Petition for Writ of Certiorari — Dewoyne Curtis Potts, Petitioner v. John Garza
Supreme Court briefJul 28, 2020
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No. __________
In the
Supreme Court of the United States
DEWOYNE CURTIS POTTS, Petitioner
v.
JOHN GARZA, Respondent
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
Petition for Writ of Certiorari
CUAUHTEMOC ORTEGA
Interim Federal Public Defender
JILL GINSTLING*
Deputy Federal Public Defender
321 East 2nd Street
Los Angeles, California 90012-4202
Telephone: (213) 894-4298
Facsimile: (213) 894-0081
Attorneys for Petitioner
* Counsel of Record
Questions Presented
In this case involving a Black defendant, the prosecutor struck the
sole Black juror remaining on the venire (the only other Black
veniremember was struck for cause), after asking her only three
questions, two of which focused on race – a subject the juror had not
mentioned, and about which the prosecutor did not question white
jurors. Then, in attempting to strike the Black juror for cause, the
prosecutor mischaracterized her statements in a manner directly
contrary to the juror’s testimony.
In federal habeas proceedings, the prosecutor claimed that he
struck the Black juror because he believed she might be biased
against police, prosecutors, and the judicial system – but he did not
ask her a single question about those purported biases. In
explaining his mischaracterization of her testimony, he blamed the
court reporter by suggesting that the trial transcript was
inaccurate. He also submitted a sworn declaration in which he
falsely claimed that he had compared the Black juror to two seated
jurors at the time of the trial and found the seated jurors more
favorable, while at his deposition and a later evidentiary hearing,
he admitted that he had no recollection of the seated jurors
referenced in the declaration and that he did not compare them to
the Black juror at the time of the trial.
The question presented is this:
Did the Ninth Circuit err in crediting the prosecutor’s stated
reasons for the strike and failing to find discriminatory pretext
under Batson and Miller-El v. Dretke, under the extraordinary
circumstances of this case?
i
Related Proceedings
United States Court of Appeals for the Ninth Circuit
Dewoyne Potts v. John Garza, Case No. 17-56410
Order Entered: March 2, 2020; Mandate Issued: March 24, 2020
United States District Court for the Central District of California:
Dewoyne Curtis Potts v. John Garza, Case No. CV 07-1312-PSG (AJW)
Judgment Entered: September 8, 2017
Supreme Court of California:
In re Dewoyne Potts on Habeas Corpus, Case No. S131041
Judgment Entered: February 8, 2006
Court of Appeal of the State of California, Second Appellate District
In re Dewoyne Curtis Potts on Habeas Corpus, Case No. B180040
Judgment Entered: December 30, 2004
People v. Dewoyne Curtis Potts and Demond Willie Potts,
Case No. B163396 (Direct Appeal); Judgment Entered: March 30, 2004
Superior Court of California, County of Los Angeles
People v. Dewoyne Curtis Potts, Case No. LA039756 (Habeas Corpus)
Judgment Entered: September 14, 2004
People v. Dewoyne Curtis Potts and Demond Willie Potts,
Case No. LA039756 (Trial); Judgment Entered: November 20, 2002
ii
Table of Contents
Page(s)
Opinions Below.................................................................................................................... 1
Jurisdiction .......................................................................................................................... 2
Constitutional Provisions Involved................................................................................... 2
Introduction ......................................................................................................................... 3
Statement of the Case ........................................................................................................ 5
A. Trial Proceedings ..................................................................................................... 5
B. Direct Review and State Habeas Proceedings ..................................................... 9
C. Federal Habeas Proceedings .................................................................................. 9
Reasons for Granting the Writ ........................................................................................ 18
I.
The Batson Framework................................................................................... 19
II.
The Ninth Circuit Failed to Address the Prosecutor’s Race-Based
Questioning of Juror 2405, In Violation of Batson ...................................... 21
III.
The Ninth Circuit Contravened This Court’s Holding in Miller-El that
Failure to Question a Juror About a Purported Bias That is the Stated
Reason for a Strike is Evidence of Discriminatory Pretext ........................ 24
IV.
The Prosecutor’s Mischaracterization of the Juror’s Testimony is Further
Evidence of Discriminatory Pretext............................................................... 27
V.
Toro’s false declaration claiming that he conducted comparative juror
analysis during trial is additional evidence of discriminatory pretext ..... 32
Conclusion .......................................................................................................................... 36
iii
Table of Authorities
Page(s)
Federal Cases
Anderson v. City of Bessemer City, N.C.,
470 U.S. 564 (1985) ......................................................................................................20
Batson v. Kentucky,
476 U.S. 79 (1986) ................................................................................................passim
Crittenden v. Ayers,
624 F.3d 943 (9th Cir. 2010) .......................................................................................20
Flowers v. Mississippi,
139 S.Ct. 2228 (2019) ............................................................................................ 20, 23
Johnson v. California,
545 U.S. 162 (2005) ......................................................................................................19
Miller-El v. Dretke,
545 U.S. 231 (2005) ..................................................................................... 4, 26, 27, 28
Snyder v. Louisiana,
522 U.S. 472 (2008) ......................................................................................................19
Wainwright v. Witt,
469 U.S. 412 (1985) ......................................................................................................31
State Cases
People v. Wheeler,
22 Cal. 3d 258 (1978)..................................................................................................8, 9
Federal Statutes
28 U.S.C. § 1254(1)...............................................................................................................2
28 U.S.C. § 2254(d) ............................................................................................................10
iv
State Statutes
Cal. Code Civ. Pro. § 225(b)(1)(C) ....................................................................................31
Cal. Code Civ. Pro. § 229 ...................................................................................................31
v
In the
Supreme Court of the United States
DEWOYNE CURTIS POTTS, Petitioner
v.
JOHN GARZA, Respondent
Petition for Writ of Certiorari
Dewoyne Curtis Potts petitions for a writ of certiorari to review the
judgment and opinion of the United States Court of Appeals for the Ninth
Circuit in his case.
Opinions Below
The Ninth Circuit’s dispositive order in Potts v. Garza, Case No. 1756410, was not published and is included in the Appendix at App. 1a.1 The
district’s court’s order denying the petition for a writ of habeas corpus in Potts
“App.” refers to the attached appendix. “ER” refers to the appellant’s
excerpts of record electronically filed in the Ninth Circuit on October 29, 2018
(Docket No. 14). “AOB” refers to the appellant’s opening brief electronically
filed in the Ninth Circuit on October 28, 2019 (Docket No. 13). “ARB” refers
to Respondent’s answering brief, electronically filed in the Ninth Circuit on
February 27, 2019 (Dkt. #20).
1
1
v. Garza, CV 07-1312-PSG (AJW), also was not published, and it is included in
the Appendix at App. 6a.
Jurisdiction
The Ninth Circuit’s opinion affirming the district court’s judgment was
issued on March 2, 2020. App. 1a. On March 19, 2020, in light of the public
health concerns related to COVID-19, this Court ordered an extension of time
for the filing of any petition for a writ of certiorari due after the date of that
order to 150 days from the date of the lower court judgment. Order List: 589
U.S. (March 19, 2020). This petition is therefore timely. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
Constitutional Provisions Involved
Amendment XIV of the Constitution of the United States provides:
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.
2
Introduction
Dewoyne Potts, who is Black, was convicted of robbery and assault by a
jury that included no Black jurors, due to the prosecutor’s use of a
peremptory strike against the sole Black juror who remained on the venire
after the only other Black veniremember was excused for cause. The
prosecutor used his peremptory strike against Juror 2405 after asking her
three questions, two of which focused on race – an issue that the juror herself
had not mentioned. Before using the peremptory strike, he had tried
unsuccessfully to excuse her for cause by mischaracterizing the statements
she made during voir dire in a manner directly contrary to her testimony.
Thirteen years later, in federal habeas proceedings, the prosecutor
claimed that race played no role in his decision to strike Juror 2405, and that
he struck her because he was concerned that she would be biased against the
police, prosecutors, and the justice system – despite the fact that he did not
ask her a single question about such purported bias. He explicitly denied that
he was concerned about the issues that he did question her about (race and
misidentification), and he denied making the statements in the trial
transcript in which he mischaracterized her testimony, blaming his error on
the court reporter. Prior to the evidentiary hearing, the prosecutor signed a
declaration in which he claimed to remember drawing comparisons between
3
Juror 2405 and two seated jurors whom he had sworn in an earlier deposition
(and then later at the evidentiary hearing) that he did not remember and
whom he did not compare to Juror 2405 at the time of the trial. He explained
that he included those statements in the declaration not because they were
true, but because Respondent’s counsel had asked him to do so. Despite
finding that the prosecutor’s declaration was “arguably misleading” and
“without excusing the conduct of either [the prosecutor] or Respondent’s
counsel [who helped prepare the declaration],” the district court nonetheless
denied the petition.
The Ninth Circuit affirmed the judgment, crediting the prosecutor’s
stated reasons for the strike despite abundant record evidence that refuted
those reasons, as well as the prosecutor’s submission of a false declaration.
The Ninth Circuit failed to address the fact that two of the prosecutor’s three
questions to Juror 2405 focused on the issue of race – an issue which the
juror did not raise. The court further erred by ignoring this Court’s holding in
Miller-El v. Dretke, 545 U.S. 231, 245 (2005), that a prosecutor’s failure to ask
a single question about the bias he now claims was the reason for a strike is
strong evidence of discriminatory pretext, as is the prosecutor’s
mischaracterization of the juror’s testimony when he attempted to strike her
for cause. Finally, the prosecutor’s false claim in his declaration that he
4
conducted a comparative juror analysis that he admitted he did not conduct
further demonstrates that the Ninth Circuit clearly erred by crediting the
prosecutor’s stated reasons for the strike. The record demonstrates that the
strike of Juror 2405 was substantially motivated by race and therefore
constituted purposeful discrimination, in violation of Potts’s rights under the
Equal Protection Clause, as set forth in Batson v. Kentucky, 476 U.S. 79
(1986). This Court should should grant the petition for a writ of certiorari.
Statement of the Case
A.
Trial Proceedings
In 2002, Mr. Potts and his brother were tried jointly for the robbery
and assault of three individuals. The evidence against Mr. Potts consisted
solely of in-court eyewitness identifications by two of the three victims – both
of whom had failed to positively identify him in pretrial photospreads and
lineups (the third victim never identified Potts). There was no evidence to
corroborate the in-court eyewitness identifications.
There were only two Black potential jurors in the venire, one of whom
was struck for cause. The other, Juror 2405, is the subject of Potts’s Batson
claim. She was a resident of the San Fernando Valley, married to an
engineer, and had two teenage sons. ER 198. She worked two jobs, as a
5
college professor and a flight attendant. Id. She had relatives in several law
enforcement agencies. ER 194. She had no prior jury experience. Id. At
sidebar, in response to a question about whether the jurors knew anyone who
had been a witness, a defendant, or in any way involved in a case of this type,
Juror 2405 stated, “My son was picked up last year and he was mistakenly
identified as doing a crime that he didn’t do. So that’s the only thing. He
wasn’t the person.” ER 195.
The court then asked her how long her son was detained, and she
responded, “overnight.” Id. The court asked if her son participated in a live
lineup, and she said that he did not. Id. The court then inquired, “Anything
about that incident that you think would make it difficult for you to sit on this
case?” Id. Juror 2405 answered, unequivocally: “No.” Id.
The prosecutor, James Toro, then had an opportunity for follow-up
questions. He asked Juror 2405 only three questions – two of which focused on
race, and the third focused on identification:
Mr. Toro:
Do you think it was a case of racial
profiling or being in the wrong place at
the wrong time?
6
[Juror 2405]2:
I don’t know. The lady thought he was
the person and picked him out of the
mall.
Mr. Toro:
Do you know what her race was?
[Juror 2405]:
She was white, but I never saw her. I don’t
know anything about her.
Mr. Toro:
Now, the fact that this case,
identification is probably going to be the
issue. If you are picked as a juror in this
case, are you going to think, oh, my God,
you know, my own son was misidentified
and I wonder if this is the case here
before you even heard any of the
evidence?
[Juror 2405]:
No, I wouldn’t do that. I would be
completely unbiased.
ER 195-96.
The transcript refers to Juror 2405 by her last name, but in the interest of
privacy (and consistency), she will be referred to herein as Juror 2405.
2
7
At the first opportunity, Toro challenged Juror 2405 for cause. ER 206.
He stated, “Juror Number 14 at our sidebar also mentioned the fact that her
on [sic] son was accused of a crime and it was a case of mistaken identity.” Id.
The co-defendant’s counsel then said, “He was released.” Id. The prosecutor
responded, in direct contradiction of the juror’s unequivocal statements that
she would be completely unbiased and that her son’s experience would not
affect her, “But she said it would leave her with an affect. And I would make a
motion–.” The court denied the cause challenge. Id.
Toro then exercised a peremptory strike against Juror 2405, prompting
Potts’s counsel to make a motion under People v. Wheeler, 22 Cal. 3d 258
(1978), California’s analog to Batson. ER 208-09. The court denied the
motion, speculating as to Toro’s reasons for the strike and finding that Potts
had not made a prima facie case of discrimination. Id. Toro was not asked to
state a race-neutral reason for the strike, and Juror 2405 was excused. Id.
On October 28, 2002, the jury convicted Potts of three counts of seconddegree robbery and two counts of assault, and it found that he used a firearm
in the commission of the robberies. On November 20, 2002, Potts was
sentenced to 23 years and eight months in state prison.
8
B.
Direct Review and State Habeas Proceedings
Potts appealed his conviction, raising (among other issues) a claim
under Batson. The California Court of Appeal, incorrectly relying on the
“strong likelihood of discrimination” standard of Wheeler, 22 Cal.3d at 280,
rather than the less onerous “reasonable inference of discrimination”
standard of Batson, concluded that Potts had not shown a prima facie case of
discrimination. ER 32. The court rejected the remainder of Potts’s claims and
affirmed his conviction. Id. Potts sought review in the California Supreme
Court, which denied review without comment.
On August 23, 2004, Potts filed a petition for a writ of habeas corpus in
the Los Angeles County Superior Court, raising his Batson claim, among
others. On Sept. 4, 2004, the Superior Court denied the petition, ruling that
“all issues raised could or were raised on appeal.” ER 231. Identical petitions
filed in the California Court of Appeal and the California Supreme Court
were denied without comment. ER 232-33.
C.
Federal Habeas Proceedings
After his Batson claim was denied on direct appeal (and then in state
habeas proceedings) under the incorrect legal standard, Potts filed a petition
for a federal writ of habeas corpus. ER 234. During the proceedings, Potts
compared Juror 2405’s experience with misidentification to those of two seated,
9
non-Black jurors whom Toro did not strike (Jurors 1612 and 5147), despite the
fact that they had had personal experiences with eyewitness misidentification
and had affirmatively expressed doubts about the reliability of such evidence.
CR 132, 138. The district court denied the petition. In doing so, the court found
that the experiences of Jurors 1612 and 5147 were different from that of Juror
2405 because neither of those jurors had a family member who had been the
victim of misidentification, and because the experiences of those jurors were in
the distant past, as opposed to the experience of Juror 2405’s son, which had
happened a year before the trial. ER 318-21.
The Ninth Circuit reversed, finding first that because the state court
had applied the improper “strong likelihood” standard to Potts’s Batson
claim, the federal courts had to review his claim de novo, rather than under
the more deferential standard at 28 U.S.C. § 2254(d). ER 332-333. The Ninth
Circuit went on to find that Potts had raised a prima facie case of purposeful
discrimination under Batson because Juror 2405 was the only African
American juror who remained in the venire; the prosecutor misstated her voir
dire testimony when he tried to excuse her for cause; and two other jurors
who were not African American had similar experiences with
misidentification, and had stated that their experiences would cause them to
be doubtful of eyewitness identifications, but they were not challenged by the
10
prosecutor. ER 332-33. The court remanded for an evidentiary hearing for the
prosecutor to state his reasons for striking Juror 2405. Id.
In preparation for the hearing, Potts’s counsel deposed Toro on July 22,
2015. Counsel asked Toro to state his reasons for striking Juror 2405, and he
responded that he struck her because “her son had a very negative
experience, and I didn’t think she could put that behind her and be fair to me,
as the prosecutor, or the police, or the justice system.” ER 371-72. When
counsel asked Toro if he thought that because of her son’s experience, Juror
2405 would be unlikely to believe the eyewitness identifications of Potts, he
responded, “I don’t think the focus was on identification. The focus was on
whether or not she would be biased or unbiased. So I wasn’t focusing on
identification. I was focusing on, what I presumed was a horrible experience,
and a mother probably not being able to forgive and forget.” ER 372.
With respect to Jurors 1612 and 5147, Toro testified that although he
had reviewed the voir dire transcript several times with a focus on those
jurors, because he was aware that they were the subject of comparative juror
analysis by the parties and the Ninth Circuit, he was unable to remember
anything about either of these two jurors, including any thoughts he had
about them at the time of trial. ER 373-76. He then testified that he has “no
recollection of any of the prospective jurors or jurors who sat.” ER 376.
11
On September 30, 2015, Respondent filed a declaration from Toro in
which he stated, “I remember the parties and events in this case, including
the voir dire proceedings.” ER 399. Toro again stated that he struck Juror
2405 because he believed that “her experience would not allow her to be fair
and unbiased; she would or could be biased against law enforcement, the
prosecution, and/or the judicial system based on her son’s experience.” ER
399-400. He stated that he challenged her for cause for the same reason, and
while the transcript reflects otherwise (because it reflects that he said “But
she said it would leave her with an affect. And I would make a motion--”),
Toro wrote, “I do not know whether the court reporter accurately transcribed
those comments,” because “I do not understand what that sentence means,
nor do I normally use the word ‘affect’ in that context.” ER 400. He then
stated, “Even assuming that the transcript accurately reflects what I stated
in court, I did not intend to mislead the court or opposing counsel. If I made
those remarks, I misspoke.” Id. He did not explain how or why he could have
made such a mistake.
In the declaration, Toro indicated that at the time of the trial, he had
compared Juror 2405 to Jurors 1612 and 5147, and he did not think their
experiences with misidentification were similar. In several paragraphs of the
declaration, he testified to specific thoughts he’d held about these jurors, and
12
why he thought they were different from Juror 2405. ER 400-401. In one
paragraph, he described Juror 5147’s experience with misidentifying a
student who had assaulted him, and in the next paragraph, he stated,
I did not believe that Juror 5417’s experience of believing he had
misidentified someone many years before was the same type of
experience that happened to Juror 2405’s son, who was the victim of
misidentification. Juror 5417, in my opinion, was not negatively
impacted by his experience to the level, or in the same manner, that
juror 2450’s was by her son’s arrest.”3
ER 400-401. With respect to Juror 1612, he devoted a paragraph to
describing her experience with misidentification, and then he made the
following assertions:
I did not believe that Juror 1612 was comparable to Juror 2405.Juror
1612 did not suffer the personal trauma of having a loved one
misidentified as a criminal.
Jurors [5147] and 1612 also related incidents which had occurred many
years prior. By contrast, Juror 2405 related her son’s incident as
having taken place within the past year.
3
Toro mistakenly referred to Juror 5147 as Juror 5417.
13
ER 401. Toro made these statements even though just two months earlier,
he’d testified that he was unable to remember anything about Jurors 5147 or
1612, including his thoughts or opinions about them, and that when he
struck Juror 2405, he was not focused on the issue of identification.
The evidentiary hearing was held on December 4, 2016. Toro’s
declaration was admitted as his direct examination, and Potts’s counsel
cross-examined him. Toro again testified that he struck Juror 2405 because
he was concerned that as a result of her son’s experience, she would or could
be biased against police, prosecutors, and the judicial system. ER 429. He
again testified, despite the statements in his declaration that he was not
focused on the issue of misidentification when he struck her. ER 430. He
testified that his strike of Juror 2405 had “absolutely nothing to do with
race.” ER 466; see also ER 430-31 (stating that his concerns about Juror
2405’s bias had “nothing to do with race”).
With respect to the statements he made when he attempted to strike
Juror 2405 for cause, Toro testified that he was aware that the Ninth Circuit
had cited his mischaracterization of her testimony as a basis for granting an
evidentiary hearing. ER 420. When asked about the first sentence of his
cause challenge, when he said that Juror 2405’s son was accused of a crime
and it was a case of mistaken identity, Toro responded, “If that’s what the
14
transcript says, then that’s what I said, yes.” ER 437. When asked about the
second sentence of his cause challenge – the sentence that he claimed in his
declaration was mistranscribed because he doesn’t use the word “affect” in
that context – Toro stated that he does not know if the emphasis on that word
was on the first or the second syllable, and when asked if the word “affect”
can be pronounced the same as the word “effect,” he responded, “I will take
your word for it, I don’t know.” ER 438.
He then testified that he does not remember what he actually said
during the cause challenge, and that “[m]y emphasis for believing [the
transcript is] wrong is that there would have been no reason for me to
whatsoever mislead the Court or counsel. I’ve never done that in my career. I
don’t do that. And that’s why I find it hard to believe when I saw that that
that was there.” ER 439. Toro testified that he believes, though he is not
certain, that what he meant to say when striking Juror 2405 for cause was
that even though she said that her son’s experience would not affect her, he
simply did not believe her. ER 440. He testified that he considered his
personal disbelief of Juror 2405 to be a sufficient basis for a cause challenge.
ER 441.
15
As for his memory of Jurors 1612 and 5147, Toro acknowledged that,
contrary to the testimony in his declaration, he did not compare them to
Juror 2405 at the time of the trial:
Q.
Mr. Toro, you offered up a comparative analysis in your
declaration between Juror 2405 and Juror 5147, correct?
A.
This year I did, yes.
Q.
This year you did?
A.
Yes.
Q.
Did you do that in your head at the time? That’s all
I’m trying to get at.
A.
No -- because I was not even probably aware of
comparative juror analysis until within the past year.
Q.
Well, and also because you don’t actually have a recollection of
Juror 5147 other than what’s in the transcript, isn’t that correct?
A.
The -- yes, that would be accurate.
ER 447.
When asked about the statements in his declaration in which he
claimed to have made comparisons between Juror 2405 and the two seated
jurors, he responded, “I’m having a hard time understanding because at the
time I’m striking a juror for bias, and then we’re discussing another juror as
16
to identification issues.” ER 444. When counsel pointed out that Toro had
chosen to include those comparisons about the jurors’ experiences with
identification in his declaration, he explained that his declaration included
the statements comparing the seated jurors to Juror 2405 because “I was
given a framework [by Respondent’s counsel] to address those issues and why
I would have kept them or kicked them or why they were – if they were in
any way related to the Wheeler juror.” Id. After the hearing, the court ordered
the deposition transcript admitted into evidence in its entirety. ER 473-74.
After post-hearing briefing, on May 12, 2017, the magistrate issued a
Report and Recommendation (“Report”) concluding that Potts had not met his
burden of establishing that the strike of Juror 2405 was substantially
motivated by race, finding that “the race-neutral reason the prosecutor
provided for striking Juror 2405 is credible.” App. 8a. The magistrate found
that Toro’s demeanor during the evidentiary hearing “supports his
credibility” and that “the Court found the prosecutor to be a conscientious
and earnest witness who attempted to answer questions designed to finely
parse his memory of events that occurred more than a decade earlier as
honestly and precisely as possible.” App. 20a. Yet he Report also described
Toro’s declaration as “arguably misleading” and “at best, sloppily phrased,
17
and at worst, misleading,” and it made its credibility finding “without
excusing the conduct of either Toro or respondent’s counsel.” App. 28a.
On September 8, 2017, the district court adopted the Report and issued
a judgment denying the petition. App. 6a, 7a. The district court also denied a
certificate of appealability (“COA”), but on February 7, 2018, the Ninth
Circuit granted Petitioner’s motion for a COA. ER 28; Dkt. #28.
On March 2, 2020, the Ninth Circuit affirmed the judgment of the
district court in an unpublished memorandum disposition. App. 1a.
Reasons for Granting the Writ
This Court should grant the writ because the Ninth Circuit failed to
consider or even address the prosecutor’s unprompted race-based questioning
of Juror 2405, in violation of the mandate this Court set forth in Batson and
Miller-El that the reviewing court consider all relevant factors in determining
whether Petitioner has met his burden of proving purposeful discrimination.
The Ninth Circuit also ran afoul of Miller-El’s holding that a prosecutor’s
failure to question a juror about a purported bias that he later cites as the
reason for a strike is strong evidence of discriminatory pretext, as well as
Miller-El’s holding that a prosecutor’s mischaracterization of a juror’s
testimony is further evidence of discriminatory pretext. Moroever, in
18
accepting the prosecutor’s stated reasons for the strike, despite substantial
record evidence contradicting his claims – including a declaration in which he
falsely claimed to have conducted a comparative juror analysis that he later
admitted he did not conduct – the Ninth Circuit further contravened this
Court’s jurisprudence. All of these errors violated Batson’s central premise
that “The Constitution forbids striking even a single prospective juror for a
discriminatory purpose.” Snyder v. Louisiana, 522 U.S. 472, 478 (2008)
(internal quotation marks omitted). The Ninth Circuit’s order in this case
rendered Batson and its progeny a nullity, and it decided Potts’s critical claim
of a violation of the Equal Protection Clause in a manner that conflicts with
relevant decisions of this Court. Sup. Ct. R. 10(c).
I.
The Batson Framework
The Equal Protection Clause of the Fourteenth Amendment forbids
prosecutors from exercising peremptory challenges on the basis of race.
Batson, 476 U.S. at 89. When a defendant asserts that a prosecutor’s
peremptory challenge was impermissibly based on race, the court must apply
a three-step process under Batson. First, the defendant must make a prima
facie case “by showing that the totality of the relevant facts gives rise to an
inference of a discriminatory purpose.” Id. at 93-94. Next, the burden shifts to
the state to offer “permissible race-neutral justifications for the strike[].”
Johnson v. California, 545 U.S. 162, 168 (2005). Third, the court “must
19
determine whether the prosecutor’s stated reasons were the actual reasons or
instead were a pretext for discrimination.” Flowers v. Mississippi, 139 S.Ct.
2228, 2241 (2019). “The ultimate inquiry is whether the State was ‘motivated
in substantial part by discriminatory intent.’” Id. at 2244 (quotingSnyder,
552 U.S. at 485.
“In Miller-El v. Dretke, the Court made it clear that in considering a
Batson objection, or in reviewing a ruling claimed to be Batson error, all of
the circumstances that bear on the issue of racial animosity must be
consulted.” Id. 478; see also Flowers, 139 S.Ct. at 2243 (listing the factors to
be considered in determining whether a strike was substantially motivated
by discriminatory intent). Although substantial deference is given to the trial
court’s assessment of the prosecutor’s demeanor, which is reviewed for clear
error, “[t]his is not to suggest that the trial judge may insulate his findings
from review by denominating them credibility determinations, for factors
other than demeanor and inflection go into the decision whether or not to
believe a witness. Documents or objective evidence may contradict the
witness’s story….” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574
(1985). In the Batson context specifically, “evidence that the race-neutral
justifications offered by the state at step two are unworthy of credence
supports a finding of race discrimination.” Crittenden v. Ayers, 624 F.3d 943,
958 n. 5 (9th Cir. 2010) (emphasis added) (citing Snyder, 552 U.S. at 478).
20
II.
The Ninth Circuit Failed to Address the Prosecutor’s RaceBased Questioning of Juror 2405, In Violation of Batson
The most significant evidence that the prosecutor’s stated reason for
striking Juror 2405 is pretextual is his entirely unprompted emphasis on race
when questioning her. Toro asked her only three questions: whether she
thought the incident with her son “was a case of racial profiling or being in
the wrong place at the wrong time;” whether she knew the race of the woman
who had misidentified her son; and, after reminding her that identification
was likely to be the issue in the case, “If you are picked as a juror in this case,
are you going to think, oh, my God, you know, my own son was misidentified
and I wonder if this is the case here before you even heard any of the
evidence?” ER 195-96.
What is telling about this questioning is that it was the prosecutor –
not Juror 2405 – who injected the issue of race into her voir dire, and in
particular into the discussion of her son’s arrest. Juror 2405 had said nothing
about race. Yet Toro’s first question to her was whether he thought the
incident with her son was a case of racial profiling. Even when she answered
that she did not know, he persisted in asking her the race of her son’s
accuser. He asked her three questions, two of which were about race. Toro’s
questions reveal his assumption that Juror 2405 perceived the incident with
her son as a case of racial profiling – and therefore would be more
21
sympathetic to Potts – simply because she was Black. This alone violated
Batson, which held that the Constitution “forbids the States to strike black
veniremen on the assumption that they will be biased in a particular case
simply because the defendant is black.” Batson, 476 U.S. at 97. Notably,
when the prosecutor questioned non-Black jurors who’d had negative
experiences with the police or relatives who had been arrested, he did not ask
them whether they thought that race had been an issue in the incidents they
described. Those questions were reserved for Juror 2405.
In fact, the only other juror whom Toro questioned at all about race
was a juror named Galvez, of whom Toro asked, “And I notice that you have a
Latino surname. Have you ever felt that either the court system or the police
have treated you or anyone you know unfairly based on your race?” 4 ER 174.
This unprompted question further reveals Toro’s assumption that people of
color might harbor anti-police bias because of their race.
Toro’s race-based questioning squarely contradicts his testimony that
his concerns about Juror 2405’s bias had nothing to do with race, and it
demonstrates that race was a substantial motivating factor behind the strike
of Juror 2405. Toro’s questions to Juror 2405 violated Batson’s central
4
Galvez ultimately was excused for hardship. ER 184.
22
premise that “[a] person’s race is simply unrelated to his fitness to serve as a
juror.” Batson, 476 U.S. at 87.
Yet the Ninth Circuit did not address, or even mention, Toro’s
unprompted emphasis on race in his questioning of Juror 2405 – even after
Respondent made the startling claim that this race-based questioning was
appropriate because Juror 2405 was Black. ARB at 34. Although Juror 2405
had said nothing about race during her voir dire, and she had given no
indication that she thought race had played a role in the misidentification of
her son, Respondent claims that “[t]he prosecutor logically asked Juror 2405,
who was African-American, if the incident [with her son] was racial profiling
or a mistake.” ARB at 34. Respondent’s answer to Toro’s unprompted
injection of race into his questioning of Juror 2405 is to rely on the fact that
she is Black – an argument that clearly runs afoul of Batson’s warning that
“[t]he Equal Protection Clause forbids the prosecutor to challenge potential
jurors…on the assumption that black jurors as a group will be unable
impartially to consider the State’s case against a black defendant.” Batson,
476 U.S. at 87, 89; see also Flowers, 139 S.Ct. at 2244 (courts “must consider
the prosecutor’s race-neutral explanations in light of all of the relevant facts
and circumstances, and in light of the arguments of the parties.”) (Emphasis
added).
23
Perhaps this is why Ninth Circuit, in crediting the prosecutor’s stated
reason for the strike, chose to ignore his racially-focused questioning of Juror
2405 entirely. To do otherwise would be to acknowledge that his voir dire of
Juror 2405 squarely contradicts his testimony that his strike of Juror 2405
“had absolutely nothing to do with race,” (ER 466, 430-31), and that his
purported concern with her bias against police, prosecutors, and the judicial
system is pretextual.
III.
The Ninth Circuit Contravened This Court’s Holding in MillerEl that Failure to Question a Juror About a Purported Bias
That is the Stated Reason for a Strike is Evidence of
Discriminatory Pretext
In affirming the district court, the Ninth Circuit stated that “the
prosecutor asserted he had excused Juror 2405 because her son had recently
been misidentified as a criminal suspect and held overnight by police.” App.
3a; see also App. 4a (“The prosecutor maintains that he excused Juror 2405
because, within a year of the trial, her son had been misidentified as a
criminal suspect and held in jail overnight.”). But Toro’s proffered reason was
not merely the fact that the juror’s son was detained. It was his purported
concern that, as a result of her son’s experience, Juror 2405 would be biased
against police, prosecutors, and the judicial system. The record refutes this
purported concern about the biases the prosecutor cited, demonstrating that
24
it is pretextual. See Foster, 135 S.Ct. at 1748 (“On their face, [the
prosecutor]’s justifications for the strike seem reasonable enough. Our
independent examination of the record, however, reveals that much of the
reasoning provided by [the prosecutor] has no grounding in fact.”).
First, Juror 2405 said nothing about her son’s interaction with police (it
was not the police who misidentified her son, it was the “lady [who] picked
him out at the mall”). She said nothing about prosecutors or the judicial
system, as her son was never charged. Unlike several other jurors, Juror
2405 did not raise her hand when Toro asked the venire if they “ever had any
dealings with either the police department or the judicial system regardless
of whether or not it was good or bad.” ER 199-203.
Perhaps more importantly, the problem with the prosecutor’s purported
concern about Juror 2405’s potential bias against police, prosecutors, or the
judicial system is that he did not ask Juror 2405 a single question about
these potential biases. He asked her no questions about her son’s experience
with the police (such as whether she thought he had been treated fairly, or
whether she had any lingering feelings about the police). He asked her no
questions about whether her son’s experience left her with lingering feelings
about the prosecution, likely because her son was not prosecuted. He asked
her no questions about whether her son’s experience left her with any
25
lingering feelings about the judicial system, with which her son was not
involved. Toro asked Juror 2405 only about race and misidentification – two
topics which he now claims were not the reasons for the strike.
As this Court has held, this “failure to engage in any meaningful voir
dire examination on a subject the State alleges it is concerned about is
evidence suggesting that the explanation is a sham and a pretext for
discrimination.” Miller-El v. Dretke, 545 U.S. at 245 ((prosecutor’s alleged
concern that a juror’s brother had been convicted and served prison time for
multiple offenses was pretextual because “the prosecution asked nothing
further about the influence his brother's history might have had on [the
struck juror], as it probably would have done if the family history had
actually mattered.”).
In crediting Toro’s stated reason for the strike, the Ninth Circuit
nonetheless held that “[t]he prosecutor’s failure to further question Juror
2405 does not show pretext….Once Juror 2405 revealed the incident with her
son and stated that she did not think it would affect her performance as a
juror, there was no apparent need for the prosecutor to ask additional
questions.” App. 4a. This reasoning is clearly erroneous under Miller-El.
Given that this Court required prosecutor in Miller-El to question a struck
juror about the influence his brother’s multiple convictions and prison
26
sentences would have on his ability to be fair, in order for his stated concern
about the brother’s history to be credited, then Toro cannot be excused from
failing to question Juror 2405 about the biases he now claims he thought she
harbored because her son was detained for one night and released with no
charges filed – particularly when she reiterated several times that the
incident would not affect her ability to be fair. See Miller-El, 545 U.S. 250 n.8
(prosecutor’s claim that he struck a juror because his brother-in-law had been
convicted of a crime was pretextual because the prosecutor “never questioned
[the juror] about his errant relative at all; as with Fields’s brother, the failure
to ask undermines the persuasiveness of the claimed concern.”).
IV.
The Prosecutor’s Mischaracterization of the Juror’s Testimony
is Further Evidence of Discriminatory Pretext
Toro’s mischaracterization of Juror 2405’s testimony when he
attempted to strike her for cause – his statement “[b]ut she said it would
leave her with an affect” – is additional evidence of discriminatory pretext,
particularly given how clear and unequivocal Juror 2405 was in repeatedly
stating that her son’s experience would not affect her, and that she would
remain “completely unbiased.” ER 195-96. This Court has clearly held that a
prosecutor’s mischaracterization of a prospective juror’s testimony is evidence
of discriminatory pretext. As this Court explained in Miller-El,
27
[The prosecutor] simply mischaracterized Fields’s testimony. He
represented that Fields said he would not vote for death if
rehabilitation was possible, whereas Fields unequivocally stated that
he could impose the death penalty regardless of the possibility of
rehabilitation. Perhaps [the prosecutor] misunderstood, but unless he
had an ulterior motive for keeping Fields off the jury, we think he
would have proceeded differently. In light of Fields’s outspoken support
for the death penalty, we expect the prosecutor would have cleared up
any misunderstanding by asking further questions before getting to the
point of exercising a strike.
545 U.S. at 244; see also Foster, 136 S.Ct. at 1753 (“Hood asserted no fewer
than four times during voir dire that he could impose the death penalty. A
prosecutor is entitled to disbelieve a juror’s voir dire answers, of course. But
the record persuades us that Hood’s race…was [the prosecutor]’s true
motivation. The first indication to that effect is [the prosecutor]’s
mischaracterization of the record.”). Here, as in Miller-El, the prosecutor’s
failure to ask any questions about the bias that he now claims was the reason
for the strike increases the significance of his mischaracterization of Juror
2405’s statements.
28
Rather than acknowledging this Court’s jurisprudence regarding a
prosecutor’s mischaracterization of a prospective juror’s testimony, the Ninth
Circuit first inaccurately described the prosecutor’s false statements about
Juror 2405’s testimony at the time of the cause challenge as an “apparent
misstatement.” App. 4a. But there is no ambiguity as to whether Toro
mischaracterized the juror’s testimony. She had said, unequivocally, that the
incident with her son would not affect her, and that she would remain
completely unbiased; yet when attempting to strike her for cause, Toro
claimed she had said the exact opposite: “But she said it would leave her with
an affect.” He directly contradicted what the juror had said – something that
this Court has held to be strong evidence of discriminatory pretext, but which
the Ninth Circuit ignored in its order. Instead, the Ninth Circuit affirmed the
district court’s finding that the prosecutor was “a conscientious and earnest
witness who attempted to answer questions designed to finely parse his
memory of events that occurred more than a decade earlier as honestly and
precisely as possible.” App. 5a. But the issue with respect to his
mischaracterization of Juror 2405’s testimony is not his credibility at the
time of the evidentiary hearing, 13 years after the trial – it’s what he said at
the time of the trial, when he attempted to strike the juror for cause by
29
making false statements about her testimony – statements that, today, he
will not even admit that he made.
Indeed, in the face of the trial record, and a prior ruling from the Ninth
Circuit that the prosecutor’s mischaracterization of Juror 2405’s testimony
was evidence of discrimination, the prosecutor’s only explanation for his
misstatement is to as attempt to shift the blame to the court reporter, stating
that he doesn’t know if she accurately transcribed what he said. Yet when
asked what he actually said during the cause challenge (if he did not say
what’s in the transcript), Toro could not remember. ER 439. He testified that
his reason for believing that the transcript is inaccurate is simply because he
had no reason to mislead the court, and he’s never done so in his career. Id.
No prosecutor, however, will readily admit to intentionally misleading the
court. As this Court held in Batson, “Nor may the prosecutor rebut the
defendant’s case by denying that he had a discriminatory motive or affirming
his good faith in making individual selections. If these general assertions
were accepted as rebutting a defendant’s prima facie case, the Equal
Protection Clause would be but a vain and illusory requirement.” Batson, 476
U.S. at 98. This Court also has noted that “[a]nyone familiar with trial court
practice knows that the court reporter is relied on to furnish an accurate
30
account of what is said in the courtroom.” Wainwright v. Witt, 469 U.S. 412,
429 (1985).
The prosecutor went on to explain that even if the transcript accurately
reflects his comments, what he meant to say during the cause challenge is
that even though Juror 2405 said she could be fair, he simply did not believe
her. ER 440. But a prosecutor’s personal disbelief of a juror’s repeated,
unwavering assertions that she could be fair, in the absence of any record
evidence of bias, is an improper basis for a challenge for cause – as an
experienced prosecutor like Toro would know. See Cal. Code Civ. Pro. § 229
(stating grounds for implied bias, none of which applied to Juror 2405), and
Cal. Code Civ. Pro. § 225(b)(1)(C) (defining actual bias as “the existence of a
state of mind on the part of the juror in reference to the case, or to any of the
parties, which will prevent the juror from acting with entire impartiality, and
without prejudice to the substantial rights of any party”). Therefore Toro’s
explanation about what he meant to say during the cause challenge, if
believed, is additional evidence of purposeful discrimination – evidence that
the Ninth Circuit failed to address. See Foster, 136 S.Ct. at 1752 (“Of course
it is possible that [the prosecutor] simply misspoke in one of the two
proceedings. But even if that were so, we would expect at least one of the
31
purportedly principal justifications for the strike to withstand closer scrutiny.
Neither does.”).
V.
Toro’s false declaration claiming that he conducted
comparative juror analysis during trial is additional evidence
of discriminatory pretext
Toro’s credibility is eroded further by his shifting and misleading
testimony about what he remembers about Jurors 5147 and 1612, whom
Potts’s counsel had used for comparative juror analysis at earlier stages of
the litigation, and whom the Ninth Circuit had found had had similar
experiences to that of Juror 2405 but were not struck by Toro, raising an
inference of discrimination at Step 1 of the Batson analysis. At the
deposition, Toro was asked about these two jurors. Although he had reviewed
the voir dire transcript several times with a focus on these jurors, because he
knew that they were the subject of comparative juror analysis by Potts and
this Court, he was unable to remember anything about them, including any
thoughts he had about them at the time of trial. ER 373-76.
Less than three months later, Toro signed a declaration in which he
swore to multiple thoughts and opinions he held about Jurors 5147 and 1612,
stating that he had compared their experiences with misidentification to that
of Juror 2405 and found that they were not similar. When questioned about
this discrepancy at the evidentiary hearing, Toro did not claim that his
32
memory of the 2001 trial had improved in the time between the deposition
and when he signed the declaration. He acknowledged that the declaration
was drafted before he testified at the deposition, at which time he had no
memory of Jurors 5147 and 1612, or his thoughts about them at the time of
the trial. ER 469. He expressed confusion about why he would even compare
those jurors to Juror 2405: “I’m having a hard time understanding because at
the time I’m striking a juror for bias, and then we’re discussing another juror
as to identification issues.” ER 444. And he reiterated what he said at the
deposition: he does not remember any thoughts he had about Juror 5147 at
the time of the voir dire. He testified similarly as to Juror 1612. Most
importantly, he testified that he did not, in fact, compare those jurors to
Juror 2405 at the time of the trial – despite the statements in his sworn
declaration that he had done so. ER 447.
Toro’s explanation for the statements in his declaration is that
Respondent’s counsel gave him “a framework to address those issues and why
I would have kept them or kicked them or why they were – if they were in any
way related to the Wheeler juror.” ER 444 (emphasis added). But in his
declaration, he made sworn statements, using the past tense, designed to
convince the Court that at the time of the trial, he compared Jurors 5147 and
1612 to Juror 2405, and he did not think their experiences with
33
misidentification were similar, leading him not to strike the two seated
jurors. Toro admitted that he made these statements – even though he does
not remember what he thought about these jurors, and he did not compare
them to Juror 2405 during the trial – because Respondent’s counsel asked
him to do so.
The District Court recognized the discrepancy between Toro’s
declaration and the testimony he gave both before and after he signed it,
describing the declaration as “arguably misleading,” and “at best, sloppily
phrased, and at worst, misleading.” ER at 20-21. Noting that Respondent’s
counsel brought the two seated jurors to Toro’s attention and gave him a
framework that included comparing and contrasting them to Juror 2405, the
district court declined to “excus[e] the conduct of either Toro or Respondent’s
counsel.” Id. The court nonetheless concluded, without explanation – that
“the Court does not believe that these inaccuracies significantly undermine
Toro’s credibility or the credibility of his asserted reason for striking Juror
2405.” Id. The Ninth Circuit affirmed this finding, conclusorily stating (also
without explanation) that “Potts has not shown that the district court’s
credibility determination was clearly erroneous.” App. 5a.
This finding, of course, does excuse Toro’s conduct, and it does so
inexplicably. The statements in the declaration cannot be characterized as
34
mere “inaccuracies,” “sloppily phrased,” or anything other than deliberately
misleading and/or actively false. In a substantial portion of a sworn
declaration, crafted with forethought and deliberation well before it was
submitted, Toro claimed to remember facts and opinions that he does not
actually remember, and he claimed to have performed a comparison of jurors
that he did not actually perform. As this Court stated in a recent Batson
opinion, “This was not some off-the-cuff remark; it was an intricate story
expounded by the prosecution in writing,” in a declaration sworn under
penalty of perjury and filed with the district court as Toro’s direct testimony.
Foster, 136 S.Ct. at 1750 (rejecting prosecutor’s attempt to explain away his
contradictory statements as “merely misspeak[ing]”).
Toro’s attempt to mislead the court about his reasons for keeping or
striking any juror, including and especially Juror 2405, and to convince the
court that he performed a comparative juror analysis that he did not actually
perform, provides further evidence that his testimony about Juror 2405
cannot be believed, and that his stated reasons for striking her are
pretextual.
Although the voir dire transcript alone demonstrates the pretextual
nature of Toro’s stated reasons for the strike, his willingness to mislead the
Court about what he remembers and what he was thinking when he struck
35
Juror 2405 compels the conclusion that the strike was substantially
motivated by race. The Ninth Circuit’s holding to the contrary decided an
important federal question in a way that conflicts squarely with the decisions
of this Court in Batson, Miller-El, and their progeny.
Conclusion
For the foregoing reasons, Mr. Potts respectfully requests that this Court
grant his petition for a writ of certiorari.
Respectfully submitted,
CUAUHTEMOC ORTEGA
Interim Federal Public Defender
DATED: July 28, 2020
_______________________________
By: JILL GINSTLING*
Deputy Federal Public Defender
Attorney for Petitioner Dewoyne Curtis
Potts
* Counsel of Record
36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.