Federal Habeas Relief for Racist Juror Strikes Requires Fact-Heavy Analysis

In a case eerily similar to one the Supreme Court of the United States (SCOTUS) recently overturned because of a prosecutor`s racially-motivated disqualification of black jurors, the U.S. Court of Appeals for the Ninth Circuit reversed the denial of habeas corpus on September 10, 2021, and remanded for the federal district court to take another look at the case and consider whether the juror strikes were racially-biased.

This federal habeas case had been going for over 20 years, after Curtis Ervin, a black defendant in a 1991 murder-for-hire case in California, filed his federal habeas petition arguing that the state prosecutor improperly struck nine of the eleven black prospective jurors and ultimately left just one black person on the jury. The rest were white.

When challenged by Ervin`s lawyers, the prosecutor said the reason for the strikes was because of “specific juror attitudes on the death penalty,” and that three of them had religious beliefs against the death penalty. The trial court agreed these were “reasonably specific and neutral reasons,” and the California Supreme Court, on appeal, found “no good reason to second-guess [the trial judge`s] factual determination.”

Standard for Racially-Motivated Juror Strikes

Nearly a decade before Ervin`s trial, SCOTUS established the standard for evaluating a challenge to a prosecutor`s peremptory strikes of jurors as racially-motivated. In Batson v. Kentucky, 476 U.S. 79 (1986), the Court created a three-step procedure for these situations.

1. The defendant must make a prima facie showing of “purposeful discrimination” by the prosecutor`s strikes, if the defendant is the same race as jurors being struck,

2. The prosecutor must then offer a “race-neutral” reason for each strike, and

3. The court decides whether the defendant has proved there was racial discrimination with the strikes.

Since Batson and after Ervin`s trial, SCOTUS clarified this process in no less than seven subsequent cases, the latest being Flowers v. Mississippi, 139 S. Ct. 2228 (2019). In that case, the Court set out six factors a court must consider with a Batson claim, including comparing the black jurors struck with the white jurors who stayed, any “misrepresentations” of the record by the prosecutor in defending the strikes, and the prosecutor`s history of racially-motivated strikes in the past and history of racial discrimination. The Court reiterated that all of these factors must be considered holistically, requiring the court to “examine the whole picture.”

Unreasonable Determination of the Facts Allowed Habeas Relief by the Federal Court

Ervin properly exhausted his state post-conviction remedies, and then filed a habeas petition in federal court under 28 U.S.C. sec 2254. He again raised that the prosecutor`s reasons for the strikes contradicted the evidence in the record, that white jurors in the same situation as the struck black jurors were allowed to stay, and that only 17 of the 110 prospective jurors were black.

The district court focused on only three of the nine stricken black jurors and found that the prosecutor`s reasons were reasonable. However, the court failed to evaluate the prosecutor`s misrepresentations of the record, the fact of disparate treatment of white versus black jurors, nor any history of the prosecutor`s racially-motivated strikes.

On appeal, the Ninth Circuit considered these factors and determined that Ervin was possibly entitled to habeas relief. Under the Antiterrorism and Effective Death Penalty (AEDPA), a federal court may not grant habeas relief to a state prisoner unless the state court`s decision was (1) contrary to “clearly established federal law” (i.e., a Supreme Court decision), or (2) “an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Sec 2254(d).

Here, the state court`s decision fell under the second prong of the AEDPA`s exceptions. First, the state court did not consider the prosecutor`s “misrepresentations” of the record, the Court said.

Here, the prosecutor purportedly removed [a juror] for his “deeply religious bend and statements regarding “religious conversion” and “everybody finding God.” But, as noted above, [the juror[ repeatedly stated that he was “not a member of the church,” had no religious background, and that his only church involvement was his daughter going to a Christian school and attending church there with her mother. And, contrary to the prosecutor`s assertions, [the juror] never made any statements regarding “religious conversion” or “finding God.”

The Court also found that the district court failed to conduct side-by-side comparisons for six of the nine stricken juror, and for the three it did the court did not review them as a whole but only in isolation. Finally, the Court was presented with evidence that the prosecutor had made racially-motivated statements in the past about striking black jurors in death-penalty cases.

Stopping short of granting habeas relief, the Court vacated the denial of Ervin`s petition and remanded for the district court to re-evaluate the factors under Flowers. See Ervin v. Davis, 12 F.4th 1102 (9th Cir. 2021).

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