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DA Ordered to Release Jury Selection Notes

Box v. Superior Court Docket: D080573 (Fourth Appellate District), Opinion Date: December 30, 2022. In 1990, a San Diego jury convicted petitioner Christopher Box of three counts of first degree murder, attempted premeditated murder, first degree robbery, conspiracy to commit robbery, and residential burglary with associated weapons use enhancements. After the jury found special circumstances of multiple murder and murder during the commission of robbery and burglary, Box was sentenced to death in 1991. Box was African American, his codefendant was Hispanic, and the three murder victims were White. During jury selection, the prosecutor used two of her peremptory challenges to excuse both African Americans who were seated in the jury box. Defense counsel objected under California v. Wheeler, 22 Cal.3d 258 (1978). Although the court did not find a prima facie showing of racial bias as to either strike, it permitted the prosecutor to state her reasons for excusing the jurors on the record. Later the prosecutor used a peremptory challenge to excuse an alternate juror, and the defense again raised a Wheeler challenge. The court again found no prima facie case, but permitted the prosecutor to offer reasons for the strike. The judge then denied the motion, finding the prosecutor had not engaged in “racial discrimination” because she would not have excluded a Black prosecutor or police officer from the jury. Ultimately one African American alternate juror was seated, but none of the 12 jurors who deliberated the verdicts was African American. On automatic appeal, the California Supreme Court rejected Box’s claim that the trial court erred in denying his Batson/Wheeler motion. In January 2022, shortly after the California Supreme Court decided California v. Superior Court, 12 Cal.5th 348 (2021, Jones II), Box filed a motion to compel the District Attorney to produce copies of the trial prosecutor’s jury selection notes to support his federal habeas claim of Batson error. The State objected to their production on grounds of work product privilege. The Court of Appeal found that where a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution’s jury selection notes under Penal Code section 1054.9. "Those notes are not categorically shielded from discovery by the absolute work product privilege. To the extent the People maintain that those notes reflect the prosecution’s impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors, they bear the burden to make that foundational proffer and seek appropriate redactions from the trial court."

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