Appeals court orders new trial for accused child sex offender because race played role in jury selection

? A divided Kansas Court of Appeals panel on Friday ordered a new trial for a Hispanic man charged with sexually molesting a 10-year-old girl because the trial court allowed a prosecutor to strike other Hispanic people from the jury pool.

Jose Alberto Gonzalez-Sandoval was convicted in Lyon County District Court for an incident in May 2014 when, according to the opinion, he allegedly touched a 10-year-old who was a friend of his own 9-year-old son while the three of them were playing in a public swimming pool.

During jury selection, according to the court, there were three Hispanic individuals in the pool of potential jurors. One was struck for cause because she said she had been the victim of a sex crime herself and could not be impartial. But prosecutors used what’s called a “peremptory challenge” to strike the other two.

The one that most troubled the majority on the panel was a woman identified only by her initials, T.R.

When Assistant County Attorney Laura Miser was first asked why she struck T.R. from the jury, she said T.R. had been a witness in another criminal case and had previously been questioned by police in yet another case. But when asked during the interview process whether she’d ever been a witness or had been questioned, she didn’t respond.

Miser also said of T.R., “she avoided a lot of eye contact” during the interview process.

Defense attorney Vernon Buck objected, saying the lack of eye contact was not a good enough reason to strike a potential juror of the defendant’s own ethnic background. He also said the other two cases had nothing to do with the Gonzalez-Sandoval case, and thus should not preclude her from serving on the jury.

On the first day of the trial, Amy Aranda, another lawyer on the prosecution team informed Judge Merlin Wheeler that she had given Miser the information about the other cases.

But after the jury selection process, Aranda said she had double-checked and found that one of the two cases involved a different person by the same name, but that the information in the other case was correct, and so the prosecution stood by its decision to strike T.R. from the panel.

Then on the second day of trial, Aranda informed the judge that she had done more checking, and their information about the second case in which T.R. was involved was incorrect as well.

However, Aranda said, upon further checking, she discovered that T.R. did appear in the Police Department’s computer system as a witness in a number of burglaries dating back to 2011. Thus, Aranda said, the prosecution continued to object to T.R. based on giving incomplete or inaccurate information about prior experiences in criminal cases.

Buck renewed his objection, but Judge Wheeler stood by his original ruling.

In a 62-page opinion, two of the three Appeals Court judges on the panel said that should not be allowed.

Judges Steve Leben and Henry W. Green said that when reviewing peremptory challenges, courts are limited to examining the initial reasons given for striking a juror and cannot allow prosecutors to substitute or amend their reasons later.

Of the first three reasons given, they said, only the two regarding T.R.’s prior involvement in criminal cases or police questioning could be considered “race-neutral” and both of those turned out to be inaccurate. The fourth reason, submitted after the trial had already begun, should not have been considered.

Judge Thomas Malone wrote a dissenting opinion.

“I believe that the majority’s conclusion that the State ‘must stand or fall on the initial reasons’ it provides for striking a minority (potential juror) and that ‘the trial court is barred from considering’ a substitute reason is an incorrect statement of the law,” Malone wrote.