Exclusion of Hispanics From Jury Leads to Verdict Reversal

A federal appeals court on Thursday reversed the marijuana-smuggling convictions of two Hispanic men because a federal prosecutor used his challenges to remove the only Hispanic in the jury pool.

Ruling on the 1987 case, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the defendants had established a “case of purposeful discrimination” and that the prosecutor had not offered an adequate explanation of his use of challenges to exclude Hispanics.

The case was sent back to U.S. District Judge Gordon B. Thompson Jr. for retrial, but the defense attorney who handled the case said a new trial is unlikely. Both defendants, Rafael Chinchilla and Alberto Escobar, have finished serving their sentences and probably have been deported to Mexico, said Charles Weisselberg, who handled the case while working for the Federal Defenders Office in San Diego.

The men were convicted of charges related to the smuggling of a small amount of marijuana from Mexico, he said.

Prosecutors and defense attorneys said Thursday that the ruling puts an added burden on prosecutors to justify excusing members of racial and ethnic minorities from juries.

Changing the Rules

At issue are the peremptory challenges that prosecutors and defense attorneys use during jury selection to eliminate people they consider undesirable. In federal court, the government normally is allowed six challenges, and the defense is allowed 10. Generally, neither side is required to give reasons for exercising the challenges, but a series of court rulings in recent years has begun to put restrictions on prosecutors when it can be shown that they use the challenges to exclude racial and ethnic groups.

In its ruling Thursday, the panel said the prosecutor used a challenge to exclude the only Hispanic in the jury pool and used another challenge to exclude the only Hispanics among three candidates for alternate juror.

When the defense objected, the prosecutor said his challenge to the juror was “based on where he lived and his job” and his challenge to the alternate “was because of his age and appearance,” according to the decision.

Those explanations “do not hold up under judicial scrutiny,” the opinion said. The prosecutor rejected one juror because of where he lived--La Mesa--and because of his employment as a restaurant manager. But the panel pointed out that the prosecutor did not challenge another man from La Mesa.

2 Reasons for Exclusion

The prosecutor offered two reasons for excluding the Hispanic alternate--his age and his appearance--but the panel said the jurors “did not state their ages for the record, and this court has no other evidence of the prospective alternate’s age.”

“The fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency,” the court said.

The prosecutor, Bill Baldwin, who is now in private practice, said Thursday that, when he excused the Hispanic man from the jury, “I didn’t really know he was Hispanic.” Regarding the alternate, he said the man was in his 20s and that fact was evident both from his appearance and from the information all potential jurors fill out on forms provided by the court.

Baldwin said he excluded the man based on his youth and the fact that he came to court dressed “very casually” in tennis shoes, blue jeans and a shirt. “He was not the kind of person I felt comfortable having on a drug case,” Baldwin said.

Regarding the reversal, Baldwin said, “These things happen. I suppose it’s unfortunate it comes up in a racial setting, but I suppose the court has to develop guidelines.”

“Judge Thompson was there and he saw everything,” Baldwin said. “I think it’s tough for appellate judges to know what goes on in the trial court. I guess what they’re saying is that prosecutors are going to have make very specific and detailed records, and it’s going to create a greater burden.”

Baldwin, a former Peace Corps volunteer who served in El Salvador, added that the Drug Enforcement Administration agent who developed the case and sat next to him during the trial was Hispanic.

U.S. Atty. William Braniff said Thursday it is not the policy of the U. S. attorney’s office to discriminate against racial or ethnic groups in jury selection.

Braniff said the jury selection issue is a “developing area of law” and that, at the time the case went to trial, the trial judge found the prosecutor’s explanation satisfactory.

“The trial judge who’s sitting there and hears the explanations finds them adequate, and he doesn’t probe any further,” Braniff said. After that point, there is no way of supplementing the record to satisfy the questions of an appeals court, he said.

In its decision, the panel added, “It is important to emphasize that the challenge of two minority jurors does not, in and of itself, create a . . . case of purposeful discrimination. There is no magic number of challenged jurors which shifts the burden to the government to provide a neutral explanation for its actions. Rather, the combination of circumstances taken as a whole must be considered.”