member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race.") In making his prima facie case, as noted in Batson , the moving party "is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Batson , 476 U.S. at 96, 106 S.Ct. 1712 (internal quotation marks omitted).
"[U]nder Supreme Court precedent, the burden for making a prima facie case is not an onerous one." Boyd v. Newland , 467 F.3d 1139, 1151 (9th Cir. 2006) (citing Johnson , 125 S.Ct. at 2417 ); Paulino v. Castro ("Paulino I") , 371 F.3d 1083, 1092 (9th Cir. 2004) (" Batson 's inference standard was intended significantly to reduce the quantum of proof previously required of a defendant who wished to raise a claim of racial bias in the jury selection procedure[.]") (internal quotation marks omitted). This standard is a less burdensome standard of proof than a preponderance of the evidence or "more likely than not" standard. See Johnson , 545 U.S. at 173, 125 S.Ct. 2410. Instead, "[a] single inference of discrimination based on all the relevant circumstances and the totality of relevant facts is sufficient to move the Batson inquiry to step two." United States v. Collins , 551 F.3d 914, 920 (9th Cir. 2009) (citing Batson , 476 U.S. at 94 & 96, 106 S.Ct. 1712 ) (internal alteration marks and quotation marks).
During jury selection in Petitioner's case, the prosecutor exercised four of his twelve peremptory challenges to remove all of the Black prospective jurors from the venire. After each of defense counsel's Wheeler objections, the trial court ruled that Petitioner failed to make a prima facie showing of discrimination. As noted, when defense counsel made his initial Wheeler / Batson objection, the trial court ruled that it "[did] not see any evidence of discrimination that would require the prosecutor to give reasons why he has excluded these two individuals." (RT 2372.) And after defense counsel's second Wheeler objection, the trial court again ruled that it did "not see any type of pattern of racial discrimination exhibited by the prosecutor at all" and offered its own race-neutral reasons why the prosecutor's excusal of the third Black prospective juror might be justified. (RT 2395.) Finally, after the prosecutor indicated his intent to strike the last remaining Black juror, the court found "no evidence of any type of racially discriminatory motives on behalf of the prosecution," and again offered additional race-neutral reasons, not stated by the prosecutor, that might justify striking the final Black prospective juror. (RT 2401.) It is not clear from the record what evidence the trial court would have deemed sufficient to find that Petitioner raised an inference of purposeful discrimination. What is clear is that the standard applied by the trial court was too high.
Therefore, the legal standard applied by the trial court was incorrect, and the Court considers whether, pursuant to the correct legal standard, Petitioner raised an inference of purposeful discrimination. The first two elements of Petitioner's prima facie case are not disputed: the four prospective jurors who were the subjects of Petitioner's Wheeler objections were members of a cognizable racial group, and the prosecutor used peremptory strikes to remove them. The critical issue, then, is whether Petitioner has shown that these facts and other relevant circumstances raise an inference that the prosecutor excluded the prospective jurors on account of their race. See, e.g., Johnson , 545 U.S. at 170, 125 S.Ct. 2410 ("[A] defendant satisfies the requirements of Batson 's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."). As explained below, the statistical disparities and other relevant circumstances combine to raise the inference that the prosecutor used the People's peremptory strikes to exclude four prospective jurors because of their race. Batson , 476 U.S. at 96, 106 S.Ct. 1712.
1. Statistical Disparity
In order to raise an inference of discrimination at step one of the Batson inquiry, a defendant can rely on statistical disparities. Indeed, in certain circumstances, "a defendant can make a prima facie showing based on a statistical disparity alone." Williams , 432 F.3d at 1107. And ample case law supports a finding that step one of Batson is satisfied based in part where the percentage of prosecutorial challenges made against minorities [is] disproportionately higher than the percentage of the minority group within the venire ... [that] disparity ... supports an inference of discrimination." Turner v. Marshall ("Turner I") , 63 F.3d 807, 812 (9th Cir. 1995) (finding inference of discrimination was raised where prosecution used 56% of its peremptories to strike Black venire members, who constituted only 30% of the venire), overruled on other grounds by Tolbert v. Page , 182 F.3d 677, 681 (9th Cir. 1999) (en banc); see Fernandez v. Roe , 286 F.3d 1073, 1078 (9th Cir. 2002) (finding inference of discrimination where prosecutor used 21% of strikes against Latino jurors, who constituted only 12% of the venire); Paulino v. Castro ("Paulino I") , 371 F.3d 1083, 1090-91 (9th Cir. 2004) (finding defendant made prima facie showing of bias where prosecutor used five of his six peremptory challenges to remove five of the six Black venire members). Here, the venire was composed of 65 five members, including the 4 Black prospective jurors struck by the prosecutor. Although Black prospective jurors comprised a mere 6% (4 of 65) of the venire, the prosecutor used 33?% of the People's peremptory challenges, that is, 4 out of 12, to strike Black venire members. This is a significant statistical disparity. Viewed from a different angle, the disparity is even more striking: The prosecutor used the People's preemptory challenges to strike 100% of Black venire members but used those preemptory challenges to strike only 13% of the non-Black venire members. These statistics are highly unlikely to be the product of mere "happenstance." Cf. Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317 (noting that, where prosecutors struck "91% of the eligible African-American venire members ... happenstance [was] unlikely to [have] produce[d the] disparity") (internal quotation marks omitted).
Batson itself teaches that "a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." Batson , 476 U.S. at 97, 106 S.Ct. 1712. Unquestionably, in this case, such a "pattern" arose.
2. Other Relevant Circumstances
"[A]lthough a statistical disparity c[an] be sufficient to make a prima facie inference of bias, such a presumption c[an] be dispelled" or supported "by other relevant circumstances." See Williams , 432 F.3d at 1107 ; see Johnson , 545 U.S. at 169, 125 S.Ct. 2410 (a defendant may rely on "any other relevant circumstances" to raise an inference of discriminatory purpose). Here, the other relevant circumstances likewise support an inference of bias.
Notably, "the crime was racial in nature[.]" See, e.g., Crittenden v. Chappell ("Crittenden II "), 804 F.3d 998, 1010 (noting that an earlier federal appeal affirmed a Batson step one based in part on the fact that "the crime was racial in nature"); cf. Crittenden v. Ayers ("Crittenden I") , 624 F.3d 943, 950 (9th Cir. 2010) (noting that the defendant was Black and the murder victims were "a white couple"). Here, petitioner, a Black man, was charged with kidnapping, raping, and killing a white woman. Throughout jury selection, the jurors were frequently asked whether the "cross-racial" nature of the crime would make it difficult for them to be fair.
Moreover, the comparative juror analysis performed by this Court as to the third step of Batson , see infra section VII.C., also provides strong support for an inference of discrimination. See Crittenden I , 624 F.3d at 956 ("[C]omparative juror analysis may be employed at step one to determine whether the petitioner has established a prima facie case of discrimination."); Collins , 551 F.3d at 921-23 (applying comparative juror analysis to step one of the Batson analysis).
Additionally, the Supreme Court built into the first step of the Batson analysis the reminder that the nature of a prosecutor's discretion in exercising peremptory challenges makes such exercise fertile ground for discrimination based on race: "[T]he defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Batson , 476 U.S. at 96, 106 S.Ct. 1712 (internal quotation marks omitted).
Therefore, in light of these relevant circumstances, considered together with the statistical disparities in the prosecutor's removal of Black prospective jurors, Petitioner raised an inference of discrimination as required under Batson 's first step.
To the extent that the trial court's ruling at step one was based on findings of fact, implicit or otherwise, the evidence relevant to step one is more than sufficient to rebut the § 2254(e)(1) presumption of correctness of such findings, even under a clear and convincing standard. However, it is clear that findings of fact are most relevant to Batson 's third step. See Johnson , 545 U.S. at 170-71, 125 S.Ct. 2410. This is because Batson 's framework is designed to ferret out discriminatory motive on the part of the prosecutor through three steps. Thus, in this case, the ultimate factual questions were simply whether, in exercising the People's peremptory challenges, the prosecutor engaged in racial discrimination. The relevant findings of fact are correspondingly simple, and are most directly related to step three because, despite the three-step burden-shifting test of Batson , "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett , 514 U.S. at 768, 115 S.Ct. 1769 ; see Johnson 545 U.S. at 171, 125 S.Ct. 2410 ("The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant's constitutional claim. It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination."). Accordingly, as explained in connection with step three, infra , the undisputed record before the Court is sufficient, under the clear and convincing evidence standard, to rebut the presumption of correctness of the trial court's factual findings regarding purposeful discrimination. See 28 U.S.C. § 2254(e)(1) .
B. Step Two of the Batson Analysis: The Prosecutor's Stated Race-Neutral Reasons for Exclusion
Relevant to the second step of the Batson inquiry is a prosecutor's actual reasons for striking a prospective juror, not whether there were other, race-neutral bases that could have justified the exclusion. That is, the evaluation of a " Batson challenge does not call for a mere exercise in thinking up any rational basis" for the peremptory strike. Miller-El II , 545 U.S. at 252, 125 S.Ct. 2317. Rather, a "prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives." Id.
Thus, the trial court's statements regarding possible race-neutral justifications for striking any particular juror, detailed below, are irrelevant, except to the extent they were adopted by the prosecutor. To the extent they are irrelevant, these statements do not factor into the Court's analysis as to the second Batson step. See Miller-El II , 545 U.S. at 252, 125 S.Ct. 2317 (noting that courts are not free to "imagine a reason" for the peremptory strikes which the prosecutor did not articulate).
Thus, the second step is described as shifting the burden to the prosecutor to "explain" his reasons. See Batson , 476 U.S. at 94, 106 S.Ct. 1712 ("[T]he burden shifts to the State to explain adequately the racial exclusion."). Indeed, "[t]he Batson framework is designed to produce actual answers .... It does not matter that the prosecutor might have had good reasons ... ; what matters is the real reason [the prospective jurors] were stricken." Johnson , 545 U.S. at 172, 125 S.Ct. 2410 (internal alteration marks, citation, and quotation marks omitted, paragraph structure altered).
Thus, the sole issue at step two "is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Elem , 514 U.S. at 767-68, 115 S.Ct. 1769 (internal quotation and alteration marks omitted).
Here, although the trial judge did not find that Petitioner had made a prima facie case of purposeful discrimination, he nevertheless offered the prosecutor the opportunity to provide his reasons for the strikes and, as detailed below, the prosecutor took the opportunity, making statements as to each of the four prospective jurors. These are discussed below.
1. Prospective Juror DC
DC was a thirty-four-year-old resident of Pasadena and a service representative for Pacific Bell. (Supp. CT 1225.) During Hovey voir dire, she said she would be able to listen to both sides before making up her mind, and her feelings on the death penalty would not cause her decision to be automatic either way. (RT 1756.) She said she could impose either life without possibility of parole or the death penalty and explained that her statement on her questionnaire that she felt the death penalty was used too often was just a general impression regarding the country. (RT 1764-65.) DC was confident she could make a life or death decision in this case and answered "yes" when asked by the prosecutor whether she could imagine herself returning a verdict which would end Petitioner's life. (RT 1769-70.) Later, during general voir dire, DC said that she had misunderstood a prior question about the comparative severity of life without parole and the death penalty. She stated that if she had understood, she would not have answered that she felt life without parole was a more severe penalty than death. (RT 2316-17.)
After defense counsel made his first Wheeler / Batson objection, and the trial court provided the prosecutor the "courtesy" of providing any reasons for his strikes, the prosecutor could not initially recall his reasons for striking DC. (RT 2373.) But after declining the court's offer to retrieve his notes, he stated only that "I think I'm sure it's based upon her answers in her questionnaire and her answers in her Hovey , and her attitudes with respect to the death penalty as she expressed in Hovey. " (RT 2373.) This explanation lacks any substance. It falls well short of the step-two requirement that his explanation be a " ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges." Batson , 476 U.S. at 98 n.20, 106 S.Ct. 1712. Given its lack of substance, its vagueness, and the fact that the reasons given by the prosecutor are generally applicable to all venire members, stricken by the prosecutor or not, they amount to nothing more than the prosecutor's generic assertion of good faith. See Paulino II , 542 F.3d at 701 & n.10 (characterizing the prosecutor's statements as "a general assertion that her actions were not racially motivated" and granting habeas relief based on the evidence at step one and the state's failure to meet its burden at step two). As to DC, then, the prosecutor's explanation fails to meet his burden under step two of Batson.
The prosecutor's initial inability to recall occurred on a Monday morning and followed his Friday afternoon questioning of DC. (See RT 2313-18, 2329, 2373.)
This explanation stands in contrast to a similar one given by the prosecutor as to EA:
"This ... prospective juror ... stated ... that California should not have the death penalty law because the Bible says we shall not kill." (RT 2396-97.) The latter example meets Batson 's specificity requirement.
2. Prospective Juror EH
EH was a fifty-nine-year-old resident of Pasadena who worked as a custodian at the Rosemead post office. (Supp. CT 1195.) The prosecutor gave two reasons for striking EH. First, EH's answers to questions regarding pretrial publicity changed from the time of he filled out his jury questionnaire to the time he was questioned during general voir dire. (RT 2372.) Second, EH indicated that he may have known relatives of Petitioner. (RT 2373.) Specifically, although EH checked the "no" box on his jury questionnaire indicating that he had not "seen or heard anything about this case before coming [to court]," during general voir dire EH recalled reading articles about the case "when it first came out in the Star News." (RT 2368.) When invited to state his reason for striking EH, one of the reasons the prosecutor gave was based on this change in EH's answer regarding pretrial publicity. The following is the voir dire exchange between the prosecutor and EH that gave rise to the prosecutor's concern:
Herein, the Court quotes the original trial transcript, substituting abbreviations for the official reporter's identification of the speaker: "TC" refers to the "trial court"; "DC" refers to "defense counsel"; "DA" (for "district attorney") refers to the prosecutor. The prospective jurors are referred to by their initials. "DC", "EH", "EA", and "JS" are Black prospective jurors stricken by the prosecutor; "MB", "SB", and "DF" are non-Black, similarly situated venire members who were not stricken by the prosecutor and who were seated as jurors on Petitioner's case.
DA: [EH] when you answered your questionnaire, there was a question, Number 35, which asked: "Have you seen or heard anything about this case before coming here today?" And you checked "No." Did you realize at the time when you checked "No" that you – Did you not understand what this case was at the time you checked "No"?
EH: When I checked "No," I didn't know what I heard about the case or read about the case or not.
DA: When did you first determine that this case was the case that you read about?
EH: About the second – second or third time I came here.
DA: And that was after you filled out the questionnaire?
EH: After we had the one-on-one talk, that's when – after that is when I realized that I did keep up with the case.
DA: Have you read many articles about it?
EH: I haven't read about it in, actually, a year, year and a half. I haven't read nothing about it lately. Just when it first came out, that's when I read about it. When it first came out in the Star News, I started keeping up with it.
DA: So your information is basically from the Star News.
EH: Right.
DA: Did you save any of the clippings at all?
EH: No.
DA: Did you think that because of your exposure to this case that you feel you know quite a bit about what happened in this case?
EH: I didn't know about what really happened in the case, just only what I read. But I didn't think nothing about it until just like after we had that one-on-one talk.
DA: Okay. Is that when you were alone in the jury box?
EH: Right.
DA: And it was only then that you remembered that you had read about this case?
EH: After I had left here, I thought about it.
DA: All right. Do you think that you'll be able to put out of your mind all of the facts that you've read about in this case? Do you remember my question the other day to the jurors asking them whether or not they could base
their verdict solely on the evidence? And I defined the evidence as testimony from the witness stand and any physical exhibits that were introduced into evidence. That's the only kind of evidence that you'll have in this case.
EH: Right.
DA: You aren't permitted to base your opinion on anything other than that.
EH: That's right.
DA: Do you think it's possible for you – you've read many articles about this case – to put out of your mind all of the facts and all of those articles about the case in arriving at your verdict in this case?
EH: I could. In fact, I don't remember too much about the case about what happened. When I read it, it's been a year and half, two years ago when I was reading about it.
DA: Did you hear all of my other questions to the jurors Thursday?
EH: Yes, I did.
DA: Would any of your answers be any different?
EH: No, they wasn't.
(RT 2367-69.)
The prosecutor's second given reason for his decision to exercise a peremptory strike against EH was based on the prospective juror's indication during Hovey voir dire that he knew some Joneses and "did not know for sure whether [they] ... could possibly be related to the defendant." (RT 2373.) The subject colloquy between the prosecutor and EH was as follows:
DA: When you said to [defense counsel] that you know some of the people, and then I think you cited Ethel Jones – and, obviously, you have a different Ethel Jones in mind –
EH: Right.
DA: Were there others? I think he named off 33 people. Were there others in that list that you thought you recognized?
EH: There were two or three Jones that I thought I recognized their name.
DA: Just the Joneses?
EH: Just the Joneses.
DA: And you don't know for sure right now whether those Joneses could be related to the defendant or not, do you?
EH: I wouldn't know unless I would see them.
DA: Thank you very much. People pass for cause.
(RT 2369-70.) Although not challenging EH for cause, the prosecutor immediately thereafter exercised a peremptory challenge to excuse EH. (RT 2370.)
These two reasons are specific and race neutral; therefore, as the EH, the prosecutor satisfied the burden of providing his race-neutral reason under step two of Batson.
3. Prospective Juror JS
JS was a forty-eight-year-old Army veteran who lived in Monterey Park and worked as a district supervisor for Quality Foods International. (Supp. CT 1214.) JS was the last Black prospective juror to be struck. Immediately after the prosecutor struck another Black prospective juror, referred to as EA (discussed in the next subsection), while counsel were still at sidebar with the court, defense counsel noted that "three of the last five peremptory challenges issued by the People have been against Black jurors." (RT 2397.) Recognizing that JS was the only Black juror left in the venire, the trial judge suggested that if the prosecutor intended to exercise a future peremptory challenge against JS, he should "ask to come to side bar first and at least give counsel an opportunity to discuss it." (RT 2397-98.) Rather than wait, with JS already seated in the jury box, the prosecutor said, "I can do that right now.... I do intend to ask that [JS] be excused." (RT 2398.) Although he acknowledged he was "very conscious of the image that this might be creating," the prosecutor said that some of JS's questionnaire answers justified his anticipated strike.
DA: [JS], in his questionnaire, said that he is for the death penalty for a person that has been convicted of numerous killings. Also, he stated that, in answer to question 39, "Do you feel that the death penalty is used" and he checked "too seldom." And then he explained, "in cases where the crime is repeated." And in question 38 he referred to "when crimes are committed repeatedly or unmerciful," he said.
At page 1607 in the daily transcript, at line number 9, I asked [JS], in response to his stating that he could be fair, I said, "I'm not asking you if you could be fair. I'm asking you if you could really weigh the evidence and, under any set of facts, could you ever return a death verdict realistically," and he said no.
Now, I think, and I thought then, that these were his true feelings. He stated that he could – I thought he should have been excused for cause at that time. Your Honor did a good job of rehabilitating [JS].
He stated in his questionnaire, in effect, that in this case, when there's only one victim, he could not vote for the death penalty. He told me in the Hovey questioning that he could never vote for the death penalty in this case.
I don't think I have an alternative but to exercise a peremptory challenge in this case, because I don't – I think he was truthful. I don't think he can vote for death.
(RT 2398-99.)
As explained by the prosecutor, this is a race-neutral reason for striking JS; therefore, the prosecutor satisfied his step-two Batson burden.
4. Prospective Juror EA
EA was a thirty-six-year-old resident of Altadena who worked for Ball Corporation as a sweeper and selector. (Supp. CT 1240.) As explained below, the prosecutor offered reasons for striking EA that fall into an initial broad category, as first volunteered by the trial court as ones that "could ... justif[y]" striking EA. He offered a second reason based on EA's religious view regarding the death penalty.
Specifically, as to the first category of reasons for her exclusion, EA's stepson was present when Rodney King was beaten by white police officers. EA volunteered this information when asked by the court whether there was "[a]nything else [she thought] should be brought to the court's attention or the attention of the attorneys." (RT 2388.) In response, EA stated, with the caveat that "[i]t doesn't have a bearing on this case and it wouldn't affect [her] any," that her "stepson was ... in the car with [Rodney] King [on the night King was beaten by police]." (RT 2388.) This voir dire of EA took place on March 18, 1991, approximately two weeks after King was beaten by four white Los Angeles police officers and after the video was widely televised. In response to questioning by the court, EA said the incident would not impact the way she viewed the police or prosecution. From her perspective, "everyone makes mistakes. We're all human." (RT 2388.) After some questioning from defense counsel, in which EA repeated that she honestly believed she could be a fair juror to both sides, the prosecutor began his questioning with a statement—"[EA], I guess you've seen that videotape. I've probably seen it 20 times now." (RT 2392.) The prosecutor suggested that the prospective juror probably had "more revulsion that the rest of us because of your relationship with your stepson and his relationship with Mr. King." (RT 2393.) She disagreed. EA said, "it was unfortunate it just happened to him," but it would not interfere with her jury service. (RT 2393-94.)
Based on this questioning, when defense counsel challenged the prosecutor striking EA, the trial judge stated, "it seems to me that a peremptory challenge could be justified against [EA] on a number of grounds." (RT 2395.) He then went on to provide his thoughts on what those grounds could be, focusing on the fact that EA's stepson was in the company of Rodney King. (RT 2395-96.) The judge opined, "I can see how, although she does not articulate it – in fact, denies it – that she might have some degree of hostility to the police." (RT 2396.) The judge linked this concern to an issue that would be raised in the trial regarding an interrogation by police of Petitioner that resulted in his incriminating statement. (RT 2396.) The prosecutor was quick to adopt these race-neutral reasons as his own. (RT 2396 ("I agree with everything Your Honor said ....").)
The prosecutor's other reason for striking her was based on EA's opinion about the death penalty and the Bible. (RT 2396.) On her jury questionnaire, EA had checked "no" in answering a question about whether California should have the death penalty. (Supp. CT 1251.) In explanation, she stated that the "Bible says that we should not kill." (Supp. CT 1251.) During Hovey voir dire, the prosecutor asked EA whether "looking into [her] heart of hearts," if she could ever vote for the death penalty. (RT 1667-68.) She said "[y]es, I think I can.... I would have to weigh out both situations and I would have to vote for whatever the circumstances required." (RT 1669.) While the prosecutor remained skeptical, the trial court found "beyond a reasonable doubt that EA's views on the death penalty would not prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath." (RT 1670-71.) Nevertheless, noting that EA reaffirmed her opinion "that California should not have a death penalty law because the Bible says we should not kill," in general voir dire, the prosecutor exercised a preemptory to strike her. (RT 2396.)
These reasons are specific and race neutral; therefore, as to EA, the prosecutor satisfied the burden of providing his race-neutral reason under step two of Batson.
C. Step Three of the Batson Analysis: Purposeful Discrimination
Batson 's third step requires trial courts to "decide ... whether the opponent of the strike has proved purposeful racial discrimination." Johnson , 545 U.S. at 170, 125 S.Ct. 2410 (internal quotation marks omitted). This is the point at which the trial court determines whether a defendant has met his "ultimate burden of persuasion regarding racial motivation." Purkett , 514 U.S. at 768, 115 S.Ct. 1769. In assessing whether the defendant has satisfied his burden, the court must "undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson , 476 U.S. at 93, 106 S.Ct. 1712 (internal quotation marks omitted).
In doing so, courts must consider only the prosecutor's actual reason or reasons for striking the juror. Flowers , 139 S.Ct. at 2244 ; Miller-El II , 545 U.S. at 252, 125 S.Ct. 2317 ; Johnson , 545 U.S. at 172, 125 S.Ct. 2410. That is, the trial court must decide "whether the reasons stated ... are relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination." Green v. LaMarque , 532 F.3d 1028, 1030 (9th Cir. 2008). In evaluating the plausibility of the prosecutor's explanation for a challenged strike, the court must "evaluate[ ] the ‘totality of the relevant facts’ to decide ‘whether [the prosecutor]'s race-neutral explanation for [the] peremptory challenge[s] should be believed." Ali v. Hickman , 584 F.3d 1174, 1180 (9th Cir. 2009) (quoting Hernandez v. New York , 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality op.)).
"A variety of evidence [may] support a claim that a prosecutor's peremptory strikes were made on the basis of race." Flowers , 139 S.Ct. at 2243. That evidence may include:
[1] statistical evidence about the prosecutor's use of peremptory strikes against black prospective jurors as compared to white jurors in the case;
[2] evidence of a prosecutor's disparate questioning and investigation of black and white prospective jurors in the case;
[3] side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
[4] a prosecutor's misrepresentations of the record when defending the strikes during the Batson hearing;
[5] relevant history of the State's peremptory strikes in past cases;
[6] other relevant circumstances that bear upon the issue of racial discrimination.
Id.
Here, the Court considers only that evidence that was before the trial court, but notes that five of the six types of evidence referred to in Flowers apply here. The first and sixth type of evidence were discussed in connection with Batson step one, supra , sections VII.A.1-2.
There is no evidence of the fifth type, relating to a history of race-based use of peremptory strikes in past cases. Cf. Miller-El II , 545 U.S. at 263, 125 S.Ct. 2317 ("[F]or decades leading up to the time this case was tried prosecutors in the Dallas County office had followed a specific policy of systematically excluding blacks from juries, as we explained the last time the case was here.").
Most relevant here is the third type of evidence, a comparative analysis of similarly situated jurors. See Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317. "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson 's third step." Id. Thus, this Court's analysis includes "side-by-side comparisons" of Black venire members who were struck and non-Black venire members who were allowed to serve. See Flowers , 139 S.Ct. at 2248 ("Comparing prospective jurors who were struck and not struck can be an important step in determining whether a Batson violation occurred."); Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317 (finding that "side-by-side comparisons of ... black venire panelists who were struck and white panelists [who were] allowed to serve" were "[m]ore powerful than ... bare statistics").
Also relevant is the second type of evidence, the manner in which the prosecutor questioned Black jurors. As noted recently by the Supreme Court, "disparate questioning and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race." Flowers , 139 S.Ct. at 2247-48. Here, as explained below, the prosecutor's voir dire of certain prospective Black jurors differed from that of comparable non-Black jurors and appears to have been designed to solicit answers to justify their later exclusion with facially race-neutral reasons.
Finally, as to one juror, there is the fourth type of evidence: the prosecutor misrepresented the record—twice— when defending his strike related to JS's answers as to whether he could vote to return a verdict of death. See Flowers , 139 S.Ct. at 2243.
1. Prospective Juror DC
As discussed supra , the prosecutor's explanation for striking DC lacks any substance and therefore did not satisfy his burden at step two of the Batson inquiry. This Court may not, in retrospect, impute a race-neutral reason for her exclusion from jury service. See Miller-El II , 545 U.S. at 252, 125 S.Ct. 2317 (noting that courts are not free to "imagine a reason" for the peremptory strikes which the prosecutor did not articulate). "Where the state fails to meet its burden of production," as required by Batson 's second step, "the evidence before the district court at step three will establish purposeful discrimination by a preponderance of the evidence in most cases." Paulino II , 542 F.3d at 703.
Nor may Respondent. (See Opp. at 7-11 (offering post hoc rationales for striking DC that were not articulated by the prosecutor).)
Such is the Court's conclusion here. As noted in connection with step one, the statistical disparities in the use of the People's peremptory strikes is glaring, and other relevant circumstances raised a strong inference of discrimination. This, along with the prosecution's failure to articulate a race-neutral reason for DC's exclusion, and the inference of discrimination raised as to two other stricken jurors, described below, combine to establish purposeful discrimination as to DC. The evidence is sufficient to rebut the trial court's contrary factual finding by clear and convincing evidence.
2. Prospective Juror EH
The prosecutor gave two reasons for his decision to strike EH. First, in his questionnaire, EH indicated that he had not seen or heard anything about the case before arriving at the court and filling out his jury questionnaire, but at general voir dire, EH stated that he recalled reading articles about the case "when it first came out in the Star News." (RT 2368; cf. Supp. CT 1202 (jury questionnaire).) EH said he had not saved any of the articles, couldn't remember much about the case, had not read anything about the case since, and affirmed that he would base any verdict solely on the evidence presented at trial. (RT 2368-69.) Second, EH indicated he may have known some members of Petitioner's family because he knew a lot of Joneses in Pasadena. (RT 2370.)
Notably, as was the case with DC, the prosecutor did not articulate the post hoc, race-neutral reason discussed by Respondent. (See Opp. at 14 ("From a prosecutor's standpoint, the fact that [EH] believed the police lied about coming to his house was a serious concern in a case depending on the credibility of police officers.").) Here, Petitioner challenges both reasons that the prosecutor actually articulated during jury selection.
As to the first reason, a comparison between EH and another, non-Black juror who was not struck tends to establish that the discrepancy between the juror questionnaire and later answers during general voir dire was not the prosecutor's true concern.
Like EH, DF, a prospective juror not identified by the parties as Black, checked the box on her questionnaire indicating she had not heard about the case, but then admitted during voir dire that she had, in fact, heard about the case. (Compare Supp. CT 1352 (checking "no" in response to the question "Have you seen or heard anything about this case before coming here today?") with RT 2454 (stating in response to the trial court's questioning "that after last Thursday being here, I do recall hearing of the case").) And DF's prior connection with the case, which she had not initially recalled, was much more personal than was EH's, who had merely read news articles about the case.
On this point, Respondent attempts to distinguish DF from EH, noting that the "comparison ... barely warrants discussion." (Opp. at 13.) Respondent maintains that there is nothing " ‘apparently conflicting’ " about DF's answer on her questionnaire and her answers to voir dire questioning because the record did not show that DF "actually read and ‘followed’ newspaper stories about the crimes" as EH had. (Opp. at 13.) This argument is misleading and misstates the record. The question posed by the questionnaire is not whether the prospective juror had read newspaper articles or had otherwise been exposed to media accounts of the crime, it asked DF whether she had "seen or heard anything about this case before coming here today" and, like EH, DF checked "no." (See Supp. CT 1352.) And like EH, DF later changed her answer to this question.
Specifically, although DF had not read about the case in a newspaper or heard about the case on the radio, she had been exposed to the case through "a friend ... at work [who] lived across the street from the victim." (RT 2453.) "[W]hen it happened, [they] talked about it.... [Her friend] had told [DF] about it and told [her] what had happened to her neighbor across the street." (RT 2456.) In contrast to EH's mere reading of newspaper articles, DF had a first-hand conversation with someone who knew the victim and who lived "across the street" from the victim. Despite this connection, DF indicated on her questionnaire that she had not seen or heard about anything about the case. But apparently realizing that she had failed to disclose her previous knowledge of the case on her questionnaire, DF volunteered at the outset of voir dire that she did "recall hearing of the case." (RT 2454.) After follow-up questioning by the trial court, DF stated, "[she] didn't know the victim or her family or anything else and [ ] hadn't thought about the case since [her friend] told [her] about it." (RT 2454.) Upon further examination, DF stated that, after being called for jury service and learning about this case , she had tried to phone her friend "just to ask the name of the person that had lived across the street from her"—to see "if the victim had lived across the street from her." (RT 2455 (noting that she spoke not with her friend but her friend's husband, and only about the name of the victim).) The prosecutor took no issue with DF's prior exposure to the case or the conflicting answer on her questionnaire. (See RT 2457, 2460-63.)
The record reveals that the prosecutor's acceptance of DF was not due to an oversight. That fact that she did not disclose her knowledge of the case on her questionnaire would have been apparent from the fact that DF herself brought up the discrepancy when answering the trial court's general question of "[i]s there anything that you think you should bring to my attention or the attention of the attorneys." (RT 2454.) DF responded by saying: "Yes. One thing: That after last Thursday being here, I do recall hearing of the case." (RT 2454.) Thereafter, the court questioned DF, defense counsel questioned her, and then the prosecutor questioned her. (RT 2454-63.) Immediately after the prosecutor finished questioning DF, he "pass[ed] for cause," declined to exercise a remaining peremptory challenge (in response to the court's offer) and, after a brief recess, stated that the "People accept the jury as presently constituted." (See RT 2463-64.)
Thus, a side-by-side comparison of EH and DF establishes vastly different treatment of similar characteristics. DF's answer regarding knowledge of the case changed, but this did not render her suspect in the eyes of the prosecutor. He did not even ask about it. This is true even though DF's connection with the case was more intimate and even though DF followed up on her knowledge by phoning her friend even after becoming part of the venire panel. In comparison, the prosecutor's first question to EH was to challenge the discrepancy between EH's questionnaire and his voir dire. (RT 2367.) There is, of course, nothing inherently suspicious about not initially recalling that one had heard about the case, but then later recalling that one had. The record reveals that jurors were routinely asked if any of their answers had changed, and such changes were not routinely viewed with suspicion. The point here—and it is an important point—is that while EH's initial failure to recall was a matter of concern to the prosecutor, DF's initial failure to recall was not.
EH apparently stated for the first time upon defense counsel's questioning in general voir dire that he "did read about the case when it first happened." (RT 2364.)
This is also an example of "disparate questioning" that "can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race." Flowers , 139 S.Ct. at 2247-48.
In this manner, as to EH, DF was a similarly situated, non-Black juror who was not stricken and who was instead accepted by the prosecutor. This tends to establish that the first reason given by the prosecutor for striking EH was pretextual, and this is exactly the type of evidence referred to in Miller-El II as "more powerful that bare statistics." Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317. Here, as in Miller-El II , the "prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who [was] permitted to serve. Id. Here, as in Miller-El , "that is evidence tending to prove purposeful discrimination to be considered at Batson 's third step."
The prosecutor's alternative reason for striking EH fares no better. The prosecutor stated that he did not want "to take th[e] chance ... that [EH] [knew] relatives of the defendant." (RT 2373.) EH had testified that he knew an Ethel Jones, whose name was the same as Petitioner's mother's name. (RT 2363.) But the Ethel Jones EH knew was deceased, and EH did not know Petitioner's mother, who was present during voir dire. (RT 2363.) As for knowing anyone else in the case, EH merely stated: "I can't say whether I know any members of his family. I know a lot of Jones in Pasadena. I live in Pasadena." (RT 2364.) The prosecutor did not ask specific questions or further attempt to clarify which Joneses EH knew in Pasadena; instead, he left unexplored EH's statement of "[t]here were two or three Jones that I thought I recognized their name." (RT 2370.) Instead, the prosecutor asked the leading question of "And you don't know for sure right now whether those Joneses could be related to the Defendant or not, do you? (RT 2370.) To that, EH responded to a question that was not asked by stating "I wouldn't know unless I would see them." (RT 2370.) Immediately thereafter, after passing for cause, the prosecutor struck EH. (RT 2370.)
Had the possibility that EH might have known one or more of Petitioner's family members been an actual concern rather than pretext, one would have expected the prosecutor to continue questioning EH about which "two or three Jones" he knew from Pasadena, or perhaps to ask that the list of witnesses or family members be read again so that EH could provide more accurate information. But rather than do so, however, the prosecutor seized upon EH's answer as a reason to strike him and abruptly ended his inquiry. Cf. Flowers , 139 S.Ct. at 2247-48 ("disparate questioning and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race.").
3. Prospective Juror JS
JS was the last remaining Black venire member. The prosecutor's peremptory challenge to strike JS was discussed at sidebar before it was exercised. The prosecutor was of the position that JS expressed that he could not "ever return a death verdict." (RT 2398 (expressly relying on voir dire of JS at RT 1607).) The prosecutor's description of his reason for striking JS did not fairly represent the voir dire of JS.
And again, the reasons offered by the trial court that were not offered by the prosecutor are not relevant to the analysis. (Cf. Opp. at 19 (quoting those reasons); id. at 20 (discussing the illness of JS's sister, who lived in another state and referring to JS's demeanor, neither of which were offered as race-neutral reasons by the prosecutor); id. at 21 (referring to comparable non-Black juror, MB, who would have been, "from a prosecutor's standpoint," preferable to JS because MB had previous juror experience).)
On his jury questionnaire, JS provided information regarding his views on the death penalty. He stated his "general feelings regarding the death penalty" as including the view that the death penalty "should only be used when crimes are committed repeatedly or unmerciful." (Supp. CT 1221.) He indicated by checkmark on question 39 that the death penalty was used "too seldom." (Supp. CT. 1221.) He checked "yes" for the question of whether California should have the death penalty today, and elaborated in answer to "Why?": "for a person that has been convicted for numerous killings." (Supp. CT 1221.) During Hovey voir dire, JS said he could weigh the evidence and be fair to both sides and could vote for the death penalty in a case with one victim. (RT 1600-01.) Upon questioning by the trial court, JS responded as follows:
TC: Now, if you are selected as a juror, could you be able to listen to both sides in the penalty phase before making up your mind one way or the other?
JS: I feel I can, your honor.
TC: In other words, you could in the penalty phase listen and consider whatever evidence the defendant might offer by way of mitigation? Can you do that?
JS: I feel I could.
TC: And you could also listen to any evidence offered by the prosecution in the way of aggravating circumstances?
JS: Yes, your honor.
(RT 1599-600.) Upon additional questioning by both defense counsel and the prosecutor regarding his questionnaire answers, the prospective juror clarified that he could vote for the death penalty in a crime involving one victim, and he repeatedly stated that his penalty phase vote would depend on the circumstances and the evidence. The defense counsel questioned him first.
DC: [Referring to the part of JS's questionnaire stating his the view that the death penalty,] Did you mean that statement, "for a person that has been convicted for numerous killings," to be the only kind of case where a death penalty is possible or would you be willing to listen in other cases?
JS: I would be willing to listen in other cases.
I just point that out as an obvious situation – most obvious situation.
DC: It's an example, then.
JS: Exactly.
DC: It's not meant to be an exhaustive list.
JS: No.
DC: For instance, in this case you will hear, if you are one of our jurors, I think, evidence of four special circumstances, each and every one of which, if true, is an additional injury to, an assault upon, this single victim – a robbery, a kidnapping, a rape and a forcible oral copulation. Each of those is separate and different and that's all in addition to a murder.
JS: Right.
DC: Do you think you could go both ways –
JS: Yes.
DC: – Life or death on those?
JS: I don't think I'd have any problem.
DC: Okay. So in a penalty phase, you're nobody's friend. For instance, [the prosecutor], you can listen to him and be fair to him, and you can listen to me and be fair to me, but you don't feel on either one of us your vote is set, and you'll go either way.
JS: That's correct.
DC: Thank you, sir. Nothing further.
(RT 1600-02.) The prosecutor questioned JS immediately thereafter.
DA: [JS], I want to call your attention to another question on the jury questionnaire, number 39, where it asks: "What are your feelings on the following specific questions?" And the question was: "Do you feel that the death penalty is used too often? too seldom? randomly?" You checked "too seldom." And then it said, "Please explain." And you said: "In cases where crime is repeated." Do you remember writing that? JS: Yes, I do. DA: And that was your feeling at the time? .... JS: ... Yes, it is, counselor. DA: And then, as [defense counsel] asked you, you did say "Yes" to that "Do you feel California should have the death penalty today?" The question was "Why?" and you said, again, "for a person that has been convicted for numerous killings," repeating the same theme as you had said in question number 39. Repeat offenders. Isn't that basically your feeling why we should have the death penalty: for repeat offenders? JS: Not necessarily, ... It could be one person, counselor, and it would depend on the circumstances. DA: I see. So you feel
Well, let me put it to you this way: if we get into a penalty phase, you understand that that means you've already convicted the defendant of first-degree murder, if you're a member of the jury –
JS: Right.
DA: – and at least one special circumstance allegation.
Do you understand what I mean by special circumstance allegation?
JS: Yes; I do, counselor.
DA: There are four of them –
JS: Four; right.
DA: – So to get into a penalty phase, the defendant must be convicted of first-degree murder and at least one or more of the special circumstances, but at least one.
JS: Right.
DA: Do you understand that?
JS: Yes; I do, counselor.
DA: Now, there's a big difference between being in favor of the death penalty in general and, on the other hand, personally participating in a death penalty verdict.
And what this hearing is about is, not only to determine your views in general on the death penalty, but to determine in this particular case whether, on any set of facts presented to you, you could realistically – it's hard to know now; you haven't heard the evidence – but on any state of the evidence whether or not you could realistically come back into the courtroom from the jury room, look at this young man, the defendant, and vote to end his life, because that's the reality of what we're doing and what we're talking about.
Do you believe that you are capable, your frame of mind at this time [is] capable, of doing something like that in a penalty phase: casting a vote which would, in effect, take the defendant's life?
JS: (No audible response.)
DA: It's a lot to ask.
JS: I would have to say – I can't really answer yes or no. That's a difficult question.
DA: Right. And I'm not – I'm not asking you to commit to voting one way or the other; you understand that? That's not my question.
JS: You're saying, if it comes down to that –
DA: Could you under any state of the evidence? And you don't know what the evidence is –
But you may not have faced what we're really talking about yet emotionally. That is, we're putting the defendant's life in your hands, literally, because all twelve jurors must agree. And if you're a juror, you're one of the twelve. That means, without your vote, this defendant could never get the death penalty. You would have that power, awesome power, to block any unanimous vote. Do you understand that?
JS: Yes; I do, counselor.
DA: So we have to know now, because this is our only opportunity to ask you these questions.
JS: I think I would be able to make a fair decision.
DA: Well, I appreciate that.
JS: After hearing the circumstances.
DA: Right. But many people who are very fair, very good people, could never vote for the death of another human being. You understand that?
JS: Yes, I do.
DA: People who are very good people and very fair people could never do that.
My question to you is: Do you think that, based on the evidence, under any state of the evidence – projecting yourself six weeks ahead, if you can – could you ever return a verdict of death in this case for this young man?
JS: I can't really answer yes or no. I just have to say it would depend on the circumstances.
(RT 1602-06.) Nevertheless, despite this exchange, the prosecutor continued to question JS, ultimately ending their exchange with a question with confusing phrasing about "any set of facts."
DA: Well, I realize that. But, you see, there are people, many people, where the circumstances really don't matter because they have very strong feelings against the death penalty; and for those people, it wouldn't matter what evidence is presented because their feelings against the death penalty would be so strong that they could never vote for it, that they would always vote for life without parole.
Do you understand what I'm saying?
JS: I understand what you're saying.
DA: And we're trying to determine now – and that's really the purpose of all this, taking prospective jurors one at a time – to determine your really true thoughts on this and whether you could ever do it.
I'm not asking you if you could be fair. I'm asking you if you could really weigh the evidence and, under any set of facts, could you ever return a death verdict, realistically?
JS: No.
DA: Thank you very much.
(RT 1606-07.) The prosecutor's last question is hopelessly ambiguous; therefore, the answer to it is as well.
Because the prosecutor's questioning ended with the definitive "no" to the prosecutor's ambiguous question, the trial court questioned JS further. (See RT 1607-08.) The trial court asked further questions to clear up the ambiguity, and JS's responses were consistent with those answers he gave before the prosecutor posed his ambiguous question. Indeed, twice more, JS expressed the belief that he could weigh the evidence and vote either way depending upon the circumstances.
TC: ... Your last comment to the prosecutor would cause me to conclude that, at the penalty phase, you would in every case, regardless of the evidence, vote for life in prison without the possibility of parole and you would never vote for the death penalty.
Is that what you meant?
JS: No, Your Honor.
(RT 1607.) Asked to state what he did mean, JS answered: "Well, I think what I'm trying to say is if weighing both sides I could either vote for the death penalty or not. But it's just that I'd have to have the evidence before me. I'd be able to weigh it out." (RT 1607-08.) Thereafter, JS again affirmed his position by answering "Evidence" in response to the trial court's question "And you would vote one way or the other, depending on the evidence." (RT 1608.)
Later, at a side bar conference, before finding that "[JS]'s views on the death penalty would not prevent or substantially impair the performance of his duties as a juror," the court stated, "I think sometimes jurors have confusion when counsel say ‘under any state of the evidence or any construction of the facts.’ It's not necessarily clear to a layman." (RT 1609.) a. The Prosecutor Mischaracterized the Record
"When a prosecutor misstates the record in explaining a strike, that misstatement can be a[ ] clue showing discriminatory intent." Flowers , 139 S.Ct. at 2250. Here, the prosecutor selectively took out of context and deliberately misconstrued the record as it related to JS's views on the death penalty, and he did so twice. First, by citing JS's definitive "no" to his ambiguous "under any set of facts" question at RT 1607, the prosecutor misrepresented the record. The prosecutor's answer is at odds with JS's statements that precede it and those that follow. JS affirmed to the trial court that he could "listen to both sides in the penalty phase before making up his mind one way or another." When the trial court asked the same question in a slightly different way, in two parts, JS reaffirmed it. Next, JS told defense counsel the same thing, three times: That he could "go whichever way the evidence took" him, he "could go both ways," and "in a penalty phase, [he's] nobody's friend." And before the prosecutor's ambiguous question, JS twice stated to the prosecutor that his vote for a verdict to impose the death penalty would depend on the circumstances. JS's answers when the trial court questioned him a second time were consistent with his earlier answers, and he again affirmed an open mind and willingness to vote for either life or death based on the evidence and circumstances presented. Thus, JS affirmed his willingness to vote for either or a life sentence or death sentence nine times . But in attempting to justify his strike as race-neutral, as to this issue, the prosecutor relied solely on the answer JS gave to an ambiguous question that the trial court expressly identified that question as unclear to a layman. (See RT 1609 ("I think sometimes jurors have confusion when counsel say ‘under any state of the evidence or any construction of the facts. It's not necessarily clear to a layman.").)
Thus, Respondent's observations before this Court also again misstate the record. (See Opp. at 19 ("[JS] was equivocal, confused, hesitant—and, at one point, he agreed with the prosecutor that realistically, he could not ever return a death verdict.").)
Second, the prosecutor argued that "[JS] stated in his questionnaire, in effect, that in this case, when there's only one victim, he could not vote for the death penalty." (RT 2399.) This misstates the record as well. JS gave as examples for the imposition of the death penalty as both "repeated" crimes and "unmerciful" crimes. (Supp. CT. 1221.) In Hovey voir dire, upon questioning by defense counsel, JS characterized his "repeated crimes" as "an obvious situation," but indicated a willingness to "listen to other cases" as well. (RT 1601.) JS reaffirmed this willingness in general voir dire, explaining he "could go either way," that is, he could vote to impose the death penalty "whether it would be numerous [killings] or whether it would be a single case." (RT 2384.) Overall, far from being opposed to the death penalty generally, JS on his questionnaire indicated that he believed the death penalty was used "too seldom."
The prosecutor's misrepresentations of the record regarding JS's expressed views on imposition of the death penalty is strong evidence of pretext as to the stated race-neutral reasons for striking JS.
b. Comparative Juror Analysis
A comparison between JS and jurors who were not struck also tends to establish that the prosecutor's proffered justification for striking JS was a pretext for discrimination. Two non-Black prospective jurors who gave answers similar to JS's answers on their questionnaire and in voir dire were questioned differently than JS, were not subject to peremptory challenge, and were ultimately seated on Petitioner's jury. The Court discusses each.
(i) MB
Given that the prosecutor's expressed reason for striking JS focused on JS's supposed belief that the death penalty should be reserved for those who repeatedly commit crimes, MB is perhaps the most striking example of a similar non-Black prospective juror who was not stricken. Juror MB was a 34-year-old food clerk from La Crescenta. In answering question 38 of the juror questionnaire, which asked about the juror's "general feelings regarding the death penalty," MB wrote, "for someone like Richard Ramirez or Manson definitely." (Supp. CT 1326.) He mentioned Ramirez and Manson again in answering question 40, explaining why he believed that California should have the death penalty. (Supp. CT. 1326.) Richard Ramirez and Charles Manson were both convicted of multiple murders. Further, with respect to question 43, MB indicated that he "[didn't] know" whether he might refuse to vote for first-degree murder "regardless of the evidence" just to avoid the issue of the death penalty. (Supp. CT. 1327.)
During Hovey voir dire, defense counsel asked MB whether, given the special circumstances alleged in Petitioner's case, he would automatically vote for the death penalty. The juror responded in the negative, explaining, "[a]s far as what I understand this case is all about, there's only – there's one [victim] involved –" (RT 674-75.) He expanded, noting that the Ramirez and Manson cases "were multiple murders" and, to MB, "that's the extreme. They've already gone beyond any punishment." (RT 675.) Defense counsel then asked:
DC: Would it take more than a showing of first-degree murder and one of the four special circumstances alleged here to get you to consider the death penalty?
There isn't a multiple murder here. Does that mean you're an automatic pro life or does that mean that you can go either way?
MB: I could probably go either way. But without knowing the facts and having all the evidence, I couldn't make that – a judgment or –
I'd have to see things.
(RT 676.) In further questioning by defense counsel about a prior murder case in which MB served as a juror and the jury hung, counsel asked:
DC: Is there anything that happened in that case that, in fairness, we ought to know about here?
MB: No. Just the fact that only one person was murdered. That's the only thing similar to the case.
(RT 679.) The prosecutor followed up with MB in the following exchange:
DA: Question number 38 says as to "what are your general feelings regarding the death penalty?" And you answered: "For someone like Richard Ramirez or Manson definitely." And then the next question asks: "What are your feelings on the following specific questions? Do you feel the death penalty is used: too often? too seldom? randomly?" And you checked "too seldom." Then you explained: "I feel that for people convicted of more than murder." Did you mean to say more than one murder? MB: Yes. DA: So you basically – MB: Sometimes – unless
Usually, that's the case because after they go through the –
Like Manson was already tried, and it was – as far as I understand, he was guilty of more than one.
DA: Yes.
MB: Somebody like those, I would have voted for the death penalty for them.
DA: And that's because they –
MB: After they've been tried and found guilty of it, of course.
DA: Yes. And that's because they killed more than one person.
MB: Yes.
DA: So, basically, your attitude is that – to boil it down – you're for the death penalty for people who kill multiple victims.
MB: (No audible response.)
DA: Isn't that what you said in your questionnaire?
MB: Like on the other trial that I was on, it was only one victim, and yet I still would have, if I found special – those special circumstances – to be true –
We never reached the verdict – a verdict – on it; so we never got to the point. But I was on that one case because of the way I felt.
DA: Were the People asking for the death penalty in that case?
MB: Yes, they were asking for the death penalty because of special circumstances.
DA: And that was only one victim.
MB: There was only one victim.
DA: And do I understand you right when you said that, if it had gone on, you would have voted for special circumstances?
MB: Well, it all depends. If it was proven to me.
DA: Let me ask you this just so I am clear: are you saying that you really didn't mean what you said when you answered the question that you're only in favor of the death penalty for people convicted of more than one murder?
MB: I filled that our right before – 10:30 – I was kind of filling it out as quick as I can because I didn't want to –
As a matter of fact, I was about ten minutes late.
DA: So your preference or your answer of the death penalty is broader than what you stated.
MB: Yes.
DA: In other words, you would consider it even in the case of one murder –
MB: Yes.
DA: – is that correct?
MB: Yes.
DA: And you would be able to weigh mitigating circumstances.
MB: Yes.
(RT 679-82.) The prosecutor did not ask MB about his ability to impose the death penalty in a case with a single victim during subsequent voir dire and MB was seated on the jury. (RT 2327-29.)
Thus, although MB answers on his questionnaire tended to indicate that he would not be in favor of the death penalty except in cases of multiple murders, he backed off this statement in voir dire. He was seated on the jury. JS mentioned multiple murders in explaining his support for the death penalty on his questionnaire, but he never suggested that multiple murder was the only circumstance justifying the penalty nor that he would exclude single-victim crimes from the death penalty. (Supp. CT 1221.) Rather, from the beginning, JS answered that repeated crimes or "unmerciful" crimes justified the death penalty. (Supp. CT 1221.)
Therefore, while the prosecutor was quick to accept MB's disavowal of his questionnaire answer that seemingly reserved the death penalty for cases involving multiple murders, the same prosecutor placed undue emphasis on JS's questionnaire answer that specified "repeated" crimes as one of two examples justifying imposition of the death penalty. (Compare RT 679-83 (questioning MB ) with RT 1600-01 & 1603-06 (questioning JS).) Indeed, although quoted above, it bears repeating that the prosecutor clarified the non-Black prospective juror's position in this manner: "Let me ask you this just so I am clear: are you saying that you really didn't mean what you said when you answered the question that you're only in favor of the death penalty for people convicted of more than one murder?" (RT 681.) This stands in stark contrast to his question regarding the Black prospective juror's similar position: "Isn't that basically your feeling why we should have the death penalty: for repeat offenders?" (RT 1603.)
(ii) SB
The prospective juror questioned immediately prior to JS's excusal was SB. Like JS, SB's answers in Hovey voir dire and on his questionnaire gave rise to questions regarding his willingness to consider the death penalty in an appropriate case. On question 39 of his jury questionnaire, asking whether the juror felt the death penalty was used too often, too seldom, or randomly, prospective juror SB indicated that he felt the death penalty was used "randomly" because he "did not remember the last time someone was put to death in California." (Supp. CT 1460.) With respect to question 40, asking his opinion regarding whether California should have the death penalty, SB indicated that "[he thought] it should be on the books because you never know what circumstances can come up. However, ... it should only be used in very rare circumstances [and] [he didn't] know what those would be." (Supp. CT 1460.) And in Hovey voir dire, SB indicated that, although "he didn't know what those [rare circumstances] would be," he did not exclude the death penalty as an option in a single-victim case. (RT 706.) Both SB and JS noted that their general feelings about the death penalty included the understanding that it was the worst punishment that could be imposed. (See Supp. CT 1221, 1460.)
Thus, on these points that the prosecutor deemed significant, SB as a prospective juror and JS as a prospective juror were similarly situated. Indeed, as to the question of willingness to impose the death penalty, JS expressed more of willingness to impose it, by stating that it was imposed "too seldom," and SB believing it to be imposed "randomly."
However, the prosecutor's manner of questioning JS versus his manner of questioning SB differed. At one point while exploring SB's ability and willingness to consider the penalty based on the circumstances of the case, SB answered in a manner that would have lent support to a decision to strike SB, but rather than cease questioning of SB (as he would later with JS) the prosecutor continued to question him in a manner seeking additional information.
DA: Can you imagine a case when there was only one victim involved that you could return a death penalty verdict, depending on what the facts are?
SB: I can't imagine something like that without thinking about it, no, not right offhand.
(RT 706-07.) After hearing this answer, the prosecutor continued;
DA: Well, let me ask you this –
SB: Yeah. I'm not sure what you meant.
DA: All right. You say "very rare circumstances." And I suppose there are many circumstances where, even though there's a first-degree murder conviction and a finding of special circumstances, that you could not impose the death penalty, no matter what; is that correct?
SB: Repeat that one more time.
DA: Okay. It's pretty tough for me, too.
When you say – what I am trying to find out is, it seems to me – and I may be misreading you – that you're excluding the possibility of the death penalty for many murders and reserving for very, very rare instances. We can't tell you what the evidence will be in this case at this time; so we're handicapped in that regard. But I'm still trying to determine from you, what kind of rare instances could you even conceive of returning a death penalty verdict when there was only one victim, one murder victim, involved?
Do you understand what I'm saying?
SB: Right. I understand. Yeah.
DA: And what you meant by your answer –
SB: It wouldn't matter to me whether it was one person or ten people. It would depend on what the circumstances were surrounding whether it was one person or –
DA: In other words, you can't define it, but you know it when you see it –
SB: Yeah.
(RT 706-08.)
Overall, the prosecutor's questioning of SB is more congenial than his questioning of JS. Where the prosecutor challenged JS's stated views, his questioning of SB is more suggestive of informing him of the process and giving SB reasons to answer in a manner that would promote his service on Petitioner's jury. During general voir dire, the prosecutor and SB had the following exchange:
DA: [SB], your answers with respect to the death penalty on your questionnaire, have you changed your opinion at all? Do you wish to modify them at all?
SB: I'll modify it a little bit.
DA: All right.
SB: Just – I think, when we talked, I think there was some reason for – my answer gave the impression that for me to vote for the death penalty, it would have to be like – something like on person killed a whole bunch of people, or something like that. And that's not what I meant in my answer.
It would have to be one person killed another person, but if there are terrible circumstances surrounding that that would be –
DA: I think you reserved the death penalty for "very rare circumstances, and I don't know what those would be," you said.
SB: Yah.
DA: It's –
SB: Now that – coming here, I see what they would be.
DA: Did you understand all my questions to you, your fellow prospective jurors, the other day?
SB: Yes.
....
DA: Any problem following the law in the case, whether you agree with the law or not?
SB: No, sir.
DA: At the end of the guilt phase, the judge will read you all of the law, read you from legal instructions. You all have to follow the law, whether you agree with it or not.
Do you understand that?
SB: Oh, yes.
DA: And do you have any problems with that?
SB: No problem whatsoever.
DA: You'll be told about such legal principles as the felony murder rule, aiding and abetting and whatever the law is.
Will you follow the law?
SB: Correct.
DA: All right. Do you have any problem, you think, at all in returning a verdict in this case based on the evidence and only the evidence?
SB: None whatsoever.
DA: You'll give the defendant the benefit of a reasonable doubt, of course, because that's the law.
Isn't that correct?
SB: Yes, that's correct.
DA: On the other hand, if you don't have any reasonable doubt, based on the evidence, can you find the defendant guilty –
SB: Yes.
DA: – of those charges where you don't have any reasonable doubt?
SB: Yes, sir.
(RT 2431-34.) This line of questioning posed relevant questions, but they did not challenge SB's views, and they were phrased in a manner suggestive of a correct answer: Do you have any problem following the law? Will you follow the law? Do you have a problem returning a verdict based on the evidence? You'll give the defendant the benefit of the doubt? This is markedly different from the voir dire of JS. And to be sure, the prosecutor did not ask of SB the ambiguous question he asked JS.
Although JS and SB gave answers on their questionnaires suggesting that they thought the death penalty should be reserved for the worst cases, after they were provided some explanation on the law, they both indicated that they could vote for death in a case with a single victim and their penalty phase vote would depend on the evidence. Nevertheless, the prosecutor struck JS and seated SB with no clear distinction between the two men's answers. Stated otherwise, the prosecutor again struck the Black prospective juror, and declined to strike the similar white prospective juror, with no clear distinction between their answers.
In sum, the prosecutor's deliberate misconstruction and prolonged questioning of JS on his non-controversial views on the death penalty are clearly suspect and evidence of pretext. JS repeatedly, and consistently, expressed his views during questioning by the trial court, defense counsel, and the prosecutor. Additionally, the prosecutor's stated concerns about JS's views on the death penalty and the imagined inconsistencies between JS's juror questionnaire and answers to voir dire questioning are undermined by comparative juror analysis. JS's views on the death penalty were comparable to those of accepted non-Black jurors MB and SB. Under these circumstances, the prosecutor's reasons for striking JS were clearly pretextual, and the evidence is clear and convincing in a manner sufficient to rebut the presumption of correctness of the trial court's findings required by 28 U.S.C. § 2254(e) .
4. Prospective Juror EA
As noted more fully supra section VII.B.4., in justifying his strike of EA, the prosecutor first agreed with a number of reasons articulated by the trial court related to her statement that her stepson had been with Rodney King when he was beaten by Los Angeles police officers. The prosecutor's second reason was based on EA's religious view regarding the death penalty. First, the prosecutor's concern with the potential for this prospective juror's animus toward the law enforcement is understandable. Although she denied any such animus, for purposes of the exercise of peremptory challenges, he was not required to believe EA's statements that she would not be influenced by her stepson's presence at the Rodney King incident. This topic of voir dire made EA unique among the venire members, and the prosecutor's race-neutral reason of potential animus against the police is plausible and believable.
The prosecutor's second reason for striking her was based on EA's opinion about the death penalty and the Bible. (RT 2396.) On her jury questionnaire, EA had checked "no" in answering a question about whether California should have the death penalty. (Supp. CT 1251.) In explanation, on her questionnaire, she stated that the "Bible says that we should not kill." (Supp. CT 1251.) During Hovey voir dire, the prosecutor asked EA whether "looking into [her] heart of hearts," if she could ever vote for the death penalty. (RT 1667-68.) She said "[y]es, I think I can I would have to weigh out both situations and I would have to vote for whatever the circumstances required." (RT 1669.) The prosecutor asked that the Court make a ruling during Hovey voir dire regarding EA's death penalty views: "She doesn't believe in the death penalty. She doesn't believe we should have a death penalty .... I ... don't believe she could ever, under any circumstances, reject her religious convictions and vote for the death penalty." (RT 1670.) Nevertheless, the trial court found "beyond a reasonable doubt that [EA] views on the death penalty would not prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath." (RT 1670-71.)
A prosecutor may properly use peremptory challenges to exclude potential jurors who indicate a religious objection to the death penalty, even where those potential jurors state they could or would vote to impose the death penalty under appropriate circumstances. See, e.g., Sifuentes v. Brazelton , 825 F.3d 506, 518-24 (9th Cir. 2016) (upholding exclusion where a prosecutor struck a Black prospective juror based on his religious view that although he was generally prohibited him from judging others he nevertheless also had a religious duty to "follow the laws of the land"); Cleveland v. Brown , No. 2:05-CV-02691-SVW, 2020 WL 10574257, at *5-6 (C.D. Cal. Mar. 9, 2020) (upholding exclusion where prosecutor struck a Black prospective juror who stated "that she would be willing to apply the rules and instructions given by the court ‘as long as they don't conflict with [her] Biblical beliefs’ "); see also People v. Ervin , 22 Cal. 4th 48, 76, 91 Cal.Rptr.2d 623, 990 P.2d 506 (2000) ("[A]s the prosecutor explained, he excused these persons because he perceived they had a ‘religious bent’ or bias that would make it difficult for them to impose the death penalty, a proper, nondiscriminatory ground for making a peremptory challenge."); cf. United States v. Mitchell , 502 F.3d 931, 954 (9th Cir. 2007) (rejecting argument that multiple Navajo jurors were impermissibly excluded from the venire based on "traditional Navajo views [opposing] the death penalty" because the exclusion was based not on religion but upon the venire members' inability to set those views aside and apply the law impartially). Thus, this race-neutral reason for striking EA represents a common concern among prosecutors in capital cases. As such, and on this record, it lacks evidence of pretext.
Thus, because EA had a unique characteristic shared by no other juror (based on her stepson's involvement in the Rodney King incident) and because she expressed a Biblical objection to imposition of the death penalty, the record does not reveal strong evidence of pretext as to the race-neutral reasons given for her exclusion. Therefore, on this record, Petitioner has not overcome the presumption of correctness of the trial court's finding of lack of discriminatory intent as to juror EA, as measured by the clear and convincing standard. See 28 U.S.C. § 2254(e)(1) . Under a lesser standard, the Court might conclude otherwise.
Specifically, the Court notes that the trial court interfered with the development of a record regarding the Batson challenge by interjecting its own justifications for excluding EA. This, in turn, skewed the trial court's fact-finding process, which entails evaluation of not only the facial validity of the prosecutor's expressed reasons but also a determination of whether those facially valid, race-neutral reasons were in fact the actual reasons or whether those reasons were pretextual. Under an evidentiary standard not as exacting as the clear and convincing standard, the Court might find evidence of discriminatory intent based on the statistical disparity and other relevant circumstances discussed regarding Batson step one, the pattern of striking Black prospective jurors that arose during the entirety of voir dire, the prosecutor's wholesale failure to articulate a specific race-neutral reason as to DC, and the strong evidence of discriminatory intent discussed herein as to EH and JS.
VIII. CONCLUSION
"The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson , 476 U.S. at 87, 106 S.Ct. 1712. And "the very integrity of the courts is jeopardized when a prosecutor's discrimination invites cynicism respecting the jury's neutrality, ... and undermines public confidence in adjudication." Miller-El II , 545 U.S. at 238, 125 S.Ct. 2317 (internal quotation marks omitted). On the record in this case, applying the relevant legal standards, and as discussed at length herein, the Court grants the relief in the manner set forth below.
Respondent argues that, because the trial court concluded Petitioner had failed to make a prima facie case, "the prosecutor was not required to fully explain why he excused the black prospective jurors" and "further factual development" is necessary. (Opp. at 3-4, 26-27.) This ignores the fact that the trial court gave the prosecutor the opportunity to state his race-neutral reasons, and the prosecutor did so based on whatever he could muster at the time. No further factual development is necessary; indeed, allowing Respondent to supplement the record by offering a post hoc race-neutral reason for a potential juror's exclusion would simply invite pretext. See Miller-El II , 545 U.S. at 252, 125 S.Ct. 2317.
IX. ORDER GRANTING RELIEF
Based on the foregoing, IT IS ORDERED THAT:
1. Petitioner's Petition for Writ of Habeas Corpus (Dkt. No. 37 ) is GRANTED with respect to Claim 4(1). The judgment of conviction in the matter of People v. Jones , Case No. A578017, of the California Superior Court of Los Angeles County, is hereby VACATED . The State of California shall, within 60 days, either release Petitioner or grant him a new trial. Within 63 days of the date of this Order, the State of California shall file in this court a Notice of Compliance reporting the manner in which the State has complied with this Order.
2. Because there is no just reason for delay, the Court directs entry of a final judgment pursuant to Federal Rule of Civil Procedure 54(b) with respect to Claim 4(1) of the Petition. 3. All other remaining claims are stayed pending further order of the Court. The Clerk shall administratively close the case.