San Francisco, CA

Asian jurors were improperly excused because of their race, says S.F. judge

Josue Torres

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A San Francisco judge tentatively found on Thursday that a public defender in an alleged murder case unfairly excused prospective Asian jurors due to their ethnicity.

In reversing an earlier ruling, San Francisco Superior Court Judge Rita Lin determined that three of the nine Asian prospective jurors disqualified by public defender Max Breecker after peremptory appeals were excused for impermissible grounds.

Prosecutors allege that the defendant, 38-year-old Jo’Vaughn Timms, fired and wounded his partner after an altercation in May 2018. The woman identified as the survivor in the case is Asian and Black.

“In the jury process, Asian American citizens in our community have a right to participate in this process and to sit as jurors and sit in judgment as anyone else does,” Lin said in court on Thursday, agreeing with the District Attorney’s Office’s motion.

Lin fell short of calling a mistrial, saying on Monday that she would reconsider her earlier judgment that the dismissals were racially neutral. The prosecution has not even started with opening statements.

The judge based her decision on what is regarded as a Batson-Wheeler analysis, which is case law that prohibits lawyers from excusing prospective jurors solely on the basis of their color, gender, sexuality, or ethnicity. When judges utilize their peremptory strikes to dismiss prospective Black jurors, Batson-Wheeler challenges are most often used.

Lin and the motion’s author, Assistant District Attorney Don Du Bain, also claimed that they did not think Breecker’s dismissals were motivated by racial animus against Asian Americans.

Lin, however, claimed that Batson Wheeler “exists to protect the (jurors’) rights as much as it does to protect the party’s right to a representative jury.”

“So, even if we may be satisfied with the jury that we have, we still have to be conscious of, and I am required by law to protect, the rights of patient American citizens to serve on juries,” Lin said.

Timms is charged with aggravated murder, robbery with a pistol, domestic abuse, and becoming a criminal in possession of a weapon, among other things.

San Francisco Public Defender Mano Raju said in a statement that Breecker is a well-respected public defender who has prosecuted thousands of prosecutions and scores of jury trials.

“He and all of our attorneys operate with the highest ethics with the goal of seating a jury that will follow the law and be fair,” Raju said.

According to Raju, the jury features many citizens of Asian origin and “represents a decent cross-section of San Francisco.”

“The judge has offered to reconsider her decision, and we are hopeful that this trial will be able to proceed in a timely manner,” Raju said.

Breecker said in court that his friend, who is Black, was “disappointed” at the prospect of throwing a jury as diverse as the one the trial lawyers had already selected. The new jury is made up of Black, Asian, Latino, and white citizens.

“And we and the court is then saying ‘no, we have to do this again, and he is deeply troubled by that,” Breecker said. “… He was very upset and he is very concerned that the court will show some bias against him.”

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