ë - Stanford Law Schoolliblog.law.stanford.edu/wp-content/uploads/2013/02/Scott...case: 1 1-16175 05/09/201 1 page: 10 of 15 ld: 7745065 dktentry: 1-1 united states court of appeals

Case: 1 1-16175 05/09/201 1 Page: 10 of 15 lD: 7745065 DktEntry: 1-1

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

R E c E I V E DMOLLY .c DWYE ,R CLERKu.s. counToFA/pMts

SEP 2 2 2011FILEDM KEVD DATE INnVL

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Case: 11-16175 09/28/2011 ID: 7916535 DktEntry: 12 Page: 1 of 36

Case: 1 1-16175 05/09/201 1 Page: 1 1 of 1 5 lD: 7745065 DktEntry: 1-1

9tla cir. case xo. /A/k7f Page 2What are the facts of your case?

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What did you ask the originating court to do (for example, award damages,give injunctive relief, etc.)?

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State the claim or claims you raised at the originating court.I

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Did you present all issues listed in //5 to the originating çoul't?

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9th Cir. Case No. //-/t/2f8. Do you have any other cases pending in this court?

If so, give the name and docket number of each case.

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Have you filed any previous cases which have been decided by this court?If so, give the name and docket number of each case.

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For prisoners, did you exhaust al1 administrative remedies for each claimprior to filing your complaint in the district court?

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CERTIFICATE OF SERVICE

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IMPORTANT: You must send a copy of ALL documents filed with the Court andany attachments to counsel for ALL parties in this case. You must attach a copy ofthe certificate of service to each of the copies and the original you file with theCourt. Please fill in the title of the document you are filing. Please list the namesand addresses of the parties who were sent a copy of your document and the dateson which they were served. Be sure to sign the statement below.

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NO. 11-16175

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

MICHAEL R. SCOTT,Petitioner-Appellant

V.

M.C. KRAMMER,Respondent - Appellee

On Appeal from the United States District CourtFor the Eastern District of California

NO. 2:07-cv-02729-LKKThe Honorable Lawrence K. Karlton, Judge

Appellant's Opening Brief


ARGUMENT

THE TRIAL COURT ERREDIN DENYING THE MOTIONS TO DISMISS

THE JURY PANEL DUE TO THE PROSECUTOR'S USEOF PEREMPTORY CHALLENGES BASED ON A PRESUMEDGROUP BIAS THEREBY DENYING APPELLANT HlS RIGHTTO TRIAL BY A JURY DRAWN FROM A REPRESENTATIVECROSS-SECTION OF THE COMMUNITY UNDER ARTICLE 1,SECTION 16 OF THE CALIFORNIA CONSTITUTIOX AND INVIOLATION OF THE EQUAL PROTECTION CLAUSE OFTHE UNITED STATES CONSTITUTION REQUIRING

A REVERSAL OF THE CONVICTIONSlntroduction.

The trial court found a prima facie case in a1l fourWheeler/Batson motions. Appellant contends the prosecutorimpermissibly challenged African American jurors on account of apresumed group bias, and not for reasons related to a specificbias -- a reason related to the particular case, the parties Or

witnesses. (People v. Wheelel-, supra, 11 Cal.3d 258, 276.)Group Bias.

''Exercising peremptory challenges because of groupbias rather than for reasons specitic to the challenged prospective

juror violates both the California Constitution and the United StatesConstitution. '' (People v. Johnson (2003) 30 Cal.4th 1302, 1308,citations omitted.) Here, the prosecutor's challenges did in factrest on ''stereotypical assumptions'' about African-Americans:

David Cusic. African American:''So you think 1 might, if you were, for example,sitting in my shoes as the prosecutor and consideringhaving you as a juror, there might be some concerns


there as to whether things are going to start from aneven-level playing tield?''***''Okay, l know this is sort of an awkward typesimation, but is your answer you don't think, you thinkthat things would start on a level playing field?''***''And you can assure me that you wouldn't allow yourprior experiences . . . to sort of sneak into this simationand have you . . . take the side of the defendantsbecause of the fact that they're African Americans. . .''..w 3Ljir3j':.'' s. . .' r;JtdIC:C > ' ' + G' Q' dt''

yjjj)t :4 ' l r: )4y ...e . .tsl) è z z .(4 ART 1060 4Juror Eleven. African American:

''lf you were a juror in this case, is the prosecutiongoing to be starting at somewhat of a disadvantage. . . ''*+*''Anything about the fact that there are AfricanAmerican defendants that would make it difticult forou to serve as a juror in this case?''y++*

''Q: Wouldn't feel like you need to be an advocate oneway or another?A: That would be kind of difficult seeing that . .. myfamily is basically really multi-cultural so . . . ''

(4 ART 107 1-1072,) a '-'z ' # - .Lou Gorham. African American'.'' (M1y concern is . . . the fact that you have that opinioncould in some way affect your ability to be fair andimpartial in this case in the sense that you're thinking,you know, so many times African American males aretargeted and aren't treated fairly in the system, l needto do my best to sort of compensate for that. ''

''CT'' and ''RT'' refer to the Clerk's and Reporter's Transcript,and ''ACT'' and ''ART'' refer to the Augmented Clerk's and Reporter'sTranscript on appeal. Citation to the volume number of the transcript isincluded when reference is made to that transcript. ''AOB'' and ''RB''denotes Appellant's Opening Brief and Respondent's Brief.


(4 ART 1 1 15-1 1 16.) zvw t'Jp'z z =Angela Harris. African American:''A: Sometimes 1 feel that it is unfair. But I can putthat aside to do what l know that's right.Q: Okay, 1 mean, because you can imagine what myconcern would be?A: Be biased.Q: Counter balance that by going into the jury roomand sort of taking that personal belief and makingsure --A: No, 1 wouldn't do that.''

(4 ART 1 119-1 120.L') - -'xq ' , qCharles Richardsona AfTican American:''Given the answers that you've given as to the issue ofAfrican Americans, the way they're treated, am 1going to be starting at a disadvantage if you were tolisten to the facts of this case. . . ''

w A N(5 ART 14 16 ) XKKZ--K-% z. ,..:y . .,;

Linda Terrell. African American:''ls there any concern in your mind that as you hear thefacts and the evidence and, you know, listen to somefive, ten law enforcement officers, that you're going tosort of start out with a sort of uneven playing field sortof against the prosecution because of things you'veexperienced in the past, is there any concern about thatin your mind?''***

''And l'm just sort of trying to make sure that if yousat as a juror that you wouldn't say, well, 1 feel likel've seen some things that were unfair in the past, and,you know, in my own personal observation and basedon that, l think that 1 should do what 1 can to, youknow, sort of cut these guys a break in this situation. ''

V ' a . ''*- W ' O U(4 ART 929-930:) (/?. .gk- e

The Court of Appeal concluded that the questions


identitied by appellant are not improper. (Slip Opinion, p. 18.)However, these questions are facially discriminatory,' they reflect astereotype that African-Americans as a group are unable toimpartially consider the prosecution's case against an African-American defendant. At best, the questions reflect African-Americans as a group that must overcome the burden of their groupmembership, i.e., they must prove they will not stick together anddisobey the law.

The prosecutor's questions reveal his concerh as towhether African Americans would start him oùt on an unevenplaying field, but African Americans did not start out on an evenplaying field with the prosecutor. lt was not the responses ofAfrican Americans which concerned the prosecutor; it was the

color of their skin. The prosecutor brought this bias into juryselection and impermissibly struck African Americans out of abelief that they would acquit appellant to compensate for theirnegative experiences as African Americans.

Despite asking most African Americans to explain their

responses to whether law enforcement or the judicial system treatAfrican Americans fairly, the prosecutor was not similarly

concerned whether non-African American jurors would try and''compensate'' for any unfairness they believed African Americans'

experience from law enforcement and the judicial system. Theprosecutor's questioning on the subject of African Americans wasdirected solely to members of the minority group. He did not

question similarly situated members of the majority group.2. Disparate Ouestioning and Comparative Juror


Analysis.The Court of Appeal declined to address appellant's

evidence of disparate questioning because it was not specitkally

objected to in the trial court, and therefore did not allow theprosecutor to explain his ''decisions about which jurors to askwhich questions. '' (Slip Opinion, p. 16.) The Court of Appealrejected appellant's contention that a comparative juror analysis waspresented to the trial court, in the form of defense counselrepeatedly providing racial percentages of jurors challenged. (1d.

However, appellant respectfully conyends a comparativejuror analysis was presented to the trial court, and as such ''thereviewing court must consider that evidence, along with everything

else of relevance, '' in reviewing the issue. (People v. Johnson(2003) 30 Cal.4th 1302, 1324-1325.)

The prosecutor's questions concerning JurorQuestionnaire Numbers 40 and 41 varied by race. ln Miller-El v.Cockrell, supra, 537 U .S . 322, the Supreme Court recognized thatdisparate questioning based on race is evidence of purposef'uldiscrimination. tfJ. at p. 344.) The Court in Miller-El agreedwith the petitioner's claim that the prosecutor used disparatequestioning to elicit responses from African Americans that

justified for-cause challenges. ''This is more than a renpte#r?/2f /Xa / 'îpossibility. Disparate questioning did occur. Petltloner submitsthat disparate questioning created the appearance of divergentopinions even though the venire members' views On the relevant

subject might have been the same. ln this context thedifferences in questions posed by the prosecutors are some evidence


of purposeful discrimination. '' (1d. at p. 344.)ln appellant's case, the manner in which the prosecutor

questioned members of the venire also varied by race. Theprosecutor asked all but two African Americans to explain theirresponses to Juror Questionnaire Numbers 40 and 41 .2 Bycontrast, the prosecutor questioned only three non-AfricanAmerican prospective jurors on this subject, Padilla, Santiago, andFord. (3.,ART 646,. 6. 98-670,* 4 ART 935s936t) The prosecutor'sfailure to ask questions during voir dire to non-African American

prospective jurors regarding their responses to Questions 40 and 41suggests group bias. a''y.ze -Vz z

Juror Questionnaire Number 40 asked prospectivejurors:

''In general, do you feel that African Americans aretreated fairly or unfairly by law enforcement inSacramento?FAIRLY UNFAIRLYPlease explain your answer:

ï ï. . ..-. *

.j 't3 ACT 65+1) -oZJz-zz,. - ' -Juror Questionnaire Number 41 asked prospective

JIIFOFS'''Do you feel that African American males:A. Are unjustly accused of commitling more crimesthan Other persons?YES NO

B. Are more likely to cornmit crimes than other

2 AfTican American Juror Epps was excused for cause because of amedical condition before either counsel had the chance to thoroughly questionher. (3 ART 854-863, 874.) Juror Number 4, the last African American toenter the jury box, was not questioned by either party.


persons?YES NOAre treated as fairly by law enforcement as otherpersons?YES NO

D. Are treated fairly by the judicial system as otherpersons?YES NO

lf yes to A or B, or no to C or D, please explain:11

. e

j.3. ,zA. . C.:..T . . . 6 , ,5... ..4 .r.) c.-r-zx.lf a prospective juror responded that African

Americans were treated unfairly, the prosecutor would make an

inquiry - (/' the prospective juror wluî Ah-ican American - as towhether the prospective juror's views would place the prosecutoron an uneven playing tield. By contrast, the prosecutor did not

seek similar assurances from white prospective jurors who hadanswered that African Americans were either unfairly treated by

law enforcement or the judicial system', and there were many.Focusing only on the sworn jury members, of the

twelve jurors and three alternates selected to try the cause, ''nine ofthe 15 sworn jurors or alternates had given tincorrect' answers, andtwo of these were African American'' (Slip Opinion, p. 15), andyet the only juror the prosecutor sought an assurance from wasJuror Number 1 1, an African American.S Sworn non-African

American jurors were not asked to explain their responses toQuestions 40 and 41 . Thus, unlike the petitioner in Miller-El,

See the Juror QuestioMaires for Juror Nos. 1, 2, 4, 5, 8, 9, 11,13, and 14, respectively. (7 ACT 2065, 2088,' 8 ACT 2134, 2157,2226, 2249, 2295, 2341, 2364.)


whose argument Justice Scalia characterized as weak for not''identifying any unchallenged white veniremen similarly simated to

the six aforementioned African American veniremen'' (Miller-El v.Cockrell, supra, 537 U.S. 322, 351), appellant has identified sevennon-African American sworn jurors who expressed similar viewsabout African Americans as those expressed by African American

veniremen.The Court of Appeal declined to address this issue, but

did briefly comment that it had accepted respondent's ''detailed

recitation'' of the questioning of non-African American jurors, andcharacterized appellant's argument that no similar questioning wasdirected to non-African Americans as a bald assertion and a failure

to thoroughly read the record. (Slip Opinion, p. 17-18.)'V?/JVVAHowever, rzypon'd entcprovided the Court of Appeal with the same

jurors appellant addressed in his opening brief, Fordosantiago, andxzpz.c </PKPadilla. Appellqnt's reply brief did respond to.rçjpondeKt's

argument:This Court should reject respondent's argument that''the prosecutor questioned severai apparently non-African-American prospective jurors about theirquestionnaire answers to the effect that they believedAfrican-Americans are treated unfairly by law-enforcement or the judicial system.'' (R.B 44, emphasisadded.) Respondent provides this Court with theexample of Ms. Ford (1tB 44), an apparentlyCaucasian prospective juror who appellantacknowledged in his opening brief (AOB, h1. 7), andjurors Santiago and Padilla, who are most likelyminorities. This is not several. The fact remains thatthe prosecutor's questioning on this subject wasfocused disproportionately on African-Amyricans .


The numbers concerning the prosecution'squestioning of African-American jurors as to Questions40 and 41 are remarkable. At least 71 % Of African-Americans were asked to explain their answers toQuestions 40 and 41. lt is likely this statistic wouldhave been 85% had African-American Juror Epps notbeen excused due to a medical condition before eitherparty had th#-çhange to thoroughly question her.4AoB 17., xk.'f 854--:-63-,-' '874-.) zry , ---.(

Americanl jurors ere not subject tothis same line of questioning. .t ptf-rfyljf's aaempt t?discount this fact should be rejectçd. lf theprosecutor's true pumose was to avoid sympatheticjurors, and not just sympathetic African-Americanjurors, then he would have questioned sympathetic non-African-American jurors similarly on this subject; andhe did not. (Miller-El v. Dretke, supra, 125 S.Ct.2317, 2327 (''lf, indeed, Field's thoughts onrehabilitation did make the prosecutor uneasy, heshould have worried about a number of white panelmembers he accepted with no evident reservations. ''1.)

(Non-African

(Appellant's Reply Brief, pp. 6-8./3 '- 'Contrary to respondentlis reading of the record, the

,v yz J //# r' zprosecutor took race into account when deciding whether to preface

questions about ju ors' potential sympathy for appellant as a resultof his race. 'Yesp (md y'nt's ''rationale flatly fails to explain whyz/ PP' W &e' /2most white panel members who expressed similar opposition or

ambivalence were not subjected to gthis line of questioningj . ''(Miller-El v. Dretke (2005) 545 U.S. 231 (125 S.Ct. 2317, 2337,162 L.Ed.2d 1961 .) The prosecutor was concerned about African-

##eRespoMdent ignores this fact when offering Juror Epps as anexample of an African-American who was not questioned on this subject.(RB 46.)

9


American jurors' sympathy for appellant. Had the prosecutor beentruly concerned with ''sympathy'! he would have questioned al1

jurors similarly on this subject.The prosecutor used disparate questioning to elicit

responses from African American prospective jurors that reflectedan ambivalence as to the treatment of African Americans by lawenforcement, and whether African Americans are treated fairly in

general, which he later used to justify his challenges of thesejurors. By doing so, the prosecutor created the appearance ofdivergent opinions even though, as appellant has demonstrated,

most non-African American jurors shared similar views:Juror 5 should have been asked to explain why he

believes African-Amerieans are unjustly accused of committingmore crimes than other persons.Americans are not treated as fairly by law enforcement as other

' i'j è''t 'ltj: ) The prosecutor asked 71 % of thepersons. t A .African-Americans to explain their responses to this question, butJuror 5 was of no concern to the prosecutor despite expressing even

This juror also believes African-

more doubt as to thethe African-American prospective jurors themselves! (See Terrell. : . ' ... ' . .J?) ' '' ) '. ' '(j AI/'I- 6àt) and cusic (4 aAcT 928) .) ux

Juror 13 should have been asked why he believes 1awenforcement do not always treat African-Americans fairly. This

treatment of African-Americans than some of

juror also believes law enforcement make mistakes against African-Americans and left blank whether African-Americans are uljustlyaccused of committing more crimes. (8'-AC-T 72344 .) ''- -

Juror 14 should have been asked to qualify why she


expressed doubt as to whether law enforcement and the judicialsystem treat African-Americans fairly. ('8-A' f+1-.43,6.4-.) This jurorwaS not unlike the African-American jurors who also expresseddoubt, yet the prosecutor made no inquiry. -

Jurors 1. 2. 8. and 9 were not asked to explain whythey either lef4 the answer blank or indicated a lack of knowledgeon the subject. (7-ACT 2067 208 ; 8 ACT 2221./-2:497) Theprosecutor should have questioned at least some of these jurors.His lack of questioning reveals his presumption that only African-

rAmericans would be biased in favor of appellant.B. The Prosecutor Committed Wheeler/Batson Error

By lmproperly Using Peremptory Challenges To SystematicallyExclude African Americans From The Jur-y.

The trial court found a prima facie case in all fourWheeler/Batson motions. Defense counsel, at the firstWheeler/Batson motion,experience alone was not sufficient to support a challenge againstan African American prospective juror: ''lf every African-Americanwho had bad experiences with law enforcement or have heard ofOther African-Americans who had problems with law enforcementwere excusable based on that, it would be very difticult to tind

argued that negative 1aw enforcement

African-Americans to s't op juries where African-Americans were; . .

defendants . '' (1 ART 133::.') A review of the questionnaires andtestimony of the African Americans on this jury panel reveals theappropriateness of defense counsel's argument. Evcly AfricanAmerican had some @p: of negative cxperience with lawenforcement . Additionally, every African American said they


would not let their experiences affect their ability to judgeappellant's case.s

ln response to this argument, the Court of Appealstated: ''Defendants again assert that because all African Americansexperience racial profiling, challenging any African American forsuch a background amounts to group bias. Even if we acceptedthat argument, here the bias was more specific: The prosecutorbelieved gAfrican Americansl had bias against Wcs'/ Sacramentoofficers, in a case where several ofticers from that departmentwould be testifying. This is a race-neutral reason. '' (S1ip Opinion,p. 21 .) Thus, according to the Court of Appeal, it may not be arace-neutral reason to use a peremptory challenge against anAfrican American who experienced racial profiling outside of the

jurisdiction to which she was eligible to serve as a juror, but if theAfrican American had the negative experience within the area towhich he was eligible to serve this would justify a challenge.Appellant respectfully disagrees. African Americans whounequivocally state they do not distrust the judicial system and lawenforcement, despite having experienced racially-motivated traftic

stops, should not be subject to challenge f0r a negative experiencethey did not create but for the color of their skîn.

David Cusic, 4 ART 1053-1062., Angela Harris, 4 ART 1111-1120', Linda Terrell, 4 ART 927-934., Lou Gorham, 4 ART 1094, 1099-1 101, 1113-1116., Charles Itichardson, 5 ART 1394-1395, 1411-1417*,Juror Number 11, 4 ART 1067-1072. Juror Number 4 is AfricanAmerican but was not questioned. However, in his Juror Questionnairehe indicates that African Xmericans are not treated as fairly by 1awenforcement as other persons, but that he still has neutral feelings forlaw enforcement. (7 ACT 2133-2134.)


1. Defense Counsel's First Wheeler/Batson Motion.On December 18, 2002, defense counsel made a

Wheeler/Batson motion after the prosecutor excused two AfricanAmerican jurors, David Cusic and Angela Harris. (1')RT,L4.3;1th'.13.7:)

a. David Cusic.David Cusic was an African American pastor who

stated he had favorable views of Sacramento law enforcement,despite a negative incident with the police. (1 ,WRT,s132ct z o g z >+Appellant concedes the prosecutor stated race neutral reasons forexcusing Cusic, i.e., he was inattentive and slept during part of

jury selection. Nevertheless, the challenge should be taken intoaccount when eonsidering appellant's argument in the cumulative.

b. Angela Harris.Angela Harris was an African American who had

negative law enforcement experience. The prosecutor argued thatHarris' racial profiling experiences made her n0t Otherwise

heterogeneous to others. (5 ART ''12:,42'.) While it is true thatHarris' racial profiling experiences distinguished her from non-

African American jurors, her experiences were indistinguishablefrom African American jurors. As defense cöunsel argued, ifevery African American were excusable based on a bad experiencewith law enforcement, it would be diff cult to tind an AfricanAmerican to sit on a jury. (1 AkT '13j'.) The record reflects thatHarris' bad experience with law enforcement, being subject toracial profiling, is indistinguishable from the group perspective

Wheeler sought to encourage by the cross-section rule. (People v.Wheeler, supra, 11 Cal.3d 258, 276.) t..'r-


The trial court denied defense counsel's

Wheeler/Batson motion.Stated: '-

(5' ART 12,5 3.,) ln doing so, the court

''With respect to Ms . Harris, essentially what thePeople are saying is that there may be . . . an impliedbias on her part against some of the officers from WestSacramento because of things that have happened inher personal life. l kflow she indicated that she statedshe could block that out and decide this case by thefacts presented here and the laws that would instruetthem. ''

(j ART 1252..) This statement illustrates that the trial court did nothave the distinction between specific bias and group bias in mindwhen making its ruling. Defense counsel had earlier pointed out

that negative law enforcemes qxperiences touch the lives of allAfrican Americans. (1 ART 133,,) Thus, these experiences whichsuggest ''an implied bias g1 against .some of the ofticers, '' fall withinthe category of group bias, not specific bias. lf Harris had beenacquainted with any of the law enforcement witnesses, or had she

expressly stated she could not fairly judge the testimony df 1awenforcement, then the use of a peremptory challenge against herwould have been permissible for reasons of specific bias.However, as the trial court pointed out, Harris ''stated she couldblock that out and decide this case by the facts presented here and

!, **the laws that would instruct them. ,'q(5 ART 1252.) -

Here, the presumed group bias that prompted theperemptory challenge against Harris, is indistinguishable from thegroup perspective Wheeler sought to encourage by the cross-section

rule. (1d. at p. 276.) A review of the record reveals that everyAfrican American who made it into the jury panel either

14


experienced or knew other African Americans who had experiencedproblems with law enforcement, and that all indicated they wouldnot favor or disfavor appellant, the parties or any witnesses.6

2. Defense Counsel's Second Wheeler/Batson Motion.Defense counsel renewed their Wheeler/Batson motion

after the prosecutor excused Linda Terrell. (5 ART 1304) 130 8:.-)Only tive African Americans made it past the hardship screening

and the prosecutor had challenged 3 of 5 (60 %). (5 ART 1309*.)Linda Terrell had neutral feelings toward the Sacramento Police

Department, and had prior jury experience where she reached averdict. '-

The prosecutor provided incorrect factual statements insupport of his challenge of Terrell. The Court of Appeal does notfully address the gross misstatements appellant has offered to

support appellant's contention that the prosecutor's justification wasmerely pretextual.

Terrell said, ''someone had made a statement, '' ''it was

mainly one of the jurors who had said something, '' and tinally thatshe thought the jury system - in which she reached a verdict -''worked. '' (R.B 98-99., ARY,931=9j),' emphasis added.)According to the prosecutor:

when there were questions asked of her as to what shemeant by ''try and think hardei, '' her answer was thatthere was a witness, apparently some significanttestimony in that prior trial that she accepted,essentially, at face value, was my interpretation. Andthat seemed to be based on questions l was allowed toask that part of the reason she accepted at face value is

6 see 1. 5 ante.


because there were other members of the jury thatwere sort of strong arming her or a minority group inthe jury. pgsyg yzl /

(5 ART 1,244 , ,,1t3., ,15. , ' .. ) z-'- -The record does not supports these accounts. Terrell

never referred to a witness, a minority group, being strong armed,or regrctting her verdict . (AOB 45.)The prosecutor's incorrectfactual statement supports appellant's argument that the prosecutorwas not credible. (Collins v. Rice (9th Cir. 2003) 348 F.3d 1082,1095.) These statements contradict the record and are evidence ofa pretext for discrimination by the prosecutor. Respondent simplyreiterated the same distorted characterization of Terrell's statementsthat the prosecutor did in the trial court.

'' gWjhen the prosecutor's stated reasons are eitherunsupported by the record, inherently implausible, or both, more isrequired of the trial court than a global tinding that the reasonsappear sufficient.'' (People v. Rqnoso (2003) 31 Cal.4th 903,923, quoting People v. Silva (2001) 25 Ca1.4th 345, 385-386.)Had the trial court made a reasoned attempt to evaluate thegenuineness of the prosecutor's reasons, it would have foundenough contradictions and discrepancies to support a tinding thatthe reasons were both unsupported by the record and inherentlyimplausible in violation of the Equal Protection Clause of theUnited States Constimtion. (Batson v. Kcntucky, supra, 476 U.S.79, 84-89.)

Terrell was unequivocal and any stumbling over thequestions was the result of repeated questioning on the same

subject. The prosecutor acknowledged that he had repeatedly


questioned her on this subject, even going so far as to request aprivate examination of Terrell. (5 ART 1743, 16491) Terrellrepeatedly assured the court and both parties that she would viewthis case fairly, and ''listen to each explanation. '' (4 ART # W.)The prosecutor purported to doubt Terrell's impartiality solelybecause she is African American.

Defense Counsel's Third Wheqlerlnatson Motion.On January 2, 2003, the defense renewed their

Wheeler/Batson motion after the prosecution excused prospective

juror Lou Gorhana.;(5 ART 1:377-,-- 14 17.,)The prosecutor usedperemptory challenges to strike 4 of 6 (66 %) of qualified AfricanAmericans from the venire. (5 ART 1418-1419.) -'

The Court of Appeal upheld the trial court's tindingthat Gorham's belief that African Americans are sometimes treatedas scapegoats was a bona tide and race-neutral reason forexercising a peremptory challenge against Gorham. (Slip Opiniön,p. 24.) The Court of Appeal does not address appellant's argumentthat the trial court apparently considered itself bound to accept theprosecutor's explanations at face value. ln response to theprosecutor's proffered race-neutral explanation the trial court

stated, ''if gGorhaml did make a statement as the People haveindicated with respect to the scapegoating of African-Americans,the treatment of African-Americans l find that those are raceneutral explanations . ''(5 ART 743$.) The trial couyt's readiness

7 The prosecutor had just used Gorham as a justitkation forchallenging Linda Terrell: ''And rather than saying the same thing thatMr. Goram (ph.) and others have said -- that's an independent situation-- she said I don't know what the facts of this are. '' (5 ART 1315.)


to accept the prosecutor's scapegoat reasonpretextual timing but the other reasons rendering it implausible. ''

(Miller-El v. Dretke, supra, 125 S.Ct. 2317, 2328.) Moreover,Gorham's feelings as to the treatment of African Americans insociety does not constitute a ''specific bias'' - i.e., a reason relatedto the particular case, the parties or witnesses. (People v. Wheeler,supra, 11 Ca1.3d 258, 276.) .

The record undermines the prosecutor's reasons for

''ignores not only its

challenging Gorham, thereby exposing them as pretexts fordiscrimination. (Mclain v. Prunty (9th Cir. 2000) 217 F.3d 1209,1221 g'dWhere the facts in the record are objectively contrary to theprosecutor's statements, serious questions

prosecutor's reasons

raised. ''1 .)the trial court he did not plan to challenge

about the legitimacyfor exercising peremptory challenges are

At the first BatsonfWheeler motion the prosecutor toldGorham (5 ART /1241*

@ 1242-), then at the second motion he highlighted Gorham in order tojustify his challenge against Terrell (5 ART 13, ,(t1.,'JQ . , and finally atthe third motion Gorham was challenged because the prosecutor

of a

was concerned over Gorham's ability to be fair and impartial (5ART f'if' j'Xt Nothing transpired which should have changed theprosecutor's feelings towards Gorham. lt is therefore likely thatthe prosecutor, as defense counsel argued, challenged Gorham

because another African-Ameriean juror was to enter the box,n t '*

Charles Richardson. y yW,e#F M 'C'J'This Court should reject rêjptmdbtft7t! argument that

nothing in the record indicates the trial court failed to evaluate theprosecutor's credibility. (R.B 1 18-119.) The record belies this


conclusion. The only way to evaluate the prosecutor'sinconsistency in describing Gorham as a positive and then later as a

negative juror would be to question the prosecutor. This isespecially true when considering Gorham's scapegoat conzmentpreceded the prosecutor's justification of excusing Terrell becauseshe was unlike Gorham. Defense counsel's arguments requiredadditional explanation by the prosecutor or probing by the court.'' 'lrlnlhe inadequacy of the prosecutor's reasons was compounded bythe (trial) court's apparent acceptance of those reasons at facevalue.' (42 Ca1.3d at p. 727.) tln each instance the court listenedto the prosecutor without question and promptly denied the motion

without colnment.' '' (People p. Allen (2004) 115 Cal.App.4th 542,

553.) 4v/#The Court of Appeal agreed withf retpùhdèil'f that a

trial court is not required to make explicit and detailed findings forthe record, but acknowledged that formal findings are required if

justitications are contradicted by the record or inllerentlyimplausible (Slip Opinion, p. 17), which is precisely what appellantcontends has occurred in this case. ''The Batson framework isdesigned to produce actual answers to suspicions and inferencesthat discrimination may have infected the jury selection process. ''(Johnson v. Calfornia (2005) 545 U.S . 162 (125 S .Ct. 2410,2418, 162 L.Ed.2d 1291.) Defense counsel voiced his suspicionsby pointing out the prosecutor's contradiction and yet the trial courtmade no inquiry. This constitutes reversible errorï

According to respondent, '' gtqhe prosecutor's concernswere not based on race. '' (RB 125.) This statement is patently


false. Appellant has provided specific examples of the prosecutor'squestions and disparate treatment according to race. There can beno doubt but that the prosecutor believed African-Americans mayplace him at a disadvantage based on their shared groupmembership with appellant.

The trial court found that a prima face case wasestablished but denied the motion, despite finding that Gorham had''unequivocally and absolutely stated that he would follow al1 of therules of the Court. He would comply with the letter of the law.That he would block out the negative experience. '' (2 CT 483,* 5

, ' . ..

ART 1tj4-1k1$ The trial court stated, ''if (Gorhamq did make astatement as the People have indicated with respect to thescapegoating of African-Americans, the treatment of African-Americans I tind that those are race neutral explanations . '' (5 ART1438 .) Noticeably absent from the trial court's factualdeterminatiqns is defense counsel's primary contention that theprosecutor had used Gorham as a justitication for removing LindaTerrell. - é'y *2 # '

a. Gorham's Belief ln The Scapegoating Of AfricanAmericans Constitutes Group Bias, Not Specific Bias.

Peremptory challenges may be used to remove jurorswho harbor a specific bias, not a group bias. (People v. Wheeler,supra, 11 Cal.3d 258, 274.) The trial court accepted Gorham'sbelief regarding the treatment Of Agican Americans as scapegoatsby American society as a race neutral justitication for exercising astrike. However, not only was this justitication implausible in lightof the prosecutor's earlier characterization of Gorham as a


noteworthy juror (5 ART 13+5,), appellant contends Gorham'sbelief regarding the treatment of African Americans as scapegoats

is not a race neutral justification. Instead, it is a belief held bymost members of the African American colnmunity, not a speciticbias -- i.e., a reason related to the particular case, the parties or

* .-witnesses. (People v. Wheeler, supra, 11 Cal.3d 258, 276.) z z

The Wheeler court explained the rationale behind the

right to an impartial jury drawn from a cross-section of thecommunity: ''(1)t is unrealistic to expect jurors to be devoid ofopinions, preconceptions, or even deep-rooted biases derived fromtheir life experiences in such groups; and hence that the onlypractical way to achieve an overall impartiality is to encourage the

representation of a variety of such groups on the jury so that therespective biases of their members, to the extent they areantagonistic, will tend to cancel each other out. '' (1d. at p. 266-267.)

The record shows that Gorham's fear that AfricanAmericans are often blamed for the problems in American societydid not bias him in favor of appellant. When asked whether hisdetermination of the guilt or innocence of appellant would beaffected by his belief that African Americans are treated unfairly,

he replied unequivocally that it would not. (4 ART'''1115>111&) 'The trial court did not have the distinction between specitic biasand group bias in mind when it made its nlling. Otherwise it

would not have accepted the prosecutor's scapegoat justitication astral explanation felevant to appellant's case. . &z- X 'a neu

Defense Counsel's Fourth Wheeler/Batson Motion.


Defense counsel made a Wheeler/Batson motion after

the prosecution challenged prospective African American jurorCharles Richardson. (2 CT 484*, 5 ART 1460'.) Defense counselpointed out that the prosecutor used peremptory challenges to strike5 of 7 (71 %) of qualified African Americans from the venire, andagain argued that negative law enforcement experience was

insufficient by itself to justify challenging African Americansbecause ''any African-American we get up in the box is going tohave either personally some bad experience with law enforcementor know others who have had bad experience with law

'' 5 ART 1460-1461 .) -2 c -enforcement. (Charles Richardson believed that African Americans

were treated unfairly and are judged by their skin color. He hadexperience with racially-based traffic stops and was once pulledover at gunpoint. He assured he could set aside those experiencesand be fair. (5 ART 1460-1461'.) .

Appellant concedes the prosecutor stated race neutralreasons for excusing Cusic, his brother had a rape casepending in the prosecutor's oftice. Nevertheless, the challengeshould be taken into account when considering appellant's argumentin the cumulative.

5. Conclusion.Appellant rebutted the presumption that the prosecutor

challenged African-American prospective jurors in a constitutionalmanner by establishing a prima facie case four times. ln

determining pulposeful discrimination, '' (tlhe whole may be greaterthan the sum of its parts. '' (Caldwell p. Maloney (1st Cir. 1998)


159 F.3d 639, 651.) Appellant prays this Court reverse hisconvictions so that he may be tried by a jury that was not tainted bydiscrimination in the jury selection process.

ln this case, there is an undeniable inconsistency intreatment on the basis of race. The record does not suggest grounds

for the prosecutor to have reasonably challenged these jurors. Solong as the prosecutor used race as a factor in exercising peremptorychallenges, the other factors that influenced his decision becomeirrelevant. ''glkjeversal is required under the Wheeler rule even ifonly one prospective juror is improperly struck on discriminatorygrounds. (Citations.l The same is true under the Batson r'ule: &weemphasize that under Batson, the striking of a single black juror forracial reasons violates the equal protection clause, even though otherblack jurors are seated, and even when there are valid reasons for thestriking of some black jurors. ' (Citations.q'' (People v. Johnson(1989) 47 Cal.3d 1 194, 1295, Justice Mosk dissenting.)

The prosecutor's use of peremptory challenges was basedon the consideration of impermissible factors. He assumed thatAfrican American jurors as a group were unable to impartiallyconsider the State's case against appellant in violation of the Equal

Protection Clause of the United States Constimtion. (Batson v.Kentucky, supra, 476 U.S. 79, 80.) ''Under article 1, section 16 ofthe California Constimtion, a defendant's right to trial by arepresentative jury is violated by the use of peremptory challenges toexclude jurors solely On the basis of group bias. gcitations.) ''(People v. Allen, supra, 115 Cal.App.4th 542, 547.) Reversal istherefore required.


11

THE TRIAL COURT ERRED INDENYING THE MOTIONS TO DISMISS

THE JURY PANEL DUE TO THE PRUSECUTOR'SUSE OF PEREMPTORY CHALLENGES BASED ON APRESUMED GROUP BIAS AGAINST DAVID CUSI S,CANGELA HARRIS: LINDA TERRELLSLOU GORHAM,AND CHARLES RICHARDSONUIN VIOLATION OFTHE EQUAL PROTECTION CLAUSE OF THEUNITED STATES CONSTITUTION REQUIRING

A REVERSAL OF THE CONVICTIONSThe Court of Appeal did not address this issue because

it determined appellant had failed to establish the trial court erred

in sustaining the prosecutor's challenges. (Slip Opinion, p. 26.)The Prosecutor's Ouestions And Challenges During

Voir Dire Harmed African American Prospective Jurors.''gWlhether eounsel knows it or not, when he rises to

make a Wheeler-Batson objection during voir dire examination, hespeaks not only on behalf of his client, but he speaks on behalf ofthose jurors who may be excluded iom the jury for racial reasonsas well as the community, if his objection is not resolved in themanner required by law. '' (People v. Morris (2003) 107Cal.App.4th 402, 411, quoting People v. Tapia (1994) 25Ca1.App.4th 984, 1029.)

The Wheeler court recognized that exclusion Of a jurorsolely because of their group membership injures n0t Only thedefendant, but also the jury system, the law as an instimtion, thecornmunity, and the democratic ideal reflected in our court system.

(People v. Wheeler, supra, 11 Cal.3d 258, 268-269.) '' trrhe veryfact that rmembers of a particular raceq are singled out and


expressly denied .

the law, as jurors,and may be in other

. . al1 right to participate in the administration ofbecause of their color, though they are citizens,respects fully qualitied, is practically a brand

upon them, aftixed by the law, an assertion of their inferiority, and

a stimulant to that race prejudice which is an impediment tosecuring to individuals of the race that equal justice which the lawaims to secure to a11 others.' Strauder, supra, 100 U.S . at 308 . ''

(Powers p. Ohio (1991) 499 U.S. 400, 408 g111 S.Ct. 1364, 1 13L.Ed,2d 411) .)

Appellant has standing to raise equal protection claimson behalf of David Cusic, Angela Harris, Linda Terrell, LouGorham, and Charles Richardson, because he can satisfy the threecriteria enumerated in Powers p. Ohio, supra, 499 U.S. 400, 401.ln Powers, the court provided three criteria that must be satistied inorder to raise a claim on behalf of third parties: ''the litigant must

have suffered an çinjury in facty' thus giving him or her aGsufticiently concrete interest' in the outcome of the issue indispute, (citationl; the litigant must have a close relation to thethird party, gcitationj; and there must exist some hindrance to thethird party's ability to protect his or her own interests. '' (People v.Morris, supra, 107 Ca1.App.4th 402, 412, quoting Powcrs v. Ohio,

supra, 499 U.S. 400, 411 .)Applying the three criteria to appellant's case, all three

are satisfied. First, appellant has suffered ''injury in fact, '' becausethe prosecutor excluded jurors at his trial on account of race.Second, because both appellant and the excluded jurors share acommon interest in eliminating racial discrimination, appellant


satisties the second criterion. Lastly, the third criterion is satisfied

because ''the barriers to a suit by an excluded juror are daunting, ''and ''potential jurors are not parties to the jury selection processand have no opportunity to be heard at the time of the exclusion. ''

(Powers v. Ohio, supra, 499 U.S. 400, 414.)The African Americans who appeared for jury duty in

this case were subjected to racial discrimination by the prosecutor.The manner in which the prosecutor questioned these prospective

jurors was discriminatory. The prosecutor questioned all but oneAfrican American as to whether they would be biased in favor ofappellant merely because they were also African American.Despite consistent assurances that they would not favor appellant, itis obvious that the prosecutor continued to presume they would be

biased in favor of appellant.Linda Terrell did n0t request to be questioned outside

the presence of other prospective jurors. lt was the prosecutor whoasked the court to question Terrell in private regarding herresponse to the treatment of African Americans. (4 XVT' 92 $.)The prosecutor also denied Terrell the opportunity to speak in open

court about her feelings on this subject. By questioning herprivately, the prosecutor prevented other jurors from noticing thecumulative manner in which she was questioned regaréing herability to be fair to the State's prosecution of appellant. As a

rejult, Terrell was the only prospective juror privy to thisredundancy . d,-r'r -W'

Frustration can be found in the record of LouGorham's testimony.When asked to explain his th/ughts regarding


Question 41, and whether he could put those feelings aside anddecide the case independently, Gorham responded, ''l didn't answerthe question like that to make a statement with that. Yes, I could. ''

He later added:''1'm black and l see what goes on in theneighborhoods and l read the newspapers, you krlow,you go to jail, and who's there? lt's all black people.And l'm afraid that everybody is just considering themas being, you know, the scapegoat for a 1ot of things.lt's a personal opinion, okay, 1 thirlk that quite possibleon the lower economic side of it that, yes, there maybe more crimes that are done by black people, but l dothirlk that they are scrutinized a little bit more than,say, an average white person. ''

' (4 XRT 111j.) Finally,f 'to whether he would

in response to the prosecutor's question as''do my best to sort of compensate for that,''

Gorham responded, ''No, I answered thequestion the way thequestion was asked. '' He most certainly did. Questions 40 and 41asked prospective jurors for their thoughts regarding the treatmentof African Americans. Gorham's response was not unlike most of

the sworn white jurors.this subject prevented African American and white prospectivejurors from realizing that many of them shared similar views. -

''Racial discrimination in the selection of jurors harmsnot only the accused whose life or liberty they are summoned totry, but also tthe excluded juror.' '' (Holland v. Illinois (1990) 493

474, 507 (110 S.Ct. 803, 107 L.Ed.2d 9051, quoting Batsonv. Kentucky, supra, 476 U.S. 79, 87.) The prosecutor excludedthese African Americans because of their group membership, andhis line of questioning likely made them aware of this calamity;

The lack of questioning to white jurors on


they were presumed untrustworthy to impartially consider theState's case against appellant merely because of the color of their

skin.Reversal is required because appellant's jury was

improperly constituted based on the improper exclusion of AfricanAmericans in violation Of the Equal Protection Clause of the United

States Constitution.


PROOF OF SERWCE BY MAIL

BY PERSON IN STATE CUSTODY-

(fud. R. civ. P. 5., 2à u-s-c. j 1746)

X àzzv' ,'- .-*,, .-zz' declare:1, , // - o ,z?- ze- o-z-m' . '',z,w jI am over 1 B years of agt and a part)z to this action. I am a resident of Z' ,

-. zol 4g# . '

in the county of -.;' z-'e py ' ) A.?'I 7 g g g.- .State of Califomim My prison address is:

t .on zmxyz fr ,v/

1 served the attached: ' AJ> zlzz7 zxz ,'

on the pvies herein by placing true atld correc! copies thereyt enclosed in a sealed envelope, withpostage thereon fully paid, in oe united states Mail in a dçpèsit box so provided at the above-named

correctional institution in which I am presently confineè. ne envrlope was addr:ssed as follows:v? zz xw z y ' .

?, -' ' ' , - . - f.f k./f,wW ( z/'ze'v.'/ - .W'rr zzz.'o 4 A,,: ,J, zl zz>zz - . o . z,., zqflsv -- - - ., - - zwz . . K.g - , ppy - -

' l declare under penalty of perjury under the laws of the United States of America that the forgoingis true and correct. -

' QExtçuttd on J' .o / z. - -

. ' î r-ie-' IDATEI (DECLARANYS SIGNATURE)


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