1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 JOSEPH E. STEVENS, Case No. 5:13-cv-03877-EJD
10 Plaintiff, ORDER ADOPTING PETITIONER’S PROPOSED FINDINGS AND 11 v. CONCLUSIONS OF LAW
12 JERRY BEARD, et al., Re: Dkt. Nos. 69, 70 Defendants. 13
14 On March 21, 2007, a jury found Petitioner guilty of two counts of murder (Cal. Penal 15 Code § 187) and found true enhancement allegations that Petitioner intentionally discharged a 16 firearm that proximately caused death or great bodily injury (Cal. Penal Code § 12022.53(d)) and 17 the special circumstance of multiple murder (Cal. Penal Code § 190.2(a)(3)). On July 13, 2007, 18 the trial court sentenced Petitioner to two life terms without the possibility of parole, two 19 consecutive 25 years to life terms on the firearm enhancements, plus three years for the assault 20 conviction. On March 9, 2012, the California Court of Appeal, First Appellate District, affirmed 21 the judgment in an unpublished opinion. Dkt. No. 13-3. The California Supreme Court denied 22 review on June 13, 2012. Dkt. No. 13-4. Following extensive briefing, this Court concluded that 23 the state Court of Appeal’s decision was contrary to and involved an unreasonable application of 24 clearly established federal law and was based on an unreasonable determination of the facts. 25 26 27 Case No.: 5:13-cv-03877-EJD 1 On August 22, 2018, this Court granted Petitioner’s petition for writ of habeas corpus and 2 ordered the verdict set aside. Dkt. No. 17.1 The Court then granted the State’s request for an 3 evidentiary hearing to determine whether Juror #12’s statement was prejudicial. In so granting, 4 this Court observed that “the Court granted the petition because the Court of Appeal did not 5 attempt to determine the effect of Juror No. 12’s racists statements.” Dkt. No. 17 at 15–18. As 6 this court noted, the exact context of Juror No. 12’s alleged statements were unclear, and thus a 7 hearing was needed to determine the context of the statements. To help determine the context of 8 the statements, the Court ordered discovery and investigation of the jurors. The Parties were 9 permitted to contact jurors for interview, and the District Attorney’s Office Inspector contacted all 10 surviving jurors (one had passed since the time of the trial). See Dkt. No. 67. 11 On April 27, 2022, this Court held an evidentiary hearing. Juror No. 5 and Juror No. 12 12 were deposed a few months before the evidentiary hearing. Prior to the hearing, this Court 13 reviewed the record of the trial, the video depositions of Juror No. 5 and Juror No. 12 and the 14 respective reporter’s transcripts, the stipulations regarding the expected testimony from the San 15 Francisco County District Attorney’s Office Inspector Rami Khoury, and the DMV photo of Juror 16 No. 12. See Dkt. No. 67. After review of these documents, and the transcript of the evidentiary 17 hearing, the Court finds that Juror No. 5 credibly reported that during deliberations, while the 18 jurors were discussing the language and culture in the area surrounding the Potrero Hill housing 19 projects (the scene of the underlying murders), Juror No. 12 said, “You can’t call these people 20 niggers. They’ll just shoot you.” Juror No. 5 informed the trial court in 2007 that Juror No. 12 21 made this statement. Juror No. 5 testified in his subsequent deposition that Juror No. 12 made the 22 statement as “an aside” and described it as dropping a “bomb in the middle of the discussion.” 23 Dkt. No. 67 at ECF 46. Following interviews by the District Attorney’s Office Inspector, no juror 24 other than Juror No. 5 recalled hearing the racial epithet during deliberations or recalled hearing 25 any other improper remarks during deliberation. Dkt No. 67 at ECF 4. During her 2021 26
27 1 For a more detailed recitation of the facts, see Docket Number 17. Case No.: 5:13-cv-03877-EJD 1 deposition, Juror No. 12 denied making the comment during deliberations and testified that she is 2 not biased against black people and is married to an African American man. Dkt. No. 67 at ECF 3 21. 4 The Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent 5 jurors. The bias of or prejudice of even a single juror violates Petitioner’s right to a fair trial. See, 6 e.g., United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977); Press-Enterprise Co. v. 7 Superior Court of Cal., 464 U.S. 501, 508 (1984) (“No right ranks higher than the right of the 8 accused to a fair trial.”). Automatic reversal is necessary when a structural error deprives the 9 defendant of “basic protections” without which the “criminal trial cannot reliably serve its 10 function as a vehicle for determination of guilt or innocence, and no criminal punishment may be 11 regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78 (1986). Time and again, 12 the Supreme Court and the Ninth Circuit have recognized that racial bias in the courtroom is a 13 structural error because it “raises serious questions as to the fairness of the proceedings conducted 14 there,” “mars the integrity of the judicial system[,] and prevents the idea of democratic 15 government from becoming a reality.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 16 (1991). Cognizant that “[t]he duty to confront racial animus in the justice system is not the 17 legislature’s alone,” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017), the Supreme Court 18 and other federal courts repeatedly have held that the injection of racial prejudice into criminal 19 proceedings constitutes a structural error that requires no showing of prejudice. Illustrations 20 include:
21 • Presence of Racially–Biased Juror: The presence of a racially biased juror “cannot be 22 harmless; the error requires a new trial without a showing of actual prejudice.” Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) (en banc). 23 • Racially–Biased Judge: Structural error occurs when a judge with racial bias against a 24 defendant presides at his trial. Norris v. United States, 820 F.3d 1261, 1266 (11th Cir. 2016); see also Tumey v. Ohio, 273 U.S. 510, 535 (1927). 25
26 • Racially–Biased Prosecutor: A prosecutor’s deliberate decision to charge a defendant on account of his race is structural error. See Vasquez v. Hillery, 474 U.S. 254, 264 27 Case No.: 5:13-cv-03877-EJD (1986) (citing United States v. Batchelder, 442 U.S. 114, 125 & n.9 (1979)). 1 2 The “unmistakable principle” underlying these precedents is that racial discrimination in 3 the justice system is intolerable. Pena-Rodriguez, 137 S. Ct. at 868. The injection of racial bias 4 into a criminal trial is a structural defect because the trial “cannot reliably serve its function as a 5 vehicle for the determination of guilt or innocence, and no criminal punishment [that results] may 6 be regarded as fundamentally fair.” Rose, 478 U.S. at 577–78. Racial bias within the courtroom 7 “raises serious questions as to the fairness of the proceedings conducted there” and mars the 8 integrity of the judicial system. Edmonson, 500 U.S.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 JOSEPH E. STEVENS, Case No. 5:13-cv-03877-EJD
10 Plaintiff, ORDER ADOPTING PETITIONER’S PROPOSED FINDINGS AND 11 v. CONCLUSIONS OF LAW
12 JERRY BEARD, et al., Re: Dkt. Nos. 69, 70 Defendants. 13
14 On March 21, 2007, a jury found Petitioner guilty of two counts of murder (Cal. Penal 15 Code § 187) and found true enhancement allegations that Petitioner intentionally discharged a 16 firearm that proximately caused death or great bodily injury (Cal. Penal Code § 12022.53(d)) and 17 the special circumstance of multiple murder (Cal. Penal Code § 190.2(a)(3)). On July 13, 2007, 18 the trial court sentenced Petitioner to two life terms without the possibility of parole, two 19 consecutive 25 years to life terms on the firearm enhancements, plus three years for the assault 20 conviction. On March 9, 2012, the California Court of Appeal, First Appellate District, affirmed 21 the judgment in an unpublished opinion. Dkt. No. 13-3. The California Supreme Court denied 22 review on June 13, 2012. Dkt. No. 13-4. Following extensive briefing, this Court concluded that 23 the state Court of Appeal’s decision was contrary to and involved an unreasonable application of 24 clearly established federal law and was based on an unreasonable determination of the facts. 25 26 27 Case No.: 5:13-cv-03877-EJD 1 On August 22, 2018, this Court granted Petitioner’s petition for writ of habeas corpus and 2 ordered the verdict set aside. Dkt. No. 17.1 The Court then granted the State’s request for an 3 evidentiary hearing to determine whether Juror #12’s statement was prejudicial. In so granting, 4 this Court observed that “the Court granted the petition because the Court of Appeal did not 5 attempt to determine the effect of Juror No. 12’s racists statements.” Dkt. No. 17 at 15–18. As 6 this court noted, the exact context of Juror No. 12’s alleged statements were unclear, and thus a 7 hearing was needed to determine the context of the statements. To help determine the context of 8 the statements, the Court ordered discovery and investigation of the jurors. The Parties were 9 permitted to contact jurors for interview, and the District Attorney’s Office Inspector contacted all 10 surviving jurors (one had passed since the time of the trial). See Dkt. No. 67. 11 On April 27, 2022, this Court held an evidentiary hearing. Juror No. 5 and Juror No. 12 12 were deposed a few months before the evidentiary hearing. Prior to the hearing, this Court 13 reviewed the record of the trial, the video depositions of Juror No. 5 and Juror No. 12 and the 14 respective reporter’s transcripts, the stipulations regarding the expected testimony from the San 15 Francisco County District Attorney’s Office Inspector Rami Khoury, and the DMV photo of Juror 16 No. 12. See Dkt. No. 67. After review of these documents, and the transcript of the evidentiary 17 hearing, the Court finds that Juror No. 5 credibly reported that during deliberations, while the 18 jurors were discussing the language and culture in the area surrounding the Potrero Hill housing 19 projects (the scene of the underlying murders), Juror No. 12 said, “You can’t call these people 20 niggers. They’ll just shoot you.” Juror No. 5 informed the trial court in 2007 that Juror No. 12 21 made this statement. Juror No. 5 testified in his subsequent deposition that Juror No. 12 made the 22 statement as “an aside” and described it as dropping a “bomb in the middle of the discussion.” 23 Dkt. No. 67 at ECF 46. Following interviews by the District Attorney’s Office Inspector, no juror 24 other than Juror No. 5 recalled hearing the racial epithet during deliberations or recalled hearing 25 any other improper remarks during deliberation. Dkt No. 67 at ECF 4. During her 2021 26
27 1 For a more detailed recitation of the facts, see Docket Number 17. Case No.: 5:13-cv-03877-EJD 1 deposition, Juror No. 12 denied making the comment during deliberations and testified that she is 2 not biased against black people and is married to an African American man. Dkt. No. 67 at ECF 3 21. 4 The Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent 5 jurors. The bias of or prejudice of even a single juror violates Petitioner’s right to a fair trial. See, 6 e.g., United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977); Press-Enterprise Co. v. 7 Superior Court of Cal., 464 U.S. 501, 508 (1984) (“No right ranks higher than the right of the 8 accused to a fair trial.”). Automatic reversal is necessary when a structural error deprives the 9 defendant of “basic protections” without which the “criminal trial cannot reliably serve its 10 function as a vehicle for determination of guilt or innocence, and no criminal punishment may be 11 regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78 (1986). Time and again, 12 the Supreme Court and the Ninth Circuit have recognized that racial bias in the courtroom is a 13 structural error because it “raises serious questions as to the fairness of the proceedings conducted 14 there,” “mars the integrity of the judicial system[,] and prevents the idea of democratic 15 government from becoming a reality.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 16 (1991). Cognizant that “[t]he duty to confront racial animus in the justice system is not the 17 legislature’s alone,” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017), the Supreme Court 18 and other federal courts repeatedly have held that the injection of racial prejudice into criminal 19 proceedings constitutes a structural error that requires no showing of prejudice. Illustrations 20 include:
21 • Presence of Racially–Biased Juror: The presence of a racially biased juror “cannot be 22 harmless; the error requires a new trial without a showing of actual prejudice.” Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) (en banc). 23 • Racially–Biased Judge: Structural error occurs when a judge with racial bias against a 24 defendant presides at his trial. Norris v. United States, 820 F.3d 1261, 1266 (11th Cir. 2016); see also Tumey v. Ohio, 273 U.S. 510, 535 (1927). 25
26 • Racially–Biased Prosecutor: A prosecutor’s deliberate decision to charge a defendant on account of his race is structural error. See Vasquez v. Hillery, 474 U.S. 254, 264 27 Case No.: 5:13-cv-03877-EJD (1986) (citing United States v. Batchelder, 442 U.S. 114, 125 & n.9 (1979)). 1 2 The “unmistakable principle” underlying these precedents is that racial discrimination in 3 the justice system is intolerable. Pena-Rodriguez, 137 S. Ct. at 868. The injection of racial bias 4 into a criminal trial is a structural defect because the trial “cannot reliably serve its function as a 5 vehicle for the determination of guilt or innocence, and no criminal punishment [that results] may 6 be regarded as fundamentally fair.” Rose, 478 U.S. at 577–78. Racial bias within the courtroom 7 “raises serious questions as to the fairness of the proceedings conducted there” and mars the 8 integrity of the judicial system. Edmonson, 500 U.S. at 628; see also Batson v. Kentucky, 476 9 U.S. 79, 87 (1986) (noting that racism in jury selection “undermine[s] public confidence in the 10 fairness of our system of justice”). 11 The Court finds that the racially inappropriate statement was made—a finding supported 12 by the temporality of Juror No. 5’s reporting, the additional problems that arose with Juror No. 12 13 during the trial, and Juror No. 5’s refreshed recollection of the incident years later. While the 14 State argues that the statement was a single remark in the context of a long trial, this ignores the 15 inherent racism in the word “nigger.” Perhaps more problematic was Juror No. 12’s use of “these 16 people,” as if Petitioner is a different class of human being. Juror No. 12’s statement demonstrates 17 a deep bias, and the Court must assume prejudice and error. Indeed, an individual under the 18 influence of such personal prejudice is “presumed to have bias on his mind which will prevent an 19 impartial decision of the case.” Even while this individual may declare that notwithstanding these 20 prejudices he can listen to the evidence and be governed by it, “the law will not trust him.” United 21 States v. Burr, 25 F. Cas. 49, 50 (D. Va. 1807) (emphasis added). For this reason, Juror No. 12’s 22 bias constitutes structural error. 23 Following the evidentiary hearing, the Court invited the Parties to submit proposed 24 findings and conclusions of law. The Court ADOPTS Petitioner’s proposed findings and 25 conclusions of law. Accordingly, the Court affirms its earlier decision to vacate the judgment 26 against Petitioner and remand the case to the trial court. Unless the State initiates trial proceedings 27 Case No.: 5:13-cv-03877-EJD 1 within ninety days, this Court orders that Petitioner be released from state custody. The Clerk 2 || shall close the file. 3 IT IS SO ORDERED. 4 || Dated: September 29, 2022 5 ° ZF J. DAVILA 7 United States District Judge 8 9 10 11 12
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4 18 19 20 21 22 23 24 25 26 27 Case No.: 5:13-cv-03877-EJD 28 || ORDER ADOPTING PETITIONER’S PROPOSED FINDINGS AND CONCLUSIONS OF LAW