PEOPLE v. WILLIAMS (GEORGE BRETT)Appellant’s Letter BriefCal.January 23, 2013DANIEL N. ABRAHAMSON, ESQ. COPY 918 ParkerSt., Bldg A21 « Berkeley, CA 94710 » (510) 229-5212 © fax (510) 295-2810 ePREMEoC January 22, 2013 EL Frank A. McGuire JAN 23 203 Court Administrator and Clerk ofthe Supreme Court wee Clerk Supreme Court of California erank A. moGuire _- 350 McAllister Street \ Beputy San Francisco, CA 94102 RE: People v. George B. Williams, 8030553 Letter Brief addressing Appellant’s Batson/Wheeler Claim Concerning Prospective Juror Ruth C. Jordan. Dear Mr. McGuire: This letter brief is submitted pursuant to this Court’s request dated January 11, 2013, inviting parties to address whether and to what extent the prosecutor’s mistaken _ reference to Denise Jordan at appellant’s motion for new trial hearing affects appellant’s Batson/Wheeler claim concerningthe prosecutor’s excusal of prospective juror Ruth C. Jordan fifteen monthsearlier, during the selection of appellant’s jury. The answer, discussed below,is that the prosecutor’s mistake at the motion for newtrial was not preceded by any mistake by him during jury selection, and so appellant’s Wheeler motion is unaffected. SUMMARY OF ARGUMENT The recordis clear: At appellant’s trial there was no confusion by the prosecutor (or anyoneelse) that the final African-American female Juror excused by the prosecutor through peremptory challenge was Ruth C. Jordan. The prosecutor’s stated groundsfor excusing this juror could only apply to Ruth. Had the prosecutor believed (mistakenly) during jury selection that he wasstriking Denise, not Ruth, he would have offered wholly different, defensible groundsfor his challenge. Because the prosecutor’s later mistake was confined to the motion for new trial and went undetected, the analysis undertaken in People y. Williams (1997) 16 Cal. 4th 153, 188, and Peoplev. Phillips (2007) 147 Cal.App.4th 810, 814, does not apply here and should therefore have no effect on this Court’s consideration of appellant’s Batson/Wheeler claim. Appellant’s Letter Brief re:Batson/W.heeler People v. Williams, Case No. S030553 Page 2 This supplementalbrieffirst consolidates and summarizes in one placethe salient facts ofjury selection that span six volumes of the Clerks’ and Reporters’ transcripts. It then discusses why thosefacts do not support a findingthat a mistake occ urredat appellant’s jury selection. Thebrief ends with a discussion of the inap plicability of Williams and Phillips to the recordin this case. FACTUAL BACKGROUND During jury selection for Mr. Williams’s 1991 trial, there were two pr ospective jurors with the surname Jordan: 39-year-old Denise Jordan (“Denise” ) and 65-year-old Ruth C. Jordan (“Ruth”). Denise was opposed to the death penalty; Rut h was not. Denise waschallenged for cause by the prosecutor; Ruth wasnot. Only one o f them, Ruth, was in the jury pool when the prosecutor exercised his peremptory strike s. She wasthe fifth African-American womanto bestruck by the prosecutor. Her dismis sal becamethe subject of voir dire counsel’s third and final Batson/Wheeler motion. Fifteen months after jury selection, during Motion for New Trial proceedings, the pr osecutor mistakenly referred to Ruth as Dehise. A. Prospective Juror Denise Jordan. Denise Jordan’s answers on herjury questionnaire and voir dire c aused the prosecutor much concern abouther willingness and ability to serve as a capital juror and providedthe prosecutor with numerous, concrete and defensible gro unds for not wanting her empaneledfor a death penalty trial. 1. Denise Jordan’s Written Juror Questionnaire. Denise Jordan, no fewer than ten times in her juror questionnaire, ex pressed her opposition to the death penalty. Her questionnaire revealed that she was a 39 year-old high school ed ucated clerical worker with no prior jury experience. (21 CT-Supp [ at 5173.) It also made abundantly clear that she opposed the death penalty. In response to Question 95 ofthe juror questionnaire soliciting her ge neral feelings aboutthe death penalty, Denise wrote: “I’m not for the death penalty. Life in prison is what I’m for. I don’t think anyonehas right to take someone[sic] li fe. I feel if the person is guilty they should dothe time.” (/d. at 5 197.) Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. 8030553 Page 3 With respect to Question 96(A), whethershefelt the death penalty is used too often, Denise circled “YES” and wrote “I’m not forit.” dd.) In response to questions about whether she would refuse to find a defendant guilty of first degree murder (question 100)orrefuse to find the special circumstancetrue (question 101), Denise circled “Don’t Know.” (Jd. at 5199.) When askedin question 103 whether she would “automatically, in every case, regardless of the evidence, vote for the death penalty,” she again circled “Don’t Know,” but wrote next to it “I’m again [sic] Death penalty.” Ud.) In the very next question Denise reiterated her opposition to the death penalty. In response to question 104 shecircled “Yes,” indicating that she would vote for life without the possibility of parole “regardless ofthe evidence” (question 104) (21 CT-Supp I at 5200) (emphasis added). Her answerto the next question (question 105) may explain this affirmative response,as she there stated that she believedlife in prison withoutthe possibility of parole is a more severe punishmentthan the death penalty. (d.) Denise’s juror questionnaire made clear that her opposition to the deathpenalty was long-standing and religiously-based. Question 97 asked whether California should havethe death penalty. Denise answered:“I believe that in there time spent in prison that all the punishment we should be able to give. Death to me should be when Godcall them home.” (Ud. at 5198.) Denise’s jury questionnaire, in short, provided the prosecutor substantial and . particularized fodder to argue that (1) Denise was unfit to serve as a juror in a capital case and so should bestruck for cause, and (2) if Denise somehow survived a challenge for cause, she would rankat or near the very bottom ofjurors he would want empaneled for a death penalty case. ™~ 2. Denise Jordan’s Hovey Voir Dire. Denise was interviewed on thefirst day of the Hovey voir dire process, August 19, 1991. Her answersin open court hewed closely to those found in her written juror questionnaire. When the trial court asked Denise whether she had “such conscientious opinions concerning the death penalty that . . . in spite of the evidencethat might be developed during the penalty phaseofthe trial, [Denise] wouldin every case automatically vote for a verdictoflife in prison without the possibility of parole and never vote for a verdict of death,” Denise Jordan answered “Yes,” not once butfour times. (5 RT 201, line 6 and Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. 8030553 Page 4 20; Id. at 202 line 8 (“I would always vote for [a verdict oflife in prison without the possibility of parole]); Jd. at 203.) However, interspersed with Denise’s multiple pronouncements that she would not render a verdict of death were moments of equivocation, where, hesitant to claim she would “never” vote for death, Denise said insteadthat “it depends on the case.” (See 5 RT 201 (lines 23-25); id. at 202 (lines 3-4, 10-12, 14-15), id. at 204 (lines 16-17).) But even in so saying, Denise averredthat “it would be hard for me to vote for death.” (Id. at 202; see also id. at 204, lines 8-9 (“I probably would vote for [LWOP]”) and lines 24-25 (“life in prison is probably what I wouldvote for most ofthe time”).) Attempting to get a clear answer on whether Denise would vote for a verdictoflife “qutomatically in every case,” (5 RT 204,lines 27-28 (emphasis added)), the court inquired about the absolutist nature of her viewsfor at least a tenth time: DENISE JORDAN: “I know. I wrote on the paper, Yes, in all cases probably so.” COURT: “Yes. So what is your answer?” DENISE JORDAN: “Yes.” (5 RT 205, lines 1-5.) The court, sensing finality on this issue asked one last question: COURT: “So you do notbelieve in the death penalty?” DENISE JORDAN:“No,I don’t.” (5 RT 205, lines 6-7.) Appellant’s voir dire counsel, attempting to rehabilitate Denise, then elicited from her the concession that“[i]t’s possible that I can vote for the death penalty even though I disagree with it” (5 RT 206,lines 8-9), though she continuedto express her preference for life without the possibility of parole (id. at lines 13 and 15). When asked, however, whether she could follow the law if the law instructed her to “impose the death penalty in certain situations,” she offered the less than resolute answer,“Probably so, yes.” (Ud. at © line 20.) Next, the prosecutor questioned Denise: Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. S030553 Page 5 PROSECUTOR: “Clearly you don’t believe in the death penalty.” DENISE JORDAN: “Right.” (5 RT 207). PROSECUTOR: “Andis that a conviction . . . that is religiously based?” DENISE JORDAN:“...[Y]es.” (5 RT 207.) The prosecutor asked how she would feel about being asked to participate in a death penalty decision. Denise responded,“I don’t think I would want to be on something like © that....” (5 RT 208, lines 3-4.) The prosecutor inquired further about thebasis ofher views against the death penalty: PROSECUTOR: “Some people... could never be on a jury that would vote for the death penalty because they hold personal or religious or whatever reason they don’t believe in it... . [A]re youthat type of person?” . Denise responded: “Yes, I’m that type of person.” (5 RT 208-209.) Theprosecutor,like the judge before him, then inquired aboutlife in prison withoutthe possibility of parole: PROSECUTOR:“If... you are given those two options[life in prison withou t parole or death], is there one you would automatically accept and vote for?” DENISE JORDAN:“Yes.” PROSECUTOR: “Which one?” DENISE JORDAN: “Life in prison.” (5 RT 209.) The prosecutor then asked: “And knowing yourself... if you... have an out, your out being I can votefor[life in prison without the possibility of parole], would you do that in spite of what the evidence was?” Denise answered: “I would say yes.” (5 RT 209.) Theprosecutor then movedto challenge Denise for cause. (5 RT 209-210 .) Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. $030553 Page 6 Voir dire counsel sought and was given a second chanceto rehabilitate her. After a series of questions, counsel got Denise to answerin the affirmative to the following question: “So ifyou were a jurorin this particular case and you foundthat the death penalty was appropriate, you could imposeit if you found it was appropriate?” (5 RT 212, lines 18-21.) Denise Jordan, however, added: “I just know I don’t wan tto be the one responsible for taking a person’s life.” (d.at 213, lines 2-4.) The prosecutor and court posed the final two questions: PROSECUTOR: “Understanding .. . the questions asked ofyou over and ove r and over again. . . would you be able to yourself impose the death penalty? ” DENISE JORDAN: Yes. COURT: You feel that you could? DENISE JORDAN: I could. (5 RT 213.) With that, the court denied the prosecutor’s challenge to strike Denise Jordan for cause. Denise Jordan then disappeared from the court record. She w as not seated in the jury box and wasneverthe subject of a peremptory strike by the prose cutor. B. Prospective Juror Ruth C. Jordan. Unlike Denise Jordan, Ruth C. Jordan’s responsesto her jury questionnai re and in open court madeclear that Ruth was a willing, able and experienced jur or ready to serve as a venire member in a capital case. 1. Ruth C. Jordan’s Written Juror Questionnaire. Ruth’s questionnaire revealed she was a 65-year-old college-educated age ncy supervisor who had previously served as a grand juror, an experience she termed “the most enlightening experience ofmy civil service career.” (5 CT-Supp I at 1049-1050A, 1052, 1062, 1065, 1066.) Ruth considered jury service a “privilege” (id. at 1066), and was eager to serve, notwithstanding the potential capital nature ofthe c ase. She explained herdesire to be seated in appellant’s case thus: “Because I am old Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. 8030553 Page 7 enough, experiencedin life enough, and mentally capable of being objective.” (/d. at 1076.) Ruth’s questionnaire also madeclear that she harbored no reservations about the death penalty. In response to question 97, whether California should have the death penalty, Ruth said “Yes.” She explained: “Even thoughit would take a long time between sentencing and actual execution, the penalty would be somewhatofa solace to the friends, family of the victims.” (Ud. at 1073.) Asked whethershe believed the death penalty is used “too often,” Ruth answered “No.” (id. at 1072.) When asked what she saw asthe purposeofthe death penalty, question 98, she offered not one but two reasons: “So that perpetrators and victims[sic] families and friends could end experiences with finality. To let the punishmentfit the crime.” (d. at 1073.) In response to a series of questions about whether,“to avoid the issue ofthe death penalty,” she would refuseto find a defendantguilty of first degree murder (question 100); refuse to find the special circumstance true (question 101); or “regardless of the evidence,” vote forlife in prison without the possibility of parole (question 104), Ruth answered “No” to each. (/d. at 1074-1075.) 2. Ruth C, Jordan’s Hovey Voir Dire. Ruth was interviewed on September 5, 1991, near the end of the Hovey voir dire - process and one week before she wasexcusedby the prosecutor during generalvoir dire. Whereas Denise Jordan’s voir dire spanned nearly 14 pages ofthe court record, Ruth’s occupied little more than three. Ruth’s voir dire was brief because her responses to questions in open court underscoredherbelief in the death penalty, madeclear that she would follow jury instructions, and left no doubt that she wasable to vote for a verdict of death at a penalty trial. Thetrial court asked Ruth just one question: whether she had “such conscientious opinions concerning the death penalty that... in spite of the evidence that might be developed during the penalty phase ofthetrial, [she] would in every case automatically vote for a verdict oflife in prison without the possibility of parole and nevervote for a verdict of death.” Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. S030553 Page 8 Ruth answered “No.” (12 RT 912-913.) In response to the four questions posed by appellant’s voir dire counsel, Ruth stated she could set aside any preconceptions about who gets executed and who doesnot, and the length between death sentence; further she would assumethat if she rendered a verdict of death, “Mr. Williams sitting right here would be executed.” (/d. 913-14.) Appellant’s voir dire counsel passed for cause. The prosecutor then asked four questions: PROSECUTOR: “...[D]o you havethe ability to render a death verdict against another person? RUTH JORDAN:“Yes, I believe I would have.” PROSECUTOR: “You wouldlisten to all the evidencecarefully.” RUTH JORDAN: “Of course.” PROSECUTOR: “And make an evaluation as to whetherin your judgment the things that Mr. Williams has chosen to doin his life warrant the death penalty?” RUTH JORDAN: “Of course.” PROSECUTOR: “Andifthe death penalty is warranted you wouldreturn that verdict?” of ok ok RUTH JORDAN: “Yes, I would.” (Ud. at 915.) With that, neither counsel raised objections and the court directed Ruth to return for general voir dire. (/d.) Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. $030553 Page 9 Cc. General Voir Dire and the Third Batson/Wheeler Motion General voir dire was held September 12, 1991. The court employed a “20-pack” selection process for choosing appellant’s jury.1 The record reflects that the clerk of court called “Ruth C. Jordan”to take the place of a prospective juror who had been excused by a peremptory challenge. (15 RT 1214.) Ruth took seat number 2 in the jury box. When asked, Ruth told the court she understood the burden placed on the prosecution and agreed to hold the prosecutionto that burden. (/d.) After counsel for both parties exercised more peremptories, the prosecutor acceptedthe jury as constituted, with Ruth on it. (15 RT 1224.) The defense then exercised a peremptory andthe prosecutor again acceptedthe panel, with Ruth on it. (/d.) Both counsel, beginning with the defense, then exercised additional peremptory challenges. The prosecutor’s excusal ofRetha Payton, an African-American woman, gave rise to the defense’s second Batson/Wheeler objection. (Id. at 1226.) Shortly after the court denied the defense motion, the prosecutor exercised his peremptory challenge against Ruth Jordan. (Jd. at 1232.) Appellant’s voir dire counsel thenraisedhis third Batson/Wheeler motion. Defense counsel noted that Ruth was on the panelthat the prosecutor had previously accepted, and asked “If she was a problem before why wasn’t she preempted?” (Id. at 1233.) The prosecutor explained that he had accepted Ruth “because the composition was somewhatsatisfactory to me.” (/d.) He admitted to being “somewhat reluctant”to excuse her“out of fear of making a Wheeler motion.” (/d.) The prosecutor then said that, upon further reflection, he excused Ruth because “she was rated .. . low for herinability to impose the death penalty .... It has to do with her responses.” (Jd. at 1234.) The prosecutor, though, did not identify what responses he wasreferring to — her written responses, or those offered on voir dire — nor did the prosecutor discuss the substance of any responses that gave him pause. Defense counsel countered: “I have heard nothing wrong with ... Miss Jordan.” (Id. at 1235.) The prosecutorreplied: It is my impression not only from her answers to the questions but her demeanor 1 The jury selection process is described at 13 RT 1093-94. Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. $030553 Page 10 and the fashion in which she answered them,I don’t think she can imposethe death penalty on any case. It doesn’t matter the circumstancesregardless. I don’t know how to exactly expressit for the record.” (Id. at 1236-37 (emphasis added.).) Once again,the prosecutor did not identify what answers he wasreferring to — her written answers or those offered on voir dire — nor did he discuss the substance of any answers that gave him pause. The prosecutor attempted a final explanation about why he struck Ruth: “{S]ometimes youget a feel for a person that you just know that they can’t imposeit based uponthe nature of the way that they say something.” (/d.at 1237 (emphasis added.).) Thetrial court stated “I can only go by what[the prosecutor] is saying because | stopped making notes on my Hovey.” (/d. at 1239.) In addition, the court acknowledged: “I have found that the black womenarevery reluctant to impose the death penalty; they find it very difficult no matter whatit is. I have foundit to be true.” (/d.) The court then denied the defense’s Batson/Wheeler motion and Ruth C. Jordan was dismissed. (Id. 1240.) D. Appellant’s Motion for New Trial Hearing On December17, 1992,fifteen months after general voir dire and onthefinal day of appellant’s hearing on his motion for new trial, the trial court observed that the prosecutor had broughtto court a “box” containing his “notes .. . taken during examination”ofprospective jurors. 54 RT 4163. The court expressed concern that it “did not make a very good record” about the Wheeler objectionsat the timeoftrial (id.), so it asked the prosecutor to take the opportunity afforded by the new trial hearing to supplementthe record on jury selection by summarizing his jury selection notes. (/d.)2 The prosecutor then “read into the record [his] recollection from [his] notes.” (/d. at 4163.) He itemized sixteen peremptory challenges that he made. 2 The prosecutor was the only attorney present at the motion for new trial proceeding who had knowledgeofthe juror who wasthe subject of the third Batson/Wheeler objection. As a result, when the trial court invited the prosecutorto backfill the record for jury selection, no one representing appellant wasableto correct the prosecutor’s mistake or offer for the record a more complete and accurate context regarding the prosecutor’s actions. Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. S030553 Page 11 ~ When the prosecutor reachedhis fourteenth challenge he said: “The 14" challenge was to Dennis[sic] Jordan, a married 39-year-old black female.”3 (54 RT 4165.) In so describing prospective juror Jordan, the prosecutor confused Denise Jordan, for whom there is no record of her being present at generalvoirdire, and Ruth Jordan. As noted above, Denise’s written questionnaire identified her as age 39, whereas Ruth wasage 65. The prosecutor then expandedonhis previous justifications for striking the black women whogaverise to the defense’s three Batson/Wheeler objections. (54 RT 4165.) Whenhereachedthe fifth African American female peremptorily challenged by him,the prosecutor again referred to “Denise Jordan,” not Ruth whom he hadin fact challenged. Reading from his notes from his box,the prosecutor gave the following explanation for his challenge: Andas to Denise Jordan I’ve got her responses 95 through 107, and 103 and I have a note to myself, ‘plus look at her responses to my voir dire at the Hovey,’ and I had made a challenge for cause so apparently I felt that she shouldn’t have been around even by the time we got to general voir dire. (Id. at 4167.) Whenthe prosecutorfinished, the trial court made “a finding that [the court] has been satisfied,” and declared that the Batson/Wheeler objections were “properly overruled.” (/d. at4168.) The court did not corroborate or supplementany of the prosecutor’s explanations. 3 The prosecutor’s notes from which he read likely referred to “Denise”Jordan,not “Dennis” Jordan. It is unclear whether the prosecutor misread Ms. Jordan’s first name into the record, or whether the court reporter made a typographical error. But the prosecutor’s bigger mistake — reading from notes about a juror about whom hedid not exercise a peremptory challenge (Denise) instead ofthe juror whom he actually challenged (Ruth) — is discussed below. Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. S030553 Page 12 ARGUMENT At the motion for newtrial hearing, the prosecutor referenced the responses of Denise Jordan, who opposedthe death penalty, in an attempt to backfill and strengthen the record to thwart a finding of Batson/Wheelererror on appeal. The prosecutor did not mention Ruth Jordan, who wasfor the death penalty, but whom the prosecutor excused. Appellant does not dispute that at the motion for newtrial hearing, some fifteen monthsafter voir dire, the prosecutor mistakenly discussed Denise. Nor does appellant dispute that the reasons offered by the prosecutorat this hearing pertained to Denise, not Ruth. Thefull record makes clear, however,that the prosecutor’s confusion was confined to his briefwords during the motion for new trial. The prosecutor’s error in December 1992 did notreflect a misunderstanding in September 1991. Indeed, the justification (or, moreproperly, the lack thereof) offered at general voir dire for striking Ruth pertained only to Ruth and Ruth’s circumstances;it did not fit Denise or Denise’s circumstances. | In short, the prosecutor’s error at appellant’s motion for new trial hearing is irrelevant to the consideration of appellant’s Batson/Wheeler claim. The Prosecutor’s Contemporaneous Explanation for Excusing Ruth Makes Clear That He Knew HewasStriking Ruth, not Denise. The reason offered at the timeoftrial by the prosecutor for excusing Ruth applied to Ruth. Had the prosecutor intended to challenge Denise, the record wouldreflect his - prior attempt to strike Denise for cause during her Hoveyvoir dire, and the many concrete grounds for that cause challenge. As it stands, however,all aspects of the record made contemporaneously with the prosecutor’s striking ofRuth ineluctably point to the conclusion that Denise was nowhere in the prosecutor’s thoughts. It is undoubtedly for this reason that Respondent, in its Response,did not refer to or otherwise rely upon the motion for new trial record in defending against appellant’s Batson/Wheeler claim or argue that the prosecutor was confused, muchless that he made a mistake. Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. $030553 Page 13 A. The Things NotSaid. Had the prosecutor been inclined to confuse the women, he would have invoked Denise’s questionnaire to defend against a Wheeler objection. Hedid not doso. Even a cursory comparison of Ruth and Denise reveals an enormousgulfbetween the two womenregarding their views about capital punishmentandtheir willingness to participate as a juror in a death penalty case. Yet during general voir dire, as discussed in more detail below, the prosecutor did not invoke any of the many answers given by Denise on herjuror questionnaire or on voir dire to fend off a third Wheeler objection. Moreover, the prosecutor, after twice accepting the composition ofthe jury, professed reluctance at exercising his peremptory challenge against the person seated in seat number2 in the jury box. The prosecutor’s silence and reluctance in these regards cannot be squared with the notion that he believed he was exercising his peremptory challenge against Denise rather than Ruth Jordan. There can be no dispute: had the prosecutor believed he was excusing Denise Jordan, the record gave him plenty of evidence to point to Denise Jordan’s: e deep, religious opposition to the death penalty; e oft-repeated position that she would automatically vote for life in prison without possibility of parole, if given the option; e belief that life without parole is a more severe punishment than death; e lack of clarity and inconsistency aboutherability to impose the death penalty; and e great discomfort at the prospect of participating in a capital penalty trial. But in defending against the third Wheeler motion related to Ruth, the prosecutor mentioned noneofthese points. His failure to do so points undeniably to twin conclusionsthat (1) he was not laboring under the mistaken belief that he had excused Denise, and(2) he was, in fact, saddled with the far moredifficult task ofjustifying his strike of Ruth Jordan, whose answers on her questionnaire and voirdire paint her to be a modeljuror in a capital case. 1. “Responses 95 through 107, and 103” At the motion for newtrial, the prosecutor said he struck Ms. Jordan from appellant’s jury in light of “her responses 95 through 107, and 103,” of her juror questionnaire. (54 RT at 4167.) As noted above, Denise Jordan’s responses to those Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. 030553 Page 14 questions provided the prosecutor with multiple grounds for not wanting Denise on appellant’s jury. Specifically, her written responses madeclear -- repeatedly -- thatshe opposed the death penalty (21 CT-SuppI at 5197), that she believed life without parole to be a moreserious punishment than death (id. at 5200), and that she would vote forlife instead of death, regardless of the evidence (id.). By contrast, Ruth Jordan took none of these positions in her written questionnaire. It is telling that at jury selection; however, when askedto justify his strike of Ruth Jordan, the prosecutor did not refer to any ofDenise Jordan’s responsesin her juror questionnaire, by numberor substance. The prosecutor knewthatbystriking the fifth black woman from the venire he would provoke a Batson/Wheeler objection, the third such objection lodged against him that day. (See 15 RT 1233) (noting prosecutor feared “another Wheeler motion” should he strike Ruth Jordan). Such strike would require him,for the third time, to defend his choice. Had the prosecutor believed he wasstriking Denise, not Ruth, he could have easily, quickly, and persuasively pointed tojust one specific response given by Denise, from amongthe nearly one dozen anti-death penalty responses that could be mined from her written questionnaire. The prosecutor did not do so. The prosecutor’s silence speaks volumes. That silence cannot be reconciled with the notion that the prosecutor believed he wasstriking Denise Jordan; it can only be explained by the simple fact that during appellant’s jury selection (as opposed to the motion for new trial) the prosecutor wastryingto justify his strike of Ruth, a pro-death penalty juror. 2. “Plus look at her responses to... voir dire at the Hovey.” At the motion for new trial, the prosecutor said he struck Ms. Jordan from appellant’s jury in light of her responses to “voir dire at the Hovey.” As noted above, Denise’s responses onvoir dire provided the prosecutor with multiple groundsfor not wanting Denise on appellant’s jury. Specifically, her responses indicated that her opposition to the death penalty ranged from absolute to incredibly strong, and her willingness to render a verdict of death ranged from neverto highly unlikely. (5 RT 201- 213.) By contrast, Ruth’s voir dire responses offered the prosecutor nothing to support Ruth’s excusal. In fact, the prosecutor appeared fine with Ruthat voir dire. Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. 8030553 Page 15 It is telling then, that at the time ofjury selection the prosecutor did not refer to any of Denise’s responses on voir dire in defending against the third Wheeler objection: not her clear statements opposing the death penalty; not her claim, repeated four times, that she would in every case automatically vote for a verdictoflife; not her characterization of herself as someone who could never vote for death. (5 RT 201-209.) The only credible explanation for the prosecutor’s failure at trial to invoke with any specificity Denise’s answers on voir dire is that the prosecutor knew he had struck Ruth, not Denise, and so had no helpful voir dire to reference. He struck her not because she would be an inappropriate capital juror, but because she was an African-American. 3. “I have heard nothing wrong with... Miss Jordan.” Appellant’s voir dire counsel, in arguing his third Batson/Wheeler objection, exclaimed: “I have heard nothing wrong with... . Miss Jordan.” (15 RT 1235.) If the prosecutor had confused Ruth with Denise, he would have taken issue with this statement of the defense. The prosecutor would havereplied along the lines of: “Are you kidding me? Nothing wrong?” He would then have provideda litany of examples of how Denise, in writing and in open court, said she opposed the death penalty and could not imposeit, and that she did so (borrowingthe prosecutor’s refrain) “over and over and over.” (5 RT 213.) He would probably have added that, given her staunch opposition to the death penalty, it was shocking that she had survived the earlier motionto strike for cause. Theprosecutor offered no such rebuttal. Rather, he eventually mustered a response about juror number 2 that was unmoored from the record and which rested on his inexpressible (and unexpressed) “impressions”and “feeling” regarding her “demeanor”. The reason was simple: the prosecutor was not talking about Denise. He wastalking about Ruth. 4. “I don’t know how to exactly express it for the record / “[S]ometimes you _ geta feel for a person.” These were the words of the prosecutor during appellant’s jury selection as he grasped (unsuccessfully) for something tangible to support his excusal of Ruth. (15 RT 1237.) As noted above, had the prosecutor believed he wasin fact striking Denise, he would not have been at a loss for words, or concrete examplesto justify his actions: he would have had evidence. But it was not easy for the prosecutorto justify the striking of a qualified African-American juror. Cf Opening Brief 90-91, 99-100, 105-106; Reply at Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. 8030553 Page 16 18-25 (discussing how Ruth’s written and voir dire answers required the prosecutorto resort to highly subjective, intangible excuses that could not be verified on a cold record). 5. “{S]omewhatreluctant” to excuse juror 2. This is how the prosecutor described his hesitancy to use a peremptory challenge against Ruth, knowing that his actions would prompt a Batson/Wheeler objection. (54 RT at 1233.) It is impossible to reconcile the prosecutor’s professed reluctance with the notion that the prosecutor believed he wasstriking Denise. It also strains credulity that the prosecutor would twice have accepted a jury panel and described that panel as “somewhat satisfactory to me,” (54 RT at 1233) while believing Denise to be on that panel. Finally, had the prosecutor believed he wasstriking a juror with Denise’s responses (had hetruly believed he had valid reasons for thestrike), it would have been unnecessary (indeed odd) for him to soliloquize defensively and at some length, about how herefused to be cowed by the prospect of facing Wheeler objections (“I’m not going to call this case from a hesitancyposition . . . [for] fear of getting Wheelered...” (15 RT 1234).) The prosecutor was hesitant and reluctantto strike Ruth (andinitially willing to accept a panel with Ruth onit) for the same reasonshehesitated in striking Retha Payton, a pro-death penalty juror with a nearly identical background and questionnaire to Ruth’s: he did not have a race-neutral reason for doing so. 4 4 Retha Payton, the subject of the defense’s second Batson/Wheeler motion, was,like Ruth, in herearly sixties, college-educated, had prior jury experience, and was pro-death penalty. (See 10 CT-Supp I at 2412, 2416, 2418, 2429-31.) The prosecutor, after thrice accepting a panel with Ms. Payton onit, excused Ms. Payton and defendedthe use ofhis peremptory using wordssimilar to the ones he offered about his strike of Ruth: “Jt was just my impression that she didn’t havetheability in spite ofwhat heranswers were. It ‘ had a lot more to do with not what she said but how I read what she was saying from being present in court with her and observing her demeanor and the way she answered questions. It clearly isn’t from the words that are written down. Jt was my general — impressionfrom the way she answered questions, not what she said. (15 RT 1230 (emphases added.).) Appellant’s Letter Brief re:Batson/Wheeler People v. Williams, Case No. 8030553 Page 17 B. Mindthe (Age) Gap. Had the prosecutor been inclined to confuse the two women, merely looking at them would havecorrectedtheerror. In considering how to exercise his fourteenth peremptory challenge, the prosecutor was confronted with a 65-year-old woman seatedin position 2 in the jury box. This bit of information would havebeen jarringly at odds with the very first page of Denise Jordan’s juror questionnaire whichidentified her age as 39 (21 CT-Supp I at 5173) -- a questionnairethat(as the recordreflects, 54 RT 4165) the prosecutor summarizedin his juror notes, complete with information about her age. Had the prosecutor mistakenly referred to his voir dire notes and materials on Denise Jordan at any point before striking Ruth Jordan,the generational difference in age between the two prospective jurors would have stopped him cold. oe 2 OK Forthe foregoing reasons, the record does not support the proposition that at the time of appellant’s jury selection the prosecutor mistakenly believed he exercised his peremptory challenge against Denise, not Ruth, Jordan. I. Phillips and Williams are Inapposite. As the above discussion makesclear, the prosecutor’s contemporaneousreason for striking juror numbertwo quite clearly applied to Ruth Jordan, not Denise. Forthis reason, People v. Williams (1997) 16 Cal.4th 153 and People v. Phillips (2007) 147 Cal.App.4th 810, do not apply to appellant’s case because the prosecutor’s confusion between two jurors took place only after appellant’s trial and did not infect his jury selection process. In both the Williams and Phillips cases, prosecutors exercised peremptory challenges against minority jurors about whom they mistakenly believed they had real concern, either because ofa clerical error (Williams) or becausethey confusedthe juror with another whohad the samelast name(Phillips). In both cases, the prosecutors acknowledged their mistakes during or shortly after providingajustification in response to a Wheeler motion. In neither case did defense counsel(trial or appellate) or the court (trial or appellate) dispute that the prosecutor made a mistake. Andin both cases, there was,at least in theory, the opportunity to rectify the error. (In the Williams case, the Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. S030553 Page 18 prosecutor offered to reseat the juror mistakenly excused.) The reviewing court in both cases held that becausethe prosecutor’s peremptory challenge wasthe result of an honest mistake, the prosecutor’s justification for his challenge was properly deemedbythetrial to be “race-neutral,” for purposes of a Wheeler analysis. . Here, by stark contrast, the prosecutor did not make a mistake while exercising a peremptory challenge during jury selection. Nor has the prosecutor -— or anyone else presentat trial — alleged that the prosecutor made a mistake during jury selection. Rather, the prosecutor made a mistake at the motion for new trial while trying to backfill the reasons he gave for the challenge fifteen monthsearlier. Accordingly, neither the facts nor the analyses of Williams and Phillips applyhere. Further, any attempt to shoehorn Williams and Phillips into the facts of this case would have to grapple with other material differences between those cases and appellant’s, including the fact that neither the prosecutor, nor the court, or appellant’s counsel caught the prosecutor’s (belated) juror mistake, and the fact that there was no opportunity here for the mistaketo berectified. More fundamentally, however, even if the prosecutor’s mistake at the motion for newtrial could somehowbeattributed back in time to jury selection -- an attribution that the record in no way supports -- because that mistake went entirely unnoticed both at the time oftrial and 15 months later at the motion for newtrial, there was no opportunity for the trial court (aided by the defense) to independently assess the authenticity of that mistake, a predicate to deeming the mistake “race-neutral.” As this Court observedin Williams, “we rely on the good judgmentofthe trial courts to distinguish bonafide reasonsfor such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” 16 Cal.4th at 189. Nosuch reliance is possible here. Not only wasthe trial court ignorant about a prosecutorial mistake at the motion for newtrial, it had no independentrecollection of the juror who wasthe subject of the mistake. Nor does the recordin this case afford this Court, on review, the freedom to backdate the prosecutor’s mistake of December 1992 to September 1991, and to christen it genuine. As detailed above, the record of general voir dire cannot be reconciled with the notion that the prosecutor believed he was excusing Denise Jordan. Appellant’s Letter Brief re: Batson/Wheeler People v. Williams, Case No. 8030553 Page 19 CONCLUSION Forthe reasonsset forth above, the prosecutor made no mistake during jury selection. The prosecutor’s mistaken reference to Denise instead ofRuth fifteen monthsafter appellant’s trial had no bearing on appellant’s jury selection and did notaffect thebasis for the defense’s Batson/Wheeler objection to the prosecutor’s excusal ofRuth Jordan by peremptory challenge. Accordingly, the Court must find Batson/Wheeler errorand reverse appellant’s conviction and sentence. DATED: January 23, 2013 Respectfully submitted, DANIEL N. ABRAHAMSON Counsel for Appellant George B. Williams