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January 16, 2006
New "Three Strikes" Initiative: a Step in the Right Direction
Los Angeles County District Attorney Steve Cooley is proposing a ballot initiative that would modify the existing "three strikes" law to better implement the intent of the voters. The new initiative would eliminate life terms unless the third conviction was a "serious" or "violent" offense. The proposed initiative is now under review by the California Attorney General's Office. The co-author of the initiative is attorney Brian T. Dunn, a member of the firm formerly headed by the late Johnnie Cochran. The issue of whether to include burglary convictions as triggering "third strike" felonies is still under consideration. Assemblyman Mark Leno, D-San Francisco, is involved in this effort. At present, the California District Attorney's Office has not taken a position on the proposed initiative.
Needless to say, those seeking change to the "three strikes" law should contact their representatives.
Readers should also visit the Families to Amend California's Three Strikes ("FACTS") website (here). Donations to this effort will be important is it will surely be opposed by the California Correctional Peace Officer's Association ("CCPOA"). If only the Governor could break away from the grip of the CCPOA on this . . . .
Posted by Tim Warriner at 09:22 AM
January 08, 2006
Case of the Month: Batson post Miller-El & Johnson-- Williams v. Runnels
In Williams v. Runnels (9th Cir. Jan. 5, 2006), the appellant argued that during his state trial for second-degree robbery, he made a prima facie showing of discrimination under Batson v. Kentucky when he objected to the prosecutor's use of three of four peremptory challenges to excuse African-Americans. During appellant's trial, when the court indicated that counsel could make peremptory challenges, the prosecutor stated that he would accept the jury. Defense counsel excused jurors, and in response, the prosecutor exercised four peremptory challenges. Only four of the first forty-nine potential jurors were African-American. A Wheeler objection was made after the fourth challenge. The trial judge ruled that a prima facie case of racial discrimination had not been shown and refused to put on the record the prosecutor's justifications for the challenges. The Ninth Circuit found that the proseucutor's challenges presented a prima facie Batson violation.
The court in Williams applied Johnson v. California, 125 S. Ct. 2410 (2005) and Miller-El v. Dretke, 125 S. Ct. 2317 (2005). It cited a passage in Johnson stating that the Supreme Court "did not intend the first step to be so onerous that a defendant would have to persuade the judge--on the basis of all the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination." The court noted that a defendant satisfies the requirements of Batson's first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson, supra, at 2417.
The court's use of the term "statistical disparity" when referring to the prosecutor's use of peremptory challenges against three out of four African-American jurors, and the fact that only four of the potential jurors were African-American, is interesting. Trial counsel must make extra effort to keep track of the numbers of prospective minority jurors, as well as how many are struck by the prosecution. Williams stands for the proposition that a "statistical disparity" ought to get you past the first step of the Batson analysis.
The court in Williams was critical of the method by which the district court and California Court of Appeal affirmed the conviction. The court noted that all the prior reviewing courts did was review the evidence in the record concerning the challenged jurors and determine that the record contained evidence for each juror that would support peremptory challenges on non-objectionable grounds. "This, however, does not measure up to the Supreme Court's pronouncement that the question is not whether the prosecutor might have had good reasons, but what were the prosecutor's real reasons for the challenges. Johnson, 125 S. Ct. at 2418; see also Miller-El, 125 S. Ct. at 2332 ("A Batson Challenge does not call for a mere exercise in thinking up any rational basis.")." (Emphasis added.)
Johnson and Miller-El have breathed new life into Batson claims. Williams is one example of the reach of these decisions.
Posted by Tim Warriner at 03:21 PM