Swords and Shields

People v. Superior Ct. (Jones), No. S255826 (Cal. 2021)

This Supreme Court case about work product was decided back in December, but I missed it because it’s a habeas case. The substance of the petition is an ineffective assistance claim based on counsel’s failure to adequately litigate a Batson (or, if we are speaking state court, a Wheeler) challenge related to a capital jury selection back in 1994. At the trial, when challenged for striking two Black women, the DA explained that he used a numerical rating system to evaluate jurors, which these two particular members of the venire scored poorly on. The trial court accepted the explanations and denied the challenges. The defendant was ultimately convicted and sentenced to death.

Now, 25 years later, the defendant challenges the conviction in a habeas petition. As part of that, he seeks discovery of the DA’s jury selection notes under a statute that permits post-conviction discovery under certain circumstances. The DA objected, arguing that the notes were opinion work product under Code of Civil Procedure § 2018.030(a) and thus immune from discovery. The superior court granted the discovery, writs were taken, and now, several years later, the case is before the Supreme Court.

The Court first does an extensive review showing the usefulness in reviewing jury selection notes in Batson cases. It then ducks the question of whether the notes are, in fact, opinion work product. Instead, it finds that the DA implicitly waived any work product protection when, at Batson step #2, he gave the purportedly race-neutral explanation that he or she was using an undisclosed numerical rating system and that these two jurors scored low on it. 

As the Court explains, like the attorney-client privilege, the work product protection is subject to two kinds of waiver—express and implied. Like any other privilege, work product is expressly waived under Evidence Code § 912(a) when a significant part of protected material is disclosed to another person. An implied waiver, on the other hand, occurs when the claimant puts protected material directly at issue such that disclosure is necessary to ensure a fair adjudication. This case presents the latter.

When the DA provided the explanation and the scores for the struck jurors, he put into question whether the he had, in fact, used the race-neutral numerical system as described. By doing so, the DA made “testimonial use” of the notes showing the operation of the system, such that the only way for the court or the defense to test the veracity of that explanation would be to review the notes in total

The Court also rejects the DA’s contention that there was no waiver because the explanation was coerced. No doubt, the court ordered the DA to come forward with a race-neutral explanation as part of the Batson inquiry. But there’s no coercion in the DA’s making the tactical choice to provide the explanation that was provided. The government can’t simultaneously point to its rating system as explanation while invoking privilege against disclosing it. 

Finally, the court notes that, to the extent the notes contain other opinion work product beyond the scope of the waiver, on remand, the trial court can examine them in camera and redact out any such material. 

Court of Appeal affirmed.