Turner v. Marshall

• Decision Date: 29 July 1997
• Docket Number: No. 96-56462.,96-56462.
• Citation: 121 F.3d 1248
• Parties: Robert S. TURNER, Petitioner-Appellant, v. Charles D. MARSHALL, Warden; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F.3d 1248

Robert S. TURNER, Petitioner-Appellant, v. Charles D. MARSHALL, Warden; Attorney General of the State of California, Respondents-Appellees.

No. 96-56462.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1997.

Decided July 29, 1997.

As Amended September 22, 1997.

Richard D. Cleary, Los Angeles, CA, for Petitioner-Appellant.

David F. Glassman, Deputy Attorney General, State of California, Los Angeles, CA, for Respondents-Appellees.

Before: FLETCHER, PREGERSON, and D.W. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

California state prisoner Robert Turner appeals the district court's denial of his petition for a writ of habeas corpus. Turner argues that the State engaged in purposeful discrimination in selecting his trial jury. He further claims that the state trial court committed prejudicial error when it allowed the jury to hear the readback of testimony in the absence of the defendant or his counsel.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253, and we affirm in part and reverse in part. Although we agree that the readback of testimony was harmless error, we believe that a comparative analysis of a challenged and an unchallenged juror indicates racial discrimination in the jury selection process. Accordingly, we vacate the district court's denial of Turner's petition.

I. Factual and Procedural Background

In March 1990, Turner was tried in California Superior Court for first degree felony murder, robbery, and burglary. During jury selection, Turner's counsel struck 19 prospective jurors, including two African-American men. The prosecutor used five out of the nine peremptory challenges she exercised to exclude African-Americans from the jury. Although she could have employed additional peremptory challenges, the prosecutor left four African-American women on the jury panel. However, when the jury was seated, all of the African-American men in the jury pool had been challenged or excused. Turner objected to the prosecution's use of peremptories under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), which holds that the discriminatory use of peremptory challenges violates the California Constitution. But the trial judge concluded that Turner had not established a "pattern of individual discrimination" and declined to inquire into the prosecutor's motives.

Turner's trial lasted for two weeks, and the jury began its deliberations on March 15, 1990. On March 19, the jury requested the readback of testimony by police department criminalist Lee Mann, who had presented the crucial blood evidence linking Turner to the murder. The court reporter read Mann's testimony to the jury in the jury room on March 19-20. The record reflects that neither Turner nor his counsel were in the jury room for the readback, and that neither of them had waived the right to be present.

On March 21, 1990, the jury entered a guilty verdict on all three charges, determined that Turner had used a deadly weapon in committing the offenses, and found that he had committed murder in the course of committing the burglary and robbery. Turner received a sentence of life imprisonment without the possibility of parole on the murder count, and the trial court stayed imposition of sentence as to the burglary and robbery. The California Court of Appeal affirmed Turner's conviction, and the California Supreme Court denied his petition for review.

Turner then filed a petition for a writ of habeas corpus in federal district court, which was denied. On appeal, this court ruled that Turner had established a prima facie case of racial discrimination in jury selection and concluded that the readback of Mann's testimony amounted to constitutional trial error. Turner v. Marshall, 63 F.3d 807, 814-15 (9th Cir.1995) Turner I. Accordingly, we vacated the denial of Turner's petition and remanded to the district court for an evidentiary hearing to develop Turner's Batson claim and to determine whether the state trial court's violation of his Confrontation Clause rights was prejudicial error. Id. at 820.

On April 25, 1996, a magistrate judge conducted an evidentiary hearing at which the prosecutor, the court reporter from Turner's trial, a trial juror, and Turner himself testified. The prosecutor acknowledged that she had no independent recollection of the five African-American jurors in question, but she offered explanations for her challenges derived from the voir dire transcript and her "partial" notes. Although the court reporter and the juror could not remember details of the readback of Mann's testimony, they recalled nothing remarkable about it. The questioning of Turner confirmed that he had neither heard the readback nor waived his right to be present. After hearing this testimony, the magistrate judge concluded that no Batson violation had occurred and that the readback was harmless error. The district court adopted the magistrate's findings and dismissed the petition. Turner subsequently was granted a certificate of appealability to challenge the denial of his habeas petition.

II. Standard of Review

We review the district court's decision to deny Turner's habeas petition de novo. Johnson v. Vasquez, 3 F.3d 1327, 1329 (9th Cir.1993). We accord substantial deference to the findings of fact underlying the district court's ruling on racial discrimination in jury selection and will overturn these findings only to correct clear error. See Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991); Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69 (1986); Johnson, 3 F.3d at 1329.

III. Discussion

A. The Adequacy of the Batson Hearing

We note at the outset that the procedural posture of this case, and the years intervening between voir dire and the evidentiary hearing, are indicative of a larger problem with the Batson rule in practice. Because no factfinder has had the benefit of contemporaneous explanations from the prosecutor, we have before us only a minimally adequate record to examine for evidence of discriminatory purpose. We believe that the trial judge who observes jury selection firsthand is best suited to conduct this inquiry. Had the trial court required the prosecutor to articulate her reasoning at the time that Turner raised questions about the State's use of peremptories, the record would have provided a richer basis for our decision.

Our review is further hindered by the prosecutor's failure to prepare for the evidentiary hearing. Although we do not fault the prosecutor for her diminished memory six years after jury selection, we note that she testified that she had not reviewed the voir dire transcript in preparation for the evidentiary hearing and that she was "caught up" in another trial. We are fully cognizant of the weighty caseload government attorneys carry, but we believe that the federal court's inquiry into a potential constitutional violation deserved the prosecutor's full attention.

Although both the lack of a contemporaneous explanation and the prosecutor's limited recollection are troubling, we conclude that the transcripts of voir dire and the evidentiary hearing yield a sufficient basis for review. Our decisions in United States v. Thompson, 827 F.2d 1254, 1262 (9th Cir. 1987), and United States v. Alcantar, 897 F.2d 436, 439 (9th Cir.1990), do not control. In those cases we noted that the passage of time could render a Batson hearing "meaningless." See Thompson, 827 F.2d at 1262. But there we contemplated a situation in which "no evidence was presented" and no information about excluded and accepted jurors was available. See Alcantar, 897 F.2d at 438. Here, the prosecutor did not admit to a total inability to reconstruct the events of jury selection; she claimed that she generally could recall the trial and that reviewing the transcript had refreshed her recollection of voir dire, and she articulated explanations for each of the disputed challenges. Thus the defense has been afforded ample opportunity "to point out false factual assumptions, or improper motivations in the prosecution's explanations." Id.

Accordingly, we reject Turner's argument that the prosecutor failed to meet her burden of producing specific reasons for her challenges, and we proceed to examine the trial court's ultimate determination that the State did not engage in purposeful discrimination. See Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.

B. Evidence of Purposeful Discrimination in the Jury Selection

We conclude that the district court clearly erred in accepting the prosecutor's explanation for striking African-American prospective juror Romeo McCain. We believe that the prosecutor's stated reasoning is revealed as pretextual in the light of a comparison between McCain and a nonminority juror who ultimately was empaneled.

A comparative analysis of jurors struck and those remaining is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination. Peremptory challenges "cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged." Doss v. Frontenac, 14 F.3d 1313, 1316-17 (8th Cir.1994); see United States v. Chinchilla, 874 F.2d 695, 698-99 (9th Cir.1989) (holding that a struck juror's place of residence was an inadequate explanation for a challenge because an unchallenged juror resided in the same location); see also Devose v. Norris, 53 F.3d 201, 204-05 (8th Cir.1995); United States v. Sowa, 34 F.3d 447, 452 (7th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); Davidson v. Harris, 30 F.3d 963, 965 (8th Cir.1994), cert. denied, 513 U.S. 1083, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995); Jones v. Ryan, 987 F.2d 960, 973 (3d Cir.1993).

On the surface, McCain possesses all of the attributes of a classic prosec...