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The right to equal protection of the law is not denied when a lawyer has dual motives for striking a juror — including an unconstitutionally discriminatory motive — if it can be shown that the strike was for a nondiscriminatory reason, a divided Texas Court of Criminal Appeals ruled May 22. In a 5-4 decision, the CCA reversed a 5th Court of Appeals ruling in Guzman v. State. The Dallas appeals court reversed Benito Guzman’s conviction for capital murder in connection with the 1998 death of an infant because the prosecutor gave several reasons for striking a juror, including the fact that the juror was a single male without children. The prosecutor also said that the juror — identified as juror No. 17 — fell asleep or had his eyes closed for long periods, the CCA opinion said. Judge Gerry Meier, of Dallas’ 291st District Court, found that the state didn’t exercise its peremptory challenges in a racially discriminatory way. With former CCA Judge Chuck Miller writing the opinion, the 5th Court held in May 2000 that the state didn’t provide a gender-neutral explanation and thereby didn’t meet the second step required in the three-step appellate analysis established by the U.S. Supreme Court in 1986′s Batson v. Kentucky. The CCA disagreed, affirming its 1992 plurality opinion in Hill v. State. Under Hill, the fact that a prosecutor mentions race as part of an explanation for a peremptory strike is indicative, but not conclusive that there has been purposeful discrimination and thereby a violation of the 14th Amendment right to equal protection. But Hill failed to resolve the issue. Four judges joined in the plurality opinion in Hill, and four others joined in a concurring opinion that said race may not be even a factor in a race-neutral strike. The ninth judge concurred in the result in Hill. Judge Cathy Cochran, writing for the CCA majority, said “Texas courts of appeals have frequently erred on the side of caution” and have declined to follow the Hill plurality opinion. Instead, the courts have adhered to the view that one non-neutral justification for a strike taints any neutral justification. The CCA’s ruling in Guzman puts Texas in step with federal courts of appeals. “Every federal circuit that has addressed the issue has reached the same conclusion and done the same analysis,” says Prichard Bevis, a former Dallas County prosecutor who handled Guzman on appeal. The CCA adopted the dual motivation or mixed-motives doctrine that, according to the majority opinion, has been adopted by the 2nd, 3rd, 4th, 8th and 11th Circuits. Under that doctrine, a showing that a mixed-motives strike would have been exercised regardless of the race or gender issue considered triggers the third step in the Batson analysis. The trial court then determines whether the opponent of the strike met the burden of proof for showing purposeful discrimination, Cochran said in the opinion. State prosecuting attorney Matthew Paul says the ruling removes an incentive for lawyers to be disingenuous about their reasons for a peremptory strike. “This gives people the incentive to be perfectly straightforward with the court, to go ahead and say that one of the reasons [for a strike] was gender- or race-based,” Paul says. Others disagree. “We may as well not have the [ Batson] rule,” says C. Wayne Huff, a Dallas solo who represents Guzman. “There is no way to keep the state from making strikes.” PREDICTING THE FUTURE Judge Paul Womack said in dissenting opinion that the CCA has made it easier for lawyers to eliminate jurors for unconstitutional reasons. The mixed-motive analysis is inconsistent with law of equal protection in jury selection, he said. “The unquestioned law is that the exclusion of men, because they are men, violates the Equal Protection Clause of the 14th Amendment to the Constitution. The law and the facts require a new trial,” Womack wrote. Judges Lawrence Meyers, Tom Price and Cheryl Johnson joined Womack in the dissent. Bevis, an associate in the Law Offices of Larriet E. Thomas in Dallas, says the majority’s ruling follows the dual-motivation analysis in Title VII employment discrimination cases. The U.S. Supreme Court’s 1989 plurality opinion in Price Waterhouse v. Hopkins applies the mixed-motives analysis to a Title VII gender discrimination case. While the nation’s highest court has not addressed “mixed motives” analysis in the context of a Batson challenge, it has held in equal protection cases that dual motivation is a defense that rebuts the opponent’s prima facie case of purposeful discrimination, the CCA opinion said. The Texas Supreme Court has taken a different approach in a dual-motivation case. In 1992, that court held in Powers v. Palacios that “equal protection is denied when race is a factor in counsel’s exercise of a peremptory challenge to a prospective juror.” Bevis says the CCA’s Guzman ruling “may be persuasive of where the Texas Supreme Court will go in the future.” According to the CCA majority, Meier did not make explicit findings that the prosecutor provided sufficient neutral reasons to prove that he would have struck juror No. 17, even if gender had not been an issue. Guzman was remanded to the 5th Court with instructions that it order the trial court to hold a hearing to make that determination. “It is abundantly clear that gender was a reason for the prosecutor’s strike of juror number 17, but it is not abundantly clear that gender was the ‘controlling’ reason,” Cochran said in the opinion.

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