The Supreme Court today affirms the death penalty in People v. Scott. We had been watching Scott as a possible indicator of change at the Supreme Court, especially because the court had asked for post-argument briefing concerning race-based peremptory challenges of prospective jurors, an issue of some contention between Justice Goodwin Liu and the other justices since before Justices Mariano-Florentino Cuéllar and Leondra Kruger joined the court in January. Scott shows that there remains disagreement on the court about how judges should handle defense claims of discriminatory peremptory challenges (known as Batson/Wheeler claims), but the division is of no consequence in this particular appeal.
A five-justice majority opinion in Scott rejects the African American defendant’s Batson/Wheeler claims of racial discrimination in the prosecutor’s dismissal of two of three African American prospective jurors, concluding that the dismissals did not raise any inference of discrimination. (In the process, the court also disapproves portions of three of its prior opinions.) Justice Liu, joined by Justice Kruger, writes separately, agreeing the Batson/Wheeler claim fails in this case, but contending that, instead of evaluating whether there was an inference of discrimination, the court should be examining the propriety of the prosecutor’s stated explanation for his peremptory challenges in light of all the evidence. Here’s the apparent point of disagreement: when a prosecutor states racially neutral reasons for peremptory challenges — when he or she doesn’t have to state reasons at all — should the reasons be examined to determine if they’re pretextual.
Justice Liu says the court should not determine whether there was a discriminatory purpose behind the strikes “based on ‘needless and imperfect speculation’ ” about the prosecutor’s reasons when there were ” ‘actual answers’ to that question” by the prosecutor. He concludes the majority’s “approach cannot be reconciled with the Batson framework and risks weakening the constitutional prohibition on racial discrimination in jury selection,” and also that it “puts this court at odds with the majority of state high courts and federal circuit courts that have considered the issue.” The majority, on the other hand, concludes that its “analytical model rests within the discretion granted us” by U.S. Supreme Court precedent.
One unusual aspect of the court’s opinion is that it is the court’s opinion. That is, the author is “The Court,” not any particular justice. From very quick Westlaw research, it looks like the last time the court issued a per curiam opinion in a death penalty case, or, for that matter, in any case other than one involving attorney discipline or bar admissions, was a dozen years ago in People v. Snow (2003) 30 Cal.4th 43. Why a per curiam opinion in Scott? We don’t know, but we can offer pure speculation: it’s possible the case was worked up in large part in the chambers of one of the recently retired justices (Justices Joyce Kennard or Marvin Baxter) and none of the five-justice majority felt comfortable claiming authorship even though they all agreed with the opinion’s result and reasoning.