Los Angeles Lawyer October 2008 - Gray Plant Mooty

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as he or she is seated in the box, and prompts the parties to ask, ‘Is this juror acceptable?’”). 23 United States v. Turner, 558 F. 2d 535, 538 (9th Cir. 1977) (“[W]e believe that such a forced waiver is an undue restriction on the exercise of peremptory challenges.”); but see United States v. Pimentel, 654 F. 2d 538, 540-41 (9th Cir. 1981) (characterizing discussion of forced waiver in Turner as dicta). 24 Turner, 558 F. 2d at 538 (“Our holding does not prevent a district judge from forbidding a challenge to any juror who was a member of the panel at the time the jury was accepted.”); see also Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008) (discussing Louisiana law under which parties were permitted to exercise “backstrikes” against jurors they had initially accepted). 25 Blouin, 666 F. 2d at 796-97; see also United States v. Ricks, 802 F. 2d 731, 733-37 (4th Cir. 1986) (discussing methodology and history of struck jury system). 26 See, e.g., United States v. Bermudez, 529 F. 3d 158, 164-65 (2d Cir. 2008) (joining “all five circuits that have considered similar challenges to the blind strike method” in upholding the method “as constitutional and consistent with Rule 24(b)”); United States v. Warren, 25 F. 3d 890, 894 (9th Cir. 1994). 27 Blouin, 666 F. 2d at 798. 28 Id. 29 See id. at 798 n.3. 30 See United States v. Harper, 33 F. 3d 1143, 1145- 46 (9th Cir. 1994). The Fourth Circuit’s holding in Ricks suggests that this method of selecting jurors from the remaining array may be required if the blind strike method is used or if the initial array is sufficiently large that “more than twelve names will remain” even if both sides exercise all their peremptory challenges. See Ricks, 802 F. 2d at 733-34, 736-37. But see United States v. Patterson, 915 F. Supp. 11, 12-13 (N.D. Ill. 1996) (rejecting defendant’s claim that random shuffling of remaining jurors after exercise of peremptories on oversized array was error when defendants were advised in advance that this would occur). 31 United States v. Esparza-Garza, 422 F. 3d 897, 898- 904 (9th Cir. 2005). 32 Id. at 899-900. 33 Id. at 902. 34 Id. at 902-03. 35 Miller-El v. Dretke, 545 U.S. 231 (2005). 36 Esparza-Garza, 422 F. 3d at 903. In Miller-El, the Court considered the prosecutors’ “resort during voir dire to a procedure known in Texas as the jury shuffle,” under which either side had, at various times, the ability to have the court reshuffle the “cards bearing panel members’ names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.” 545 U.S. at 253. The prosecutors in that case had twice requested a shuffle when a number of potential black jurors were seated at the front of the venire panel. 545 U.S. at 254. What was at issue in Miller-El, however, was not the resort to the jury shuffle but rather the prosecutors’ exercise of peremptory challenges to excuse 10 of 11 black jurors. The Court looked to the prosecutors’ use of the jury shuffle as evidence of discriminatory intent in exercising these peremptories, not as a free-standing Batson violation. 37 The Arizona Supreme Court had previously reached the contrary conclusion, reasoning that treating a waiver as equivalent to the exercise of a strike would come too close to requiring a prosecutor to strike a juror in order to avoid removing another juror solely because of the latter’s race—a requirement that would itself implicate equal protection concerns. State v. Paleo, 200 Ariz. 42, 22 P. 3d 35, 37 (2001). Subsequently, a Missouri appellate court explicitly rejected Esparza- Garza’s holding, siding with the reasoning of the Arizona Supreme Court in Paleo. See State v. Amerson, 32 Los Angeles Lawyer October 2008
___ S.W. 3d ___, 2008 WL 1960215 (Mo. App. S.D. May 7, 2008). 38 People v. Wheeler, 22 Cal. 3d 258, 263 (1978). 39 Id.; see also People v. Lenix, 44 Cal. 4th 602, 621 (2008) (“Both court and counsel bear responsibility for creating a record that allows for meaningful review.”). 40 Batson v. Kentucky, 476 U.S. 79, 97 (1986). 41 See Boyd v. Newland, 467 F. 3d 1139, 1149-50 (9th Cir. 2006). 42 See id. at 1148-50. At the time Boyd was decided, California courts generally had held that “comparative juror analysis can take place on appeal only when the trial court engaged in such analysis in the first instance.” Boyd, 467 F. 3d at 1148 (citing People v. Johnson, 30 Cal. 4th 1302 (2003); People v. Cornwell, 37 Cal. 4th 50 (2005)). This year, however, the California Supreme Court rejected this approach, holding that, at least during the third Batson step, comparative juror analysis “must be performed on appeal even when such an analysis was not conducted below.” Lenix, 44 Cal. 4th at 607. Boyd’s approach continues to differ with California courts on two issues. First, as Boyd notes, “some California courts have questioned whether comparative juror analysis is similarly appropriate at the first Batson step, where the prosecution has not voiced its rationales for the strikes, instead of at the third Batson step.” Boyd, 467 F. 3d at 1149 (citing People v. Gray, 37 Cal. 4th 168 (2005); People v. Guerra, 37 Cal. 4th 1067 (2006)). Second, though Boyd does not limit reliance on events occurring after the challenged peremptory, California courts take a different view, holding that “the trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.” Lenix, 44 Cal. 4th at 624. 43 See United States v. Vasquez-Lopez, 22 F. 3d 900, 902 (9th Cir. 1994) (“We have held that the Constitution forbids striking even a single prospective juror for a discriminatory purpose.”). It is equally clear, however, that “just as one is not a magic number which establishes the absence of discrimination, the fact that the juror was the one Black member of the venire does not, in itself, raise an inference of discrimination. Using peremptory challenges to strike Blacks does not end the inquiry; it is not per se unconstitutional, without more, to strike one or more Blacks from the jury. A district court must consider the relevant circumstances surrounding a peremptory challenge.” Id. (citations omitted). 44 Abu-Jamal v. Horn, 520 F. 3d 272, 290 (3d Cir. 2008). 45 Id. at 291. 46 Id. at 291-92. 47 Id. at 292. The court noted that the defendant “had not pointed to any improper statements or questions by the prosecution during voir dire” that could serve to make out a prima facie case despite the noted record failings regarding the makeup of the venire. Id. at 289. 48 Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per curiam). 49 Id. at 766. 50 Snyder v. Louisiana, 128 S. Ct. 1203, 1208-09 (2008). 51 Hernandez v. New York, 500 U.S. 352, 359 (1991). 52 United States v. Omoruyi, 7 F. 3d 880 (9th Cir. 1993). 53 Id. 54 Id. 55 Id. 56 Commonwealth v. Odell, 34 Mass. App. Ct. 100, 101-02, 607 N.E. 2d 423, 425 (1993). 57 Alverio v. Sam’s Warehouse Club, Inc., 253 F. 3d 933, 940-41 (7th Cir. 2001). TRUST DEED FORECLOSURES “Industry Specialists For Over 18 Years” At Witkin & Eisinger we specialize in the Non-Judicial Foreclosure of obligations secured by real property or real and personal property (mixed collateral). When your client needs a foreclosure done professionally and at the lowest possible cost, please call us at: 1-800-950-6522 We have always offered free advice to all attorneys. WITKIN &EISINGER, LLC RICHARD G. WITKIN, ESQ. ◆ CAROLE EISINGER (949) 388-0524 Los Angeles Lawyer October 2008 33
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Los Angeles Lawyer October 2008 - Gray Plant Mooty

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