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California Supreme Court finds “discriminatory bias” in prosecution’s use of peremptory jury strikes

Supreme Court of California
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California Supreme Court finds “discriminatory bias” in prosecution’s use of peremptory jury strikes


The California Supreme Court overturned the 2012 convictions of three men after finding that Kern County prosecutors used peremptory strikes in a discriminatory manner to keep Latinos off their jury.

According to the Los Angeles Times, “The unanimous decision, written by Justice Mariano-Florentino Cuéllar, appeared intended to send a clear signal to prosecutors, defense lawyers and the lower courts that charges of racially motivated juror exclusions must be taken seriously.”

The ruling is also a blow to Kern County District Attorney Lisa Green, who insisted that her prosecutors did nothing wrong in the case. Green must now decide whether to retry Rene Gutierrez, Jr., Gabriel Ramos, and Ramiro Enriquez, who were tried and convicted for shooting Clarence Langston in Bakersfield. Langston survived the shooting. Gutierrez was sentenced to prison for 30 years to life, plus 27 years. Enriquez was sentenced to prison for 14 years to life, plus 25 years. Ramos was sentenced to prison for 5 years

During jury selection, the trial prosecutor struck ten Latinos from serving on the jury. The defendants raised a joint Batson/Wheeler motion, “contending that the prosecutor had improperly excluded prospective jurors on account of Hispanic ethnicity.”

Although the trial court agreed that the defendants had established a prima facie claim of discrimination, the trial court ultimately denied their motion after “finding the prosecutor‘s reasons to be neutral and nonpretextual.” The Supreme Court found that the record did not support a finding “that the trial court met its obligations to make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation,’” as is required under BatsonWheeler, and their progeny.

The ruling is particularly significant because of the infrequency with which appellate courts have overruled trial court findings that no discrimination took place during jury selection. In his concurring opinion, California Supreme Court Justice Gordon Liu noted that this was the first time in 16 years, and only the second time in 25 years, that the California Supreme Court overturned a ruling based on discrimination in jury selection.

According to The Open File, a website run by “an informal collection of lawyers, law professors, law students and policy advocates who are concerned about prosecutorial misconduct,” the California decision was particularly notable because of “the careful attention the justices gave to the record and to what actually happened in the proceedings below. Rather than filling in the record’s gaps with untethered assumptions that amplify the deference already owed to trial court decisions, the Court looked at them squarely and made clear that they cannot be written off in the prosecution’s favor.”

Bail reform embraced by Cook County State’s Attorney

Office of Cook Co. State’s Attorney

Bail reform embraced by Cook County State’s Attorney


Cook County State’s Attorney Kim Foxx, whose office is responsible for prosecuting crimes in the nation’s second-larget county, has launched a new approach to pretrial detention. Foxx announced earlier this month that her office would be recommending that people charged with misdemeanors and low-level felonies who do not have a history of “violent crime” or pose a risk to public safety be released pre-trial.

Foxx’s change in policy marks a significant victory for justice reform advocates who argue that the cash-based system of jailing people accused of crime is biased against the poor.

“Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system,” Foxx said in a written statement.

Foxx said crimes where people would be released on their own recognizance — under what is called an I-bond — would “include retail theft, possession of a controlled substance and criminal damage to property.”

If prosecutors believe there are circumstances that make the defendant a threat or a flight risk, they can seek extra conditions.

Foxx’s new approach is also expected to help alleviate jail overcrowding in Chicago.

Local law enforcement has been supportive of the measure. A spokesman for the Chicago Police Department told the Chicago Tribune that Superintendent Eddie Johnson “supports efforts to keep violent offenders behind bars but doesn’t think the system is working when nonviolent offenders spend more time in jail than those who use and carry illegal guns.”

Bail reform is gaining nationwide support. Washington, D.C. and New Jerseyhave largely stopped using money as a condition for release and court challenges have ended or dramatically altered money bail systems in a number of other jurisdictions around the country.

Although bail is ultimately set by judges, prosecutors wield significant powerin the process and there is increasing attention on the role they can and should play. Larry Krasner, the Democratic nominee for District Attorney in Philadelphia, has vowed to end cash bail if he’s elected. The subject has garnered increased attention in the campaign for Brooklyn District Attorney. This past spring, Kim Ogg, who was elected District Attorney of Harris County, Texas, in November 2016, threw her support behind bail reform in her jurisdiction.

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Under Criminal Investigation, California D.A. Resigns

Under Criminal Investigation, California D.A. Resigns


In early June, District Attorney Mark Peterson was busy planning for his reelection campaign in Contra Costa County, California. But life comes at you fast, especially when you’ve admitted to embezzling $66,000 in campaign funds for hotel rooms, movie tickets, jewelry, and other frivolities. Peterson got an unusual taste of his own medicine when he was detained June 9th in his own county by the state’s Attorney General, who launched a criminal investigation into his five-year slush fund spree.

Peterson had been under fire before his detention, but it didn’t seem to shake his confidence in the upcoming election. In May, a civil grand jury recommended he be removed from office, and the county’s district attorney association, comprised of line prosecutors in Peterson’s office, voted “no confidence” in their boss. In spite of the public shaming, in April, Peterson stated that he planned to run for reelection.

It took being detained by law enforcement agents and having his iPhone and calendar seized to change his mind. Five days later Peterson finally resigned and pleaded no contest to a felony perjury charge. He’ll serve three years of informal probation and perform 250 hours of community service — a punishment much less harsh than those regularly sought by his office for lesser crimes.

While Peterson’s slush fund scandal and detention rightly incited a flurry of local media coverage, a greater impropriety has gone largely unnoticed. Throughout his 10-year tenure as D.A., Peterson’s policy choices have shown him to be out of touch with the electorate when it comes to criminal justice. He consistently failed to support and even campaigned against multiple ballot initiatives that his community favored, such as Proposition 47, which passed in 2014. In an op-ed penned for the East Bay Times, Peterson railed against the popular initiative, which reduced certain nonviolent felony charges to misdemeanors, arguing that “the people who are in prison are the ones who should be there.” Unmoved by his fearmongering, 66.1 percent of his constituency supported the successful initiative — reflecting a broader support for criminal justice reform in the county that Peterson continues to push back against.

His disregard for the county’s stance on reform wasn’t limited to Proposition 47. In 2012, Peterson opposed Proposition 36, which revised the state’s three strikes law in an attempt to decrease its bloated prison population. Meanwhile, over 70 percent of Contra Costa voters supported its passage. Last year, Peterson again opted to ignore the electorate when he opposed Proposition 57, which increased parole opportunities for nonviolent felons, while nearly 70 percent of county voters favored it. State-wide, California disagreed with Peterson on all of these successful ballot initiatives.

The staunch law-and-order candidate also repeatedly denied the existence of systemic racism within Contra Costa’s criminal justice system. At a Black Lives Matter rally in December 2014, a group of Bay Area public defenders called out the local system for disproportionately incarcerating people of color. Robin Lipetzky, a Contra Costa County public defender, spoke of the racial disparities she saw “every day in judicial decisions, and in District Attorney filing decisions.” Peterson went on the defensive, calling the accusations“unfair, unsubstantiated, and misleading” in a letter and using the phrase “All Lives Matter” three times throughout his retort.

“The Public Defender suggested that people of color are over-represented in our jails,” wrote Peterson. “The fact is the jails are populated disproportionately by those who commit the most serious crimes. Unfortunately, it’s a sad fact that these crimes are perpetrated disproportionately by poor people of color.”

Peterson doubled down on his denial of systemic racism in Contra Costa again in January 2015, defending his rebuttal to Lipetzky in an op-ed. In the editorial, he added that he would “welcome an independent and objective study of race in our criminal justice system.” In the absence of that local study, Peterson could easily turn to the vast number of national studies on racial disparities in the criminal justice system, which illustrate the myriad reasonsblack and brown people are overrepresented — many of which are empirically tied to racial bias, whether implicit or intentional.

Before Peterson was elected as D.A. in 2010, he served as a city councilman and mayor of Concord, the largest city in Contra Costa County. During that time, between 2001 and 2010, the racial disparity between marijuana arrests of black and white citizens in the county leaped to 150 percent. A 2015 study found that although one in ten county residents are black, more than a quarter of all criminal cases in the county involve black defendants. There was plenty of data to prove him wrong; Peterson just ignored it.

Before his detention and the A.G.’s criminal investigation, Peterson suffered few repercussions for his actions. He was fined $45,000 by California’s Fair Political Practices Commission following the embezzlement scandal, but remained a member of the state bar association. The lack of consequences for an offense of such gravity stood in stark contrast to the convictions doled out to Contra Costa residents by his office for far more minor crimes.

Aron DeFerrari, president of the Contra Costa District Attorneys Association, told the East Bay Times that the line prosecutors’ vote of no confidence “is for the defendants who wonder why one standard applies to the district attorney and another standard applies to them.”

While Peterson’s cocksure bid for reelection is now off the table and he’s out of office, voters in Contra Costa now have a chance to challenge the candidates opting to replace Peterson. There are currently two candidates: Santa Clara County Deputy District Attorney Patrick Vanier, who formerly worked in Contra Costa as a prosecutor, and Contra Costa-based prosecutor Paul Graves, who until Peterson’s resignation was running against his boss. After ten years of being “served” by a D.A. who consistently failed to represent the electorate, the next local election is an opportunity to bring in a district attorney who actually reflects the constituency.

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