Williams v. Johnson, 824 F.3d 814 (9th Cir. 2016 (reversed)

The state court of appeal held that the trial court judge correctly ruled by excusing a single juror who explicitly said he would not follow the law.  A perfectly correct decision but not in the 9th Circuit who reversed the state court on habeas corpus.  Naturally, the Supreme Court reversed the 9th Circuit for not following Supreme Court precedent and ignoring AEDPA. The Supreme Court remanded the case to the 9th Circuit (again) who upheld the California court this time. Yet even one of the judges (as a usual dissent by Judge .Reinhardt) still dissented..

What is the trial court supposed to do when a juror refuses to follow the law? Eleven jurors had found the defendant guilty, and the dissent wants to retry the case because one juror held out for refusing to follow the law.  When will the Supreme Court strip the 9th Circuit of habeas jurisdiction?

Ayala v. Wong, 693 F.3d 945 (9th Cir. 2012)

In a case authored by a judge who has never tried a criminal case, never presided over a criminal case, and has reversed every case on the death penalty for the last decade, the 2-1  9th Circuit panel majority wrote a case unquestionably warranting an en banc hearing.  If Ayala v. Wong is not reheard and the panel reversed, the Supreme Court will reverse on a petition for cert.

The California Supreme Court, on automatic appeal, upheld the conviction and death sentence of Ayala and denied his  Batson motion. At the trial, the prosecutor had contended his trial strategy would be compromised by disclosure of his reason for excusing several minority jurors.  The trial court agreed and the hearing on the motion was held in camera.

The state court  agreed that, absent a compelling reason, the hearing of a Batson motion should be in the presence of counsel and client. The court concluded the trial court had committed error in permitting the in camera hearing, but the mistake was not prejudicial to the defendant.  The court also  regarded the loss of questionaires submitted by potential jurors not called  by the court was not prejudicial.  

On habeas corpus the majority three judge panel overruled the 1985 California state court conviction on grounds the questionnaires of potential jurors were lost, and the trial court permitted the prosecution to explain in camera the rationale for excusing minority jurors.  The missing questionnaires, filled out by potential jurors prior to voir dire but never called by the court, were lost (probably disposed of because of their irrelevance).   The  transcript of voir dire, their questionaires, and the transcript of the ex parte explanation by the prosecutor, were all available.   

Ayala argued the unavailability to read the questionnaires of jurors who were never called would have assisted him in filing his Batson motion.  The Supreme Court has never written a case holding failure to produce jury questionnaires is per se reversible error.  Absent any Supreme Court precedent, AEDPA requires a federal court on habeas corpus to extend deference to the state court. 

The majority panel appears to concede this deference in some cases but not in Ayala because the state court “might have fiolated federal constitutional rights.”  The court determined the test is de novo but in a footnote agrees not in another context.  That aside, the majority opinion that the loss of questionnaires of jurors who were never seated or even called prejudiced Ayala’s case.  Jury questionairs are nothing more than a routine list of  basic questions,  undetailed and rarely useful in voir dire.  Written answers to routine questions are no substitute for juror appearance, voice, understanding, equivocation or other intangible characteristics impossible to achieve from a questionnaire.

Ayala had the questionnaires of the seated jurors and the  transcript of the voir dire.  This evidence is more than  sufficient to support filing a Batson motion, regardless of its validity.  The Ayala decision is nothing more than speculative and unsupportedby evidence, reversing a conviction occurring in 1985.  The prosecution is unlikely to re try a case two decades old. 

Taylor v. Sisto, 606 F.3d 622 (9th Cir. 2010)

The trial judge in a state court explained the role of the jury to prospective jurors by warning them to put their personal experiences aside to avoid the potential of bias or prejudice. Counsel for the defendant did not object to this pre trial comment. The California Court of Appeal affirmed the conviction and dismissed the objection to improperly instructing jurors as harmless. On habeas corpus in U.S. District Court, the judge agreed and denied the petition. Apparently the Ninth Circuit panel thought this instruction to jurors so prejudicial it reversed the jury verdict of guilt. Aside from this incredulous result, the panel completely avoided AEDPA and simply cited inapplicable Supreme Court cases. Not a single case applied to these facts. The 2-1 majority cited cases where blacks and women were excluded from jurors. No one was excluded in Taylor’s case on those grounds. This decision is another example of an inexperienced panel of judges who never tried a criminal case. Here is the dissent (citations deleted):