BARNES, J.
Five African-Americans were called as part of the jury venire, and the State utilized peremptory challenges to strike all five of them. . . . [T]he State struck L.S., asserting that he had been too “emphatic” in agreeing with how defense counsel had described the State’s burden of proof in criminal cases.
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The parties here appear to be in agreement that: (1) Killebrew made a prima facie showing of discrimination in the State’s exercise of peremptory challenges and (2) the State provided facially neutral reasons for those strikes. The issue here thus is whether Killebrew has established that those facially neutral reasons were merely pretextual and a mask for purposeful discrimination. Because the United States Constitution “’forbids striking even a single prospective juror for a discriminatory purpose,’” we will focus our attention solely upon the striking of prospective juror L.S. [Footnote omitted.] See Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994), cert. denied).
The deputy prosecutor claimed to have used a peremptory strike on potential juror L.S. because he was too “emphatic” in agreeing with defense counsel’s description of the State’s burden of proof, and because he was afraid L.S. would place too high of an evidentiary burden upon the State. Tr. p. 449. It is true that L.S. said the State had to prove its case “beyond a shadow of a doubt . . . .” Id. at 388. However, one white juror who was selected, B.C., said that guilt would have to be proved so that “there is no other possible doubt.” Id. at 382. Yet another white juror, B.B., was seated after indicating he “would have to be one hundred percent sure that they were guilty.” Id. at 383A. These statements are virtually indistinguishable from L.S.’s, yet only L.S. was stricken from the jury venire.
We conclude this case is on all fours with Snyder. There, the Supreme Court found a Batson violation in the prosecution’s striking of an African-American juror whom the prosecutor claimed had appeared “nervous,” and who had expressed some concern about the disruption that jury service would have on a student teaching position he held. [Footnote omitted.] The Supreme Court placed no weight upon the prosecutor’s claim that the prospective juror appeared “nervous,” because the trial court made no express finding regarding the prospective juror’s demeanor that would indicate whether it agreed with the prosecutor’s assertion; rather, the trial court approved the peremptory strike without explanation. Snyder, 552 U.S. at 479, 128 S. Ct. at 1209.
Similarly, the trial court here made no express finding whether it believed L.S. was “emphatic” in agreeing with defense counsel’s description of the burden of proof. It simply approved the peremptory strike without explanation. As in Snyder and a claim of “nervousness,” we will not place any weight on the prosecutor’s claim here that L.S. was too “emphatic” in agreeing with defense counsel. [Footnote omitted.]
The Supreme Court in Snyder also rejected the prosecution’s second reason for striking the prospective juror, namely that he appeared concerned about missing student teaching time. The Court noted that other prospective jurors, who were white and not struck, expressed similar or even more pressing concerns about the toll jury service would have on their personal and/or professional lives. . . . .
Here, there is no meaningful distinction between how L.S. described his concept of the State’s burden of proof and how B.B. and B.C. described it. If anything, they, and especially B.B., would appear to place an even greater burden of proof upon the State than L.S. Saying that one must be “one hundred percent” certain of guilt before convicting clearly is inconsistent with the concept of proof beyond a reasonable doubt. Tr. p. 383A. Nonetheless, both B.B. and B.C. were seated on the jury and L.S. was not.
Batson violations, hopefully, are and should be rare. It should not be impossible, however, for a defendant to prove a Batson violation. Neither trial courts nor appellate courts should simply blithely accept a facially neutral reason for striking African-Americans from a jury panel, especially when all African-Americans have been struck. . . . Here, we conclude Killebrew has established that the peremptory strike of L.S. was the result of purposeful discrimination and a Batson violation, where there was no trial court finding regarding L.S.’s demeanor and the stated reason for striking him applied as much to B.B. and B.C. as it did to L.S.
BROWN, J., concurs.
MATHIAS, J., dissents with opinion:
I respectfully dissent from the majority’s conclusion that the trial court committed clear error in overruling Killebrew’s Batson objection. I believe the majority reads the decision in Snyder v. Louisiana 552 U.S. 472 (2008), too broadly.
In Snyder, the Court did not base its conclusion exclusively on the fact that the prosecutor had failed to strike white jurors who had given responses similar to that of the black student juror. The Court’s holding was also based on the fact that the prosecutor’s proffered race-neutral explanation was implausible and, indeed, illogical. Considering the implausibility of the prosecutor’s proffered explanation in conjunction with the prosecutor’s inconsistency, the Court held that the prosecutor’s proffered race-neutral explanation for striking the black juror was pretextual and that this pretext gave rise to an inference of discriminatory intent. Id. at 484-85. And because it could not uphold the trial court’s ruling on the grounds of the juror’s nervousness when the trial court had not specifically ruled on that explanation, the Court held that the defendant’s Batson objection should have been sustained. Id. at 486.
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In reviewing the L.S. strike it is once again important to emphasize the trial court’s unique position to assess L.S.’s demeanor during voir dire. In answering Killebrew’s Batson challenge, the prosecutor referred to the “emphatic” manner in which L.S. apparently agreed with defense counsel. The trial court, not our court, was in the best position to determine whether L.S. was “emphatic,” and whether, because of L.S.’s demeanor in the courtroom, the prosecutor’s proffered race-neutral explanation for striking L.S. was credible. See Snyder, 552 U.S. at 477 (noting importance of trial court’s first-hand observation of juror’s demeanor). Unlike the majority, I do not read Snyder to mean that, simply because the trial court did not specifically make a finding regarding the juror’s demeanor, that we are at liberty to second-guess the trial court’s ultimate conclusion regarding the credibility of the prosecutor’s proffered race-neutral reasons for striking a minority juror.
Even though there was some evidence tending to prove racial discrimination, I would not second-guess the credibility and demeanor judgments of the trial court in making the ultimate factual determination of whether the prosecutor’s proffered race-neutral explanations were believable or simply pretextual. In both Snyder and Miller-El there was important evidence of the prosecutor’s racial discrimination that is simply not present here. Although I admit that this is a very close call, under the standard of review applicable to the issues before us, I cannot say that the trial court’s decision to overrule Killebrew’s Batson objection constitutes clear error. I would therefore affirm Killebrew’s convictions.