California's Wheeler challenge procedure is unconstitutional.

In Johnson v. California the United States Supreme Court threw out the Wheeler procedure in California for challenging a prosecutor's race-based use of peremptory challenges. The USSC ruled that California's procedure of imposing a preponderance standard with respect to establishing a prima facie case of race based use of peremptory challenge violated Batson v. Kentucky its progeny.

California had required that a defendant show that it is more likely than not that a prosecutor had used race to peremptorily challenge jurors in the voir dire. The USSC said that the defense must only show facts that give rise to an inference of race-based use of challenges, the defense is not required to show initially, by preponderance, that the prosecution is violating Batson. (Although that may be the defense's ultimate burden).

The defense need only raise an inference of purposeful discrimination to shift the burden to the prosecutor to justify his use of challenges.

Full case here: Johnson v. California

http://a257.g.akamaitech.net/7/257/2422/13jun20051230/www.supremecourtus.gov/opinions/04pdf/04-6964.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.