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Kern County District Attorney Lisa Green is not seeking re-election in 2018; perhaps that’s a wise move, considering the circumstances. Already bogged down in considerable muck created by an ever-growing law enforcement scandal, Green’s office is responsible for a significant jury discrimination case the California Supreme Court handed down last week. Add to the mix Deputy District Attorney Robert Murray’s recent one-year suspension for egregious misconduct (and Green’s defense of him), and you have a demonstrated need for change.

In The People v. Gutierrez, the California Supreme Court last week unanimously reversed the convictions of Rene Gutierrez, Jr., Gabriel Ramos, and Ramiro Enriquez—three men convicted in 2012 for a nonfatal attack committed in Bakersfield. The opinion is a significant one, not just for the Kern County DA’s office, but also for the entire California judicial system. As Justice Goodwin Liu’s concurring opinion points out, the decision “is the first time in 16 years, and the second time in 25 years, that this court has found a Batson/Wheeler violation.” (See page 32 of the PDF at the link above.) Batson refers to the U.S. Supreme Court opinion that protects jurors from being discriminated against on the basis of their race. As many have pointed out over the years, the case has done too little to prevent prosecutors from excluding minority jurors, particularly because courts have been reluctant to enforce it. However, with this opinion, the California Supreme Court has taken the “opportunity to clarify” what is required of lawyers, “trial judges, and appellate judges” when questions about racial discrimination in jury selection arise. (See page 2.)

At trial, the prosecution used its peremptory challenges to exclude 10 Hispanic prospective jurors. At the time that the defense objected and argued that the State was discriminating against those jurors, the prosecutor had used a total of 16 peremptory challenges. Only two Hispanic potential jurors were seated on the jury panel, and only one Hispanic juror actually served on the jury that convicted the defendants of some of the charges. Because the trial court found that there was a prima facie case of discrimination, the prosecutor had to put forth reasons to explain why it struck these 10 jurors. The prosecutor gave his reasons, the court determined that they were race-neutral and denied the defense’s objections. On the initial appeal, the intermediate court of appeal agreed with the trial court’s ruling. But, the California Supreme Court overruled the decision.

What distinguishes this case from so many before it is the careful attention the justices gave to the record and to what actually happened in the proceedings below. Rather than filling in the record’s gaps with untethered assumptions that amplify the deference already owed to trial court decisions, the Court looked at them squarely and made clear that they cannot be written off in the prosecution’s favor. In its words, “[b]ecause the prosecutor’s reason for this [particular] strike was not self-evident and the record is void of any explication from the court, we cannot find . . . that the court made a reasoned attempt to determine whether the justification was a credible one.” (See page 26.) Moreover, the Court relied on the statistical and circumstantial evidence of discrimination to help interpret the record. It explained that

when it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing. That is particularly so when, as here, an advocate uses a considerable number of challenges to exclude a large proportion of members of a cognizable group. . . . Out of 16 strikes exercised by the prosecution up to that point, 10 were used to remove jurors who shared the same ethnicity as the defendants. (See pages 24-25.)

At bottom, the Court was not persuaded that the prosecutor’s stated reason for striking Juror 2723471—that the juror was not aware of gang activity in her city—held up. This purported rationale was only applied to and only applicable to Hispanic jurors, and it “derived solely” from the prosecutor’s brief exchange with the juror. The Court found the strike even harder to understand in light of the prospective juror’s familial relationships with members of law enforcement—a characteristic this prosecutor explicitly favored. In light of the thin record and the lack of a real basis for this strike, the Court held that the DA’s office violated Batson; because these violations are structural in nature, the defendants are entitled to a new trial.

While lawyers who see racial discrimination in California’s trial courts may be encouraged by the ruling (and the evident shift in the state supreme court’s approach), Lisa Green and the Kern County DA’s office must be frustrated. Now they need to decide whether to re-try these three cases. But, how to cope with the fallout from a prosecutor’s discriminatory actions in picking a jury is not the only question on the table. Kern County’s law enforcement apparatus is in the midst of an ever-widening scandal that threatens the credibility of the police, the sheriff’s department, and the prosecutors who rely on them.

In October last year, the LA Times reported that two veteran Bakersfield Police detectives, Damacio Diaz and Patrick Mara, had been “ripping off drug dealers of their methamphetamine during traffic stops.” In addition to this criminal activity, the two former officers have admitted to “taking bribes, distribution of large amounts of methamphetamine — some of it stolen from the BPD’s evidence room — working in partnership with a known drug dealer and other unlawful activities.” In response to this scandal, Lisa Green has been compelled to inform dozens of defense attorneys that their clients’ cases may have been tainted by these corrupt officers.

Bad as that is, the public has recently learned that the scandal touches the Kern County Sheriff’s Department as well. Two former deputies, Logan August and Derrick Penney, have pleaded guilty to conspiracy to distribute and possess with the intent to distribute marijuana. According to federal documents reviewed by the media, August and Penney were “accused of working with former Bakersfield police detective Patrick Mara and others to steal marijuana from the Kern County Sheriff’s Office storage unit.” In light of this development, several pressing questions arise. How many other law enforcement officers were involved in this mutli-institution scandal? Who will scrutinize these offices to ensure that they operate ethically moving forward? And, what is being done to ensure that corrupt cops and deputies did not taint criminal cases?

Green controlled the process of notifying defendants whose cases may have been tainted by Diaz and Mara, but she has not yet explained publicly what the DA’s office is doing with respect to the possibility that corruption in the Sheriff’s Department also infected criminal prosecutions. While citizens await clarification of what will happen next, it is worth asking whether Green is well-positioned to fairly review the evidence internally. The answer to that question requires one to consider the saga involving Deputy DA Robert Murray.

As we noted over three years ago, Robert Murray was responsible for altering a transcript to make it appear that a defendant facing child molestation charges had admitted his guilt. This fabrication not only undid the case against Efrain Velasco-Palacios, but also resulted in disciplinary proceedings against Murray. Those proceedings finally reached a firm conclusion in March this year, when the State Bar Court’s decision to suspend Murray from the practice of law for one year went into effect. That decision said it best:

We find that Murray deliberately created and inserted a fraudulent document into a criminal prosecution while he was actively negotiating a resolution by plea agreement. This altered evidence bore no indicia of being a “prank,” and Murray made no prompt effort thereafter to control the consequences. Murray’s behavior is wholly inappropriate and unbecoming of an experienced prosecution, who is expected to adhere to the highest standards of ethical conduct and to act as a gatekeeper to the fair administration of justice.

Although the State Bar recommended a one-year suspension, Green stood firm in her belief that “Murray had [not] acted intentionally and should [not] lose his license for a year.” She maintained the same lame defense that Murray put forth: he doctored the transcript as a “joke” that simply went awry. National commentator Sidney Powell viewed Green’s decision to maintain Murray’s employment as “beyond comprehension.” Indeed, the one-year suspension appears more than justified. Green’s preference for a 30-day slap-on-the-wrist reflects poorly on her judgment about the ethical breach and its implications.

Given that she dug in her heels to defend a prosecutor who fabricated evidence in a criminal case, should Green be trusted to independently review cases that may have been influenced by corrupt law enforcement officers? That’s a deep question. It looks even more pressing when put into a broader context. We have reported before that Murray’s misstep may have been the tip of an iceberg because “the National Registry of Exonerations reveals a damning statistic: 22 of 24 exonerations out of Kern County have involved official misconduct on the part of police, prosecutors or other government officials.”

Kern County law enforcement garnered national attention with its large-scale prosecutions of supposed “ritual sex abuse” cases in the 80’s and 90’s. Though the county whipped up a frenzy, many of the defendants in those cases were later found to be innocent. As Radley Balko has explained, “[a]t least two dozen people in Kern County alone were exonerated after spending years in prison for crimes they didn’t commit.” Ed Jagels was the District Attorney of Kern County at the time, and served as the guiding force behind those ill-fated prosecutions. Crucially, now-DA Lisa Green was a deputy district attorney under Jagels for her entire career, and was ultimately promoted to Chief Deputy District attorney in his administration. She also represented the prosecution when some cases of wrongfully accused defendants in the child sex prosecutions were reopened for hearings. So Green has not just downplayed prosecutorial misconduct in Robert Murray’s case. She also spent substantial time resisting the efforts of now-exonerated individuals who the Kern County DA wrongfully charged. If you look hard enough, you will see at least two dozen reasons why Kern County DA Lisa Green may not be right person to locate and disclose exculpatory evidence to defendants, let alone lead a much needed county-wide ethics crackdown.

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