By Tiffany Yeh
The defense, Deputy Public Defender Martha Sequeira, filed a Batson motion against the prosecution, represented by Deputy District Attorney Robin Johnson, who used peremptory challenges to dismiss, allegedly for their ethnicity, two African American women during jury selection in the Eric Lovett case. The motion refers to Batson v. Kentucky, 476 U.S. 79 (1986), a Supreme Court case which decided that a prosecutor in a criminal case could not dismiss potential jurors based solely on their race, even though a peremptory challenge does not require a stated valid cause for dismissal.
In particular, the motion requested a decision that the second African American woman be allowed to stay in the jury box.
Judge Maguire denied the Batson motion. He found that DDA Johnson did have genuine reasons to excuse the first African American woman from serving on the jury, due to the woman’s responses to the questions about immunity. He stated that, for the second juror, the reason was a bit more subtle, but still genuine.
The first African American woman was described as married and a nurse, who was familiar with seeing gunshot wounds, some of which were due to gang violence.
The second African American woman to face a peremptory challenge by the prosecution was either a retired policy analyst, or a civil engineer, which was not made clear.
DDA Robin Johnson stated her view of things: a prima facie case had not been made to support the motion. African Americans are a protected class (and a cognizable group, the judge added). However, Yolo County has few African Americans in its population to begin with. Based on the amount of jurors and the possible number of African American jurors, along with the number of peremptory challenges, a prima facie case had not been made.
DDA Johnson stated that she had passed on making challenges at numerous points, while the second African American woman was still in the jury box.
Judge Maguire stated some factors to be considered for a prima facie case to be found. First, he asked, are the defendant and the potential jurors of the same race? (Defendant Lovett is not African American.) Next, he considered whether the case has racial overtones. (The judge said no, the case does not.)
He asked whether there was a pattern and timing of challenges during jury selection, and were many of the cognizable group challenged? (Two of two African Americans faced peremptory challenges.) Next, did the opposition use many peremptory challenges against the cognizable group? Did the prosecution pass at any point during the selection? Were similar questions asked to the cognizable group and to other people? Did the opposing side ask disparate questions? Was there an antagonistic response by the potential jurors? What was the tone and demeanor of the lawyers? Did the people dismissed share one group association? Was there no apparent reason for dismissing the jurors in question here?
Judge Maguire stated, “There is no glaring reason why either would not make a good potential juror,” in reference to the two dismissed jurors, and also that they would “not be antagonistic to the prosecution.” He cited the California Supreme Court’s decision in People v. Panah (2005) 35 Cal. 4th 395.
Jonathan Grossman, a staff attorney with the Sixth District Appellate Program (SDAP), describes People v. Panah as involving even “several women removed [from the jury selection as] not a prima facie case.”
In response, DDA Johnson stated her justification of the peremptory challenge against the first African American woman to be because the woman had a “strong position” on the use of immunity, when questioned about it. The dismissed juror expressed the idea that there was no reason for anyone to use it and that she would have a difficult time believing their testimony.
DDA Johnson stated that her justifications for excusing the second African American woman were because of the potential juror’s issue with jury instructions on a prior trial that hung. Her body language was also another factor that DDA Johnson cited; she expressed the feeling that the woman would probably not be a strong presence on the jury, and that, when looking for jurors, she tries to look for “strong personalities” and also factors in how jurors may interact with each other. According to DDA Johnson, the woman seemed to be more of a joiner than a leader.
DPD Martha Sequeira disagreed with DDA Johnson’s comments, stating that the hung jury comments and instructions were from another potential juror, who was Caucasian. According to DPD Sequeira’s memory, the second African American woman did not talk about jury deliberations during a hung jury. The facts weren’t there. She also stated that there was no reason to know whether the woman was a follower or leader during the jury selection just based on body language or what she said at the time.
Sequeira said that the second woman stated that she had wanted more evidence or jury instructions during the deliberations that led to a hung jury in the other trial.
Judge Maguire made his ruling on the two peremptory challenges. He found that DDA Johnson did have genuine, and not pretextual, reasons to excuse the first African American woman from serving on the jury, due to the woman’s responses to questions about immunity.
As indicated above, he stated that, for the second juror, the reason is a bit more subtle, but still genuine. Previously, on the jury that hung, the woman did not seem disappointed about the hung jury result. She was fairly matter of fact when describing her reaction and the hung jury. The prosecution’s view was that she was too willing to accept a hung jury.
The judge also went on to say that he could not tell whether she was a joiner or a leader just by the woman’s body language. He noted that she did seem to keep to herself more than others in the courtroom at the time.
For these reasons, Judge Maguire denied the Batson motion. As of the morning of March 10, the prosecution had exercised 13 peremptory challenges (including that of the second African American woman) and the defense had exercised ten (and passed twice).
Batson is too weak a standard. Of course a lot of people were dismissed because of their race, but the real test of Batson is to force the prosecutor to be able to concoct a viable reason that is not race based to uncolor the jury. That’s not a high standard and it’s why we end up with very white juries.