When a defense attorney in a 2008 rape trial challenged a Santa Clara County prosecutor for dismissing all the prospective Vietnamese jurors, the prosecutor offered explanations the judge accepted as race-neutral.
Now, however, an appellate court has published a rare opinion, finding that in the criminal case involving both a Vietnamese victim and defendant, the prosecutor improperly dismissed one of the three Vietnamese people in the jury pool solely because he was Vietnamese.
The court reversed the conviction of Khoa Khac Long, who is serving a 14-year sentence in state prison for the 2006 rape and robberies of a prostitute. Still, Long will remain in custody while any appeals of the ruling are exhausted, and he is likely to face a new trial. However, if prosecutors can no longer find the prostitute, it’s possible he could be offered a plea bargain with a shorter sentence.
In a criminal trial, both prosecutors and defense attorneys can dismiss a set number of jurors for almost any reason — except race — without having to provide cause. In 1986, the U.S. Supreme Court ruled that race could no longer be used as a reason to dismiss jurors. But it’s an easy rule to thwart, making the ruling in the Long case by Presiding Justice Conrad L. Rushing of the 6th District Court of Appeal all the more unusual.
During the trial two years ago, prosecutor Alison Filo offered Judge Gilbert T. Brown three different explanations for why she eliminated the Vietnamese people in the jury pool from serving on Long’s jury.
One potential juror didn’t understand English well enough to decide whether the defendant was guilty of raping and robbing a Vietnamese prostitute, Filo said. Another had a sister who was charged by the prosecutor’s colleagues in a separate case with criminal fraud.
And the third prospective juror didn’t participate when the judge asked questions of the entire panel, Filo said, adding: “I did not feel comfortable with his body language.”
“It was my sense that he would not be a participating member of the jury. He was not contributing to our conversations,” Filo told the judge during Long’s trial.
But the prospective juror had volunteered information — twice. He said his father was a retired attorney. He also said a sexual assault victim might not immediately report a crime because she was afraid, according to the trial transcript.
The just-published opinion sides with Long, whose trial lawyer claimed that Filo’s exclusion of the three prospective Vietnamese jurors was based on race. The trial judge acknowledged the pattern of the dismissals, and under the law Filo then had to prove to the court that her decision in each case wasn’t based on race.
The appellate court found that she failed to meet that burden in the case of the third juror, who she claimed didn’t participate under questioning in the voir dire phase of the trial.
The prosecutor’s office disagreed with that assessment.
“We believe that Judge Brown’s ruling — that the prosecutor did not challenge any juror based on race — was correct,” said Amy Cornell, a spokeswoman for the Santa Clara County District Attorney’s Office. “The appellate court’s finding that the judge and prosecutor did not articulate sufficient detail on the record illustrates the difficulty of judging live interaction in a courtroom setting through the means of a dry transcript.”
Although some lawyers eschew allowing minorities on juries, based on the belief they share a grim view of law enforcement, that perception is not universal, especially in diverse Silicon Valley.
But when race is the basis for excusing a juror, most lawyers can come up with a logical-sounding rationale.
“You can hide your racially motivated challenge by simply giving a ‘race-neutral’ reason judges approve of,” said Andrew Sheldon, an Atlanta-based trial consultant renowned for his work in the successful prosecution of defendants in eight major civil rights cases, including the 1963 Birmingham church bombing by the Ku Klux Klan that killed four children.
The appellate court in the Long case also did not find credible Filo’s other explanation about the third juror — that his body language made her uncomfortable — saying the record was devoid of any description of what was disturbing or unseemly.
“We are unable to extend normal deference to the trial court’s implied finding on this point when another stated reason, though pronounced ‘legitimate’ by the trial court, was demonstrably inaccurate,” the appellate court said, referring to the third juror’s purported lack of participation.
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