Appeals Court: DA's jury decision based on race
In a sharply worded ruling against Washington County District Attorney Kevin Barton, the Oregon Court of Appeals has overturned the 2015 conviction of a black man after it ruled that Barton wrongly removed a juror from serving on his jury because of his race.
The legal opinion, released Wednesday, July 3, found that Barton, then a prosecutor with the Washington County District Attorney's Office, excluded a black man from serving on the jury in a case involving an alleged pimp because the defendant was black.
Barton has said the Court of Appeals was wrong in its ruling. Barton was elected district attorney last year.
Anthony Lenaire Curry was convicted of seven counts of using a child in a display of sexually explicit conduct in 2015. Curry was charged with helping a 15-year-old girl get work as a nude dancer at several strip clubs in the Beaverton area, including Stars Cabaret, which shut its doors in 2017 after it was discovered that girls as young as 13 worked as strippers at the club and performed sex acts on customers. Curry later was charged in Multnomah County for promoting prostitution after prosecutors there say he also worked as the 15-year-old's pimp in the Portland and Seattle areas.
The court's reversal means the DA's office will have to decide whether to retry Curry; drop the charges; or appeal to the Oregon Supreme Court.
During jury selection for Curry's 2015 trial, Barton, the lead prosecutor on the case, and defense attorney James Lang were tasked with selecting the 12-member jury as well as two alternate members.
Of the 45 potential jurors interviewed for the case, only one black man was among the jury pool. The man, identified in the Court of Appeals ruling as "Fitsum," described himself as an unemployed college student. Barton pulled him from jury consideration as an alternate, saying he didn't think the young man had enough life experience to serve on the jury.
Under the Fourteenth Amendment, people have the right to have jurors of their same race or gender serve on their jury. Fitsum's attorney used a legal challenge known as a Batson objection, named for a 1986 Supreme Court decision which barred attorneys from removing jurors based solely on their race.
"Every potential juror who shows up at the courthouse for jury service has 'the right not to be excluded from (a jury) on account of race,'" the court wrote in its ruling.
Barton said at the time that it was "impossible" for him to have removed Fitsum because of his race because he had decided to remove the potential juror from consideration before knowing he was black. Barton said he based that decision on a questionnaire jurors had filled out early in the process, rating him a 0 on a 1-to-10 scale.
"I don't like unemployed, young college students on my juries," Barton told the court at the time.
But Barton did allow two other unemployed college students to serve on the jury. The jurors, identified in the ruling as "Robert" and "Sarah," are white.
When asked why he didn't remove the two white college students from consideration, Barton said he had been swayed by one, who was a Boy Scout.
Barton told the judge it was not he, but the defense attorney, who was being racist.
"I believed they wanted him on the jury because of his race, which is wrong," Barton told this newspaper on July 8. "… I had this dilemma in my head. On the one hand, I'd decided to challenge him before he walked into the room. I wanted more life experience; working or living ... and I knew if I did challenge him, it would cause the defense to object and raise this issue. On the other hand, if I didn't challenge him and allowed him on as second alternate, I'd be making a decision because of his race, and even if I was the only person who knew that, I felt that was wrong and illegal to do.
"This was a principled decision, to be honest," he added.
Barton told the judge in 2015 he found the attorney's claims of racism "offensive."
"I know attorneys aren't supposed to get offended, but I am offended," Barton said. "After providing what I think is indisputable evidence that I made the decision to bump him prior to even seeing him, I'm offended that (defense counsel) says that it was still, nonetheless, racist on my part. I think it goes beyond what needed to be done here today and goes beyond what's appropriate."
The Court of Appeals disagreed, arguing that while Barton may have had a legitimate reason for excluding Fitsum from the jury, a prosecutor must "stand or fall on the plausibility of the reasons he gives," which in this case, the appeals court ruled, was lacking.
"There is nothing offensive or racist about invoking the United States Supreme Court-established process for eliminating unconstitutional discrimination in jury selection," the court ruled. "Defense counsel should not have been subjected to those accusations by the prosecutor simply for doing his job in accordance with the law."
Because Barton allowed the two other unemployed college students to sit on the jury, the court ruled, attorneys were able to argue that Barton made his decision based on race.
"It is implausible to think that the prosecutor's articulated reason for exercising the peremptory strike against Fitsum is anything other than pretextual," the court ruled. "That is because the prosecutor's stated reason — that Fitsum was a young, unemployed college student — applies with equal force to Robert and Sarah, the two white, young unemployed college students whom the prosecutor did not challenge."
If Barton believed that being unemployed and in college was disqualifying, the court ruled, "it is difficult to see why he expressed no concern, at any point, that Robert and Sarah were also suitable jurors."
Barton said he did remove other unemployed young college students from consideration during that jury selection. Under state law, prosecutors have a limited number of potential jurors they can pull from consideration. Barton said he had to be selective in his decisions.
"It's not possible to bump every single young person on the jury," Barton said. "There's too many of them."
Three of his six bumps were for other young college-age jurors between the ages of 19 and 22, Barton said.
"If the court's going to look at who I didn't bump, you should also look at who I did," Barton said Monday.
Barton worries the Court of Appeals' ruling makes him sound racist.
"I consider (The Court of Appeals') opinion to be somewhat personal and offensive," Barton said. "Racial equality issues are important to me. I've spent my career seeking justice for crime victims, a significant number of whom are racial minorities. In this case, the victim was an immigrant from Russia who had been adopted and ran away. She is as much a vulnerable victim as any other disadvantaged person."
Barton said that since becoming district attorney he has worked on "a variety of measures to highlight diversity and inclusion issues in our office and I believe it to be important."
"On a more personal issue," Barton noted, "my wife and children are not white and are racial minorities. I have seen how racial treatment can cause direct and real harm. When we talk about treating people equally, that means a lot to me for a lot of reasons. I find it wrong and offensive, especially in a case when the record is abundantly clear that this was a valid process and the judge seeing it agreed."
Barton said he believes the decision should be appealed to the Oregon Supreme Court.
"The Court of Appeals is wrong," Barton said. "I hope they will correct that."
Whether or not to appeal the case is up to the Oregon Attorney General's office. Barton said he has contacted them and asked that they appeal the decision.