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The U.S. Supreme Court will delve into the charged debate over race and jury selection when it takes up the Contra Costa County case Johnson v. California, 03-6539, this spring. The case could have broad legal and political ramifications, experts say. The ruling could either make it easier or more difficult to prove that an attorney has used peremptory challenges to block minorities or women from sitting on juries. The high court’s ruling also will be the final word on a long-running battle between the state and federal courts. “It is quite an important case,” said Alan Schlosser, legal director for the American Civil Liberties Union of Northern California. “The California Supreme Court ended up creating a real obstacle for uncovering discrimination.” Both federal and state law prohibit any lawyer from using peremptory challenges on the basis of race or gender. The issue often arises in criminal cases because some prosecutors believe that African-American and Latino jurors tend to sympathize with defendants, whereas some defense lawyers believe that white and Asian jurors tend to be prosecution-friendly. If a lawyer can make a sufficient showing of bias by his opponent, the judge can discharge the jurors and start selection all over again. What’s necessary to make that showing is spelled out in a key federal case, 1986′s Batson v. Kentucky, 476 U.S. 79, and its California counterpart, People v. Wheeler, 22 Cal.3d 258 (1978). But California judges seem to disagree over what Batson and Wheeler require. Contradictory language in Wheeler is the root of the problem. At one point, the opinion states that attorneys must show a “strong likelihood” of bias. However, one page later it says that the judge need only find a “reasonable inference” of bias. In Batson the U.S. Supreme Court drew on language from Wheeler, ruling that attorneys must show an “inference of discriminatory purpose” in order to prove that the opposing side was using peremptory challenges improperly. California judges have debated the discrepancy in Wheeler for more than 20 years, but in the 1994 case People v. Bernard, 27 Cal.App.4th 458, they eventually settled on the higher “strong likelihood” standard. That standard has since been used in most California trial courts. Four years ago, however, the Ninth Circuit U.S. Court of Appeals riled state judges with Wade v. Terhune, 202 F.3d 1190, which held that the “strong likelihood” standard was “impermissibly stringent in comparison to the more generous Batson ‘inference’ test.” The state Supreme Court responded six months later with a footnote in People v. Box, 23 Cal.4th 1153, that said, “in California, a ‘strong likelihood’ means a ‘reasonable inference.’” That didn’t settle the issue, though. One California appellate court balked, saying this was “as novel a proposition as the idea that ‘clear and convincing evidence’ has always meant a ‘preponderance of the evidence.’” And the Ninth Circuit declared that it would continue to closely scrutinize Wheeler cases “regardless of the California Supreme Court’s ‘clarification.’” Now the issue has come to a head in the Contra Costa County case of Jay Shawn Johnson. Johnson, an African-American, was found guilty of brutalizing his girlfriend and beating to death her 19-month-old daughter in 1996. The prosecutor used peremptory challenges to remove all three African-Americans from the jury panel. The defense brought a Wheeler motion, but the trial judge, Patricia Sepulveda, rejected the argument. Sepulveda, who now sits on the First District Court of Appeal, ruled that the defense did not prove there was a “strong likelihood” that the challenges were racially biased. When the First District Court of Appeal took up the Johnson case, it sided with the Ninth Circuit’s view and reversed the conviction. But last summer the California Supreme Court reinstated the conviction and tried to set the record straight. “We reiterate what we implied in Wheeler and stated in Box: Wheeler’s terms ‘strong likelihood’ and ‘reasonable inference’ state the same standard,” Justice Ming Chin wrote in People v. Johnson, 30 Cal.4th 1302. “The term ‘strong likelihood’ has never set a higher standard than Batson permits,” he added. Enter the U.S. Supreme Court. Attorneys hope that the high court will settle the issue once and for all by clarifying what Batson has to say on the issue. The result could have a major impact on jury selection, defense attorneys say. If the U.S. Supreme Court tightens the Batson requirement, it will make it easier for lawyers to strategically weed a particular ethnic group out of the jury pool, said Stephen Bedrick, the Oakland appellate attorney who represents Johnson. When defense attorneys make a Wheeler/ Batson motion, all they have to back up their argument is the prosecutor’s pattern of jury choices. Often that’s not enough to convince a judge that there’s “a strong likelihood” that the prosecutor is biased. If a defense attorney can’t prove this point, then the prosecutor doesn’t have to disclose why he or she spiked certain jurors, Bedrick said. “The only way you can root out discrimination is if you get the reason” for the prosecutor’s peremptory challenges, Bedrick said. If the U.S. Supreme Court backs the California Supreme Court’s view, that will ultimately make it harder for litigants to get a fair trial and erode citizens’ right to serve on juries, Bedrick and the ACLU’s Schlosser say. The attorney general’s office, which represents the Contra Costa County prosecutors in the case, sides with the state Supreme Court’s opinion. Batson and Wheeler both require the same thing — that defense attorneys show a “strong likelihood” of bias, said Deputy Attorney General Seth Schalit. “The burden is not onerous,” Schalit said. State law says you don’t have to state reasons for exercising peremptory challenges, Schalit argued. That’s one of the reasons the courts have set out tough legal requirements in Batson and Wheeler. “Simply objecting is not enough,” he said. One legal expert predicted that the U.S. Supreme Court justices would pay little attention to the sniping in the dueling California court opinions. In past cases, the justices have followed two schools of thought when weighing discrimination, said Vikram Amar, a professor at Hastings College of the Law. In some cases, such as Title VII employment cases, the court has set tougher standards to prove discrimination. In others, such as housing cases, it has made the criteria less restrictive, he said. “If it agrees with the employment model, it will agree with the [California] Supreme Court,” said Amar. The U.S. Supreme Court granted certiorari for Johnson in December, just months after it issued its opinion in another Contra Costa County criminal case, Stogner v. California, 123 S.Ct. 2446. In Stogner, the justices weakened prosecutors’ ability to pursue decades-old sex offenses. Oral arguments for the Johnson case are scheduled for March 30.

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