After hearing oral argument in a death penalty appeal in January, the Supreme Court Wednesday vacated submission of the case — People v. Scott — and directed the parties to file supplemental briefs on a Batson/Wheeler issue. (Vacating submission and asking for post-argument briefing is unusual, but not unheard of.)
Batson v. Kentucky (1986) 476 U.S. 79 forbids the prosecution from using peremptory challenges of prospective jurors based on the jurors’ race. The process for determining whether a prosecutor has done that which is forbidden has generated disagreement at the state’s high court. Eighteen months ago, Justice Liu, writing separately in a trio of death penalty cases, challenged the California court’s Batson jurisprudence, saying that it “appears noticeably out of step with principles set forth by the United States Supreme Court.” He also found it “quite remarkable” that, at the time, “[i]n the 102 cases where this court has addressed a Batson claim over the past 20 years, we have found Batson error only once — and that was 12 years ago.”
In Scott, the court has asked the parties to answer these questions: When a trial court finds that the defendant failed to make the first-stage prima facie showing required under Batson/Wheeler but nonetheless allows or invites the prosecutor to state reasons on the record, the prosecutor states his or her reasons, and then the court agrees that the prosecutor’s reasons are genuine, must an appellate court review the trial court’s ruling only as if it were a third-stage ruling that no purposeful discrimination occurred? (Compare People v. Banks (2014) 59 Cal.4th 1113, 1146; People v. Chism (2014) 58 Cal.4th 1266, 1314; People v. McKinzie (2012) 54 Cal.4th 1302, 1320; People v. Riccardi (2012) 54 Cal.4th 758, 786, with People v. Lopez (2013) 56 Cal.4th 1028, 1047-1050; People v. Clark (2011) 52 Cal.4th 856, 904-908; People v. Howard (2008) 42 Cal.4th 1000, 1017-1019; People v. Guerra (2006) 37 Cal.4th 1067, 1101-1103; People v. Farnam (2002) 28 Cal.4th 107, 135-139; People v. Mayfield (1997) 14 Cal.4th 668, 723; People v. Turner (1994) 8 Cal.4th 137, 165-168.) If not, what role, if any, should an evaluation of the prosecutor’s stated reasons play in the appellate court’s review of the first-stage ruling?
