Opinion
I.D. No. 9911016309.
Submitted: June 14, 2007.
Decided: July 3, 2007.
Opinion on Remand. Superme Court No. 482, 2005.
Ipek Medford, Esquire, Deputy Attorney General, Department of Justice. Attorney for the State of Delaware.
Kevin O'Connell, Esquire, and Jerome Capone, Esquire. Attorneys for Defendant Michael Jones.
OPINION
Michael Jones was found guilty of three counts of Murder First Degree, Arson Second Degree and related weapons and conspiracy charges. He was sentenced to three life sentences without parole on the murder convictions. On appeal he raised eight claims of error, one of which is that his right to equal protection of law was violated when the State intentionally discriminated against blacks and other minorities during jury selection. He also argued that the trial judge did not make the requisite determination regarding jury selection under Batson v. Kentucky. Batson stands for the proposition that the equal protection clause forbids a prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State's case against a black defendant. The Del aware Supreme Court found that Defendant made a prima facie showing of intentional discrimination and that the trial judge found that the prosecutor had offered race neutral reasons for the strikes. However, the trial judge made no findings as to whether there was purposeful discrimination, as required by Batson. The case has been remanded to this Court for the purpose of determining whether the prosecution used peremptory challenges for the purpose of discriminating against African-Americans. The Supreme Court ordered that this determination be made by a different judge because Defendant also appealed the trial judge's refusal to recuse herself, an issue to be addressed by the Supreme Court following return of this Opinion.
476 U.S. 79 (1986).
Id. at 89.
Jones v. State, 2007 WL 666333 (Del.Supr.).
In response to the order of remand, the Court conducted an evidentiary hearing. The prosecutors who tried the case were called to testify about the policies of the Attorney General's office as to jury selection as well as the specifics of jury selection in the Jones case. In addition to the testimonial evidence, the Court has received documentary evidence, including a transcript of jury selection; notes taken by both prosecutors during jury selection; juror pedigree sheets created by the Office of Jury Services for the State's use during jury selection; re-created criminal and motor vehicle records for jurors seated on the panel, as well as those who were struck by the State and by the defense; and a table prepared for the hearing by the State summarizing relevant information for each of the seated jurors, as well as those who were struck.
These records were re-created for the hearing because the prosecutor keeps his notes from jury selection but discards the rap sheets.
A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. The Delaware Supreme Court found that Jones made the prima facie showing, based on the fact that 19 percent of the original jury pool were minorities and the State used 75 percent of its strikes to remove minorities from the jury.
Batson, 476 U.S. at 96-97.
In the second step of a Batson analysis, the burden shifts to the State to rebut the prima facie showing by providing a clear and reasonably specific explanation of a legitimate reason for each strike. Although the prosecutor must present a comprehensible reason, he need not provide an explanation that is persuasive, or even plausible; if the reason is not discriminatory and relates to the outcome of the case to be tried, it suffices. As noted by the Supreme Court in this case, the trial judge found that the prosecutor offered a race-neutral reason for each peremptory strike and this Court so finds. The trial judge, however, did not assess the credibility of the prosecutor's position and this is the reason for the remand.
Id. at 97-98. See also Dixon v. State, 673 A.2d 1220, 1224 (Del. 1996).
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
In the third step of Batson, when the prosecutor has given a race-neutral reason for his strikes, the burden shifts back to the defendant to prove purposeful discrimination. The ultimate burden of persuasion regarding racial motivation and discrimination rests with, and never shifts from, the opponent of the strike. The question of intentional discrimination is a pure issue of fact, which must be determined by the court. The Court must evaluate all evidence introduced by each side tending to show that race was or was not the real reason for the State's exercise of its peremptory challenges and to determine whether the defendant has met his burden of persuasion as mandated by Batson.
Dixon v. State, 673 A.2d 1220, 1224 (Del.Supr. 1996).
Rice v. Collins, 546 U.S. 333 (2006) (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)).
Jones v. State, at *5 (citing Hernandez v. New York, 500 U.S. 352, 364 (1991)). See also Batson v. Kentucky, at 98; Miller-El v. Dretke, 125 S. Ct. 2317, 2331-2332 (2005).
Jones v. State, at *1.
In its opinion remanding the case the Supreme Court directed this Court as follows:
Critical to any decision applying Batson are determinations of credibility and historical fact. A trial court's direct contact with the witnesses allows for accurate determinations of both. In addition to determining the credibility of the prosecutor's representations, a fact finder may consider other factors to determine whether the prosecutor acted with discriminatory intent. They include, but are not limited to:
"The percentage of African American veniremembers who are the subject of the prosecutor's peremptory strikes; (2) side-by-side comparisons of some black venire panelists who were struck and white panelists who were allowed to serve in order to determine whether the prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve; (3) the prosecutor's use of procedural mechanisms . . . to move African American veniremembers to the back of the panel where they are less likely to be selected; (4) evidence of contrast between the prosecutor's voir dire questions posed respectively to black and nonblack panel members . . . and (5) evidence of a systematic policy or practice within the prosecutor's office of excluding minorities from jury service."
In addition, "the prosecution's decision not to use an available challenge against minority veniremen is also a relevant circumstance to be weighed."
United States v. Nelson, 450 F.3d 1201, 1207-08 (10th Cir. 2006) (citing Miller-El v. Dretke, 545 U.S. 231 (2005)).
United States v. Alvarado, 923 F.2d 253, 256 (2nd Cir. 1991).
The State was represented at trial by two Deputy Attorneys General. Stephen Walther, Esquire, the senior prosecutor, has worked in the Attorney General's office for 32 years and has tried approximately 450 jury trials in Superior Court, 52 of which were murder trials. John Barber, Esquire, who was second chair in this trial, has been a deputy attorney general for six years and has tried approximately 30 cases in this Court, four of which were murder trials. Defense counsel are both seasoned veterans in this Court and are well acquainted with the prosecutors.
There is little dispute as to historical fact. Therefore the emphasis here must be focused on the credibility of the prosecutors, with consideration of the other factors enumerated above. The Court, of course, can give no consideration to the factors enumerated (3) and (4) above, since there is no mechanism in this State for the prosecution to alter the order in which veniremen are considered, and, there is no possibility of the prosecutor phrasing questions differently to black and non-black panel members, because all questioning is done by the judge from largely scripted questions.
The Court also notes that the "dual motivation" analysis suggested by the Supreme Court is not required or even possible here. This analysis is necessary only when the proponent of a peremptory challenge expresses a racial or gender based reason in addition to a neutral reason for the challenge. The object of the analysis is to determine whether the challenge would have been asserted in the absence of racial or gender considerations. Here the State did not and does not state any racially based reasons for its challenges thus rendering a dual motivation analysis inapplicable.
Gattis v. Snyder, 278 F.3d 222, 232-33 (3rd Cir. 2002) (citing United States v. Tokars, 95 F.3d 1520 (11th Cir. 1996)).
As stated, most historical facts are undisputed. The jury pool consisted of 169 members, 18 percent of whom were minority individuals. During jury selection 17 jurors and alternates were selected. (Juror No. 4 was excused and replaced by Alternate No. 1, requiring that another alternate be selected.) The State used six of its eight peremptory strikes to remove members of minority groups from the jury. The defense struck 18 white jurors and one juror who identified herself as "other." In its final make-up, the jury included three blacks and one black alternate. Thus 25 percent of the jurors were minorities.
The first four jurors were excused for cause. The State's exercised its first strike for Panelist No. 5, a black male, because he was a retired school teacher. Defendant did not make a Batson challenge at the time, but now argues that the State challenged the juror because of his race, since the State passed on other white schoolteachers. The State did pass on two white teachers, Nos. 27 and 107 but it also passed on a black teacher, No. 127, and struck a white teacher, No. 16. At the hearing, Mr. Walther testified that he himself had been a high school teacher before becoming a lawyer and that in his experience teachers are often inclined to give a person a second chance. He stated that he does not have a practice of striking all teachers from a jury, but he may strike one or more. Thus, of five teachers, the State struck one black and one white, leaving two whites and one black on the panel. This scenario is consistent with Mr. Walther's statement that he struck Panelist No. 5 because he was a teacher. It does not suggest racial bias, only a certain ambivalence about his former profession.
The State was also concerned with No. 5's 1975 conviction for disorderly conduct. At a later point during jury selection, after No. 5 had been excused, Mr. Walther stated that No. 5 had been arrested by the Fire Marshall's Office, which concerned the prosecutor because an expert from the Fire Marshall's Office was going to testify regarding the cause of the fire. At the hearing on remand, No. 5's rap sheet did not support the assertion that he had been arrested by someone from the Fire Marshall's Office, and Mr. Walther acknowledged this fact. He explained that the criminal records he used at trial had been discarded and that he had had them recreated for the hearing. He was sure that if he made the statement about the Fire Marshall's Office at trial, that information would have been in the record he had at the time. In light of the fact that when the issue of No. 5's criminal record arose, he had already been struck, there was no reason for the prosecutor to make up a second reason, and the Court concludes that Mr. Walther believed that No. 5 had been arrested by the Fire Marshal's office when he exercised the State's peremptory challenge. In this case, No. 5 was struck on the basis of his being a teacher before the issue of his arrest arose. In light of the prosecutor's testimony and conduct regarding teachers on the jury, the Court also concludes that No. 5 would have been stricken whether or not his arrest was made by the Fire Marshall's Office. The Court finds that the State's reasons for striking No. 5 were not pretextual and not race-related.
The State's second strike was of a white female teacher.
The State's third peremptory strike was used against a black male, Panelist No. 19. The State sought to have No. 19 removed for cause, arguing that his answers in voir dire indicated that he would impose an unacceptably high burden of proof on the State if the case proceeded to a penalty phase. The trial judge rejected that argument, and the State used a peremptory strike. Defendant made a Batson challenge, arguing that the State had used two strikes against black people. The prosecutor stated that in addition to No. 19's questionable statements about the evidence, he had a nine-page rap sheet, including numerous arrests and convictions for crimes such as criminal impersonation and forgery. Both at the hearing and at jury selection, Mr. Walther stated his belief that a peremptory strike may be appropriately based on a potential juror's arrest or conviction. The prosecutor's notes from jury selection list each of No. 19's questionable answers during voir dire and also his nine-page rap sheet. As emphasized in Batson, the prosecutor's explanation need not rise to the level justifying a challenge for cause, but must not be discriminatory and must be related to the case. In light of all the relevant circumstances, the Court finds that the prosecutor's explanation of his reasons for striking No. 19 were credible and that Defendant has not carried his burden of proving intentional discrimination.
Batson, 476 U.S. at 97.
The State's fourth strike was panelist No. 25, a black male. The defense made a Batson challenge, again arguing that the State's strikes showed a pattern of racial discrimination. The State noted that No. 25 had 11 motor vehicle violations, and had been arrested for theft and convicted of criminal mischief. The prosecutor stated that this many charges showed a disregard of the law and added that the pattern was not about race but about criminal records. The record confirms that statement. None of the white panelists seated on the jury had a criminal record, and the Court accepts as credible the State's representation that criminal activity was the common denominator. The defense has not carried its burden of proving purposeful discrimination on the part of the State in regard to No. 25.
The State exercised its fifth strike against panelist No. 52, a black female, and the defense renewed its Batson objection, arguing that all five peremptories had been used against blacks. In fact, by then the State had also stricken one white female, panelist No. 16. Mr. Walther stated that he used a peremptory for No. 52 because she had an arrest for possessing heroin and a conviction for shoplifting. No. 52's use of heroin was of specific concern to him because the case was largely about drugs. He was also troubled by the fact that she had been convicted of shoplifting, which he characterized as a crime of dishonesty. He stated that he would have used a strike against a white woman with the same record and that race was not the reason for the issue. The prosecutor's reasoning is consistent with his earlier statements, and the Court finds finds his explanation to be credible and not pretextual, particularly because the evidence at trial pertained to drugs and drug transactions. The defense has not proved that the State intentionally discriminated against blacks by striking No. 52 from the jury panel.
The State's sixth strike was panelist No. 61, a psychologist who stated that she had a private practice and ran a school. The State exercised a peremptory strike, and the defense made a Batson challenge because the woman was hispanic. The record of jury selection reflects that the prosecution was surprised by this fact because the woman looked white. Even the trial Judge thought so. The defense does not dispute that the panel member looked white and this Court concludes that she was in fact a white woman. The prosecutor acknowledged that the jury card indicated that she was hispanic, but stated that the reason for striking her was that she was a clinical psychologist. The prosecutor explained that if the case proceeded to a penalty phase the defense would call a clinical psychologist to testify. This Court agrees that striking a psychologist from the jury because a psychologist will testify for the defense is an acceptable reason for a peremptory strike.
The defense argues that the stated reason was a pretext because the State accepted another psychologist, panelist No. 116, a white male. This psychologist, however, was not a clinical psychologist. In response to a question proposed by the State and asked by the trial Judge he stated, "I'm interested primarily in testing, testing interpretation, and particularly interested in learning problems." Tr. at 25. After hearing this answer, the prosecutor was content with No. 116, because his work was clearly different from that of a clinical psychologist.
In reviewing the circumstances pertaining to Maria, the Court notes that while the defense has argued that the State may have discriminated against blacks because of an assumption that they might always be biased against law enforcement or that a black juror might always be overly sympathetic to a black defendant, the defense has not asserted a reason that the State might have discriminated against hispanics. During jury selection, the defense merely stated that Maria was hispanic, apparently objecting to any minority being struck.
The Court has found that No. 61 was a white woman and was believed to be such at the time she was stricken by the State. Consequently, her removal from the jury cannot be considered an act of prejudice. Moreover, even without the question of ethnicity, the State would have struck Maria because she was a psychologist engaged at least in part in analyzing the reasons for people's behavior and this was an acceptable and non-pretextual reason for exercising a peremptory strike.
The State exercised its seventh strike against panelist No. 75, a black female. The prosecutor asked the trial judge to excuse No. 75 for cause because references she made to "circumstantial evidence" suggested to him that she might think such evidence could not be sufficient to convict. The trial judge declined to excuse her, and the State exercised a strike. The defense made a Batson challenge because No. 5 was black. The State reiterated its position with regard to No. 5's statements about circumstantial evidence and added that she had a 1999 shoplifting conviction as well as being placed on attorney general's probation in 1995 for shoplifting. For both these reasons, which the State had consistently identified as reasons for peremptory strikes, the State exercised its strike. These are logical and race neutral reasons and this Court finds that the State did not exercise its peremptory challenge of this panelist for racial reasons.
The State's eighth and final strike was a white woman named Jean, who was more inclined to give a life sentence than the death penalty. It had four peremptory strikes remaining when jury selection was completed.
All of the peremptory strikes used by the State to remove black panelists were for plausible reasons not associated with race and were not a pretext for racial discrimination. Not only did the prosecutors offer credible testimony to this effect but other considerations make this conclusion almost inescapable.
First, the prosecutor allowed four African-Americans to be seated on the jury and had four peremptory strikes left when it announced it was content. It is simply impossible to conclude that the State sought to exclude black persons from the jury given this circumstance.
Second, there was no apparent motive to exclude African-Americans from the jury. The defendant was black; but so were the victims. And most of the lay witnesses on both sides were black. If anything there was good reason to include not exclude black persons from this jury.
Finally, the defense was unable to produce any evidence of a policy or practice on the part of the Department of Justice or the prosecutors individually to exclude blacks from juries. The criminal law community in this State is small and the participants well known to each other. The lack of evidence on this point is therefore telling.
The Court concludes that not only has the defense failed to meet its burden of proving racial discrimination but, the evidence taken as a whole proves that no racial discrimination took place.
The case is returned to the Supreme Court.