Petition for Writ of Certiorari — Anthony Dajuan Yates, Petitioner v. California

No. _________

In the

Supreme Court of the United States

October Term: _________

ANTHONY DAJUAN YATES,

Petitioner,

v.

THE STATE OF CALIFORNIA,

Respondent.

______________________________

On Petition For a Writ of Certiorari

To The Court of Appeal Of The

State of California, Fifth Appellate District

______________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________

PAUL KLEVEN (CA State Bar No: 95338)

LAW OFFICE OF PAUL KLEVEN

1604 Solano Avenue

Berkeley, CA 94707

(510) 528-7347 Telephone

Counsel for Petitioner

QUESTION PRESENTED

I.

Does a prosecutor’s peremptory challenge of a

prospective African-American juror based on the

juror ’s perception of racial profiling by law

enforcement in his community, or on his efforts to

reduce that racial profiling, constitute a “raceneutral” explanation for striking the juror, or does it

violate the equal protection rights of the juror and of

the African-American defendant?

II.

Does a prosecutor’s peremptory challenge based on

negative encounters with law enforcement,

particularly those involving racial profiling, violate

the Equal Protection Clause because it will inevitably

have a disparate impact on prospective minority

jurors?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI.. . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A.

Facts Underlying Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B.

Facts Pertaining to Batson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.

The Prosecutor Used Three of her Eight Peremptory

Challenges to Strike All Three of the African-American

Prospective Jurors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2.

After the Trial Court Found that Petitioner had Made a

Prima Facie Showing of Discriminatory Purpose, the

Prosecutor Identified Purportedly “Race-Neutral”

Explanations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3.

The Trial Court Found No Discriminatory Purpose After

Misstating Evidence Regarding Racial Profiling. . . . . . 8

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I.

This Court Should Grant Certiorari to Determine Whether a

Perception that Racial Profiling by Law Enforcement Exists,

or Efforts to Reduce Racial Profiling, is a Legitimate

Explanation for Striking a Prospective Minority Juror under

Batson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A.

The Burden of Establishing Purposeful Discrimination

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B.

Unquestioning Acceptance of “Race-Neutral”

Explanations at Second Batson Step is Undermining the

Equal Protection Clause.. . . . . . . . . . . . . . . . . . . . . . . . . 14

C.

A Negative Experience with Law Enforcement,

including Racial Profiling, Cannot Be Considered a Race

Neutral Factor Given the Inevitably Disparate Impact It

Has on Prospective Minority Jurors. . . . . . . . . . . . . . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

INDEX TO APPENDICES

APPENDIX A

October 22, 2018 Opinion, Fifth Appellate District

Court of Appeal, State of California

APPENDIX B

Volume 4, Reporter’s Transcript on Appeal, at

pages 421-423, Denying Batson Motion, Superior

Court, Kern County, State of California

APPENDIX C

February 13, 2019 Order Denying Petition for

Review, Supreme Court, State of California

iv

TABLE OF AUTHORITIES

CASES:

Batson v. Kentucky

(1986) 476 U.S. 79.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-17

Felkner v. Jackson

567 U.S. 594 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 15

Hernandez v. New York

500 U.S. 352 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17, 19-21

J.E.B. v. Alabama ex rel. T.B.

511 U.S. 127 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Johnson v. California

545 U.S. 162 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Miller-El v. Dretke

545 U.S. 231, 247 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13, 14

People v. Buza

4 Cal.5th 658 (Liu, J., dissenting)(2018). . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Randall

671 N.E.2d 60 (Ill.App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Purkett v. Elem

514 U.S. 765 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Renico v. Lett

559 U.S. 766 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Snyder v. Louisiana

552 U.S. 472 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Strauder v. West Virginia

100 U.S. 303 (1880). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

v

Swain v. Alabama

380 U.S. 202 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

United States v. Brooks

2 F.3d 838 (8th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Gooch

665 F.3d 1318 (D.C. Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Leviner

31 F.Supp.2d 23, fn. 26 (D. Mass. 1998). . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Monell

801 F.3d 34 (1st Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES:

United States Constitution, 14th Amendment. . . . . . . . . . . . 2, 9, 11, 12, 14, 19

28 U.S.C. § 1257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

California Penal Code § 4573.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

vi

OTHER AUTHORITIES:

Anna Roberts, Disparately Seeking Jurors: Disparate Impact and the

Misuse of Batson, 45 U.C. Davis L. Rev. 1359, 1363 (2012.). . . . . . . . . . . . 20

Devon W. Carbado, From Stopping Black People to Killing Black People:

The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125

(2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Elisabeth Semel, Batson and the Discriminatory Use of Peremptory

Challenges in the 21st Century, Chapter 4 in Jurywork: Systematic

Techniques § 4.35, p. 325 (NJP Consulting, Thompson Reuters 2018-2019

ed.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection, A

Continuing Legacy (Aug 2010) https://eji.org/sites/default/

files/illegal-racial-discrimination-in-jury- selection.pdf. . . . . . . . . . . . . 9, 18

Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare

More than the Unapologetically Bigoted or Painfully Unimaginative

Attorney, 96 Cornell L. Rev. 1075 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Nancy S. Marder, Batson v. Kentucky. Reflections Inspired by a Podcast,

105 Ky. L.J. 621 (2016-2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sheri Lyyn Johnson, Batson from the Very Bottom of the Well: Critical

Race Theory and the Supreme Court’s Peremptory Challenge

Jurisprudence, 12 Ohio St. J. Crim. Law 71, 88 (2014). . . . . . . . . . . . . . . . . 15

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Anthony Yates respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the Fifth Appellate District

Court of Appeal for the State of California, entered and filed in the above

proceedings on October 22, 2018.

OPINIONS BELOW

The opinion of the Fifth Appellate District Court of Appeal for the

State of California appears at Appendix A to the petition and is

unpublished. The opinion of the Kern County Superior Court appear at

Appendix B to the petition and is unpublished. The order of the California

Supreme Court denying a petition for review appears at Appendix C to the

petition and is unpublished.

JURISDICTION

The Fifth Appellate District Court of Appeal for the State of

California decided this case on October 22, 2018. A copy of that decision

appears at Appendix A. A timely petition for review to the California

Supreme Court was thereafter denied on February 13, 2019. A copy of the

order denying that petition appears at Appendix C.

This Court’s jurisdiction is invoked under 28 U.S.C. section 1257.

1

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the United States and subject to

the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

The Kern County District Attorney alleged that appellant Anthony D.

Yates possessed marijuana within a state prison in violation of California

Penal Code section 4573.6. Clerk’s Transcript on Appeal (“CT”) 47-48.

During jury selection, Yates objected that the prosecutor’s use of

peremptory challenges to strike all three African-American potential jurors

violated his constitutional rights, but the trial court denied the motion after

finding Yates had established a prima facie case of discrimination. CT 144;

Volume 4, Augmented Reporter’s Transcript on Appeal (“4-ART”) 421-423;

Appendix B. A jury subsequently found Yates guilty of possessing

marijuana in prison, CT 222, 226; 4RT 635-637, and the court found he had

suffered a prior strike conviction under California law. CT 227; 4 RT 641.

On April 18, 2016, the court sentenced Yates to the low term of four

years, plus a consecutive one-year sentence in another case, for a total

2

sentence of five years to be served consecutively to sentences he was already

serving. CT 256-258; 4 RT 645-646.

The Fifth Appellate District Court of Appeal affirmed the conviction in

an unpublished decision, Appendix A, and the California Supreme Court

denied review on February 13, 2019. Appendix C.

STATEMENT OF FACTS

A.

Facts Underlying Offense

During a strip search following inmate Yates’s return from the Kern

Valley State Prison visiting area, correctional officers discovered he had a

black bindle secreted on his person. 2-RT 160-162, 164, 174-175, 178, 198;

3-RT 370-372, 377-380. The loose, green leafy substance discovered inside

the bindle turned out to be 63.62 grams of marijuana, a Schedule I

controlled substance. 2-RT 255, 269-272.

B.

Facts Pertaining to Batson

1.

The Prosecutor Used Three of her Eight

Peremptory Challenges to Strike All Three of the

African-American Prospective Jurors

When the case against Yates came to trial, potential juror C.H. was

one of the original group of 18 prospective jurors. 3-ART 107-110. C.H. is

an instructional aide with special needs kids for the Kern County

Superintendent of Schools, and his wife is a record keeper at the Wasco

3

State Prison. 3-ART 127. C.H. had a negative encounter with a deputy who

mistook him for his brother “because we look similar.” 4-ART 243-244.

The incident had occurred 15-20 years ago and became a positive experience

because C.H. subsequently became very good friends with the deputy, and

“it opened up some doors” for dialogue regarding problems young AfricanAmerican males were encountering in Wasco. 4-ART 243-247.

Deputies were stopping the young men for no reason, but C.H. was

able to sit down with the deputies and get them “to really look at the way

they were going about some things and, you know, to really get them to look

at it differently.” 4-ART 245. The sheriff’s department changed and the

deputies themselves changed “after we started having some dialogue”

involving them and a coalition of church and community leaders that

“opened up a real – a real conversation.” 4-ART 245-246. The goal was to

get the deputies to not be so hard on the young African-American males,

and “some things really got taken care of” after deputies came to the

churches and “talk[ed] to some of the kids .... They were more seen, they

were more out in the public.” 4-ART 247. This went on for approximately 5

years, and the deputies involved had all retired. 4-ART 246-247.

After the prosecutor challenged three jurors and the defense two, six

new potential jurors were called, with K.F. among them. 3-ART 260-261.

K.F. was upset about her son’s drug conviction and believed officers could

4

lie, but answered “Oh, yes, most definitely” when asked if law enforcement

could also tell the truth. 4-ART 273, 304. She answered repeated questions

about what she considered her son’s unfair treatment, but said nothing

whatsoever about racial profiling. 4-ART 273, 278-279, 284, 327-328.

Following additional voir dire of the new potential jurors, the defense

challenged another juror, and the prosecutor then struck C.H. with her

fourth peremptory challenge. 3-ART 335. After each side struck one more

juror, defense counsel indicated he was satisfied with the panel, but the

prosecutor immediately used her sixth peremptory challenge to strike K.F.

3-ART 335-336, 409.

L.P. was among the group of six new potential jurors called up after

the prosecutor struck K.F. 3-ART 336. When asked about contact with law

enforcement that might affect her 4-ART 341, L.P. said police officers in two

instances failed to help her even after she explained she was a recent rape

victim. 4-ART 388-389. Her first negative encounter with law enforcement

occurred at a checkpoint where her car was impounded due to her friend’s

licensing issues 4-ART 388, while her second occurred after she was pulled

over because “someone in a vehicle like mine hit someone on a bike.” 4ART 389. But these contacts had occurred ten years ago, her more recent

contacts with law enforcement had not been negative, and L.P. said she

would be able to get over those earlier experiences. 4-ART 388-390.

5

After each side struck one more juror and defense counsel again

indicated he was satisfied with the panel, the prosecutor immediately used

her eighth peremptory challenge to strike L.P. 3-ART 335- 336, 409.

Defense counsel objected to the prosecutor’s striking of C.H., K.F.,

and L.P. 4-ART 409-411, 418. Although the trial court made no specific

finding as to whether the prosecutor had removed all prospective jurors who

were African-American, it agreed with defense counsel that there did not

appear to be any more African-Americans in the jury venire. 4-ART 411.

2.

After the Trial Court Found that Petitioner had

Made a Prima Facie Showing of Discriminatory

Purpose, the Prosecutor Identified Purportedly

“Race-Neutral” Explanations

Finding that Yates had made a prima facie showing of discriminatory

purpose, the court asked the prosecutor to explain her use of peremptory

challenges. 4-ART 411. The prosecutor explained that, while she liked C.H.

“a great deal” and found him to be “friendly,” she was concerned by his “five

years of activism in the Wasco community specifically regarding the issue

of, essentially, whether ... police brutality, police misappropriate treatment

of – and he specified ‘young African-American males.’” 4-ART 414. She

noted that C.H. had “negative incidents himself” regarding particular

sheriff’s deputies and, while he claimed that ended positively, “I actually

even thought that he was trying to convince us a little bit too hard that it

6

ended up positively.” 4-ART 415. The prosecutor thought “some of the

problems still existed after this coalition no longer existed,” and “that kind

of activism ... against law enforcement” made C.H. an inappropriate juror.

4-ART 415.

The prosecutor rejected K.F., primarily because she told the court her

son had been unfairly convicted of a drug crime, even though he did not use

drugs. 4-ART 413-414. Regarding L.P., the prosecutor said she would

hesitate to keep a juror who, like L.P., had been the victim of the violent,

intimate and personal crime of rape, 4-ART 411, and that L.P. was further

traumatized during the two encounters with police even though she

explained to the officers that she was a rape victim. 4-ART 412-413.

Defense counsel argued that C.H.’s negative experience occurred

when he was mistaken for his brother, that he later became good friends

with the deputy, and the activism with the church had been 15 to 20 years

ago. 4-ART 419. C.H.’s wife is a records clerk at Wasco State Prison with

friends on the staff, so any negative feelings about law enforcement have

nothing to do with prison authorities. 4-ART 419-420. K.F.’s son’s wrongful

conviction occurred in Los Angeles, which had nothing to do with prison or

CDCR. 4-ART 419, 420-421. Defense counsel noted the prosecutor had not

struck Juror No. 4067612, even though that juror had recently had a

negative encounter with law enforcement. 4-ART 416.

7

3.

The Trial Court Found No Discriminatory

Purpose After Misstating Evidence Regarding

Racial Profiling

In announcing its decision to deny the motion, the trial court stated

that the “theme that runs with all three is profiling.” 4-RT 421; Appendix B

421. Although the court agreed C.H. “was a really nice guy. He appeared to

be open and honest and answered questions,” C.H. also believed there was a

problem with the Sheriff’s Department in Wasco stopping young AfricanAmerican males “for no basis at all. That sounds like profiling to me.”

Appendix B at 422. C.H.’s direct involvement in trying to get more

communication between the Wasco community and those deputies was a

legitimate basis to exclude him. Appendix B at 422-423.

According to the court, K.F. was unhappy about her son’s drug

conviction “and with kind of the inference that there was profiling as well

and that the cops lied.” Appendix B at 422. The court also believed L.P.

intimated that in her second incident with police “there was profiling by

police based on what she looked like.” Appendix B at 421.

The court denied the motion. Appendix B at 423.

8

REASONS FOR GRANTING THE WRIT

Although many years have passed since this Court recognized that the

“harm from discriminatory jury selection extends beyond that inflicted on

the defendant and the excluded juror to touch the entire community,”

Batson v. Kentucky (1986) 476 U.S. 79, 87, lower courts continue to allow

prosecutors to abuse peremptory challenges in violation of the Equal

Protection Clause of the Fourteenth Amendment. Equal Justice Initiative,

Illegal Racial Discrimination in Jury Selection, A Continuing Legacy (Aug

2010) https://eji.org/sites/default/ files/illegal-racial-discrimination -injury-selection.pdf.

The prosecutor in this case used three of her first eight peremptory

challenges to ensure that an African-American defendant’s fate would be

decided by a jury that did not include a single African-American juror. One

of those three “should have been an ideal juror in the eyes of a prosecutor,”

Miller-El v. Dretke, 545 U.S. 231, 247 (2005), but the prosecutor struck him

largely due to his work with community leaders and deputies to reduce the

problem of racial profiling in his community. Although the case had

nothing to do with racial profiling and none of the struck jurors had ever

experienced it themselves, the Fifth Appellate District found that the juror’s

admittedly laudable attempts to better his community due to his perception

that racial profiling was occurring disqualified him as a juror. The

9

appellate court also held that negative encounters with law enforcement

experienced by all three African-American jurors were legitimate grounds

for excusal, even though the prosecutor had not struck a white juror with a

similar, more recent experience.

Although this Court has found per curiam that a juror’s personal

experience with racial profiling is a “race-neutral explanation[]” for a

peremptory challenge, Felkner v. Jackson, 567 U.S. 594, 598 (2011), it

should grant certiorari in this case to consider the role of racial profiiling

during the second step in the Batson procedure. Felkner has received

criticism for encouraging the exclusion of African-American jurors who

have been the victims of racial profiling, but this case takes the issue a step

further by encouraging the exclusion of minority jurors who simply

acknowledge that racial profiling occurs. The Court should closely examine

the second step in the Batson procedure to ensure that the promise of that

case is fulfilled, and to counter the training received by prosecutors to

undermine Batson by devising race-neutral explanations for strikes.

This case also provides the Court with a perfect vehicle to determine

whether a negative encounter with law enforcement, and in particular one

based on perceived racial profiling, can be considered a race-neutral

explanation when it will inevitably result in the disproportionate removal of

potential jurors from minority groups. Hernandez v. New York, 500 U.S.

10

352, 361 (1991), held that such a disproportionate effect did not constitute

per se discrimination in jury selection, but by definition only minority

potential jurors will have suffered racial profiling, making its continued use

as a legitimate basis for striking a juror a violation of the Equal Protection

Clause.

Racial tension has certainly not declined in this country is since this

Court handed down its decision in Batson. While Batson finally

established a reasonable procedure for preventing prosecutors from

depriving minority defendants and prospective jurors of their right to equal

protection under the Fourteenth Amendment, this case illustrates that,

despite Batson, prosecutors will continue to find ways to keep members of

minority groups from serving as jurors, and lower courts do too little to

ensure that they are allowed to become jurors.

Allowing prosecutors to purposefully exclude minorities from juries

will “undermine public confidence in the fairness of our system of justice....

Discrimination within the judicial system is most pernicious because it is a

‘stimulant to ... race prejudice....’” Batson, 476 U.S. at 87-88, quoting

Strauder v. West Virginia, 100 U.S. 303, 308 (1880). “The community is

harmed by the State’s participation in the perpetuation of invidious group

stereotypes and the inevitable loss of confidence in our judicial system that

state-sanctioned discrimination in the courtroom engenders.” J.E.B. v.

11

Alabama ex rel. T.B., 511 U.S. 127, 140 (1994).

ARGUMENT

I.

This Court Should Grant Certiorari to Determine

Whether a Perception that Racial Profiling by Law

Enforcement Exists, or Attempts to Reduce Racial

Profiling, Constitute a “Race-Neutral” Explanation for

Striking a Prospective Minority Juror

A.

The Burden of Establishing Purposeful

Discrimination

Since 1880, this Court has consistently recognized “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.” Batson, 476 U.S. at 85, citing Strauder, 100 U.S. 303.

“Exclusion of black citizens from service as jurors constitutes a primary

example of the evil the Fourteenth Amendment was designed to cure,”

Batson, 476 U.S. at 85, and purposeful racial discrimination during jury

selection therefore violates the constitutional rights of excluded jurors as

well as those of the defendant. Id. at 87.

While the “principles announced in Strauder have never been

questioned in any subsequent decision of this Court,” Batson, 476 U.S. at

89, the question of how a defendant can establish purposeful discrimination

has proven to be more elusive. In Swain v. Alabama, 380 U.S. 202 (1965),

12

the Court acknowledged that the State’s intentional exclusion of all AfricanAmerican jurors would violate the Equal Protection Clause, id. at 203-204,

223-224, but found no constitutional violation – despite the exclusion of all

six prospective African-American jurors from the defendant’s jury – because

the defendant had not proven a systematic exclusion of such jurors in “case

after case.” Id. at 210, 222-228.

Batson rejected Swain’s “crippling burden of proof,” Batson, 476 U.S.

at p. 92, establishing the now-familiar three-step test, requiring the

defendant to take the first step by “producing evidence sufficient to permit

the trial judge to draw an inference that discrimination has occurred.”

Johnson v. California, 545 U.S. 162, 170 (2005) Once the defendant has

made out a prima facie case, the State has the burden on the second step of

offering race-neutral justifications to explain the racial exclusion. (Id. at

168.)

In step three, the trial court considers the persuasiveness of the

State’s justification to determine whether the defendant has carried the

burden of proving purposeful discrimination by establishing that it is “more

likely than not that the challenge was improperly motivated.” (Id. at 168171. The court can measure the credibility of the State’s purported reasons

for striking the jurors by “how reasonable, or how improbable, the

explanations are; and by whether the proffered rationale has some basis in

13

accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322, 339 (2003).

The prosecutor’s “proffer of [a] pretextual explanation naturally gives rise to

an inference of discriminatory intent.” Snyder v. Louisiana, 552 U.S. 472,

485 (2008).

B.

Unquestioning Acceptance of “Race-Neutral”

Explanations at Second Batson Step is

Undermining the Equal Protection Clause

In Felkner v. Jackson, 567 U.S. 594, the Ninth Circuit had reversed

the district court’s denial of a federal habeas petition based on Batson in a

brief decision this Court found “as inexplicable as it is unexplained.” Id. at

598. One of the stricken minority jurors had complained in the California

trial court of being the victim of racial profiling over an extended period of

time, but this Court agreed with the lower courts that this was a “raceneutral” explanation for the prosecutor’s challenge, and the trial court’s

acceptance of that explanation therefore had to “‘be sustained unless it is

clearly erroneous’” on direct appeal. Id. at 598, quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008). The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) added another layer of deference,

imposing a “‘highly deferential standard’” on federal courts, and the Ninth

Circuit erred because the “state appellate court’s decision was plainly not

unreasonable.” Felkner, 562 U.S. at 598, quoting Renico v. Lett, 559 U.S.

766, 773 (2010).

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While recognizing that Felkner “was a summary decision issued

within the constraints of the AEDPA,” scholars have raised concerns that “it

may nonetheless be read by some prosecutors and courts as a signal that

the exclusion of black males who have been the victims of racial profiling is

permissible.” Elisabeth Semel, Batson and the Discriminatory Use of

Peremptory Challenges in the 21st Century, Chapter 4 in Jurywork:

Systematic Techniques § 4.35, p. 325 (NJP Consulting, Thompson Reuters

2018-2019 ed.) Given the widespread experience of racial profiling “a

prosecutor today need merely ask about such experiences to trigger an

answer that will justify a strike and insulate him from Batson.” Sheri Lyyn

Johnson, Batson from the Very Bottom of the Well: Critical Race Theory

and the Supreme Court’s Peremptory Challenge Jurisprudence, 12 Ohio St.

J. Crim. Law 71, 88 (2014). The concern is not merely academic – after a

potential juror mentioned she and her relatives had experience racial

profiling, the District of Columbia Circuit found no good reason to believe

the prosecutor’s decision to strike her was discriminatory “merely because

the Juror referenced race in expressing concerns about blacks’ being pulled

over by the police.” United States v. Gooch, 665 F.3d 1318, 1330 (D.C. Cir.

2012).

The state courts in this case sanctioned an even more pernicious

erosion of Batson, because C.H. was not himself the victim of racial

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profiling – his “negative” experience with law enforcement occurred when a

deputy mistook him for his brother. 4-ART 243-237. The trial court found

C.H. “to be open and honest,” but objected to his belief that deputies were

stopping young African-American males “for no basis at all. That sounds

like profiling to me,” and also found C.H.’s voluntary efforts to ameliorate

that problem to be a legitimate basis to exclude him. Appendix B at 422423.

The Fifth Appellate District acknowledged that C.H.’s community

service was “certainly laudable,” but readily agreed it disqualified him from

serving on the jury. Appendix A at 18. According to the appellate court,

C.H.’s “concern with the targeting of young African-American men in the

community, ran sufficiently deep and was sufficiently long-lasting to

disqualify him as a juror.” Ibid. While community activism in the abstract

“is certainly laudable,” C.H.’s activism “related directly to what he perceived

as law enforcement’s mistreatment of young African-American men vis-àvis racial profiling,” which the prosecutor could properly consider in striking

him. Ibid.

Contrary to the unspoken assumption underlying the state courts’

rationales, there is nothing in the record to suggest that C.H. was delusional,

a lone Don Quixote-like crusader tilting at windmills. C.H. worked with

church leaders, community leaders, and deputy sheriffs in promoting better

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communication between those deputies and young African-American men

in Wasco, all of whom presumably believed there was a problem. 4-ART

243-247.

While this Court has held that any reason, even a silly one, should be

considered race neutral “‘[u]nless a discriminatory intent is inherent in the

prosecutor’s explanation,’” Purkett v. Elem, 514 U.S. 765, 768 (1995),

quoting Hernandez, 500 U.S. at 360, it should grant certiorari in this case to

consider whether the mere perception that racial profiling exists can be

considered a constitutionally reasonable basis for striking a prospective

minority juror. Racial profiling has been a documented problem in this

country for many years, as shown in the academic studies cited in United

States v. Leviner, 31 F.Supp.2d 23, 34, fn. 26 (D. Mass. 1998), and it has

continued to be a problem in California. People v. Buza, 4 Cal.5th 658, 698

(Liu, J., dissenting)(2018); Devon W. Carbado, From Stopping Black People

to Killing Black People: The Fourth Amendment Pathways to Police

Violence, 105 Calif. L. Rev. 125 (2017).

Batson is not going to solve the problem of racial profiling in this

country, but part of its legacy should at least include refusing to allow

prosecutors to remove potential minority jurors who admit they believe it

occurs. In criticizing what it characterized as “the charade that has become

the Batson process,” People v. Randall, 671 N.E.2d 60, 65-66 (Ill.App.

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1996), a state court judge more than twenty years ago speculated that new

prosecutors were given a manual to make it easy to “provide the trial court

with a series of pat race-neutral reasons for exercise of peremptory

challenges.” Ibid. Since then, a prosecutor has posted a training video

explaining how to strike African-American jurors through the use of

purportedly race-neutral questioning because the prosecutor’s “job is to win;

it is not to be noble.” Nancy S. Marder, Batson v. Kentucky. Reflections

Inspired by a Podcast, 105 Ky. L.J. 621, 630 (2016-2017). And prosecutors

almost always win Batson cases. See Jeffrey Bellin & Junichi P. Semitsu,

Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted

or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1102 (2011);

Equal Justice Initiative. Illegal Racial Discrimination in Jury Selection: A

Continuing Legacy, 14-22.

Reversal is required if a prosecutor strikes even one juror based on

discriminatory intent. Snyder v. Louisiana, 552 U.S. 472, 478 (2008).

This Court should grant certiorari to consider whether striking potential

minority jurors based on their perception that racial profiling exists violates

the constitutional right to equal protection of those jurors, and of the

criminal defendants they are not considered qualified to judge.

Considering the overwhelming deference that even state appellate

courts must afford the trial courts during the third Batson step, Felkner, 567

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U.S. at 598, it will be nearly impossible for defendants to raise viable Batson

challenges based on jurors’ perception that racial profiling exists unless this

Court grants certiorari to determine that it is not a race-neutral explanation

for striking a prospective minority juror.

C.

A Negative Experience with Law Enforcement,

including Racial Profiling, Cannot Be Considered

a Race Neutral Factor Given the Inevitably

Disparate Impact It Has on Prospective Minority

Jurors

The prosecutor in Hernandez excluded two bilingual jurors based on

a concern that they would not be willing to follow the official translator’s

translation of Spanish-speaking witnesses, and this Court found no per se

violation of the Equal Protection Clause even if “the prosecutor’s criterion

might well result in the disproportionate removal of prospective Latino

jurors.” Hernandez, 500 U.S. at 359-363. While “disparate impact should

be given appropriate weight in determining whether the prosecutor acted

with a forbidden intent, ... it will not be conclusive in the preliminary raceneutrality step of the Batson inquiry.” Id. at 362. The prosecutor’s

explanation “raised a plausible, though not a necessary” inference of pretext,

id. at 363, but the concept of federalism precluded this Court from

overturning the state trial court’s determination at the third Batson step in

the absence of clear error. Id. at 369.

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Even state appellate courts must give great deference to the trial

courts’ determination during the third Batson step, Felkner, 567 U.S. at

598, and both federal and state courts have repeatedly held that a negative

encounter with law enforcement experienced by prospective minority jurors

or their relatives was a race-neutral explanation for striking those jurors,

regardless of whether that criterion would result in the disproportionate

removal of minority jurors. See United States v. Monell, 801 F.3d 34, 44 (1st

Cir. 2015); United States v. Brooks, 2 F.3d 838, 841 (8th Cir. 1993); People v.

Reed, 4 Cal.5th 989, 1001 (2018).

This Court should grant certiorari in this case to consider whether

negative encounters with law enforcement, and in particular experience

with or even acknowledgment of racial profiling, can be considered a raceneutral explanation for striking prospective minority jurors. The

purportedly “negative” encounter experienced by C.H. in this case involved

a deputy who became the juror’s good friend, 4-RT 243-247, completely

undermining any reason to believe he still harbored bias against law

enforcement many years later, yet the Fifth Appellate District found that the

personal targeting by an officer disqualified C.H. from serving on a jury.

Appendix A at 18.

Using negative encounters with law enforcement as a basis for

disqualifying jurors will have a disparate impact on minority jurors,

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particularly in the context of racial profiling which, by definition, will only

be experienced by prospective minority jurors. Disparate impact arguments

have had limited success, and a law review article published in 2012 found

that, more than 20 years after Hernandez, only thirty-nine published

federal decisions had addressed disparate impact arguments. Anna Roberts,

Disparately Seeking Jurors: Disparate Impact and the Misuse of Batson,

45 U.C. Davis L. Rev. 1359, 1363 (2012.) The argument had failed in thirtysix cases involving people of color or women, but had succeeded in all three

of the cases where stricken jurors were white. Id. at pp. 1363, 1373.

This Court should grant certiorari to consider whether an explanation

for striking minority jurors that not only raises the prospect of the

disproportionate removal of prospective minority jurors, Hernandez, 500

U.S. at 359-363, but will inevitably result in a disproportionate removal of

those jurors because by definition it will only apply to them, can be

considered a race-neutral explanation for a peremptory challenge.

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CONCLUSION

For all the above reasons, this Court should grant certiorari.

Respectfully submitted,

PAUL RICHARD KLEVEN

Counsel for Petitioner

1604 Solano Avenue

Berkeley, CA 94707

(510) 528-7347

Pkleven@Klevenlaw.com

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