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Johnson v. Finn

August 18, 2009

ALONZO DEON JOHNSON, PETITIONER,
v.
CLAUDE E. FINN, WARDEN, RESPONDENT.
DARRYL L. THOMPSON, PETITIONER,
v.
TOM L. CAREY, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioners are state prisoners proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioners claim their constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude black jurors. Petitioner Johnson challenges the peremptory challenge to juror Jones. (Johnson Pet. at 5.)

Petitioner Thompson challenges the peremptory challenges to jurors Jones, Green and Trimble. (Thompson Pet.)

Petitioners were tried together before a single jury in 2000. Petitioner Johnson challenges his conviction on charges of shooting at an occupied motor vehicle, Cal. Penal Code § 246. Petitioner Johnson was also found to be armed, personally used a weapon and committed the crimes for the benefit of a gang, and engaged in street terrorism while on bail; and was an ex-felon in possession of a firearm while on bail/own recognizance. Petitioner Johnson was sentenced to fifteen years, four months in state prison.

Petitioner Thompson challenges his conviction on charges of two counts of shooting at an occupied motor vehicle. Petitioner Thompson was also found to have used a gun, to have been armed, and to have committed the crimes for the benefit of a gang. Petitioner Thompson was convicted of willfully participating in a street gang within the meaning of Cal. Penal Code § 186.22(a), and being a felon in possession of a firearm (Cal. Penal Code § 12021(a)). He admitted he had served a prior prison term within the meaning of Cal. Penal Code § 667.5(a), and was sentenced to 14 years and 4 months in state prison on July 5, 2000.

Respondents filed answers. On July 5, 2005, petitioner Johnson filed a document entitled "Supplemental Letter," in which he asks the court to consider Johnson v. California, 545 U.S. 162 (2005).

On February 28, 2005, counsel for respondent filed a motion to consolidate petitioner's co-defendant's case, Thompson v. Carey, 2:04-cv-2208, with the instant action.*fn1 By order filed September 19, 2005, the district court related Thompson v. Carey, 04-2208, to the instant case instead of consolidating them.

FACTS*fn2

Because the appellate contentions do not require review of the sufficiency of the evidence, we will not set out the underlying facts in any detail. It is sufficient to say that in response to profane threats from [petitioners] based on their nonaffiliation with his gang, a family enlisted friends in a convoy of vehicles to help them move to a new location. When the moving party arrived, a trio of shooters, which included the [petitioner and his co-defendant Darryl Lammar Thompson], fired at them.

(People v. Johnson, slip op. at 3.)

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

II. Petitioners' Claim

Petitioners claim that their convictions must be reversed because the prosecutor exercised peremptory challenges to strike three jurors on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

A. State Court Decision

The last reasoned decision with respect to petitioners' claim is the opinion of the California Court of Appeal on petitioners' direct appeal. The Court of Appeal explained the facts surrounding this claim and its legal analysis as follows:

On three occasions, [petitioners] contested a peremptory challenge of the prosecutor to a prospective juror as being based on invidious group bias. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson) [equal protection]; People v. Wheeler (1978) 22 Cal.3d 258, 280 (Wheeler) [right to representative jury].) Each time, the trial court concluded [petitioners] had failed to make a prima facie showing that the prosecutor had an invidious basis for the peremptory challenge. (People v. Box (2000) 23 Cal.4th 1153, 1187-1188.) We first relate the circumstances of each peremptory challenge and the defense objections.

A.

Mr. J.: Mr. J. was part of the first group of jurors called into the box. The court and the parties examined him only briefly. Nothing in his questionnaire or responses in court were out of the ordinary. He was the prosecution's seventh peremptory challenge. Defense counsel objected, claiming he "didn't see anything wrong with any of his responses." Because the excused juror belonged to the same cognizable group as [petitioners], defense counsel stated this established a prima facie case of invidious group bias on the prosecutor's part in excusing him. The court agreed that in theory a defendant could establish a prima facie showing based on a single challenge, but it would be difficult with no other factors. The court concluded the mere fact that the juror belonged to a cognizable group was not sufficient. It did not ask the prosecution to explain the basis for the exercise of the peremptory challenge. Mr. G.: This juror was part of the third batch seated after the second set of peremptory challenges. The court asked him about several confusing responses on his questionnaire, and he seemed to have difficulty explaining himself regarding his familiarity with Stockton-area gangs. His questionnaire noted that he lacked a high school education, and his adult son had been arrested three times for drug offenses. He was the prosecution's ninth peremptory challenge.

Defense counsel objected. He noted the prosecutor had now excused two of the few members of the cognizable group in the pool of jurors, but did not point to any other circumstances suggesting a basis in invidious group bias. The court did not believe this was sufficient, in light of the circumstances of Mr. G.'s son and what the court termed the equivocal and confused responses of the juror (although defense counsel disputed that Mr. G. had sounded confused). The court concluded: "Mr. [G.] would have been challenged by almost any deputy district attorney or probably by most defense attorneys, in my opinion. . . .

Mr. T.: This juror was first called during alternate selection. His name had come up in private questioning of another juror, who told the court he was an employee pursuing a group grievance against her. Mr. T. then replaced her in the box after the prosecutor excused her. In his questionnaire and responses in court, he noted a past bad experience with his family law attorney in a custody matter. He also admitted to having previous arrests for driving under the influence (DUI), domestic assault and criminal assault; charges were dropped for the latter two. He did not believe the police and prosecution had treated him fairly in the DUI matter. In a previous job, he worked with disadvantaged youths, including gang members. He had grown up near the area where the present crimes took place, and was aware of the gang activity there and in his own neighborhood. The prosecutor exercised his second peremptory challenge to an alternate to excuse him.

Defense counsel objected. He noted the only three members of the cognizable group were now off the jury as a result of the prosecutor's exercise of his challenges. He thought Mr. T., as a former military policeman, was pro-prosecution if anything, and thus there must be a basis in invidious group bias for removing him from the jury. The court disagreed; it believed the juror's arrests and his close involvement with gangs in the vicinity of the crime were more than sufficient bases to excuse him from the jury.

B.

A party establishes a prima facie showing of invidious group bias when there is a reasonable inference from the circumstances as a whole that this was the basis for the peremptory challenge. (Box, supra, 23 Cal.4th at pp. 1187-1188.)*fn3 More than the juror's mere status as a member of a "cognizable group" is necessary. (Id. at pp. 1187-1188, 1188-1189.)

When a trial court denies a motion to contest the basis of a peremptory challenge because there is no prima facie showing, we review the entire record of voir dire; if there are grounds upon which a prosecutor could reasonably have premised a challenge, we affirm. (Box, supra, 23 Cal.4th at p. 1188.) Contrary to the belief of [petitioners], we do not accord great significance to a comparison of the characteristics of the contested jurors with those of the retained jurors. "[T]he very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror [who] on paper appears to be substantially similar. [Any] attempt to make such an analysis . . . is highly speculative and less reliable than the determination made by the trial judge who witnessed the process. . . ." (People v. Johnson (1989) 47 Cal.3d 1194, 1221; accord, Box, supra, 23 Cal.4th at p. 1190.) One impermissible challenge is sufficient to require dismissal of the venire and resumption of the selection process once again. (People v. Fuentes (1991) 54 Cal.3d 707, 715 (Fuentes).)

We initially reject the [petitioners'] efforts to impute reversible error to the trial court's use of the term "systematic exclusion" in ruling on their motions. This is a frequent judicial malapropism; the term in its technical sense refers only to the lack of representation of cognizable groups in a venire. (Fuentes, supra, 54 Cal.3d at p. 716, fn. 4.) As noted above, the trial court was explicitly aware there did not need to be any systemic invidious bias to grant the [petitioners'] motion.

The [petitioners] rely on authority that the exclusion of all members of a cognizable group from a jury may give rise to an inference of invidious group bias. This is not, however, a determinative factor. (Box, supra, 23 Cal.4th at pp. 1188-1189; People v. Sanders (1990) 51 Cal.3d 471, 500-501 [but concluding that under all the circumstances the trial court did not err in finding there was nothing else to support prima facie case of invidious discrimination].)

We agree there is nothing in the questionnaire or voir dire responses of Mr. J to suggest a nondiscriminatory basis for a peremptory challenge. He did indicate in his questionnaire that he would not follow the court's instructions, but neither the court nor the parties questioned him whether this was a mistake. But the trial court correctly noted the possible difficulties Mr. G. (a high school dropout) might have in expressing himself or understanding the proceedings, the convictions of Mr. G.'s son, Mr. T.'s negative feelings toward law enforcement about his DUI arrest, and his possible sympathies for gang members (either through familiarity from his neighborhood or his previous job) as all being red flags to trial attorneys (People v. Gutierrez (2002) 28 Cal.4th 1083, 1123-1124; People v. Turner (1994) 8 Cal.4th 137, 171; People v. Sims (1993) 5 Cal.4th 405, 430; People v. Cummings (1993) 4 Cal.4th 1233, 1282.) With the trial court's firm belief that the latter two warranted exclusion from the jury, there is nothing to add to the mere circumstance of Mr. J.'s membership in the cognizable group for the [petitioners'] showing in favor of their motions. That various seated jurors may have shared circumstances of a conviction or arrest (or arrested or convicted relatives) is not enough to gainsay the trial court's finding; the [petitioners'] cross-comparison does not adequately account for the combination of Mr. G.'s possible cognitive shortcomings, and Mr. T.'s belief that his DUI conviction was unfair. Moreover, efforts at cross- comparison do not account for other factors in the seated jurors that the prosecutor may have found to offset the negatives. As the record provides an adequate factual basis for the trial court's conclusions in this regard, and the trial court displayed sufficient attentiveness to the issue, we do not find any basis to reverse the convictions. (People v. Johnson, slip op. at 3-9.)

B. Prior Proceedings in this Court

By order filed August 15, 2007, this court found the California Court of Appeal used the incorrect legal standard in determining whether petitioners had established a prima facie case of racial discrimination. (Id. at 2-3.)*fn4 Accordingly, this court determined that a de novo standard of review, and not the AEDPA deferential standard, should be used to decide petitioners' Batson claim. August 15, 2007 Order at 2-3, citing Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (federal court of appeals examined Batson claim de novo because the state court used the wrong legal standard when analyzing whether defendant made a prima facie showing of bias). This court also found that petitioners had demonstrated a prima facie case of racial discrimination with respect to the prosecutor's exercise of peremptory challenges against jurors Mr. J, Mr. G and Mr. T, who were all of the African-American prospective jurors remaining in the jury pool when the prosecution exercised the peremptory challenge to Mr. J. (August 15, 2007 Order at 5-6.)

On January 30, 2008, this court held an evidentiary hearing; the prosecutor testified as to the reasons supporting his peremptory challenges used to remove three African- American potential jurors from the jury venire. Subsequent to that evidentiary hearing, on March 20, 2008, petitioners filed a "Post-Hearing Opening Brief.. On April 3, 2008, respondent filed a "Post-Evidentiary Hearing Brief." This court has considered those briefs in issuing these findings and recommendations.

C. Legal Standards

Purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 476 U.S. 79 (1986); Johnson v. California, 545 U.S. 162 (2005); Snyder v. Louisiana, ____ U.S. ____, 128 S.Ct. 1203 (2008). So-called Batson claims are evaluated pursuant to a three-step test:

"First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations]. Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations .] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]"

Johnson v. California, 545 U.S. at 168 (footnote omitted); Tolbert v. Page, 190 F.3d 985, 987-88 (9th Cir. 1999) (en banc). This court will evaluate petitioners' Batson claims with reference to the standards set forth above.

In order to establish a prima facie case of racial discrimination, petitioners must show that "(1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race." Boyd v. Newland, 467 F.3d 1139, 1143 (citing Batson, 476 U.S. at 96 and Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir. 2001)). A prima facie case of discrimination "can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives 'rise to an inference of discriminatory purpose.'" Johnson v. California, 545 U.S. at 169 (quoting Batson, 476 U.S. at 94.)*fn5 In evaluating whether a defendant has established a prima facie case, a reviewing court should consider the "'totality of the relevant facts' and 'all relevant circumstances' surrounding the peremptory strike." Boyd, 467 F.3d 1146 (quoting Batson, 476 U.S. at 94, 96). This should include a review of the entire transcript of jury voir dire in order to conduct a comparative analysis of the jurors who were stricken and the jurors who were allowed to remain. Boyd, 467 F.3d 1144, 1149 ("We believe, however, that Supreme Court precedent requires a comparative juror analysis even when the trial court has concluded that the defendant failed to make a prima facie case"). See also Miller-El v. Dretke, 545 U.S. 231 (2005) (using comparative analysis, in a case in which a prima facie showing had been made, to determine whether the prosecutor had been motived by racial bias in exercising peremptory challenges).*fn6

At the second step of the Batson analysis, "'the issue is the facial validity of the prosecutor's explanation." Hernandez v. New York, 500 U.S. 352, 360 (1991). "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Id. at 360. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Stubbs v. Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) (quoting Hernandez, 500 U.S. at 360). For purposes of step two, the prosecutor's explanation need not be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. at 765, 768 (1995). Indeed, "to accept a prosecutor's stated nonracial reasons, the court need not agree with them." Kesser v. Cambra, 465 F.3d at 351, 359 (9th Cir. 2006). "It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. 765, 768 (1995) (emphasis in original). The question is whether, after an evaluation of the record pertaining to that particular case, the prosecutor's race-neutral explanation for a peremptory challenge should be believed. Id.

In the third step of a Batson challenge, the trial court has "the duty to determine whether the [petitioner] has established purposeful discrimination," Id., 476 U.S. at 98, and must evaluate the "persuasiveness" of the prosecutor's proffered reasons. See Purkett, 514 U.S. at 768. In determining whether petitioner has carried this burden, the Supreme Court has stated that "a court must undertake 'a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Batson, 476 U.S. at 93 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also Hernandez, 500 U.S. at 363. "[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768. See also Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003) ("[I]f a review of the record undermines the prosecutor's stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.") In step three, the court "considers all the evidence to determine whether the actual reason for the strike violated [petitioner's] equal protection rights." Yee v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006). "A court need not find all nonracial reasons pretextual in order to find racial discrimination." Kesser, 465 F.3d at 360.

Petitioners bear the burden of persuasion to prove the existence of unlawful discrimination. Batson, 476 U.S. at 93. "This burden of persuasion 'rests with, and never shifts from, the opponent of the strike.'" Id. at 2417 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curium). However, petitioners are "entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953).

D. Analysis

As noted above, on August 15, 2007, this court found "petitioners produced evidence sufficient to permit the trial judge to draw an inference that the prosecutor struck all African American potential jurors from the venire. See Johnson [v. California], 545 U.S. at 170." (August 15, 2007 Order at 6.) Because petitioners demonstrated that the facts give rise to an inference of discriminatory purpose, making a prima facie case, the burden shifts to the state to explain the racial exclusion by offering permissible race-neutral justifications for the strikes.

Surprisingly, at the evidentiary hearing held almost eight years after voir dire in the underlying criminal action, the prosecutor recited a laundry list of reasons why he challenged each of the three jurors. Not surprisingly, none of the reasons were articulated as based on race. Counsel for petitioners suggest that the prosecutor's inference that because Mr. Jones was living with his parents he must not be paying rent draws "a negative inference . . . consistent with a racially discriminatory intent on his part." (Pet.'s Brief at 4.) However, on its face, the prosecutor's statement was race-neutral because even Caucasian children live with their parents without paying rent. None of the reasons articulated by the prosecutor at the evidentiary hearing demonstrated inherent discriminatory intent; thus, the reasons are deemed race-neutral. Stubbs, 189 F.3d at 1105. This court moves now to stage three of the Batson analysis.

Petitioners claim that the prosecutor's reasons for striking the three African-American jurors, which he described at the evidentiary hearing, were a pretext for racial discrimination. Thus, this court will evaluate the record to determine whether the prosecutor's stated reasons for excluding the three African American jurors from petitioners' jury pass constitutional scrutiny.*fn7

i. Prospective Juror Mr. Jones

The oral voir dire of Mr. Jones was as follows: THE COURT: . . . Mr. Jones, question number 22, you gave me an answer that I wanted you to explain it a little more. It says what are your opinions about defense attorneys, and then you said they are trying to defend the guilty. And maybe you meant the accused. I don't know.

MR. JONES: Yeah, that's what I meant.

THE COURT: I think simply because somebody's been accused, there's evidence of any guilt.

MR. JONES: No, you got to prove his guilt, you know what I'm saying?

THE COURT: Fair enough. That was the only question I had for you. . . . (Reporter's Transcript on Appeal "RTA" II:344.)

MR. BULLARD: . . . Good morning, Mr. Jones.

MR. JONES: Good morning.

MR. BULLARD: As I said, one of the things that we're going to . . . ask you to do, if you are selected as a juror in this case, is to weigh the evidence. You are going to have to listen to perhaps two sides of a story and make a decision as to what happened.

One of the things that the Judge is going to tell you that you have to do is, when you're looking at a witness who testifies, one of the things you can do is you can take into consideration someone's motive or bias or interest in testifying.

Is that something that you feel you would be able to do?

MR. JONES: Yes.

MR. BULLARD: Make a decision in this case?

MR. JONES: Yes.

MR. BULLARD: Okay. Great. Thank you, sir. (RTA II:466.)

MR. FREITAS: . . . do you have any problems with the felony murder rule as we talked about it?

MR. JONES: No.

MR. FREITAS: Do you have any problem with an aider and abettor, the driver being just as responsible as the man who pulled the trigger? Even if a person agrees not to shoot somebody, that there is going to be no harm involved, because of natural and probable consequences, as they agree to commit the armed robbery, someone gets killed, that the . . . get-away driver would be held just as responsible.

MR. JONES: (Nodding.)

MR. FREITAS: Now, one of the answers you gave in your questionnaire, and to the defense, was that you needed -- you agree that there would be two sides to every story, that you would need all the evidence.

What might even happen, the People would put on their witnesses, put on their case, sit down, and the defense would say, "We decide not to call any evidence."

Then you would have to weigh the evidence that you had and put it up to the standard or it . . . doesn't meet the standard." You can't guess about what maybe someone else might have saw, what a witness might have said or something like that. You have to decide the case solely upon the evidence here and see whether or not, in fact, it reaches that standard of beyond a reasonable doubt. Could you do that?

MR. JONES: Yes, sir.

MR. FREITAS: Could you do that without speculating or guessing what the other side might have said or what the other side of the story might be?

MR. JONES: Yes.

MR. FREITAS: Okay. That's the questions I had.

(RTA II:516-17.)

The prosecution's challenge to Mr. Jones was the seventh peremptory exercised in the first group of jurors.

After Mr. Freitas made a peremptory challenge to Mr. Jones, defense counsel made a motion under Wheeler, and the record reflects the following:

MR. BULLARD: It appears to me that Mr. Jones is a young African-American gentleman and both Mr. Thompson and Mr. Johnson are young African-American gentlemen.

I looked at the jurors that are sitting out there. I did not see any other potential African-American jurors. I know Mr. Trimble, who answered one of the questionnaires, I don't know that he's here. I was specifically looking for him, because it appears to me that he was African-American, but I don't . . . see him out there . . .

THE COURT: I don't know whether he is or isn't.

MR. BULLARD: I didn't see him.

THE COURT: This afternoon.

Ms. Chapa appears to be African-American, but that's just my guess, of course, she's gone by now.

MR. BULLARD: I don't know. All I'm saying is when I looked out there at the potential jurors that are left, I did not see any, and I am not saying that that's 100 percent correct, but I'm saying it appears that Mr. Jones at this point is one of the few, if any, African-American jurors out there. I didn't see anything wrong with any of his responses so . . .

THE COURT: What is your motion?

MR. BULLARD: I am making a motion to dismiss the panel.

THE COURT: Why specifically?

MR. BULLARD: Because I don't believe that there's a fair representation of the community left on the panel, specifically with regards to Mr. Jones.

THE COURT: Are you saying something about why Mr. Freitas exercised that challenge?

MR. BULLARD: Yes.

THE COURT: What do you think he's done?

MR. BULLARD: I think he has removed Mr. Jones based on his ethnicity.

MS. FIALKOWSKI: Your Honor, if I might just add something?

THE COURT: Sure.

MS. FIALKOWSKI: Ms. Chapa, who was not here prior to resuming in court this afternoon, she apparently showed up at the lunch hour, and I believe -- and please correct me if I'm wrong -- the Court indicated a willingness to basically put her back into the prospective voir dire.

THE COURT: That's correct.

MS. FIALKOWSKI: If there was a stipulation, and Mr. Bullard and I said that we would stipulate and --

THE COURT: No. Mr. Bullard said he needed to check.

MS. FIALKOWSKI: No, I needed to, and I did, but I would be willing to stipulate.

MR. BULLARD: I was perfectly agreeable to having Ms. Chapa back in the rotation.

THE COURT: Yeah. Mr. Freitas persuaded me that once you're excused, you're excused, which I agreed would probably be the case.

Mr. Freitas, any response?

MR. FREITAS: First off, I had no idea that Ms. Chapa was of any race.

THE COURT: Well, I don't know that she is, but she's dark complected, is all I can say.

MR. FREITAS: I don't know. I've never seen her. So I don't have any idea what race she was.

THE COURT: I'm not sure it's the person, but at least the clerk indicated that's the person that was walking in.

MR. FREITAS: And I can't imagine how my willingness to stipulate to her coming in has any bearing on this motion whatsoever.

THE COURT: Unless they can show that you knew that she was African-American.

MR. FREITAS: What I recall from her, she was from my hometown, and I had her scored pretty middle-of-the-road, but the fact is she missed the whole period of voir dire. She missed all of our explanations of the laws that were going on.

THE COURT: I don't think really it deserves much argument.

MR. FREITAS: And she also --

THE COURT: I think that's of no consequence to anyone.

MR. FREITAS: Not to follow the Court's instructions?

THE COURT: She was gone. Who knows whether I can put her back on the panel legally? Even if everybody agreed to it, maybe it would be -- I don't think it's worth the effort to respond to that part. Let's talk about the rest.

MR. FREITAS: Well, I don't think the burden has been met either way. It seems to me that there's some type of population-type percentage on this motion that's going on. I haven't heard the grounds for a Wheeler motion being elicited by the defense. If it was a Wheeler motion and if the Court were to understand this to be a Wheeler-type motion --

THE COURT: He said Wheeler.

MR. FREITAS: He did say Wheeler?

THE COURT: He didn't say what his grounds were. I'm not going to assume what he --

MR. FREITAS: My understanding of Wheeler is that it requires a systematic exclusion by the prosecution of people based upon their ethnicity.

THE COURT: Right.

MR. FREITAS: The Court has the questionnaires in front of it. It's quite obvious that the challenges the People have made -- we've made seven challenges, and one of them happens to be of a group that the defense is complaining about. A prima facie case requires exclusion and we did not have that here. I don't see that a prima facie case has been met.

THE COURT: Mr. Bullard.

MR. BULLARD: Well, first of all, I think Mr. Freitas had made four challenges before excusing Mr. Jones, according to my calculations.

THE COURT: Oh, my gosh, more than that.

(Interruption.)

THE COURT: Mr. Jones was the seventh ...


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