On July 24, 2008, the California Supreme Court committed to a position it has resisted for nearly twenty years by holding that evidence supporting the need for a comparative jury analysis must be considered on appeal if relied upon by the defendant, even if the issue was not raised at the trial level. A comparative jury analysis examines the prosecutor’s questions to potential jurors to determine whether the prosecutor eliminated certain jurors based on racial motivations or because of a membership to a particular group.
People v. Lenix, S148029, 2008 WL 2834291 (Cal. July 24, 2008) involved the prosecution of Arthur Lenix, an African-American man. During jury selection, the prosecution made five peremptory challenges, with the fifth challenge eliminating the last remaining black potential juror. Defense counsel challenged the decision, claiming that the strike was based on race. On appeal, the defense sought to compare the answers of potential white jurors who were selected with those of potential black jurors who were dismissed. A comparative jury analysis is the most common way to evaluate a claim made under Batson v. Kentucky, 476 U.S. 79, 89 (1986), where the United States Supreme Court held that eliminating jurors based solely on racial affiliation violated the Equal Protection Clause of the United States Constitution.
California has a long history of reluctance to engage in a comparative jury analysis for the first time on appeal. See People v. Johnson, 47 Cal. 3d 1194, 1221 (1989). The United States Supreme Court, however, has embraced this approach to evaluating a Batson claim, and has employed it in three separate cases from Texas and Louisiana in the past five years. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v. Louisiana, 128 S. Ct. 1203 (2008).
After Miller-El v. Cockrell, the California Supreme Court conceded that when a comparative jury analysis had been conducted at the trial level, it could be part of an appellate review. See People v. Johnson, 30 Cal. 4th 1302, 1321 (2003). After several subsequent California cases revived the issue, the Court finally permitted a comparative jury analysis for the first time on appeal, although it made clear that it was “assuming without deciding” that engaging in this type of analysis for the first time on appeal was required in order for the Court to be able to review the case based on the entire record, as is constitutionally required. See e.g. People v. Huggins, 38 Cal. 4th 175, 232 (2006).
Following the United States Supreme Court’s decision in Snyder, the California Supreme Court finally addressed the issue directly in Lenix. The Court requested a supplemental brief to determine officially whether the court is constitutionally required to perform a comparative jury analysis to evaluate the prosecutor’s reasons for peremptory challenges when defense raises a Batson claim for the first time at the appellate level. The answer was yes, on the rationale that failing to conduct such an inquiry restricts the requirement that the review must be based on the entire record. The Court did maintain, however, that such an analysis is only proper if the record is adequate to permit such a comparison of jury responses. Lenix, S148029, 2008 WL 2834291, at *12 (Cal. July 24, 2008).
Justice Corrigan cautioned, however, that the changes brought on by this decision would be limited. She emphasized that the trial court is best equipped to judge the prosecutor’s explanations for dismissing certain jurors, since prosecutors do not have a chance to explain their actions on appeal. Consequently, “these realities, and the complexity of human nature, make a formalistic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” Id. at *13.
Although the Court issued a groundbreaking decision, the matter is not entirely settled. In a concurring opinion, Justice Baxter and Justice Chin maintained that a comparative jury analysis should be raised and preserved at the trial level if it is to be investigated on appeal. The Court, however, did not include the requirement in its majority opinion that a comparative jury analysis must be conducted at trial level in order to be raised on appeal because there is no guidance from the United States Supreme Court as to whether such a requirement would be constitutional.
In the end, the decision did not afford relief to Mr. Lenix. After conducting a comparative jury analysis, the Court held that there was nothing improper about the prosecutor’s decision to dismiss the last potential black juror. The decision is victorious for defense attorneys, however, who now may have one more jury selection-related issue to raise at the appellate level.