Los Angeles Lawyer October 2008 - Gray Plant Mooty

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Elder Law & Nursing Home Abuse & Neglect Law Offices of Steven Peck is seeking association or referrals for: 1) Nursing Home Abuse & Neglect (Dehydration, Bedsores, Falls, Death) 2) Financial Abuse (Real Estate, Theft, Undue Influence) 3) Trust & Probate Litigation (Will Contests, Trusts, Beneficiaries) 4) Catastrophic Injury (Brain, Spinal Cord, Aviation, Auto, etc.) 27 years of experience TOLL FREE 866.999.9085 LOCAL 818.908.0509 www.californiaeldercarelaw.com • www.premierlegal.org • info@premierlegal.org WE PAY REFERRAL FEES PURSUANT TO THE RULES OF THE STATE BAR OF CALIFORNIA ConfidenceAt The Courthouse. Business litigation is increasingly complex. That is why we believe valuation issues must be addressed with the same meticulous care as legal issues. Analysis must be clear. Opinions must be defensible. Expert testimony must be thorough and articulate. HML has extensive trial experience and can provide legal counsel with a powerful resource for expert testimony and litigation support. For More Information Call 213-617-7775 Or visit us on the web at www.hmlinc.com BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS a party cannot neglect to develop the record on points relevant to establishing a prima facie case. To the contrary, developing the record regarding these points may provide the best evidence for supporting or challenging the trial court’s determination. Particularly important is developing a record sufficient to support a comparative juror analyis regarding selective questioning of jurors and selective striking of jurors on the basis of the proffered race-neutral rationale. This may provide the best means of demonstrating that a proffered race-neutral rationale is not related to the facts and issues of the case to be tried and rests instead on misplaced assumptions that actually demonstrate group bias. For example, in United States v. Omoruyi, a federal prosecutor used peremptory challenges to strike two single, unmarried, female prospective jurors. 52 The defendant challenged the second peremptory, a challenge against a black woman, asserting that it was improperly exercised on the basis of race. 53 In his defense to this claim, the prosecutor asserted that he had removed both women not because of their race but because they were single and would be attracted to the defendant, who was, in the prosecutor’s opinion, an attractive young man. 54 The district court allowed the removal of the two women jurors. The Ninth Circuit reversed, finding that the exercise of both peremptory challenges was improperly based on gender, relying in part on a record demonstrating that the prosecutor had not exercised similar challenges against single, unmarried, male prospective jurors. 55 In like manner, a Massachusetts appellate court found that in prosecuting a defendant for plying teenage girls with alcohol and drugs in order to molest them, defense counsel was properly precluded from peremptorily striking two women over 60 years of age when the proffered rationale for striking them—that they were too old—“amounted to no more than a pretext and that defendant’s real reason for the challenges was to get as many women off the jury as he could.” This finding was based in part on the defendant’s initial explanation for striking eight of the nine female jurors drawn from the venire (including the two over 60), which was that “women with young children would be dangerous to the defendant in a case involving molestation of children.” 56 Of course, not all comparative juror analysis will result in a finding that strikes are improper, even when they result in the removal of all members of a particular group from the jury. For example, a 2001 Seventh Circuit decision addressed an employer’s peremptory strikes of all three women in the jury pool in a sexual harassment trial. The employer cited as reasons for the strikes one 30 Los Angeles Lawyer October 2008
woman’s unemployment, another’s participation in a lawsuit, and another’s employment with an insurance company and equivocal answers about the level of her education. Also, the employer objected to all three on the basis of their limited work experience. The plaintiff argued that these reasons were pretexts and noted in support that several of the empaneled male jurors had less formal education than the three female jurors. The court held this insufficient to demonstrate discrimination under a comparative juror analysis, explaining that when “a party gives multiple reasons for striking a juror, it is not enough for the other side to assert that the empaneled juror shares one attribute with the struck juror.” 57 To avoid and defend against claims that peremptories are being exercised on the basis of group bias, counsel should take pains to ensure that their voir dire questions and their exercises of peremptories are used consistently on the basis of valid rationales tied to the facts and issues to be presented in the case at hand. They should also be prepared to explain these rationales and develop a record that will support them under challenge by the court. With this approach, peremptory challenges can continue to serve their intended purpose of ensuring the confidence of parties and the public in the ability of the jury ultimately selected to serve as a fair and impartial trier of fact. ■ 1 United States v. Annigoni, 96 F. 3d 1132, 1144 (9th Cir. 1996) (en banc). 2 Id. at 1137. 3 See Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978). 4 Swain v. Alabama, 380 U.S. 202 (1965). 5 Id. at 224. 6 Batson, 476 U.S. at 92. 7 Wheeler, 22 Cal. 3d at 280-82, 283-87. 8 Batson, 476 U.S. at 85. 9 Id. at 96. 10 Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); see also People v. Lenix, 44 Cal. 4th 602 (2008). 11 Powers v. Ohio, 499 U.S. 400 (1991). 12 Georgia v. McCollum, 505 U.S. 42 (1992). 13 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991). 14 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 15 Davis v. Minnesota, 511 U.S. 1115 (1994). 16 People v. Wheeler, 22 Cal. 3d 258, 276 (1978). 17 See People v. Garcia, 77 Cal. App. 4th 1269 (2000) (sexual orientation); People v. Martin, 64 Cal. App. 4th 378, 384 (1998) (religion). 18 CODE CIV. PROC. §231.5, added by 2000 Cal. Stat. ch. 43, §3 (A.B. 2418). Section 1 of the enacting statute states that it reflects the intent of the legislature to codify the result of People v. Garcia. 19 CODE CIV. PROC. §231(d). 20 United States v. Bermudez, 529 F. 3d 158, 164 (2d Cir. 2008) (citations omitted). 21 See United States v. Esparza-Gonzalez, 422 F. 3d 897, 899 n.3 (9th Cir. 2005) (describing jury box method). 22 See United States v. Blouin, 666 F. 2d 796, 798 (2d Cir. 1981) (“The ‘jury box’ system tends to focus the parties’ attention on one member of the venire at a time, There is no substitute for experience. Over 1,250 successful mediations 14 years as a full-time mediator 92% of cases resolved Director, Pepperdine Law School’s “Mediating the Litigated Case” program LEE JAY BERMAN, Mediator 213.383.0438 • www.LeeJayBerman.com It’s More than Just a Referral It’s Your Reputation Make the Right Choice Personal Injury • Products Liability Medical Malpractice • Insurance Bad Faith Referral Fees per State Bar Rules www.cdrb-law.com 310.277.4857 The More You Know About Us, The Better Choice You Will Make 10100 Santa Monica Blvd., Suite 2460, Los Angeles, California 90067 310.277.4857 office ■ 310.277.5254 fax www.cdrb-law.com Los Angeles Lawyer October 2008 31
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