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Batson/Wheeler–Discovery of Prosecutor’s Jury Selection Notes

Case Name: People v. Superior Court (Jones) (2021) 12 Cal.5th 348
Case #: S255826
Last Updated: December 2, 2021

Does Penal Code section 1054.9 entitle an eligible defendant to discovery of a trial prosecutor’s notes about jury selection with respect to a claim of Batson/Wheeler (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258) error at trial?

Trial court properly granted defendant’s postconviction discovery request for the prosecution’s jury selection notes where the prosecution impliedly waived any work product protection for the notes during litigation of defendant’s Batson/Wheeler challenge. Jones was convicted of capital murder and sentenced to death in 1994. His conviction was affirmed. In 2014, he filed a petition for writ of habeas corpus and a request for postconviction discovery of the prosecution’s jury selection notes. (Pen. Code, § 1054.9.) The trial court granted the motion, rejecting the prosecutor’s argument that the notes are protected from disclosure as attorney work product. (Code Civ. Proc. § 2018.030.) The prosecution filed a petition for writ of mandate to vacate the trial court’s order, which the Court of Appeal ultimately denied. The California Supreme Court granted review to consider whether the trial court’s disclosure order was permissible. Held: Affirmed. “Courts employ a three-step inquiry to uncover unconstitutional discrimination in the exercise of peremptory strikes. Once a defendant has made out a prima facie case of discrimination, the burden shifts to the prosecution to provide a neutral justification for the strike; the trial court must then decide whether purposeful discrimination has occurred.” “During jury selection at Jones’s 1994 trial, defense counsel raised multiple objections to the prosecution’s use of peremptory strikes to eliminate Black jurors from the jury pool.” The prosecutor responded that he “used a numerical rating system to evaluate prospective jurors sight unseen based on answers in their written juror questionnaires.” The trial court accepted the prosecution’s explanation as race neutral and denied the Batson/Wheeler motion. However, by putting the undisclosed rating system at issue, “the prosecutor impliedly waived any claim of work product protection over notes containing information about the system.” The prosecution may not invoke attorney work product protection to withhold information necessary to a full and fair hearing of Jones’s Batson/Wheeler claim. [Editor’s Notes: (1) The court declined to decide the standard for reviewing discovery rulings involving the waiver of work product protections and other privileges. Whether the court conducted an independent review or applied a more deferential standard, it would conclude the trial court properly ordered disclosure of the requested materials. (2) The court noted that this case did not raise a question about the availability of jury selection notes under California’s Public Records Act (Gov. Code, § 6250 et seq.). (See Foster v. Chatman (2016) 578 U.S. 488 [petitioner obtained prosecution’s jury selection file through a public records request in Georgia].) This case was decided on 12/2/2021.


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