Orozco appeals conviction; new trial granted on basis of dismissed juror's ethnicity

 

November 11, 2021

-File photo

Benjamin Orozco, seated next to Defense Attorney Jane E. Richards during jury selection proceedings, has been granted a new trial based on potential racial discrimination during jury selection. Orozco was tried in Columbia County for the 1996 murder of Lance Terry and was convicted of second-degree murder, first-degree assault, and unlawful possession of a firearm, and sentenced to over 36 years imprisonment.

SPOKANE–The peremptory dismissal of a juror during jury selection in the August, 2019, murder trial of Benjamin Orozco was potentially based on racial discrimination, judges with the Washington State Court of Appeals, Division III, ruled October 7. The court reversed Orozco's conviction and ordered the case to be retried.

Orozco was convicted after a three-and-a-half-day trial in Columbia County Superior Court of second-degree murder in the July 7, 1996 shooting death of Lance Terry in Dayton, and sentenced to 435 months of imprisonment. Orozco and a companion, David De la Rosa, fled Dayton, and made their way to Mexico. In 2016, Orozco was arrested in Mexico and extradited to Columbia County to face trial 20 years after Terry's death. He was also convicted of first-degree assault of David J. Eaton and Unlawful Possession of a Firearm.

During jury selection on the first day of the trial in 2019, Columbia County Prosecuting Attorney C. Dale Slack used a peremptory challenge to exclude a juror whom he had recently prosecuted for Driving While License Suspended.

The charges involving the potential juror were "relatively minor," Slack told the Dayton Chronicle, "but still criminal and something I thought she might hold against me, even subconsciously.

"Additionally, I had prosecuted a number of people that I know she was friends with," Slack said. "I was concerned that she might start the case with negative feelings toward me and this office (even if subconsciously), as well as the local sheriff's office. So I used a peremptory challenge to strike her from the panel of potential jurors."

During the trial and after Prosecutor Slack had dismissed the juror in question, Orozco's defense attorney, Jane E. Richards, stated for the record that one of the jurors the State dismissed "appeared to be an African American female; the only African American female in the entire pool." Richards raised a challenge under a requirement under Batson v. Kentucky and GR 37 (a general rule pertaining to jury selection). A "Batson Challenge" is an objection to the validity of a peremptory challenge on the grounds that the potential juror was excluded on the basis of race, ethnicity or sex.

In response, Slack stated that he had prosecuted that particular juror "in the past for minor crimes-they weren't anything major; she's not a felon, but I have prosecuted her in the past and also her name has appeared in a number of police reports as associating with people that I believe have been engaged in criminal activity."

Richards responded by stating that prosecutors had not asked that juror questions about whether the juror held any bias against her client, Orozco. Richards also stated that in light of the absence of any "dialogue or reason to believe that such interactions would cause a bias to either the State or the Defense, ...We are stating that is not an acceptable reason to have the peremptory challenge under Rule GR 37. And even having a close relationship with people who've been stopped, arrested, or convicted of a crime is not a reason to exercise a peremptory under GR 37.... For the record, we do believe it's an improper peremptory under GR 37."

Judge M. Scott Wolfram ruled that "based on the State's response, I accept what they've said and that will be denied."

The appellate court agreed with Orozco's appeal that the trial court erred in overruling the Batson and GR 2327 objections to the State's peremptory strike against juror 25.

"A trial judge must view the use of a peremptory strike on a member of a racially cognizable group with 'skepticism and considerable caution,'" the judges wrote. "This is especially so if the strike is used to remove the sole member of a racially cognizable group.

"We conclude that the State violated Batson and GR 37 by striking the only Black person during voir dire and providing a presumptively invalid justification for doing so. The remedy is a new trial," court documents stated.

"The Court of Appeals held that because I said she had been in police reports in other cases," Slack told the Chronicle, "my reasons were not race-neutral, because an independent observer could potentially believe that race was at least one reason for my striking the potential juror. That's enough of a violation to send the case back for retrial."

The date of a new trial is not known at this time, Slack said. The next step is for the Court of Appeals to issue a document that starts the process of sending the matter back to the Superior Court, and that indications from the Division III office show that may not occur until around the end of the year due to a current backlog of cases.

 
 

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