Defense’s Claim of Racism in Jury Selection Is Denied : Courts: Judge rules prosecutor’s explanations of releasing potential jurors in Richard DeHoyos retrial ‘reasonable and justified.’

An Orange County Superior Court judge rejected a defense attorney’s motion Monday that jury selection in a high profile murder case had been tainted by racism because prosecutors rejected five Latino and African-American jury candidates.

However, the morning hearing in the Richard L. DeHoyos retrial provided a rare glimpse at the reasoning used by prosecutors in excluding prospective jurors “peremptorily”--for no stated reason.

DeHoyos, 35, who is Latino, faces the death penalty if convicted of the 1989 kidnap, rape and murder of a 9-year-old Santa Ana girl, Nadia Puente, also Latino.

Defense attorneys Marne Glass and Milton C. Grimes charged that the potential jurors were excluded from the jury for racial and ethnic reasons, a claim that Judge Everett W. Dickey rejected in an oral ruling from the bench Monday afternoon.

Dickey explained that he ordered the hearing after defense attorneys pointed out that Deputy Dist. Atty. Robert C. Gannon Jr. had used five of 16 peremptory challenges exercised so far to excuse Latinos and African-Americans. But he noted that prosecutors have agreed to seat one black juror and would have included another black and a Latino who were excused by Grimes.

Grimes said he sought the hearing because ethnic diversity is critical “whenever you have a minority on trial,” and “all defendants have a right to be judged by a cross-section of society.” Excluding minorities would constitute a “denial of his right to a fair and impartial jury,” Grimes said.

But Gannon denied any discriminatory intent. “Candidly, I’m offended that I was accused of it,” he told Dickey.

Nonetheless, Gannon was compelled during the unusual hearing to explain in open court his thinking in excusing each of the five prospective jurors. He cited the jurors’ answers to questionnaires and issues posed by attorneys.

Emphasizing that his final decisions were “cumulative,” Gannon said that one juror was challenged because he seemed to have too little “life experience,” and might be overly deferential to psychological experts the defense was expected to call.

Another, Gannon said, was excused because he had taken too many psychology courses in college and might act as an authority on the subject in the jury room. A third wrote in the questionnaire that he had recently read Adolf Hitler’s “Mein Kampf.”

A woman was rejected because she said she was “looking forward” to serving on a death penalty case, Gannon said, and was not apprehensive about making a life and death decision. This raised a question in his mind about whether the woman had “a specific reason or agenda” for wanting to serve on the jury.

Gannon said he excused another prospective juror because he said that “human life is the most precious of anything there is, no matter what this person has done.”

Glass responded that “most people feel that way.”

Dickey acknowledged that prospective jurors who merely favor or dislike capital punishment may be excused peremptorily by either side.

Jury selection is often the most tedious and repetitive phase of a criminal trial, but at the same time, can be critical to the outcome, experts say.

For more than a decade, a series of federal and state court rulings have prohibited the use of race or ethnic background as a reason for peremptory challenges, while upholding the right to use such criteria as body language in excusing potential jurors.

After listening to the prosecutor’s explanations, Dickey said he found them to be “reasonable and justified.”

Immediately following his ruling, Dickey ordered jury selection to continue. A 12th juror and four alternates are needed before the trial can begin.

DeHoyos was found sane and guilty of Nadia’s death in October, 1991, after a three-month trial. A jury recommended the death penalty. DeHoyos was convicted of luring the girl into his car on her way home from school, taking her to a motel room where he assaulted and killed her, and dumping her body in Los Angeles’ Griffith Park.

But Dickey threw out that verdict six months later and ordered a new trial after DeHoyos’ attorneys successfully argued that jurors had committed misconduct by discussing Grimes’ career. Jury selection for a retrial was halted when potential jurors discussed the case, costing the county an estimated $100,000.