A divided Supreme Court today upholds the death sentence in People v. Nadey for a 1996 murder and unlawful sodomy in Alameda.
The disagreement is mainly about a Batson/Wheeler issue. The U.S. Supreme Court’s Batson decision and the California Supreme Court’s Wheeler decision establish that it’s unconstitutional for an attorney to racially discriminate in peremptorily challenging prospective jurors.
The prosecution used peremptory challenges to excuse five Black women from the jury. The trial court found a prima facie case of discrimination, but ruled the prosecution’s stated reasons for the strikes were “genuine and facially neutral.”
The court’s opinion by Justice Carol Corrigan gives deference to the trial court’s acceptance of the prosecution’s reasons, even though the judge didn’t justify their ruling on the record. The majority states, “we have repeatedly explained that trial courts are ‘ “ ‘not required to make specific or detailed comments for the record to justify every instance’ ” ’ in which they have accepted a prosecutor’s race-neutral reasons for a strike as genuine.”
Justice Goodwin Liu dissents, joined by Justice Kelli Evans. He claims that the majority “improperly defers to the trial court’s rulings” because there is no “indication in the record that [the trial court] ‘made a “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.” ’ ”
Saying “the Legislature [has] responded to deficiencies in our Batson jurisprudence,” Justice Liu writes “I continue to believe that our decisions, including today’s, do not demonstrate the vigilance necessary to eradicate the constitutional ‘evil’ of ‘[e]xclusion of black citizens from service as jurors.’ ” He calculates, “despite scores of Batson claims in our capital docket, ‘ “it has been more than [36] years since this court has found any type of Batson error involving the removal of a Black juror. [Citation.]” ’ [Citation.] More than 36 years.”
Additionally, Justice Liu notes “a recent investigation into the Alameda County District Attorney’s Office, which prosecuted Nadey, revealed ‘strong evidence that, in prior decades, prosecutors from the office were engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases.’ ” The majority says those matters “are not before us in this appeal and thus cannot properly inform our decision.” The dissent remarks, “Depending on what the District Attorney finds in her review of the county’s death penalty cases, this may not be the last we hear of Nadey’s Batson claim.”
Justice Liu is a frequent, and sometimes solitary, critic of the court’s Batson decisions. (See, e.g., here, here, here, and here.)
The justices also disagree whether prosecutorial misconduct in using derogatory language about the defendant during the penalty phase of the trial requires reversal. Among other things, the prosecutor referred to the defendant as a “tattooed pervert,” a “tattooed barbarian,” a “tattooed hyena,” and a “vile, nasty predator.” The majority concludes, “Although forceful epithets carry a risk of irrationally inflaming the jury or prejudicing it against the defendant, the epithets here do not rise to that level.” The dissent disagrees, writing, “Those who appear in our courts, no matter what crimes they stand accused or convicted of, are not animals or savages or worse. They are persons before the law.”
As is typical in death penalty appeals, the defendant made numerous other arguments that persuades none of the justices.