Punches and peremptories
Eugene Warner's family probably has a pretty good medical malpractice case against an urgent care facility. Warner went there the night of January 2, 2014, complaining of headaches and vomiting. They examined him, gave him two shots, and sent him home. The next day, Warner became unresponsive, and was taken to the hospital. They performed emergency surgery, to no avail; he died from a subdural hematoma, or, in layman's terms, bleeding in the brain.
The hematoma was caused by a single punch thrown by Carl Hampton in a bar fight a couple days before. That resulted in Warner's conviction of felony murder. In State v. Hampton, the 8th District engages in spirited discussion of the "one-punch" cases, and ultimately finds the evidence sufficient to convict.
That's the bad news for Hampton. The good news is that the whole case gets reversed on a Batson challenge.
Let's take a look at the insufficiency argument, which the court frames this way:
This court must determine whether a single punch, thrown by a person with no specialized training, at an individual roughly the same size that resulted in death due to bleeding in the brain that would have healed normally if not for the fact that the victim was on anticoagulation medication, constitutes knowingly causing serious physical harm.
There are a number of one-punch cases, and with one exception they're no help to Hampton. The exception is a 10th District case which found the defendant's conduct in punching the victim was mere recklessness, instead of knowing conduct, because
this court finds it difficult to accept that a reasonably prudent person would have been aware that the throwing of one punch had the propensity to cause serious physical harm to another person.
Well, there were a whole lot of other courts who found no difficulty in accepting that, and the panel sides with them.
The 8th confronted a somewhat analogous situation four years ago in State v. Triplett (discussed here.) Triplett's conviction for felonious assault was reversed because the judge mangled the jury instructions -- confusing self-defense with defense of others -- but the court also decided that on the retrial Triplett was entitled to an instruction on non-deadly force, holding that the single punch which killed the victim wasn't "deadly force."
But that's different from Hampton. Deadly force is defined as "any force that carries a substantial risk that it will proximately result in the death of a person." It's one thing to argue that you can't anticipate that throwing a single punch will cause death, but you're hard-pressed to argue that you couldn't anticipate that it would cause serious physical harm.
But Hampton gets a new trial anyway, because the court finds a Batson error. And that's interesting, on three levels.
First, how the error was raised. The prosecutor used its four peremptories to excuse a Hispanic female, a white male, a white female, and a black female. At that point, the judge raised the Batson issue. Earlier this year, the Supreme Court upheld a Batson challenge in Foster v. Chatman. As I explained here, the case was about as clear a Batson violation as you're going to get: the prosecutor's notes clearly reflected an intent to kick blacks off the jury. In my post about the oral argument, I mentioned that this was a problem: the facts were so egregious that a prosecutor could excuse his conduct by saying it was as bad as Chatman.
But I also said that "Just reminding courts -- and prosecutors -- that there is such a thing as a successful Batson challenge will help." And it does. In my ten-plus years of doing this blog, I can remember four successful Batson challenges. This marks the second one in the 8th this year.
Second, how the court came to its ruling. The prosecutor didn't offer a race-neutral explanation for kicking off the black female, instead relying on the fact that the juror who would be taking her place was black, too. The court found that since Batson requires a prosecutor to give a race-neutral explanation, and that one wasn't given, that was error. Plus, as the court notes, a Batson error is structural, and isn't subject to a prejudice analysis: if the prosecution improperly strikes a black juror, it doesn't matter that other blacks are left on the jury.
At first blush, the prosecutor's position seems reasonable: you're just replacing one black juror with another. But black jurors aren't fungible. You can't kick off a black juror just because of her race, and the fact that she's going to be replaced by another black juror doesn't excuse that.
Finally, there's the remedy: the court vacates the conviction and remands the case for a new trial.
Was that the proper remedy? The panel cites to an 8th Circuit case where the court found a Batson error, and remanded the case for a hearing to give the prosecutor an opportunity to explain the reasons for the strike. On the other hand, back in 2008 the Supreme Court found a Batson error in Snyder v. Louisiana (discussed here), and did the exact same thing as the 8th: remanded the case for a new trial.
That seems right. Remanding it back for a hearing can easily lead to another round of appeals and subsequent remands. There's also the problem of reconstructing the record, and giving the prosecutor an opportunity to come up with a post hoc rationalization of why he kicked off the juror. The judge has a role to play here, too, in determining whether his observations corroborate those of the prosecutor, and that's difficult to do when the judge is required to recall something that occurred months or years earlier.
In any event, I'm sure this isn't the last we've heard about Hampton.