Petition for Writ of Certiorari — Don'te Lamont McDaniel, Petitioner v. California

*** CAPITAL CASE ***

No._______

In the Supreme Court of the United States

__________________________________

DON’TE LAMONT MCDANIEL,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

__________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF CALIFORNIA

__________________________________

PETITION FOR A WRIT OF CERTIORARI

MARY K. McCOMB

State Public Defender

*ELIAS BATCHELDER

Supervising Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607

(510) 267-3300

elias.batchelder@ospd.ca.gov

*Counsel of Record

QUESTION PRESENTED

This case presents an important question over which lower courts are

openly and intractably divided regarding the proper method for assessing

mixed motive in Batson cases. In the trial below—of a Black capital

defendant—the trial judge found that the prosecutor violated Batson v.

Kentucky, 476 U.S. 79 (1986) (Batson) after striking five Black jurors.

Concluding that the last stricken juror was eliminated based on race, the

trial court ordered that juror reseated. This appeal concerns a prior strike

against another Black juror, Herman Taniehill.

The prosecutor, caught violating Batson, was unrepentant. In the codefendant’s capital trial a few months later, a different judge found the same

prosecutor again violated Batson in striking numerous Black jurors. The

meaning of these multiple findings of discrimination is relatively

straightforward: this prosecutor, believing based on racial stereotypes that

Black jurors were unfavorable in this case, repeatedly eliminated them based

upon race and misled two respective trial courts by providing pretextual

justifications to shield his true motivations.

If, as here, a prosecutor enters jury selection with negative stereotypes of

Black jurors in mind, and then acts upon them by striking a juror based on

race, what meaning ought this finding have for analysis of strikes against

other Black jurors in that same trial? The courts below afforded little, if any,

weight to an explicit act of discrimination. Petitioner, however, submits that

where a prosecutor both harbors discriminatory views of Black jurors and

allows this racial bias to influence their choices in a specific trial, the act of

decisionmaking as to all Black jurors in that trial is infected with some

degree of racial bias. Though a prosecutor who strikes a Black juror based on

race necessarily assumes Black jurors are unfavorable as a general matter,

racial animosity or negative stereotypes may not be the only motivation in

the exercise of peremptories against Black jurors. Nonetheless, biased views

regarding Black jurors are surely one influence on their thinking. Accepting

this premise—that decisionmaking by a prosecutor caught violating Batson is

necessarily influenced by racial stereotypes and racial bias—leads to the

inexorable conclusion that the prosecutor below acted, at best, with mixed

motives. This, in turn, leads to the following question:

1. Should this Court resolve the intractable three-way split of authority

regarding the proper method for assessing cases of mixed motive in

Batson cases?

ii

STATEMENT OF RELATED PROCEEDINGS

People v. Don’te Lamont McDaniel, Case No. TA074274

Superior Court of Los Angeles County (California)

(Trial judgment entered March 20, 2009)

People v. Don’te Lamont McDaniel, Case No. S171393

Supreme Court of California

(Direct appeal, decision issued August 21, 2021)

People v. Don’te Lamont McDaniel, Case No. S171393

Supreme Court of California

(Petition for rehearing denied and opinion modified October 20, 2021)

In re Don’te Lamont McDaniel, Case No. S270324

Supreme Court of California

(Habeas corpus petition, filed August 11, 2021)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................... ii

STATEMENT OF RELATED PROCEEDINGS ............................................... iii

TABLE OF AUTHORITIES ......................................................................... vi

PARTIES TO THE PROCEEDINGS ...................................................................1

OPINION BELOW .................................................................................................1

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

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED................2

STATEMENT OF THE CASE ..............................................................................3

I.

THE BATSON MOTION BELOW: THE TRIAL COURT

FINDS THE PROSECUTOR VIOLATED BATSON AS

TO ONE JUROR, BUT WITHOUT EXPLICITLY

CONSIDERING ITS FINDING OF DISCRIMINATION

IN ITS ANALYSIS, IMPLICITLY FINDS NO VIOLATION

AS TO ANOTHER JUROR ........................................................................3

II.

THE PROSECUTOR FILES A FAILED MOTION FOR

RECONSIDERATION AND THEN VIOLATES BATSON

AGAIN IN THE CO-DEFENDANT’S CASE .........................................12

III.

THE CALIFORNIA SUPREME COURT ISSUES, AND

THEN MODIFIES, ITS OPINION .........................................................13

REASONS FOR GRANTING THE WRIT .........................................................16

I.

THIS CASE PRESENTS AN OPPORTUNITY TO RESOLVE THE

LONG-STANDING SPLIT OF AUTHORITY ON HOW TO TREAT

MIXED MOTIVES IN BATSON CASES ...............................................18

CONCLUSION .....................................................................................................24

iv

TABLE OF CONTENTS

Page

APPENDICIES ............................................................................................ 25

A.

People v. McDaniel, No. S171393, California Supreme

Court Slip Opinion, August 26, 2021....................................... 25

B.

People v. McDaniel, No. S171393, California Supreme

Court Petition for Rehearing, September 10, 2021.................. 26

C.

People v. McDaniel, No. S171393, California Supreme

Court Order Modifying Opinion And Denying Petition

For Rehearing, October 20, 2021. ............................................. 27

D.

McDaniel v. California, Application No. 21A316,

United States Supreme Court, Order Granting

Extension of Time to File Petition for Writ of

Certiorari, January 12, 2022 .................................................... 28

E.

People v. McDaniel, No. S171393, California Supreme

Court, Motion for Judicial Notice, August 6, 2015 ................. 29

v

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Akins v. Easterling,

648 F.3d 380 (6th Cir. 2011) ............................................................................. 21

Batson v. Kentucky,

476 U.S. 79 (1986) ..................................................................................... passim

Berquist v. Washington Mut. Bank,

500 F.3d 344 (5th Cir. 2007) ............................................................................. 17

Cook v. LaMarque,

593 F.3d 810 (9th Cir. 2010) ....................................................................... 19, 21

Flowers v. Mississippi,

139 S.Ct. 2228 (2019) .................................................................................. 17, 22

Gattis v. Snyder,

278 F.3d 222 (3d Cir. 2002) ............................................................................... 19

Hein v. All America Plywood Co., Inc.,

232 F.3d 482 (6th Cir. 2000) ............................................................................. 17

Howard v. Senkowski,

986 F.2d 24 (2d Cir. 1993) ................................................................................. 19

Jones v. Plaster,

57 F.3d 417 (4th Cir. 1995) ............................................................................... 19

Kesser v. Cambra,

465 F.3d 351 (9th Cir. 2006) ............................................................................. 21

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ........................................................................................... 17

Shuttlesworth v. Birmingham,

394 U.S. 147 (1969) ........................................................................................... 13

Snyder v. Louisiana,

552 U.S. 472 (2008) .................................................................................. passim

vi

TABLE OF AUTHORITIES

Page(s)

United States v. Darden,

70 F.3d 1507 (8th Cir. 1995) ............................................................................. 19

Wallace v. Morrison,

87 F.3d 1271 (11th Cir. 1996) ........................................................................... 19

Washington v. Roberts,

846 F.3d 1283 (10th Cir. 2017) ......................................................................... 21

Whole Woman's Health v. Hellerstedt,

579 U.S. 582 (2016) ........................................................................................... 13

Wilkerson v. Texas,

493 U.S. 924 (1989) ........................................................................................... 18

STATE CASES

Ex parte Sockwell,

675 So.2d 38 (Ala. 1995) .................................................................................... 20

McCormick v. State,

803 N.E.2d 1108 (Ind. 2004) ............................................................................. 20

Payton v. Kearse,

329 S.C. 51 (1998) .............................................................................................. 20

People v. Douglas,

22 Cal. App. 5th 1162 (Cal. Ct. App. 2018) ...................................................... 20

People v. Hardy,

5 Cal. 5th 56 (2018) ................................................................................... 5, 6, 22

People v. Lewis,

43 Cal. 4th 415 (2008) ....................................................................................... 23

People v. McDaniel,

12 Cal. 5th 97 (2021) ................................................................................. passim

Rector v. State,

213 Ga. App. 450 (1994) .................................................................................... 20

vii

TABLE OF AUTHORITIES

Page(s)

Riley v. Commonwealth,

21 Va. App. 330 (1995) ...................................................................................... 20

Robinson v. United States,

890 A.2d 674 (D.C. App. 2006) ......................................................................... 19

State v. King,

572 N.W.2d 530 (Wisc. App. 1997).................................................................... 20

State v. Lucas,

199 Ariz. 366 (Ariz. App. 2001) ......................................................................... 20

Strozier v. Clark,

206 Ga. App. 85 (1992) ...................................................................................... 20

FEDERAL STATUTES

28 U.S.C.

§ 1257(a)............................................................................................................... 1

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. 14th ......................................................................................... 2

OTHER AUTHORITIES

Appellant’s Opening Brief, People v. McDaniel,

No. S171393 (filed August 6, 2015) .............................................................. 5, 22

Covey, The Unbearable Lightness of Batson: Mixed Motives

and Discrimination in Jury Selection,

66 MD. L. REV. 279 (2006) .................................................................... 18, 19, 20

Cox, The “Tainted Decision-Making Approach”: A Solution for the

Mixed Messages Batson Gets from Employment Discrimination

56 CASE W. RES. LAW REV. 769 (2006) .............................................................. 18

McDaniel et al., The Black Gender Gap in Educational Attainment:

Historical Trends and Racial Comparisons, 48 DEMOGRAPHY

889 (2011) ............................................................................................................ 9

viii

TABLE OF AUTHORITIES

Page(s)

Tolnay, Educational Selection in the Migration of Southern Blacks,

1880-1990, 77 SOCIAL FORCES 487 (1998)........................................................... 9

Transcript of Oral Argument, Flowers v. Mississippi,

139 S.Ct. 2228 (2019) ........................................................................................ 16

ix

Petitioner, Don’te Lamont McDaniel, respectfully petitions for a Writ of

Certiorari to review the judgment of the Supreme Court of the State of

California affirming his conviction and sentence of death.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were petitioner, Don’te Lamont

McDaniel, and Respondent, the People of the State of California.

OPINION BELOW

The California Supreme Court issued an opinion in this case on August

26, 2021, reported as People v. McDaniel, 12 Cal. 5th 97 (2021). A copy of that

opinion is attached. Appendix A. A petition for rehearing, Appendix B, and a

request to modify the opinion were filed on September 10, 2021. On October 20,

2021, the court issued an order denying the petition for rehearing and modifying

the opinion, a copy of which is attached as Appendix C.

JURISDICTION

The California Supreme Court entered its judgment on August 26, 2021

and denied rehearing on October 20, 2021. On January 12, 2022, Justice Kagan

granted petitioner’s application for extension of time within which to file a

petition for certiorari in this case to March 19, 2022. Appendix D. This Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

1

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The Fourteenth Amendment provides that no state shall “deny to any

person within its jurisdiction the equal protection of the laws.”

///

///

2

STATEMENT OF THE CASE

In 2008, petitioner Don’te Lamont McDaniel, a Black man, was tried for a

gang-related murder. Mr. McDaniel and his codefendant, Kai Harris, were

charged with entering an apartment in the Nickerson Gardens housing project

in South Central Los Angeles and killing two occupants, Annette Anderson and

George Brooks. Two others inside the apartment were wounded. The prosecution

theory was that McDaniel and Harris, both members of the Bounty Hunter

Bloods gang, retaliated against Mr. Brooks—a member of the same gang—for

taking drugs without payment from a high-level dealer. See People v. McDaniel,

12 Cal. 5th 97, 108-113 (2021) (McDaniel) (summarizing prosecution case). Mr.

McDaniel was convicted of capital murder with a special circumstance of

multiple murder and sentenced to death. Id. at 108. Mr. Harris, whose appeal

remains pending, was tried separately, convicted and sentenced to death. In both

cases, there were successful Batson motions raised against the trial prosecutor,

Halim Dhanidina.

THE BATSON MOTION BELOW: THE TRIAL COURT

FINDS THE PROSECUTOR VIOLATED BATSON AS

TO ONE JUROR, BUT WITHOUT EXPLICITLY CONSIDERING

ITS FINDING OF DISCRIMINATION IN ITS ANALYSIS,

IMPLICITLY FINDS NO VIOLATION AS TO ANOTHER JUROR

The prosecutor quickly eliminated three Black jurors during jury selection

in his first eight strikes. When the third juror, Herman Taniehill, was stricken,

counsel objected, noting that he “seemed fairly strong on the death penalty” and

3

had no obvious problems in his questionnaire. McDaniel, 12 Cal. 5th at 118. This

juror indeed had several seemingly favorable prosecution characteristics: Mr.

Taniehill “had served in the military,” id. 126, thought that the death penalty

was applied “too seldom,” (5 CT 1216), and had written that he would not

consider mental health testimony or background and upbringing as mitigation in

a capital case. (5 CT 1215). The trial court nevertheless denied the objection,

finding no prima facie pattern of discrimination sufficient to require a response

from the prosecution. Ibid.

In the following four peremptory challenges, however, the prosecutor

struck two additional Black prospective jurors, for a total of five Black jurors

eliminated in the first twelve peremptory challenges. When the fifth Black juror,

Prospective Juror No. 46, 1 was stricken, defense counsel again objected.

Expressing concern regarding the disproportionate strikes against Black

prospective jurors, the trial court found a prima facie case of discrimination and

demanded a justification for all five strikes. McDaniel, 12 Cal. 5th at 118-19.

For Mr. Taniehill, the juror at issue here, the prosecutor provided three

bases for his excusal.

First, the prosecutor alleged that his “primary problem” with this juror

“was that he, along with many others, in fact – but he indicated that life without

1 Because Prospective Juror No. 46 was ultimately seated and the names of

the seated jurors sealed by the trial court, he is referred to only by his juror number.

4

parole is a more severe sentence, which I don’t think is a good instinct to have on

a death penalty jury.” (5 RT 1078-1079) (emphasis added.)

As the prosecutor’s italicized admission suggested, he based this alleged

“primary concern” on a wide-spread questionnaire response of questionable

relevance. See Appellant’s Opening Brief, People v. McDaniel, No. S171393 (filed

August 6, 2015) (AOB) at 75 (“no less than 33 prospective jurors explicitly state

that they felt LWOP was more severe. An additional eight prospective jurors

stated or suggested that the two were equivalent”); People v. Hardy, 5 Cal. 5th

56, 83 (2018) (Hardy) (recognizing that a prospective jurors’ unconsidered

questionnaire response that a life sentence is more severe than a death sentence

is a “weak reason” for their excusal). Indeed, the prosecutor and the trial court

had explicitly noted earlier during voir dire that this questionnaire response was

quite prevalent. (4 RT 857) (trial court: “many of you in your responses said . . . I

think life without parole is worse”), (4 RT 942) (prosecutor: “I noticed on the

questionnaires . . . a lot of people felt that a life sentence or a life without parole

is more severe than the death penalty”). The belief was so prevalent, in fact, that

the trial court decided to admonish the entire jury pool that the law dictated

that death was the more severe punishment. (4 RT 857). Of the 18 jurors and

alternates, the prosecution accepted four who stated that a life sentence was

more severe than death. AOB at 76-77. No one asked Mr. Taniehill any

5

questions about his belief that a life sentence was more severe than a death

sentence—the purportedly “primary” driver of the strike against him.

Second, the prosecutor noted that Mr. Taniehill indicated on his

questionnaire that “he did not want to serve on the jury because he felt like the

trial would be too long.” (5 RT 1079). The prosecutor explained that he tried “not

to have jurors on death penalty cases that don’t want to be here and don’t want

to take the time in particular to be here” and a “juror that is in a rush is not a

juror I want to have.” (5 RT 1079).

This was a complex capital case in which the court had estimated a

roughly four week trial. (3A RT 452). Over 50 prospective jurors expressed

concern stemming from the length of the trial and/or related conflicts in

schedule. See AOB at 80-81 & n.22. Nowhere in his questionnaire did Mr.

Taniehill indicate he was “in a rush.” In fact, unlike scores of other jurors

concerned with the duration of the trial, Mr. Taniehill did not request to seek

excusal from the jury based on its length, nor did he otherwise exhibit hostility

to sober deliberation. To the contrary, during voir dire the trial court actually

commended Mr. Taniehill specifically for showing up to serve on this lengthy

case notwithstanding his reservations about its duration. (4 RT 878); see also

Hardy, 5 Cal. 5th at 82 (a prospective jurors’ desire not to sit on a lengthy capital

trial is “also a rather weak reason” because “[m]any prospective jurors do not

want to sit on a jury in a death penalty case”); see also Snyder v. Louisiana, 552

6

U.S. 472, 482 (2008) (discounting claim that juror was stricken due to concern

that he would return verdict quickly to avoid scheduling conflict; even if a true

concern, juror’s hypothesized impatience “might have led him to agree [with

verdict favoring prosecution] in order to speed the deliberations”).

A comparison to Seated Juror No. 5 is particularly striking. Seated Juror

No. 5 wrote on his questionnaire that he did not wish to serve on the jury

because he was a manager at a store and “need[ed] to work to make house

payment.” (4 CT 784.) He separately noted at the end of his questionnaire that

he “need[ed] to be at work” because he was the “leader there at my store” and

that, because he was buying his first house and needed to move, “I can’t be here.”

(4 CT 787.) Although Seated Juror No. 5 requested excusal during the hardship

period of voir dire, the trial court denied his request. (3A RT 495.) The

prosecutor later asked Seated Juror No. 5 about his concerns during attorney-led

voir dire. (4 RT 964.) Seated Juror No. 5 reaffirmed that he did not want to serve

on the jury due to financial issues. (4 RT 964.) When asked whether this issue

would impact how he looked at the evidence, he stated, “I believe so.” (4 RT 964.)

When asked how so, he responded, “there’s lots of things going on in my personal

life financial-wise that I need to take care of the family.” (4 RT 964.) When asked

if he could set aside those feelings if instructed to do so, the juror stated, “I guess

I have to.” (4 RT 964.) When the prosecutor responded, “you have to?” the juror

responded, “it is the law.” (4 RT 964-965.)

7

Notwithstanding his purported concern for seating jurors who did “want

to be here,” the prosecutor accepted Seated Juror No. 5. In contrast, the

prosecutor did not even ask Mr. Taniehill a single question about the alleged

flaw that he did not wish to serve on a lengthy capital trial.

Third, the prosecutor indicated that he was trying “to have a jury with as

much formal education as possible. And this juror I think just completed the

twelfth grade.” (5 RT 1079.) Despite this alleged desire for formally educated

jurors, the seated jury accepted by the prosecution had seven members who did

not have college degrees, three of whom did not even graduate high school. 2 Nor

had any of the six alternate jurors accepted by the prosecution completed four

years of college. 3 The prosecutor did not explain why jurors without a college

education would be less favorable to the prosecution in this case. However, as

noted by the California Supreme Court, “[e]ducational disparities” among jurors

“fell across racial lines,” with Black jurors far less likely to have college

experience. McDaniel, 12 Cal. 5th at 125.

2 4 CT 777 (Seated Juror No. 5: “11th grade”); 4 CT 861 (Seated Juror No. 12

“14”); 4 CT 801 (Seated Juror 7 “some high school”); 4 CT 753 (Seated Juror 3: “high

school”); 4 CT 813 (Seated Juror 12: “12th grade and trade school”); 4 CT 4 CT 766

(Seated Juror No. 4: “some college courses”);

3 4 CT 873 (Alternate Juror No. 1, 2 years of college); 4 CT 885 (Alternate

Juror No. 2, AA degree); 4 CT 897 (Alternate Juror No. 3, some college); 4 CT 909

(Alternate Juror No. 4, high school graduate and 1 year of junior college); 4 CT 921

(Alternate Juror No. 5, some college); 4 CT 933 (Alternate Juror No. 6, college

student with approximately 80 units).

8

Mr. Taniehill, for his part, was an older Black man who was born in the

1930s—an era when it was extremely rare for Black men to receive college

degrees. 4 Mr. Taniehill was also born in the Jim Crow South. 5 CT 1209.

Because of the forced racial hierarchy of the South at this time, it was even more

uncommon for Black men of Mr. Tanniehill’s generation from the South to

attend college. See Tolnay, Educational Selection in the Migration of Southern

Blacks, 1880-1990, 77 SOCIAL FORCES 487, & n.18 (1998) (noting “large regional

differences in educational attainment” among Black population because of “the

slow development of educational opportunities for blacks in the South”: average

years of schooling for Black men in the South who were over 25 of years of age in

the 1950s was only 5.5 years).

Notwithstanding these substantial social disadvantages, Mr. Taniehill

graduated high school, joined the military, and became an electrician working

for an aircraft company. McDaniel, 12 Cal. 5th at 126. The prosecutor asked Mr.

Taniehill no questions about his education or what it might signify about his

ability to deliberate.

After the prosecutor completed providing his reasons for eliminating Mr.

Taniehill, defense counsel interjected that:

4 5 CT 1209; see McDaniel et al., The Black Gender Gap in Educational

Attainment: Historical Trends and Racial Comparisons, 48 DEMOGRAPHY 889

(2011), Appendix, figure 1 (between 1950 and 1960, only approximately 2-3% of

African American men between 22 and 28 years old had completed college).

9

There were many jurors – those particular reasons – the education,

LWOP 5 is more severe, the uncomfortable – you know, the time issue with

regard to the jury, there are a lot of people on this panel that have

reflected – and you corrected them in your opening remarks, and they all

backed off of any problem in that regard. ¶ As far as education goes, I

haven’t gone through it particularly, but there are lots of jurors –

(5 RT 1079-1080.)

The court then interrupted to note that Mr. Taniehill had given a

potentially problematic questionnaire response relating to the death penalty. (5

RT 1080.) Defense counsel explained that Mr. Taniehill had clarified during

court-led voir dire that this answer was simply a mistake. (5 RT 1080);

McDaniel, 12 Cal. 5th at 119 [“Defense counsel confirmed that [Mr. Taniehill] . .

. said he had made a mistake”]; see also 4 RT 878 [voir dire].) The prosecutor did

not adopt Mr. Taniehill’s mistaken response as a basis for excusal or reference

Mr. Taniehill’s response related to the death penalty in any way during the

hearing.

As the hearing continued, the prosecutor subsequently gave three reasons

for his strike of the fifth Black juror, Prospective Juror No. 46 (later Seated

Juror No. 3). The first reason, relating to the relative severity of LWOP and the

death penalty, was strikingly similar to the “primary” reason given for the strike

of Mr. Taniehill: the “prosecutor noted that Prospective Juror No. 46 believed

that life without parole and the death penalty ‘are essentially the same because

5 Life without the possibility of parole.

10

life in prison is not a life.’” McDaniel, 12 Cal. 5th at 120. The prosecutor also

noted that Prospective Juror No. 46 had stated that he did not believe the death

penalty was a deterrent, which he claimed “‘is not an attitude that I considered

to be a fair attitude.’” Ibid. Finally, the prosecutor noted that the juror listed to

an allegedly “liberal” public radio station—which the prosecutor himself also

listed to—that had at some point invited “guest speakers and interviews [sic]

that are anti-death penalty advocates.” Ibid.; (5 RT 1082). Defense counsel

countered that, in addition to the prosecutor, he and many other “conservative

jurors” listened to this and other public radio stations. (5 RT 1082).

Initially, the trial court denied the Batson motion as to all jurors stating

that he was “accepting of the articulated reasons that have been advanced here.”

McDaniel, 12 Cal. 5th at 120. However, immediately thereafter, the trial court

reversed course, finding that the reasons provided for striking Prospective Juror

No. 46, in particular his choice of a particular radio station, was “not a valid

reason.” Ibid.; (5 RT 1085). At the election of trial counsel, the trial court ordered

that Prospective Juror No. 46 be reseated. Ibid.

The prosecutor, seeking to change the trial court’s mind, then attempted

to proffer additional justifications—noting the fact that the juror volunteered at

a non-profit called “urban possibilities.” McDaniel, 12 Cal. 5th at 120. He then

asked for a recess to consult his supervisors about the court’s “highly unusual”

decision. Ibid. Both efforts failed.

11

However, the trial court made no further findings concerning the other

four jurors (including Mr. Taniehill), implicitly leaving in place its prior

statement—made before the finding of the Batson violation—that he was

“accepting of the articulated reasons that have been advanced here.” McDaniel,

12 Cal. 5th at 120. The trial court made no mention of weighing the Batson

violation as to Prospective Juror No. 46 when assessing the Batson violation as

to the other jurors.

THE PROSECUTOR FILES A FAILED MOTION FOR

RECONSIDERATION AND THEN VIOLATES BATSON

AGAIN IN THE CO-DEFENDANT’S CASE

The prosecutor later filed a motion for reconsideration, arguing that he

had not violated Batson because the trial court had applied an erroneous “for

cause” standard to his peremptory challenge when he had ruled that one of the

prosecutor’s reasons for excusing Prospective Juror No. 46 was “not valid.”

McDaniel, 12 Cal. 5th at 121. The trial court denied the motion, explaining that

he “st[oo]d by his ruling” and still did not believe “they [the prosecutor’s reasons

for striking Prospective Juror No. 46] were valid under the circumstances

because I think there were other jurors who said similar statements as this

juror.” Ibid. (brackets in original).

A few months later, the same prosecutor, Mr. Dhanidina, tried the codefendant, Kai Harris, before a different trial court. There was another Batson

objection after Mr. Dhanidina removed numerous Black jurors and other jurors

12

of color during that trial. The court found that Mr. Dhanidina violated Batson

based on discrimination against a Black juror and granted a mistrial. See Motion

for Judicial Notice, People v. McDaniel, No. S171393 (filed August 6, 2015),

attached Appendix E. The California Supreme Court, although acknowledging

that it could have appropriately granted judicial notice of the co-defendant’s

proceeding, exercised its discretion and declined to do so on direct appeal,

“without prejudice to McDaniel presenting such information on a fuller record in

connection with a petition for habeas corpus.” McDaniel, 12 Cal. 5th at 128; see

also Shuttlesworth v. Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 22 L.Ed.2d

162 (1969) (court may take notice of “litigation between the same parties who

are now before us”); Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016),

___ n.24 (Alito, J., dissenting) (taking judicial notice of documents filed by one of

the parties in a “closely related” case).

THE CALIFORNIA SUPREME COURT ISSUES, AND THEN

MODIFIES, ITS OPINION

On August 26, 2021, the California Supreme Court issued its opinion in

this case affirming the judgment in its entirety. McDaniel, 12 Cal. 5th 97. The

original opinion “assume[d]” that that trial court had correctly determined that

the prosecutor had violated Batson by excusing Prospective Juror No. 46. Id. at

13

123. 6 The opinion concluded that the discriminatory strike against Prospective

Juror No. 46 was a “relevant circumstance” in assessing the strike against Mr.

Taniehill. Ibid. However, aside from acknowledging relevance, the opinion did

not provide any guidance concerning what weight trial courts should afford such

direct evidence of discrimination.

Instead, the opinion’s only further reference to the finding of

discrimination was its assertion that the trial court was “well aware of the

[Batson] violation [against Prospective Juror No. 46] when it ruled on all five

strikes at the same time.” Ibid. This logic of this conclusion is dubious. The trial

court ruled on “all five strikes at the same time” when there was no Batson

violation. The meaning of the trial court’s initial ruling was that it had

determined that all five strikes were nondiscriminatory. The trial court then

reconsidered its ruling regarding Prospective Juror No. 46.

However, even assuming the California Supreme Court was correct, there

is no evidence that the trial court relied on its subsequent finding of

discrimination in making the prior determination as to the first four jurors. Cf.

Snyder, 552 U.S.at 478 (“a court would be required to consider the strike of [one

juror] for the bearing it might have upon the strike of another]) (emphasis

6 Like the prosecutor below, the Attorney General had argued on

appeal that the trial court had employed an improper “for cause” standard in

sustaining the Batson objection.

14

added). Mr. McDaniel filed a petition for rehearing, explaining these and other

deficiencies. Appendix B.

In particular, the petition for rehearing underscored that one of the most

powerful facts supporting a finding of discrimination in this case is the

“troubling parallel between the challenges of [Mr. Taniehill] and Prospective

Juror No. 46. They were both stricken [using] the same sham reason: their views

on the comparative severity of death and life without the possibility of parole

(LWOP).” Appendix B at 9. Notwithstanding the striking resemblance between

the reason given for striking Prospective Juror No. 46 (which the trial court

found pretextual) and the primary reason given for striking Mr. Taniehill, the

original opinion not only failed to acknowledge the similarity between these

justifications but obscured it altogether. In laying out the facts detailing why

Prospective Juror No. 46 was pretextually excused, the opinion omitted any

reference to the justification relating to the severity of LWOP. Ibid.

On October 20, 2021, the California Supreme Court denied the petition for

rehearing. However, it revised its opinion to list the pretextual reason for

excusing Prospective Juror No. 46 relating to the comparative severity of a life

and death sentence it had previously omitted. Appendix C.

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REASONS FOR GRANTING THE WRIT

This case has a striking feature: it contains direct evidence of

discrimination by the prosecutor, who violated Batson in Mr. McDaniel’s trial

and soon after that again violated Batson in the co-defendant’s trial, each time

excusing Black jurors based on race. Given the existence of discrimination by the

prosecutor below in excusing Prospective Juror No. 46, the question before this

Court is how that evidence should have factored in the analysis of the challenge

against the prior stricken juror, Mr. Taniehill. However, although this case’s

specific (and troubling) facts are uncommon, it nonetheless raises an important

and frequently recurring question that hopelessly divides the state and federal

courts: how should reviewing courts treat questions of mixed motives in the

Batson context.

From the Batson violation against Prospective Juror No. 46 alone, any

reviewing court can determine that this prosecutor 1) held negative stereotypes

of Black jurors, believing that Black jurors as a general matter were unfavorable

to the prosecution, and 2) holding these stereotypes in mind, allowed them to

influence his selection of the jury in this case (to such an extent that he provided

pretextual justifications to multiple trial courts in an effort to hide his repeated

instances of unconstitutional misconduct). In other words, from the Batson

violation alone, it can be said that race was a factor in the prosecutor’s mind, if

not the only factor, in selecting the jury in this case. Cf. Tr. of Oral Arg. at 18-20,

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Flowers v. Mississippi 139 S.Ct. 2228 (2019)(Chief Justice Roberts’s inquiry into

the probative weight of a prior Batson violation by a prosecutor 20 or 30 years

prior to the present trial).

To analogize to the Title VII context from which the Batson framework

was adopted, when as here direct evidence of discrimination exists, “the burden

then rests with the employer to convince the trier of fact that it is more likely

than not that the decision would have been the same absent consideration of the

illegitimate factor.” Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989)

(O’Connor, J., conc.); Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th

Cir. 2007) (“If a plaintiff produces direct evidence of discrimination, no further

showing is required, and the burden shifts to the employer” to establish that the

discriminatory motive did not impact the hiring decision); see also Hein v. All

America Plywood Co., Inc., 232 F.3d 482, 488 (6th Cir. 2000) (direct evidence of

discrimination requires a showing both that an “employer was predisposed to

discriminate on the basis of [a protected classification], [and] also that the

employer acted on that predisposition”). In other words, when as here there is

direct evidence of discrimination, the next step is to assess the question of mixed

motives.

However, although the trial court found—and California Supreme Court

explicitly assumed—the existence of discrimination by the prosecutor in this

case, the legal test for how to analyze a case of mixed motives in the Batson

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context has created a quagmire of conflicting decisions in the lower courts. This

Court should grant certiorari to resolve the confusion.

THIS CASE PRESENTS AN OPPORTUNITY TO RESOLVE THE

LONG-STANDING SPLIT OF AUTHORITY ON HOW TO TREAT

MIXED MOTIVES IN BATSON CASES

This case presents an important question of law that has divided lower

courts for decades. How should trial and reviewing courts address cases in which

race—at least in part—played a role in the prosecution’s decision to strike a

juror (so-called “mixed motivation” Batson cases)? That question has resulted in

a tangled morass of published, conflicting opinions in both state and federal

courts. See generally, Russell D. Covey, The Unbearable Lightness of Batson:

Mixed Motives and Discrimination in Jury Selection, 66 MD. L. REV. 279, 297301 (2006) (collecting and discussing conflicting cases); Lisa M. Cox, The

“Tainted Decision-Making Approach”: A Solution for the Mixed Messages Batson

Gets from Employment Discrimination 56 CASE W. RES. LAW REV. 769, 782-789

(2006) (accord).

Divisions on this issue have persisted for nearly thirty years. Shortly after

Batson was decided, two justices of this Court argued that a “mixed motive”

analysis should be rejected in the Batson context because of the “special

difficulties of proof that a court applying that standard to a prosecutor’s

peremptory[]challenge[.]” Wilkerson v. Texas, 493 U.S. 924, 926 (1989)

(Marshall, J., dissenting from denial of certiorari). Yet as this Court explained

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nearly twenty years after Wilkerson in Snyder, 552 U.S. 472, this Court had still

not addressed the issue. Id. at 485 (“We have not previously applied this [mixed

motives] rule in a Batson case, and we need not decide here whether that

standard governs in this context”). As a result of this silence, lower courts have

applied numerous separate tests, splitting circuits—and even single states—into

divergent camps.

Many federal circuits have adopted a “mixed motives” analysis requiring a

showing that discrimination was the “but for” cause of the strike. Howard v.

Senkowski, 986 F.2d 24, 27–30 (2d Cir. 1993); Gattis v. Snyder, 278 F.3d 222,

232–35 (3d Cir. 2002); Wallace v. Morrison, 87 F.3d 1271, 1274–75 (11th Cir.

1996) (per curiam); Jones v. Plaster, 57 F.3d 417, 420–22 (4th Cir. 1995); United

States v. Darden, 70 F.3d 1507, 1530–32 (8th Cir. 1995). Under this test, even

when a prosecutor frankly admits that “race was a factor I considered,” some

courts have found no constitutional violation. Wallace, 87 F.3d at 1273. The

Ninth Circuit, however, has explicitly parted company with its sister circuits and

rejected this view, holding that a constitutional violation is established so long

as discrimination was a “substantial factor” motivating the juror’s excusal. Cook

v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010); see also Covey, supra, 66 MD. L.

REV. at 330-346 (advocating for substantial factor test); Robinson v. United

States 890 A.2d 674, 679-681 (D.C. App. 2006) (if racial bias is a “substantial

part” of challenge, reversal is required despite partially unbiased reasons).

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In contrast to the two federal approaches, many state courts have rejected

the application of a “mixed motive” analysis altogether, adopting a per se

“tainted” approach when racial bias infects strikes in any way. See, e.g.,

McCormick v. State 803 N.E.2d 1108, 1113 (Ind. 2004) (“it is not appropriate to

apply the dual motivation analysis in the Batson context;” one biased “challenge

tainted any nondiscriminatory reasons”); State v. Lucas, 199 Ariz. 366, 369 (Ariz.

App. 2001) (“any consideration of a discriminatory factor directly conflicts with

the purpose of Batson and taints the entire jury selection process”); Payton v.

Kearse, 329 S.C. 51, 59 (1998) (“Once a discriminatory reason has been

uncovered—either inherent or pretextual—this reason taints the entire jury

selection procedure”); see also Riley v. Commonwealth, 21 Va. App. 330, 336

(1995); Rector v. State, 213 Ga. App. 450, 454 (1994); Ex parte Sockwell, 675

So.2d 38, 41 (Ala. 1995); Strozier v. Clark, 206 Ga. App. 85, 88 (1992); State v.

King, 572 N.W.2d 530, 535-536 (Wisc. App. 1997); People v. Douglas, 22 Cal.

App.5th 1162 (Cal. Ct. App. 2018).

The lingering jurisprudential conflict has led to the bizarre result of one

jurisdiction’s two highest courts coming to opposite conclusions, resulting in

different outcomes based on whether a case is criminal or civil. Covey, supra, at

298 & n.96 (discussing conflict between Texas Court of Criminal Appeals and

Supreme Court of Texas). Moreover, California state authority now contradicts

the federal circuit with jurisdiction over California cases. Compare People v.

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Douglas, 22 Cal. App. 5th at 1174-75 (adopting per se tainted approach) with

Cook v. LaMarque, 593 F.3d at 815 (adopting substantial factor test).

Some state courts have even applied a fourth test with no apparent

doctrinal underpinning: a “sole motivation” test. However, even though

published decisions have “overwhelmingly reject[ed] a sole-motivation standard

in favor of some level of dual-motivation analysis” this Court’s silence and the

deferential prism of the AEDPA have prevented federal courts from correcting

apparent errors. Akins v. Easterling, 648 F.3d 380, 389–92 (6th Cir. 2011) (“sole

motivation” test was not an unreasonable application of clearly established

federal law); Washington v. Roberts, 846 F.3d 1283, 1292 (10th Cir. 2017)

(accord). This confusing and conflicting set of tests is itself a compelling reason

for this Court to supply a definitive answer.

Yet the predicament of trial courts ruling on fast-paced Batson hearings

presents perhaps the most compelling reason to resolve the conflict. It may be

true that the most common context of appellate review of mixed motive

questions—prosecutorial admission of at least one race-conscious justification—

is relatively rare. Kesser v. Cambra, 465 F.3d 351, 373 (9th Cir. 2006) (en banc)

(Wardlaw, J., concurring). But the reality is that for trial courts, mixed

motivation questions likely arise sub silentio far more frequently. That is

because every instance in which at least one of a prosecutor’s list of reasons is

questionable may present to a trial court the question of mixed motives. In the

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heat of trial, a trial judge may not pause to articulate the split of appellate

authority or even the possibility of mixed motives. However, the mere fact that a

single (or multiple) justifications are suspect raises the possibility that racial

stereotypes may have placed an invisible, invidious weight on the scale.

Mr. McDaniel’s case is just such a case. The trial court recognized

explicitly that the prosecutor was discriminating based on race (as did the trial

court in the co-defendant’s case). Nevertheless, the trial court never paused to

reflect upon how a finding that the prosecutor discriminated against Black

jurors should impact its analysis of the many prior Black jurors stricken by the

prosecution.

Nor is that the only evidence of discrimination against Mr. Taniehill. The

California Supreme Court itself noted that the prosecutor engaged in highly

disproportionate strikes against Black jurors. McDaniel, 12 Cal. 5th at 124.

Moreover, two of the three justifications given by the prosecutor for striking Mr.

Taniehill have been specifically identified as “weak” by the California Supreme

Court. Hardy, 5 Cal. 5th at 82-83. In addition, all three allegedly problematic

characteristics (a belief that LWOP was the more severe punishment, lack of

higher education, and a desire not to sit on a lengthy capital trial) were

possessed by numerous jurors, including several jurors accepted by the

prosecution. See AOB at 74-83; Flowers v. Mississippi, 139 S.Ct. at 2248

(“Comparing prospective jurors who were struck and not struck can be an

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important step in determining whether a Batson violation occurred”) As further

evidence of the prosecutor’s pretext, the prosecutor did not pose a single question

to Mr. Taniehill regarding any of his purported flaws. People v. Lewis, 43 Cal.

4th 415, 476 (2008) (failure to explore excused juror’s views at all during voir

dire “troubling”).

Given the fact that the prosecutor appears to have entered jury selection

in this case with an intent to discriminate against Black jurors, which he

effected in the strike of Prospective Juror No. 46, it is inconceivable that his

decision to strike Mr. Taniehill was not also motivated, at least in some part, by

race. Snyder, 552 U.S. at 485. The California Supreme Court should have

recognized the patent evidence of discrimination and addressed the question of

mixed motives. Because it did not do so, this Court should grant certiorari to

clarify this pressing legal issue.

///

///

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CONCLUSION

Wherefore, petitioner prays that this Court grant the petition for a writ of

certiorari and reverse the judgment of the Supreme Court of California.

Dated: March 21, 2022

Respectfully submitted,

MARY K. MCCOMB

California State Public Defender

/s/ Elias Batchelder

ELIAS BATCHELDER

Supervising Deputy State Public Defender

Counsel of Record

1111 Broadway, Suite 1000

Oakland, California 94607

elias.batchelder@ospd.ca.gov

Tel: (510) 267-3300

Counsel for Petitioner

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