Peremptory Challenge of Black Juror Was Pretext, Not Valid Dismissal
In California, a juror may not be dismissed on the basis of race. A prosecutor in Riverside County failed to abide by this rule when he excused one of only two Black jurors in the jury pool because she was “too opinionated.” An appellate court found this to be a pretext that violated state and constitutional prohibitions of race-based removals and ordered a Black man, who was on trial for attempted murder, to get a new trial.
During voir dire, the preliminary examination of jurors to determine eligibility for jury service, the prosecutor asked the juror in question whether she could convict defendant Travis Mitchell Hicks if the evidence showed his guilt beyond a reasonable doubt, even if she did not like the victim. She said that her feelings for the victim would not influence her decision and explained that she was a former nurse in prison who had made a “conscious decision” to not find out the reasons for her patients’ incarceration.
In addition, the prosecutor brought up her answers on a jury questionnaire where she said she had “mixed feelings about the criminal justice system.” When asked to further explain, she asked if she could discuss her answers in private, but insisted she could “set aside her feelings” and just focus on her role as a juror. After the juror questioning was concluded, she told the attorneys and the judge that she had a previous conviction for grand theft and perjury that she did not want to disclose because she feared it would cause bias in her fellow jurors.
Over objection from Hick’s counsel, the prosecutor excused her after the conference in chambers. Hicks’ attorney pointed out that even though both his client and the juror were Black, everything she said during voir dire and on her juror questionnaire indicated that she felt she could be fair. He argued that “She presented as an excellent juror, and there was simply nothing more to justify a strike.” The prosecutor disagreed, saying although she said she could be fair and had experience on both sides of the justice system, she failed to disclose her prior conviction and was “rather too opinionated about the way she was explaining things…”
Riverside County Superior Court Judge Stephen J. Gallon permitted the dismissal and after a six-day trial, Hicks was convicted and sentenced to state prison for 12 years and eight months, plus an additional sentence of 14 years to life due to a prior conviction for assault with a semiautomatic firearm. He appealed based on the court’s violation of his constitutional rights under Article 1, Section 16 of the California Constitution, which guarantees that the jury is drawn from a “representative cross-section of the Community.”
The appeal came before a panel from Division One of California’s Fourth District Court of Appeal, which reversed Hicks’ conviction and remanded him for a new trial on July 31. The opinion was authored by Presiding Justice Judith McConnell, with concurrence by Justices David M. Rubin and Terry B. O’Rouke.
McConnell’s opinion began with a recitation of the facts. In 2018, the victim and some friends went into a bar where he became “extremely intoxicated.” He got into an argument with Hicks, which witnesses said “involved gang-related references, followed by two loud gunshots…” During the trial, Hicks testified that the victim had “threatened to shoot him several times and he shot the victim in self-defense.” The victim became paralyzed from the waist down. Hicks fled the scene but was arrested the next day. The Riverside County District Attorney charged him with attempted murder, assault with a semiautomatic firearm, and possession of a firearm and ammunition by a prohibited person (a previous conviction for assault with a semiautomatic firearm), which is a serious felony.
The opinion next turned to the legal standards for the use of peremptory strikes. While lawyers at trial are allotted a certain number of these strikes without having to provide a reason, dismissals based on race are prohibited because “group bias” is not allowed under several precedents, including Batson v. Kentucky 476 U.S. 79 and People v. Wheeler, 22 Cal.3d at pp. 276–277. Using the three steps of the Batson/Watson test, McConnell explained that the opponent of the juror dismissal must first make a “prima facie case”...by showing all the relevant facts show an “inference of discriminatory purpose. If this is done, the burden shifts to the person who struck the juror who must show “permissible, nondiscriminatory justification.” Third, the trial court has to decide whether the strike’s opponent has proven “purposeful discrimination.”
Using this test, the appellate court looked to Judge Gallon’s reasoning to see if he credibly “accepted the prosecutor’s proffered race neutral reasons,” which could be based on the judge’s “subjective” and not “objective genuineness of the reason.” McConnell’s analysis then looked to the two reasons Gallon found the juror’s dismissal was permitted. First, he found that the juror’s prior felony convictions impacted her ability to be impartial. Second, he accepted the prosecutor’s assertion that she was “too opinionated.” The appellate opinion disagreed and found that these conclusions were “not supported by the evidence before the court.”
McConnell explained that after January 1, 2020, California had amended its Code of Civil Procedure to allow convicted felons to serve on juries if they were not currently convicted, on parole or probation, or required to register as a sex offender. This change also required felons to be excluded from jury service “as long as the dismissal was not based on group bias.” This did not happen. The opinion determined that the juror had explained that she wrote “justice was served” by her conviction and subsequent work as a prison nurse. In addition, during voir dire she repeatedly said she could be impartial. The opinion concluded, “We agree with Hicks that this record does not support the court’s finding that this juror’s prior felony conviction was a race-neutral reason for the prosecutor’s peremptory challenge.”
The final issue was whether dismissal was warranted because the juror was “too opinionated,” based on her experience with the criminal justice system. This too failed to be warranted. The opinion said, “…there is no evidence of this character trait in the record.” Rather, the juror repeatedly said she could remain neutral and she made “no comments that suggested she was more opinionated than other jurors who remained on the jury.”
For all these reasons, the court concluded, “On this record, we agree with Hicks that insufficient evidence supported the trial court’s finding that the prosecutor’s stated reasons for his peremptory challenge of this juror were race neutral.” Hicks will get a new trial, hopefully before a jury that does not exclude anyone for unacceptable reasons.
