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“Racial engineering” of juries in the struck jury system could violate federal equal protection laws, the 9th U.S. Circuit Court of Appeals suggested in an opinion Tuesday. But whatever prosecutors did while picking a jury in the case of a Mexican citizen found unlawfully living in the U.S., it was not enough to overturn the man’s sentence. The opinion came in the appeal of Osbaldo Esparza-Gonzalez, who was living in Nevada after previously being removed from the country on a drug-trafficking conviction. Esparza-Gonzalez pleaded not guilty in the U.S. District Court for the District of Nevada, which used the “struck jury” system to choose jurors for his trial. The system differs from the “jury box” system, in which 12 jurors are seated and then challenged. In the struck system used for Esparza-Gonzalez’s 2004 trial, 32 potential jurors, including four alternates, were selected. The prosecution was allowed six peremptory strikes while the defense got 10. When the prosecution waived all but one of its peremptory challenges, the system called for the court to excuse the extra potential jurors by order of highest number first — including juror No. 28, the only person with a Latino surname. Esparza-Gonzalez’s defense immediately challenged the prospective juror’s removal, arguing that prosecutors knew waiving their peremptory challenges would simultaneously eliminate the juror as well as the need to explain why they wanted her off the panel. The prosecution’s sidestep, the defense claimed, amounted to discrimination of a potential juror based on race. The district court tentatively agreed that the move violated Batson v. Kentucky, the federal case that prohibits racial discrimination in jury selection. But then it backed away from this position, the 9th Circuit found. The district court also gave each side one peremptory strike against the four alternate jurors, and the prosecution again waived its right, resulting in the removal of the only alternate prospective juror with a Latino surname. The defense objected to this, too. On Tuesday, the 9th Circuit reversed the district court’s decision that Esparza-Gonzalez failed to establish juror discrimination in the case of the prospective alternate juror. But it remanded all the other issues back to the district court. The racial aspect of the case, however, was not lost on the 9th Circuit. “Esparza-Gonzalez is a Mexican national and thus race is clearly involved in the proceeding,” wrote Judge Dorothy Nelson in the court’s opinion. “The fact is one that should also be considered when evaluating whether the totality of the circumstances gives rise to an inference of discriminatory intent.” Ninth Circuit judges William Fletcher and Raymond Fisher agreed with the opinion. U.S. Attorney Ronald Rachow represented the prosecution. Federal public defenders Michael Powell and Cynthia Hahn represented Esparza-Gonzalez.

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