By Mary Shelton

Whether or not a Riverside County District Attorney's office prosecutor racially discriminated against a Black juror during the selection process for a murder case was the hotly contested issue at a hearing on July 27.

However, presiding Riverside County Superior Court Judge Paul Zellerbach ruled that the prosecutor, Stephen Foley, did not act inappropriately when he kicked off a Black male juror. 

"I do not find that that prosecutor exercised that presumptary challenge in a racially discriminatory fashion," Zellerbach, a former prosecutor, said.

Defense attorney Richard Blumenfield, who represented Jose Rogelio Ibarra disagreed, saying that he believed the court was making excuses for Foley's behavior during jury selection.

"The court offered explanations as to why Mr. Foley was disqualifying one minority after another," Blumenfield said.

The case had traveled through the labyrinth of the state's court systems to return back to where it had begun over five years ago. During jury selection for the trial, Foley had disqualified six jurors who were not White. According to trial minutes, three Wheeler-Batson motions were made and all three were denied by Zellerbach.

A Wheeler-Batson motion is called by an attorney who is challenging the excusal of a juror for what he or she believes is race-based reasons.

Ibarra was ultimately convicted of the second degree murder of his wife, and sentenced to serve 16 years to life in state prison.

The ejection of a Black male juror, referred to as Mr. T., caught the attention of the State Court of Appeals, Fourth Appellate District which reviewed the three Wheeler-Batson motions exercised by Blumenfield. A tentative ruling issued four years ago remanded the case back to the trial court for a hearing on whether or not the reasons for excluding Mr. T from the jury were race-neutral.

However, the entire Court of Appeals decided to go further and overturn the guilty conviction and send it back to trial court. That court found that the prosecutor failed to prove that he did not exclude Mr. T for race-neutral reasons and that Zellerbach's conduct had been "improper" because there had been no discussion on the Wheeler-Batson motion made which challenged the expulsion of Mr. T until after the jury panel had been accepted by both sides and sworn in.

Then State Attorney General Bill Lockyer appealed that decision to the California State Supreme Court which reinstated the conviction and remanded the case back to Zellerbach's court for a hearing.

That hearing took place in June, when Foley appeared in court with his explanations for excluding prospective juror, Mr. T.  He said that Mr. T looked like he did not want to be present and was grimacing. Another prosecutor, Jacqueline Jackson said in court that Foley had been uncomfortable with facial expressions made by Mr. T.

"Jurors can be disqualified on hunches and other reasons as long as they're not race-based exclusions," Jackson said. 

Zellerbach said that he had not seen any strange behavior by Mr. T, though he said he had not watched him the entire time.

"I did not see prospective juror, Mr. T making any faces or grimacing at any point in the voir dire."

Foley had also allegedly excluded Mr. T from the jury panel because he was a single man with no children even though three other jurors with similar qualifications had been seated either on the panel or as alternate jurors.

"They had whiter skin," Blumenfield said, "All three of them."

Still, Zellerbach defended his own actions at the trial five years ago and that of the prosecutor, telling the court he had evaluated the expulsions of the Black and Latino jurors.

"I have more than done that," Zellerbach said.

Foley is no longer with the District Attorney's office, but is currently a prosecutor in Santa Barbara County.

The Riverside County District Attorney's office has experienced controversy in connection with jury selection involving other prosecutors in the past.

Several years ago, then Deputy District Attorney Michael Rushton had  one felony case that resulted in three mistrials after presiding judge, W. Charles Morgan determined that he was excluding Black and Latino jurors for race-based reasons. Morgan told Rushton each time that he was concerned about his exclusion of Black and Latino jurors.

At least one earlier case that Rushton had prosecuted was remanded back to its trial court by the Court of Appeals which found that several Black and Latino jurors had been expelled based on their race. Presiding Judge Ronald Taylor reversed the convictions of four defendants in connection with a bank robbery and conspiracy case after he told the court that he was unable to remember the proceedings involving the Wheeler-Batson, motions filed by the defendants‚ attorneys and thus could not properly conduct the hearing required by the higher court.

Rushton had told the court that he had expelled one Black juror because he worked for the United States Postal Service which was a very stressful job. However, he had accepted one juror who worked for the same agency who was White.

Rushton was promoted several times to a higher position in the District Attorney's office.