A divided federal appeals court upheld an Oregon murder conviction Thursday despite the prosecutor’s decision to dismiss four out of five black prospective jurors.
The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, rejected the habeas appeal by Floyd Mayes in a 1994 drug robbery and murder, crediting the prosecution with “race-neutral” explanations for eliminating black potential jurors.
In dissent, Judge Harry Pregerson said the denial of Mayes’ habeas claim contradicts clearly established federal law.
Striking four out of five black prospective jurors may be “simply an incredible coincidence,” Pregerson said. “But it is hard to avoid concluding ‘that the state was trying to avoid black jurors,’” he wrote.
Mayes was sentenced to 22 years in prison based on a robbery, burglary, second-degree assault and felony murder conviction. Felony murder means Mayes did not pull the trigger but participated in crimes in which a death occurred, making him just as liable for the murder.
In 1994, Richard Hall planned to rob a drug dealer named James Loupe, who had sold Hall marijuana, according to the court.
Kevin Washington helped with the robbery and brought Frederick Knight and Mayes to a friend’s house to organize the plot, the court said.
Hall would go to Loupe’s home to buy marijuana, but once inside Hall and the others would rob Loupe. They agreed to hold a gun to Hall’s head to make him appear to be a victim as well.
Mayes at one point held the gun to Hall’s head as part of the ruse, but when Loupe grappled with Knight over another weapon, Washington walked over to the wrestling group and in the melee shot Loupe in the head, according to the court. Loupe’s 7-year-old twin sons were in the room as well.
Mayes and Knight ran from the home but Washington stopped to take Loupe’s wallet, the opinion states. Hall remained behind and called 911.
Hall, Washington, Knight and Mayes, along with Anna Walking-Eagle, who hosted the plotters in her home, were indicted by Oregon state prosecutors.
Washington was tried and convicted. Walking-Eagle accepted a plea bargain. Knight and Mayes were tried jointly. As part of a plea deal, Hall testified against Mayes and Knight, according to the court.
Among the black potential jurors excluded was a Vietnam war veteran who considered himself a “rational anarchist” and did not trust authority; a woman who was highly emotional and wept during jury selection saying she didn’t know if she could handle the case, according to the court.
Another was dismissed by the prosecutor because he said he “identified” with defendants in a criminal case and had problems convicted someone on the testimony of a plea bargaining co-defendant.
The prosecutor also ran criminal background checks on the black jurors he excused. Murguia concluded that the background checks “are not strong evidence of discrimination.”
There was simply not enough evidence that the prosecutor engaged in selective criminal background checks of blacks in the jury pool and not enough evidence to impeach the prosecutor’s credibility and overturn the state court judgment, she said.
Murguia was joined by Judge Morgan Christen, both are recent appointees of President Obama. Pregerson is a Carter appointee.
Case: Mayes v. Premo, No. 12-35461