CALIFORNIA CRIMINAL DEFENSE:JURY SELECTION - BATSON - PROSECUTOR'S SPECULATIVE REASONS
JURY SELECTION: PROSECUTOR'S SPECULATIVE REASONS
Paulino v. Harrison (9th Cir. 9/4/08, 07-55429) 08 C.D.O.S. 11772
On remand from Ninth Circuit to district court to conduct evidentiary hearing to allow prosecutor to explain her actual motivations for the peremptory challenges, prosecutor testified she had no memory of the jury selection or her reasons for striking the jurors, could not find her notes, and reading the transcript of the jury selection did not refresh her recollection.
"Therefore, instead of explaining her actual non-discriminatory reasons for exercising her peremptory challenges, the prosecutor offered hypothetical race-neutral reasons for striking each potential African-American juror in question. She acknowledged that the reasons she articulated were mere speculation drawn from her reading of the voir dire transcript. Indeed, she testified that all the parties present — herself, the State’s attorney, Paulino’s attorney, the magistrate judge — were 'on the same page;' all each could do was comment on the transcript." The magistrate judge before whom the hearing was held recommended the petition be granted, and the district court adopted the recommendations.
In affirming the district court's ruling, Judge Richard Paez, speaking for the panel, says: "The State attempts to turn the prosecutor’s testimony about the transcript into circumstantial evidence by recasting her conjectured reasons as 'reconstructed' reasons. The State lifts the term 'reconstructed' from cases, like this one, that involved “reconstruction” hearings — that is, an evidentiary hearing that takes place some time after the trial, where the prosecutor testifies to her actual reasons for striking the venire-members in question, or the State presents circumstantial evidence of those reasons — and misapplies it to the prosecutor’s testimony here. [Fn. om.] Her reasons were not 'reconstructed,' as that term is used in Batson cases; they were constructed out of whole cloth. As the district court found, the prosecutor did nothing more than guess why she might have removed the jurors in question."
