Actually, Appeals Courts Like ‘Squeaky Clean’

Pity the prosecution when the judge not only gets the law wrong, but actively stops the prosecutor from getting it right and keeping the record “squeaky clean.”
In March 1998, Terry Darnell Williams was in L.A. Superior Court on charges of second-degree armed robbery. Williams is African American, and when three of the prosecutor’s four peremptory challenges were for black prospective jurors, Williams’ public defender immediately raised a Wheeler objection (the California equivalent to the federal Batson objection to stacking a jury). Judge George Wu — perhaps not wanting to slow down the tedious jury selection process — shot down the PD’s motion, which triggered a series of appeals that led to Thursday’s Ninth Circuit opinion vacating Williams’ conviction.

Ninth Circuit Judge Consuelo Callahan found that Wu and an appellate court applied the wrong standard to the Wheeler motion. The PD’s objection was sufficient for a prima facie finding of bias, and the prosecutor should’ve been called on to demonstrate otherwise. Instead, Wu and a later California appellate court seem to have decided they could see valid reasons themselves. Callahan writes that the U.S. Supreme Court has verified that it has to come down to what the prosecutor has to say in the moment. If a lawyer can’t make an argument on the spot that passes muster, we can assume he or she is vamping.

Callahan includes a lengthy swath of the superior court transcript in her opinion, catching the prosecutor unable to keep count of how many potential jurors he’s kicked off. Most interesting — and otherwise unremarked in Callahan’s conclusion — is the prosecutor’s attempt to make his case and head off the appeal. After the judge summarily shoots down the defense’s Wheeler complaint, the prosecutor stands up:

[Prosecutor]: So the record is clear on this issue … juror number one indicated that she had a son who —

[The court]: You don’t need to give an explanation because I’m not finding a prima facie.

[Prosecutor]: I understand that. I wanted, however, the record squeaky clean on this.

[The court]: I don’t think it needs to be squeaky clean.

[Prosecutor]: I will defer to the court’s opinion.

You can pretty much hear the prosecutor’s despair. You can imagine him already seeing the successful appeal, sinking back into his chair after failing to get his argument on the record for jurists-come-lately.

Like it would’ve killed him to let the prosecutor make his case — which may have been Callahan’s point in slipping that excerpt into her decision. Wu’s declaration that the record doesn’t need to be squeaky clean seems to come from a world in which there are no appeals courts. Over in our world, though, we get a case that has spent an extra seven years in the clogged court system just to be sent back to square one, and a defendant with a right to a speedy trial has played years more judicial chutes and ladders than should have been necessary.

— Brian McDonough

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