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May 3, 2016
  Shirley v. Yates - Ninth Circuit
Headline: The Ninth Circuit panel elaborates on Batson's three-step burden-shifting framework for evaluating claims of discriminatory peremptory strikes and clarifies the requisite burdens that must be met for Step Two and Step Three in a narrow set of Batson cases in which the prosecutor cannot actually remember the reason why he struck the veniremembers..

Areas of Law: Criminal and Constitutional Law

Issues Presented: Whether the California Court of Appeal erred in applying the People v. Box, 23 Cal. 4th 1153, 1188 (2000) standard to Batson Step One.

In cases where the prosecutor cannot actually remember the reasons he struck veniremembers, when will circumstantial evidence consisting of the prosecutor's testimony both to his general jury selection approach and that he is confident one of these race-neutral preferences was the actual reason for the strike be sufficient to overcome a prima facie case of discrimination.

Brief Summary: Following convictions for first-degree burglary of an unoccupied residence and second-degree robbery of a sandwich shop, the Ninth Circuit panel reversed the district court's denial of defendant's habeas corpus petition made pursuant to Batson. The panel held that, because the California Court of Appeal acted contrary to clearly established law when it based its Batson Step One prima facie analysis on an erroneous standard, it was appropriate for the district court to determine de novo whether the defendant had raised an inference of racial bias. The Ninth Circuit panel agreed with the district court that the defendant raised an inference of discrimination sufficient to meet the defendant's burden at Batson Step One. The panel then turned to Steps Two and Three, addressing the narrow set of cases where the prosecutor cannot remember the reason why he struck veniremembers, and held that, if the prosecutor testifies both to his general jury selection approach and is confident that these race-neutral preferences were the actual reason for the strike, then the state met its burden under Batson Step Two. However, the panel also held that "this evidence alone will seldom be enough at Step Three to overcome a prima facie case unless the prosecutor has a regular practice of striking veniremembers who possess an objective characteristic that may be clearly defined. Accordingly, the panel found that the district court clearly erred in denying the defendant's claim because the district court did not determine whether the prosecutor had offered circumstantial evidence sufficient to support the inference that he actually struck R.O. for the reason proffered. In a case where the prosecutor does not recall his actual reason for striking the juror in question, a prosecutor's stated vague approach to jury selection provides little or no probative support for a conclusion at Batson Step Three that the peremptory strike was for the reason he proffered. The panel concluded that the defendant's prima facie case was sufficient to carry his burden of showing by a preponderance of the evidence that the strike of R.O. was motivated in substantial part by race.

Significance: The panel weighed in on the issue, hitherto unaddressed by the Ninth Circuit, whether a list of standard considerations, absent affirmative evidence that they were used in the particular case in question, is competent evidence of a prosecutor's actual reasons for striking certain jurors. The panel elaborates held that Batson's Step Two is met in the narrow set of cases where: (1) the prosecutor does not actually remember why a veniremember was peremptorily struck and (2) the prosecutor testifies both to his general jury selection approach and that he is confident that one of these race-neutral preferences was the actual reason for the peremptory strike. The panel further held that such evidence, while sufficient for Step Two, is ordinarily insufficient for Step Three, unless the prosecutor has a regular practice of striking veniremembers who possess a clearly defined objective characteristic.

Extended Summary: Darryl Shirley (Shirley) was indicted of the first-degree burglary of an unoccupied residence and the second-degree robbery of a sandwich shop; in both instances, nobody was harmed and no weapons were involved.

In California superior court, a sixty-person venire was empanelled and sworn; five of the veniremembers were black, as is Shirley. Of those five veniremembers, only one was seated on the jury. Of the four veniremembers who were dismissed, two were dismissed for cause and two, L.L. and R.O., were peremptorily struck by the state. After R.O. was peremptorily struck, Shirley made a motion pursuant to Batson, on grounds that the peremptory strikes of L.L. and R.O. were racially discriminatory.

Under Batson's three-step burden-shifting framework for evaluating claims of discriminatory peremptory strikes, (1) the defendant first bears the burden to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred (Johnson v. California, 545 U.S. 162, 170 (2005)); (2) once the defendant makes a prima facie case, "the burden shifts to the State to explain adequately the racial exclusion by offering a permissible race-neutral justification for the strikes"; and (3) "f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." The motion was denied on the ground that Shirley had failed to raise a prima facie case.

Following a conviction for both crimes, Shirley was sentenced to two consecutive twenty-five-years-to-life prison terms and four consecutive five-year sentence enhancements based on previous convictions. On appeal, the California court of appeal affirmed the California superior court citing Box, 23 Cal. 4th at 1188, on grounds that, "when the record 'suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.'" The California court of appeal concluded that: (1) L.L.'s prior misdemeanor conviction for fraud and possible familiarity with Shirley and one of Shirley's relatives were two race-neutral reasons for dismissing L.L. and (2) R.O.'s "age and corresponding lack of experience" was a legitimate race-neutral reason for striking her.

Shirley then filed a federal habeas corpus petition in federal district court pursuant to Batson. The district court held that the California court of appeal acted contrary to clearly established Supreme Court precedent by finding, on the basis of speculation about possible race-neutral reasons for exercising peremptory strikes, that Shirley failed to raise an inference of discrimination and thereby failed to raise a prima facie case. On review de novo, the district court found that Shirley satisfied Batson Step One by showing that two out of three eligible black veniremembers were peremptorily struck and that R.O. was similar to a white veniremember who was seated and ordered an evidentiary hearing on the prosecutor's reasons for exercising the challenged peremptory strikes.

At the evidentiary hearing and upon review of the voir dire transcript, the prosecutor testified that he did not recall the specific reasons for the peremptory strikes as to L.L. and R.O. and that, although he took contemporaneous notes during voir dire, those notes were not kept and the prosecution's case file was no longer available. Although the prosecutor could not recall the exact reasons for the peremptory strikes as to L.L. and R.O., the prosecutor testified that he had a general set of criteria that he looked for in a prospective juror and that: (1) L.L. was peremptorily struck due to L.L.'s statement that Shirley looked familiar to her, L.L. had recently met and was considering doing business with an individual who may have been related to Shirley, and L.L. had been convicted of a crime as an adult and (2) R.O. was peremptorily struck because R.O. lacked the requisite "life experience."

After the evidentiary hearing, the district court found that the prosecutor's testimony was insufficient to satisfy the state's burden of production under Step Two because there must be proof of actual reasons and the court cannot infer those reasons from general practices and apply it to a particular case. Nevertheless, the district court judge concluded that: (1) L.L.'s removal from the venire was entirely reasonable because even without the misdemeanor conviction for a dishonesty-related offense, "a prosecutor would be very likely to strike somebody who might have recognized the defendant and might be doing business with a relative of his" and (2) R.O.'s removal from the venire was "very close," but he could "sort of see prosecutors wanting somebody who has got an education." On those grounds, the district court denied relief to Shirley and Shirley appealed.

On appeal, the Ninth Circuit panel agreed with the district court and held that Shirley satisfied Step One on grounds that under Johnson, 545 U.S. at 166-67, a defendant makes out a prima facie case if he produces evidence sufficient to support a "reasonable inference" of discrimination. Thus, not only was the California court of appeal's reliance on Box improper, since Box relied on the discredited pre-Johnson standard, but the fact that the prosecutor peremptorily struck all or most veniremembers of the defendant's race was sufficient to make a prima facie case at Step One. The panel also found support for Shirley's prima facie case in the fact that Juror Number 3 and R.O. were sufficiently similar, excluding race, to support an inference of discrimination at Step One.

As to Batson Step two, the panel ruled that the state must both: "(1) assert that specific, race-neutral reasons were the actual reasons for the challenged strikes, and (2) offer some evidence which, if credible, would support the conclusion that those reasons were the actual reasons for the strikes." However, to satisfy Step Two, the state's race-neutral reason need not be "persuasive, or even plausible," to suffice because whether the evidence in support of the reason is credible is to be determined at Batson Step Three.

After noting that voir dire transcripts may be relevant to the Batson Step Two inquiry in three different ways, the panel held that Shirley's case fell into the category where the prosecutor reviews the voir dire transcript but remains unable to remember the reasons for striking the particular veniremembers at issue. In such a situation, the prosecutor may infer reasons from the transcript and assert them, but any such assertions must be supported by circumstantial evidence, such as the prosecutor's jury selection notes or the prosecutor's usual practices or approach to jury selection, that tends to show that the asserted reasons were in fact the actual reasons for the peremptory strike. In Shirley's case, the prosecutor's testimony was sufficient to meet the state's burden of production at Step Two because the prosecutor credibly testified to a jury selection approach that supported his asserted reasons for the challenged peremptory strikes and nothing more was required at Step Two.

As to Batson Step Three, the panel held that the district court clearly erred in denying Shirley's Batson claim regarding R.O. largely on the basis of a comparative juror analysis of Juror Number 3. According to the panel, the ultimate question in Batson cases is "whether the defendant has proven purposeful discrimination."

In Shirley's case, the district court found that the prosecutor's testimony was not probative of the actual reasons for the peremptory strike of R.O. The district court concluded that, in light of the comparative juror analysis between R.O. and Juror Number 3, the purpose of which is to test for consistency, a challenge to R.O. could have been reasonable. Therefore, no Batson violation had occurred because it was plausible that prosecutors would want someone who had a college education. Thus, the district court did not find that the prosecutor actually peremptorily struck R.O. for R.O.'s lack of a college education.

The panel reversed the district court finding clear error in the court's failure to assess whether the prosecutor's proffered circumstantial evidence supported the conclusion that his asserted race-neutral reason was the actual reason for striking R.O. The panel reasoned that where the prosecutor's testimony established that he may have considered "life experience" in deciding whether to strike R.O. and not that he actually based his decision on that ground, provided scant support for the prosecutor's assertion that the lack of "life experience" was the actual reason for striking R.O. Based on the prosecutor's testimony, the panel found that the prosecutor's "vague, general preference - as opposed to a regular practice of striking veniremembers for a specific reason - constituted at most an inclination towards jurors with highly indefinite attributes or qualities." On these grounds, the panel held that, where the prosecutor does not recall the actual reason for peremptorily striking a challenged juror, a vague approach to jury selection provides little or no probative support for a conclusion at Batson Step Three that the peremptory strike was issued for the proffered reason. Therefore, without sufficient circumstantial evidence to support the peremptory strike, Shirley's evidence was sufficient to carry Shirley's burden of showing that the strike of R.O. was motivated in substantial part by race.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/11/20/13-16273.pdf

Panel: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt and Morgan Christen, Circuit Judges.

Argument Date: November 20, 2014

Date of Issued Opinion: November 20, 2015; amended March 21, 2016.

Docket Number: 13-55484

Decided: Reversed the District Court's decision and remanded with instructions to grant the writ of habeas corpus, unless the State of California elects to retry Shirley within a reasonable amount of time.

Case Alert Author: Ryan Arakawa

Counsel:
Jennifer M. Sheetz (argued), Mill Valley, CA, for Petitioner-Appellant.

Barton Bowers (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Michael A. Canzoneri, Supervising Deputy Attorney General, Sacramento, CA, for Respondents-Appellees.

Author of Opinion: Judge Reinhardt

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:21 PM     9th Circuit  

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