When the Supreme Court wrote its Batson v. Kentucky decision the justices virtually assured defense counsel they could contend the prosecution exercised peremptory challenges on a racial or ethnic basis in every case involving a black or Hispanic defendant. In Davis v. Ayala the courts have spent years arguing about a prosecutor who requested an in camera hearing in the court to explain his reason for excusing only black and Hispanic jurors.  He had asked the judge to explain prosecution trial strategy and  his request was granted.  Obviously, defense counsel objected. Jury selection lasted three months.

In this death penalty case the jury rendered a verdict of guilty and voted the death penalty.  Appeal is automatic in the California Supreme Court, and the conviction affirmed on grounds the defendant was not prejudiced by the in camera hearing. But the justices disapproved and recommended that trial judges not engage in this practice.  Defendant petitioned for habeas corpus in district court; denied, and the defendant appealed.  The 9th Circuit disagreed and reversed, with seven judges dissenting.  Certiorari was granted,  the Supreme Court  pulled out all the stops and  reversed the 9th Circuit.

First, they informed the 9th Circuit “that their role is not to conduct de novo review of factual findings and substitute the federal court ‘s own opinion of the determination made on the scene by the trial judge. In the Supreme Court the test is whether the error was  ‘harmless.’ “For  reasons of finality, comity and federalism, habeas petitioners are not entitled habeas relief … unless trial error resulted in actual prejudice.  “‘Harmless’ does not mean, as the 9th Circuit thought, that a state court’s harmless determination  has no significance.

“A trial court finding regarding the credibility of an attorney’s explanation, and the grounds for exercising the peremptory challenged, is entitled to great deference. Their judgment calls may involve a comparison of responses that differ in only nuanced respects, as well as a sensitive assessment of jurors’ demeanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing Batson, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” Snyder, 552 U.S., at 477, 128 S.Ct. 1203. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, ‘these determinations of credibility and demeanor lie peculiarly within a trial judge’s province, and in the absence of exceptional circumstances, we [will] defer to the trial court. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U.S., at 343, 126 S.Ct. 969  The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibility, … on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id., at 341–342, 126 S.Ct. 969 (majority opinion).”

Here are some extracts from the Supreme Court opinion: “In ordering federal habeas relief based on their assessment of the responsiveness and completeness of [a juror’s]  answers, the members of the [9th Circuit] panel majority misunderstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Richter, 562 U.S., at 102–103, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ,not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.”

This case was originally decided by the 9th Circuit in September, 2011 and returned to the district court on remand after previously  overruling the California state court case on habreas; Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011).  In the Finn case, as in all state cases, the 9th Circuit panel scours the record seeking reversal.  They focus on jury selection, ineffective assistance of counsel, jury instructions and particularly on the death penalty phase of capital cases  The 9th Circuit record consists of  a dismal  reversal of every death penalty case in the last decade except 2.  Th 9th Circuit reversal record  the Supreme Court is disgraceful.

The 9th Circuit court specializes in prosecutorial exercise of peremptory challenges of black jurors and almost any evidence will do.  In Finn the federal magistrate judge on habeas corpus concluded the prosecutor had wrongfully excused black jurors and sent her report to the district court judge. He rejected the result. Whereupon the 9th Circuit panel on appeal held the district court judge cannot reject a magistrate’s finding until he holds a hearing.  Why a second hearing?  The judge assigned the [Batson] motion to the magistrate judge and they disagreed on the result.

The 9th Circuit panel spent endless pages confirming the right of the magistrate judge to weigh the credibility of the prosecutor’s testimony at the habeas hearing  and how important this practice is to assess credibility.  This judicial comment is the same court that ignores immigration court issues of credibility routinely.  The 9th Circuit panel also ignores the fact the trial judge in state court, and the Court of Appeal,  rejected the challenged  prosecutorial  decision to exclude jurors.  The Supreme Court has repeatedly held the trial judge is the best person to judge credibility of the prosecuter in explaining his reasons for excusing juors.  Not in the 9th Circuit.

This holding is another verbal tweaking of the evidence and another social justice issue.  The California Court of Appeal rejected the defense argument and that should be the end of it.

It is time to reconsider the role of federal habeas corpus review of state court cases.  The Supreme Court, in reversing the 9th Circuit several years ago, disallowed it to hear search and seizure cases on habeas from state courts.  Recently it told the 9th Circuit to get out of state parole hearings.  It’s time to get the 9th Circuit out of state court judgments entirely.

On remand, the district court ordered release or retrial in accord with the 9th Circuit order. 

Lawyers who litigate in civil cases, and prosecutors and defense counsel in criminal cases, know the importance of voir dire of the jury. But all lawyers do not agree on whom to challenge, and their reasons vary infinitely.  They decide not necessarily based upon the answers to their questions but juror demeanor, their voice, the way they answer questions, their body language or just an intuition about the juror that suggest a peremptory challenge.

None of this resonates on the cold appellate record but the Ninth Circuit judges, particularly those who have never tried a case, ignore these factors and search the record in a quest for error-particularly in death penalty cases.

A perfect example is Crittenden v. Ayers.  From an exerpt of the case, here is the exchange between the prosecutor and the prospective juror: “Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire ‘I don’t like to see anyone put to death.’ During voir dire, Ms. Casey said she was ‘against death-being put to death’ and ‘against killing people.’ She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty.”

Objectively, would any lawyer fault this challenge?  The answers of the juror on the death penalty were so equivocal that the prosecutor challenged her for “cause.”  But according to three judge panel,  the challenge could have been “race based,” and they remanded for an evidential hearing despite the fact the California Supreme Court had already affirmed the conviction.

In addition, the evidence of guilt was overwhelming.  For the last decade in the Ninth Circuit, any death penalty is subject to reversal.  And on this case for the flimsiest of reasons.