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San Francisco-The U.S. Supreme Court will address a debate over race and jury selection when it takes up a Contra Costa County, Calif., case 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 keep minorities or women off juries. The ruling also could end a long battle between the state and federal courts. Johnson v. California, No. 03-6539. “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.” Federal and state law prohibit lawyers from using peremptory challenges on the basis of race or sex. The issue often arises in criminal cases. Some prosecutors think African-American and Latino jurors tend to sympathize with defendants, and some defense lawyers think white and Asian jurors tend to be prosecution-friendly. If a lawyer can show 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). California judges seem to disagree over what Batson and Wheeler require. Contradictory language in Wheeler is at the root of the problem. The opinion says attorneys must show a “strong likelihood” of bias. One page later it says that the judge need only find a “reasonable inference” of bias. In Batson, the 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. A 20-year debate California judges have debated the discrepancy in Wheeler for more than 20 years. In 1994, they settled on the higher “strong likelihood” standard. That standard has since been used in most California trial courts. People v. Bernard, 27 Cal. App. 4th 458. Four years ago, however, the 9th U.S. Circuit Court of Appeals held that the “strong likelihood” standard was “impermissibly stringent in comparison to the more generous Batson ‘inference’ test.” Wade v. Terhune, 202 F.3d 1190. The state Supreme Court responded six months later with a footnote saying that “in California, a ‘strong likelihood’ means a ‘reasonable inference.’ ” People v. Box, 23 Cal. 4th 1153. That didn’t settle the issue. The 9th Circuit declared that it would continue to scrutinize closely 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, an African-American who 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. The defense brought a Wheeler motion, which the trial judge, Patricia Sepulveda, rejected. Sepulveda, who now sits on California’s 1st District Court of Appeal, ruled that the defense did not prove there was a “strong likelihood” that the challenges were racially biased. When the Court of Appeal took up the case, it sided with the 9th 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 said. Enter the U.S. Supreme Court. It granted certiorari in December. Oral arguments are set for March 30. Attorneys hope that the 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 Supreme Court tightens the Batson requirement, it will be easier for lawyers to weed a particular ethnic group out of the jury pool, said Stephen Bedrick, the Oakland, Calif., 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 dismissed 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.

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