In People v. Reed, an African-American defendant was sentenced to death after the prosecutor had used five of his first eight peremptory challenges to strike five of the six African-American prospective jurors. Moreover, the trial court used an erroneously strict test to determine whether the defendant had made a prima facie Batson/Wheeler case to support an inference of discriminatory purpose in the prosecutor’s strikes, a prima facie showing that would have required the prosecutor to offer a permissible, nonbiased justification for the strikes. The Supreme Court nonetheless today affirms the death sentence. In a 5-2 opinion by Justice Mariano-Florentino Cuéllar, the court concludes “the totality of relevant facts” — including that the jury ultimately included three African-Americans and that one challenged African-American prospective juror was replaced by another whom the prosecutor accepted — did not raise “an inference of discriminatory intent for the prosecutor’s strikes.”
The court also finds error in instructing the jury about the veracity of eyewitness identification, but concludes the error was harmless.
As in numerous other Batson/Wheeler cases, Justice Goodwin Liu writes separately, this time dissenting. Concluding that “we cannot be confident that Reed was convicted by a jury selected without regard to race,” he says the prosecutor’s “pattern of strikes, considered in the totality of circumstances, easily raised an inference of discrimination, and the trial court should have asked the prosecutor to give his reasons for the strikes.” He also writes, as to eyewitness identification evidence, that “it is time to consider rules that assign the trial court a stronger gatekeeping role” because he is “not sure we can rely solely on jury instructions to adequately address the issue.” That’s another topic that has attracted Justice Liu’s separate attention in the past.
Justice Leondra Kruger joins Justice Liu’s dissent as to the Batson/Wheeler issue only.