The preemptory strike of A.W., a Black woman from the jury pool, was challenged by the defense in a case involving alleged sexual abuse of a child under 14. The trial judge ruled that discrimination was not established, and without giving reasons, ruled for the prosecution. He said he felt “the discrimination was not based on racial animus or bias.” A unanimous 3-0 panel from Division One of California’s First District Court of Appeals reversed the defendant’s conviction because the denial of the defense motion was improper and did not “withstand scrutiny.”

The defendant, David D. Arias, began dating the mother of Jane Doe, the abused child when she was just four years old. Arias and Doe’s mother never married, but she called him “Dad.” When Doe was 11, she told her school counselor, in graphic detail, how Arias was sexually abusing her. He was charged in 2019 and went to trial in 2021, where he was convicted of two felonies—forcible lewd acts upon a child and aggravated sexual assault. He was sentenced to 15 years to life for his forcible lewd acts by Alameda Superior Court Judge Allen Hymer. The additional charge of sexual assault and a sentence of eight years were imposed but stayed.

Writing for the First District, Presiding Justice Jim Humes began the opinion by explaining the Batson/Wheeler motion, based on Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, which held that both the U.S. and California constitutions “prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race.” Subsequent cases have held that excluding even one prospective juror for reasons impermissible under Batson and Wheeler is a “structural error requiring reversal.”

Humes explained that Batson/Wheeler requires a three-step analysis. First, the defendant must show the challenge was based on “impermissible criteria.” Next, if the trial court finds a prima facie case, the prosecution must offer nondiscriminatory reasons for the challenge. Finally, the trial court must decide whether the prosecution's justifications are credible and whether the defendant has shown “purposeful race discrimination.” All burdens regarding discriminatory motive rest with the defendant.

The opinion stated that the trial court’s denials of Batson/Wheeler are normally reviewed “with great restraint.” But here, the court’s reasons “were either unsupported by the record, inherently implausible, or both.” The prosecutor, whose motion was granted, had argued that A.W. would “empathize more with defense experts than prosecution experts because her “educational background was similar to that of the defense experts.” She had a Ph.D. in Higher Education and Organizational Change.

The second reason was that A.W. said she “had concerns about implicit bias and unfairness in the criminal justice system.” The final reason was that the juror was “pretty opinionated and might be reluctant to deliberate.” The prosecutor said, A.W.’s “hyperawareness of potential for false accusations and potential unwillingness to deliberate, was why I kicked her.” The prosecutor also argued that a prima facie case of discrimination was not established because A.W. was the only Black woman he had excused, whereas defense counsel had already “exercised two peremptories to kick two Black women from this jury.” One Black juror was seated. The defendant was Latino.

After reviewing the record, Humes ruled that there was “insufficient evidence on which the trial court could have reasonably relied to accept the prosecutor’s reasons” for striking A.W. He pointed out that although she referenced Plessy v. Ferguson, an 1896 case that upheld “separate but equal” based on race, during her questioning, A.W.’s main concerns were not about race, but about whether jurors would be biased against the defendant because of the public’s abhorrent views of sexual crimes against children.

Humes thus concluded that the prosecutor’s reasons for excusing A.W. were facially race-neutral, but he next turned to the third step of the Batson/Wheeler framework, which required a review of all “relevant circumstances bearing on discrimination.” Here he focused on whether the prosecutor’s “implausible or fantastic justifications… will be found to be pretexts for purposeful discrimination.” In other words, were the prosecutor’s race-neutral explanations credible? The appellate court concluded that the trial court’s failure to “make a sincere and reasoned effort to evaluate the prosecutor’s reasons for the strike,” was “unsupported, dubious or unpersuasive.”

First, the argument that A.W.’s Ph.D. made her more likely to agree with defense experts was not convincing, because both the defense and the prosecution had expert witnesses with similar degrees in the “soft science” of psychology and the trial court “failed to probe” the reasons the prosecution raised the issue of education at all.

Next, Humes was not swayed by A.W.’s statement that her opinions are strongly held and she doesn’t see herself changing her mind. Humes said two other jurors also said they would “stick to what they believe.” Thus, he concluded that the defense was not motivated to remove jurors who would be “reluctant to deliberate.” He then turned to the prosecution’s third reason –A.W.’s concern about unfairness in the criminal justice system. He said this argument as well “did not stand up to scrutiny.”

He wrote, “We are disheartened by the prosecutor’s desire to reject jurors who were concerned about implicit bias and fairness of the justice system… Thus, not only does recognizing implicit bias “not make a person unfit to serve as a juror, it arguably makes a person a better juror.”

In conclusion, the First Circuit reasoned that all the prosecutor’s reasons for striking A.W. “were problematic.” The first was unsupported by the record, the second was deeply troubling, and the third was actually of minor significance. None stood up to scrutiny, and the trial court “failed to make a sincere and reasoned effort to evaluate them. Reversal is required.”