In People v. Hardy, a 6-1 Supreme Court today affirms the death penalty for a 1998 robbery, rape, torture, and murder in Long Beach. The court is unanimous in rejecting most of the defendant’s appellate arguments, but there is a dissent concerning whether there was racial discrimination in the prosecution’s jury selection. That issue — Batson/Wheeler — is one of the most contentious on a court that is usually quite harmonious.
The court’s opinion by Justice Ming Chin says that the prosecutor’s conduct “warrants close scrutiny” because “she excused every African-American prospective juror she could have excused” and because the case “had definite racial overtones” as the defendant is African-American, the victim was White, and the defendant told the police that the victim had yelled a racial slur at him. Nonetheless, the court concludes that the prosecutor’s proffered race-neutral reasons for her peremptory challenges “were generally supported by the record, inherently plausible, and self-evident” and that “no reason appears . . . to doubt the genuineness” of the reasons.
Justice Goodwin Liu dissents. Unlike the majority, Justice Liu believes that “[e]ach one of the [prosecutor’s] stated reasons is problematic.” His conclusion is that, “more likely than not, the jury that convicted [the defendant] and sentenced him to death was not selected free of improper discrimination.” He says, “In this day and age, we are unlikely to encounter direct evidence of purposeful discrimination in jury selection. But discrimination is no less real for being subtle.”
Five years ago, in a concurring opinion, Justice Liu noted the long time since the court had found Batson error. He reprises that theme today, finding it important that “more than 30 years have passed since this court has found the peremptory strike of a black juror to be improperly motivated by race” and commenting that “[r]acial discrimination against black jurors has not disappeared here or elsewhere during that time.” And he quotes his earlier separate opinion in which he questioned “whether we have maintained the proper level of vigilance” against discriminatory jury selection and he stated, “Today, as when Batson was decided, it is a troubling reality, rooted in history and social context, that our black citizens are generally more skeptical about the fairness of our criminal justice system than other citizens.”
Additionally, on a separate issue, the court overrules two of its decisions, issued in 2014 and 2011. Those opinions are no longer good law “to the extent [they] suggest that a party must make an offer of proof to challenge on appeal a court’s ruling limiting cross-examination.”