Professional Documents
Culture Documents
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
December 7, 2015
Cir.
2014).
The
petition
contests
the
state
court's
conclusion that the state prosecutor did not violate the Fourteenth
Amendment in his exercise of a peremptory challenge during jury
selection for Dagoberto Sanchez's state trial on charges of seconddegree murder and unlawful possession of a firearm.
Sanchez
We affirm.
I.
as
our
previous
opinion
in
this
case
describes
- 2 -
a firearm.
The judge ruled that Sanchez had not made a prima facie
case of discrimination.
Sanchez
analysis
had
unreasonably
focused
on
the
overall
racial
Id. at 299
facie
case
of
racial
discrimination
in
the
prosecution's
Noting that Lee had not yet provided a reason for the
challenge, id. at 307, the panel remanded the case to the federal
district
court
to
complete
the
Batson
inquiry,
id.
at
308
remand,
the
district
court
held
an
evidentiary
to
cross-examination
by
petitioner's
counsel.
Lee
- 4 -
He
He stated,
defense has, the more flexible they can be about exercising those
challenges, and, therefore, I have to be careful about the number
of challenges that I'm exercising under those circumstances."
Lee
all
the
questionnaires."
time"
and
is
"constantly
looking
through
the
- 5 -
He explained
on
indications
chronological age."
that
"might
make
them
not
fit
their
him, despite not wanting to take him," as "he was born in Moscow
. . . [and] he came here on his own to begin his own education,
and so I thought if I had to take a young juror, that would be
somebody who might be a better candidate than most."
On cross-
cross-examination,
Lee
stated
that
the
only
"outward" difference between Juror 243 and Juror 261 was that one
was white and the other black.
"Well, one was 19 and one was 21, right, do I have that right?"
Both Sanchez's counsel and Lee responded affirmatively.
following colloquy between Sanchez's counsel and Lee ensued:
Lee: Yes, [Juror 243] was two years older.
- 6 -
The
Commonwealth's
Supplemental
Answer
to
the
2012
habeas
At Batson
step two, the court concluded that Lee's testimony that he struck
Juror 261 because of his age was facially valid and race-neutral.
At Batson step three, the court focused on Lee's testimony at the
evidentiary
hearing.
Recognizing
the
practice
of
striking
- 7 -
framework
courts
use
to
assess
claims
of
racial
If such a showing
545
U.S.
231,
277
(2005)
(Thomas,
J.,
dissenting)).
Id. at 478.
- 8 -
Typically,
Sanchez I, 753
We
review
the
district
court's
decision
to
deny
Snyder, 552
U.S. at 477 (quoting Hernandez v. New York, 500 U.S. 322, 365
(1991)).
are left with the definite and firm conviction that a mistake has
been committed."
See United
States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987); see also
- 10 -
United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir. 2007)
(collecting agreeing sister circuits).3
Bearing in mind that at step two, the prosecution's
reason does not have to be "persuasive, or even plausible," Purkett
v. Elem, 514 U.S. 765, 768 (1995) (per curiam), we easily affirm
the district court's finding that Lee's explanation -- that he
struck Juror 261 because of his age -- is race-neutral, United
States v. Bowles, 751 F.3d 35, 38 (1st Cir. 2014), and satisfies
the state's burden at step two to articulate a nondiscriminatory
reason for the strike, Purkett, 514 U.S. at 769.
B.
The burden of
proof lies with Sanchez to show that Lee acted with discriminatory
purpose.
Lee testified:
attempts
to
undercut
the
district
court's
First, he points to
supplied Lee with the idea that the difference in age between 19
and 21 was meaningful.
- 13 -
The
was looking for indications that he was "a little bit older than
someone
else
diminishing
dynamics
in
terms
number
of
the
of
jury
of
life
experiences"
challenges
selection
because
remaining.
process,
the
of
the
Examining
the
district
court
jurors,
as
he
had
12
out
of
16
peremptory
challenges
He
argues that the district court improperly supplied Lee with a way
to distinguish between Juror 243 and Juror 261.
- 14 -
Sanchez points to
The
As
Dretke
- 15 -
Id.
The Court held that neither trial nor appellate courts may
Id.
Here, in concluding
The
exchange.
that
But
"every
even
so,
possible
we
note
that
distinction
the
was
disputed
relevant,"
of
jury
selection.
As
the
district
court
noted,
Mensah, 737
remaining
challenges,
unseated
jurors,
and
remaining
Sanchez
points
arguments
to
the
do
fact
not
that
convince
the
us
prosecutor
especially
where
there
are
small
numbers
of
where
only
two
were
- 17 -
in
venire);
Caldwell
v.
Maloney, 159 F.3d 639, 656 (1st Cir. 1998) (upholding peremptory
strikes of all four potential jurors of one race).
points
to
Lee's
failure
to
explain
his
use
of
Sanchez also
a
peremptory
challenge during the original jury selection, but Lee was not
required to provide such an explanation until one was requested of
him.
Sanchez I issued such a request, and Lee has now duly offered
his explanation.
We acknowledge both the difficulties in making a Batson
determination on a cold record many years following the original
jury selection and also the importance of protecting the right of
every juror to serve and of every defendant to have a trial free
of the taint of racial discrimination.
87. But here the district court did not abuse its broad discretion
as factfinder on matters of credibility in concluding that Sanchez
has not proven that there was racial discrimination.
That ends
the matter.
III.
For the reasons stated, we affirm the denial of the
habeas petition.
- 18 -
THOMPSON,
Circuit
Judge,
concurring.
The
majority
court's
challenge.
rejection
of
Dagoberto
Sanchez's
Batson
Let me explain.
Without
"I think his youth and the fact that he's a full-
- 19 -
In doing so, the prosecutor did nothing more than parrot back the
trial judge's unprompted suggestion.
How well this case illustrates the Massachusetts Supreme
Judicial Court's warning that a trial judge who offers up his own
reason for a prosecutor's peremptory strike "risks assuming the
role of the prosecutor."
908 (Mass. 1993).
As a result,
- 20 -
in all respects."
expected when the prosecutor went into the hearing not only having
had almost eight years to consider what he would say, but also
with the awareness of what the state trial judge considered to be
a perfectly valid and acceptable justification for the strike?
To be sure, the district judge also noted that the
prosecutor's testimony "was based in part on memory and in part on
his routine empanelment practices, and [that] he endeavored to
distinguish between the two as he testified."
Id.
He also gave
Id.
the
prosecutor's
testimony
was
not
exactly
243, the 21-year-old white college student from Russia, but not
Juror No. 261, the 19-year-old black college student from Boston:
I go through those [juror] questionnaires to
determine how many of the remaining challenges
I'm likely to have to use, and in that
- 21 -
- 22 -
next
colloquy
brought
the
testimonial
tumbling down:
Q. The fact that the man was born in Russia,
you don't know whether he came here at six
days old, six months old, six, sixteen years
old; you have no idea?
A.
- 23 -
edifice
particular
chronological
prosecutor
21-year-old
age
also
would
said
might
generally
that
he
be
more
mature
than
his
indicate.
After
all,
the
fact
that
the
relied
on
the
Cross-examination
Indeed, he
Juror
No.
243
was
born
in
Moscow,
Russia
is
differentiates Juror No. 243 from Juror No. 261, who was born in
the Boston area.
opposed to one being white and the other black -- explains the
prosecutor's
exercise
of
his
peremptory
challenges
depends
The
district judge, after hearing his testimony on direct and crossexamination, found it credible and determined that the prosecutor
did not strike Juror No. 261 on account of his race.
This case is devoid of extrinsic evidence of racial
discrimination.
Nor is there
or
account
particular
county's
"specific
policy
of
And
pretextual.
See
id.
at
240-52,
255-63
(comparing
the
Batson
comes
down
entirely
to
his
credibility
in
explaining his strikes that day and, in particular, why he did not
challenge Juror No. 243.
Absent other
cannot say that the district judge clearly erred in accepting the
prosecutor's explanation and upholding the peremptory challenge.
This holds true even if any one (or all) of us, sitting as the
trial judge, might have reached a contrary conclusion.
Finally, because a trial judge faced with a Batson
challenge must consider the totality of the circumstances, it is
appropriate for us to acknowledge them here.
Although we are
unable to say the district judge clearly erred in finding that the
prosecutor's strike was not motivated by Juror No. 261's race, the
end result is that all young, black men and young men of color in
the venire -- indeed all those who resembled Dagoberto Sanchez -found themselves dismissed at the behest of their own government.
No other group of prospective jurors received such treatment.
The facts in this record certainly raise the judicial
antennae.
- 27 -