US v. Esparza-Gonzalez
No. 04-10267 (9-6-05). There are Batson sins of commission; and now there are Batson sins of omission. In this case, the court was using an Arizona “struck” system of jury selection, where one can figure out which juror would be seated if peremptories are used, or not used. The prosecutor waived his peremptories, thereby ensuring that a juror with a Hispanic last name would not be seated. A similar tactic was used for the alternate. The district court first found a prima facie case for Batson challenge, but changed his mind. The court shouldn’t have, ruled the 9th, because the actions of the prosecutor raised the specter of discrimination. The case is remanded for hearings on what, if any, race neutral explanations the prosecutor could proffer. This case has a good discussion on the dangers of the Arizona “struck” system, permitting a camouflaging of racial discrimination. Congrats to AFPDs Freddie Sison, Cynthia Han and Michael Powell of the Nevada office for the win.