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.