Gautt

MEMORANDUM **

Darrell Anthony Gautt challenges his second-degree murder conviction under section 187(a) of the California Penal Code, arguing that the prosecution exercised its peremptory strikes in a racially discriminatory manner. See Johnson v. California, 545 U.S. 162 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005); Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). 1 The parties are familiar with the facts underlying the Batson claim so we do not recite them here.

The jury challenge rests exclusively on a marginal statistical showing and an incomplete picture of the race of all those struck from the jury. We do not know what percentage of the 34 jurors who were questioned were African American; and we do not know the race of the jurors excused for cause or struck by the defense. Although the prosecution used three of its twenty allotted peremptory strikes against African Americans, nine strikes in total, and only two African Americans were on the sworn panel, by itself these facts are insufficient to show “that the totality of the relevant facts give[ ] rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94 , 106 S.Ct. 1712 . We affirm…

dissenting:

I respectfully dissent. I believe that “the totality of relevant facts” presented by Gautt “gives rise to an inference of discriminatory purpose.” See Batson v. Kentucky, 476 U.S. 79, 94 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Gautt thus satisfied his initial burden of making out a prima facie case of discrimination, as required under Batson’s three-step analytical framework. See Purkett v. Elem, 514 U.S. 765, 767 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995).

In particular, Gautt satisfied his burden by pointing to a statistical disparity between the racial composition of the jurors removed by the state via peremptory strikes and the racial composition of the pool of jurors that the state questioned. See Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir.2006) (explaining that “a defendant can make a prima facie showing based on a statistical disparity alone”). The state exercised three of its first eight peremptory strikes (or 37.5%) against African Americans, when only five of the twenty-one jurors available to it for striking (or 23.8%) were African American. 2 To be sure, these numbers are not quite as egregious as numbers presented in other cases presenting Batson…