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 conviction of a 2015 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, ruled that Barton, then a prosecutor with the Washington County District Attorney's Office, excluded a black man from serving on the jury of an alleged pimp, because the defendant was black.
Barton was elected as district attorney last year in a high-profile race against defense attorney Max Wall.
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 uncovered 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 girl's pimp in the Portland and Seattle areas.
The court's reversal means the District Attorney's office will have to decide whether to retry Curry; drop the charges; or appeal to the Oregon Supreme Court.
Barton was the lead prosecutor on Curry's case in Washington County. During jury selection for Curry's 2015 trial, Barton and defense attorney James Lang were tasked with selecting the 12-member jury, as well as two alternate members.
Potential jurors in the case included a single black man, identified in the Court of Appeals ruling as "Fitsum." The man described himself as an unemployed college student. Barton pulled him from consideration on the jury, which Lang objected to at the time.
Under the Fourteenth Amendment, people have the right to have jurors of the same race or gender serve on their jury. Fitsum's attorney used a legal challenge known as the Batson objection, 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. Barton said 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. It's common for attorneys to also ask jurors questions about themselves as part of the process of selecting jurors.
"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 then accused the defense attorney of being racist, saying he found the man's claims "offensive."
"(Defense counsel) is a racist man, and he's racist because he is saying that a juror belongs on this just simply because of his race," Barton said.
"I know attorneys aren't supposed to get offended, but I am offended," Barton told the judge. "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 believes 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 to suitable jurors."
In a statement, Barton told the Hillsboro Tribune that he "strongly disagrees" with the court's ruling.
"The decision to challenge this juror was made before he walked into the courtroom, without any awareness of his race, and with the approval of the trial judge who rejected the defense arguments," Barton said. "I am committed to ensuring our court system treats all people equally. I appreciate the assistance of the Attorney General's Office who argued that this was a fair and appropriate jury selection. I look forward to the opportunity to appeal this decision."