The Supreme Court today affirms the death sentences in People v. Johnson and People v. Rhoades with the justices showing continued differences about how to analyze claims of racial discrimination in selecting jurors. Such Batson/Wheeler issues — named after the U.S. and California Supreme Court decisions prohibiting that discrimination — have been dividing an otherwise mostly harmonious court for a number of years.
In Johnson, a 5-2 opinion by Chief Justice Tani Cantil-Sakauye rejects numerous challenges to the death penalty — imposed after a third trial — for a 1979 home-invasion murder and robbery. The only disagreement is about the majority’s conclusion that the defendant hadn’t shown even “an inference of discriminatory intent” in the prosecution’s peremptory dismissals of certain African-American prospective jurors. Such a prima facie showing requires the prosecutor to articulate a permissible explanation for excusing the jurors. The jury included three African-Americans.
Justices Goodwin Liu and Mariano-Florentino Cuéllar file dissenting opinions (and Liu signs Cuéllar’s), calling for reversal of the penalty but not the conviction. Liu calls Johnson “yet another case in which a black man was sentenced to death for killing a white victim after a jury selection process in which the prosecution disproportionately excused black prospective jurors” and says that, “if the facts in this case do not give rise to an inference of discrimination, then I am not sure what does.” Similarly, Justice Cuéllar finds the record shows “a motive for the prosecutor to discriminate against African American jurors, a plan to effectuate that discrimination, and the prosecutor’s success in removing such jurors.” He criticizes the majority opinion for “artificially compartmentaliz[ing] the relevant facts to avoid confronting the disturbing mosaic these facts reveal.”
Justice Liu is the lone dissenter in Rhoades, again only about whether the penalty should be reversed for Batson/Wheeler error. The court’s opinion by Leondra Kruger affirms the death sentence — imposed after a second penalty trial — for the 1996 torture/sodomy/murder of an eight-year-old boy. As in Johnson, the court concludes the prosecution didn’t need to explain its juror strikes because there was no prima facie case of discrimination. The court so holds despite the trial court’s comment that it was ” ‘very close’ ” to finding otherwise under a now-rejected, less-defense-friendly standard, and even though the prosecution used half it peremptory challenges to dismiss all the African-American prospective jurors. Unlike Johnson, the Rhoades defendant is White. His victim also was White.
Justice Liu is critical of the Rhoades majority for “hypothesizing reasons for the removal of minority jurors as a basis for obviating inquiry into the prosecutor’s actual reasons,” which he says “has become a staple of our Batson jurisprudence” that “raises serious concerns.” He calls for the court, the Legislature, or the Judicial Council to do away with the prima-facie-case prerequisite to a prosecutorial explanation. He also says that the defendant being White is not dispositive because a prosecutor could prefer White jurors when the victim is White, and, “whether a prosecutor strikes a black juror in order to seat fewer black jurors or to seat more white jurors, it is discrimination all the same.”
In Johnson, Justice Liu says the U.S. Supreme Court has continued to enforce its Batson decision by reversing death sentences because of racially discriminatory jury selection, but he criticizes the court on which he serves for having “no comparable record of vigorous enforcement” in recent years and he claims “[i]t is time that we, too, bring a greater sense of urgency to ferreting out racial discrimination in the criminal justice system.” One reason he gives for doing so is a reprise of an observation he made in a six-year-old separate opinion: ” ‘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.’ ”
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