Twenty years ago Congress enacted the AntiTerrorism and Effective Death Penalty Act (AEDPA;1996) limiting federal appellate courts, under strict  conditions, from granting  habeas corpus petitions overruling state court judgments. Although the Act applied to all federal appellate courts, the reversal record of the 9th Circuit provided the rationale for the statute.

Innumerable 9th Circuit cases were reversed by the Supreme Court during the two decades that followed enactment of AEDPA.  Ending the second decade in December, 2015, the 9th Circuit wrote McDaniels v. Kirkland, 813 F.3d 776 (9th Cir.(2015) and Shirley v. Yates., 2015 WL l 7422606.  Both cases cited the Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson, predicated on the all purpose Equal Protection Clause, disallowed peremptory challenges of potential jurors based on their race. 

In McDaniels, the court in a rehearing wrote that the pretrial written questionnaires of jurors in state trial court had been lost, and the record of defense objections to prosecution peremptory challenges on voir dire was challenged. Neither issue in McDaniels was submitted as part of the state appellate court habeas file. The Supreme Court decision in Cullen v. Pinholster, 563 U.S.170 (2011) prevents any federal appellate court on a habeas habeas petition to review evidence not presented in the state appellate court habeas review.   But that rule did not apply  in this case wrote the 9th Circuit.

The 9th Circuit rehearing in McDaniels held the evidence of a Batson violation was argued in the state trial court and therefore the federal court on habeas can consider all evidence even if the petitioner did not present it to the state appellate court. This evasion ignores Supreme Court precedent in Pinholster and common sense.

In Shirley v. Yates, a 9th Circuit panel decision written by a judge who had never tried a criminal case and who read the voir dire transcript of a state court trial, tried to find some reason for reversal of the judgment and state court confirmation on appeal. In fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant.  Unable to find any state trial court error under conventional 9th Circuit reversals, no improper jury instructions on the merits or the sentence, no  ineffective counsel, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory or mitigating evidence, the author of the Shirley opinion focused on voir dire.

The result exemplified an academic hair splitter opinion, lawyerly parsed, and unintelligible frustrating justice by reversing the California Court of Appeal and causing and freeing a guilty man unless the prosecutor can find all the witnesses. In the absence of a rehearing, the panel decision will cause another Supreme Court reversal to increase the 9th Circuit Shirley record.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to accept the judgment of the trial court judge in a Batson hearing. A guilty man escapes on  grounds of an alleged prosecution challenge based on race.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense are incapable of explanation.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is virtually dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same, and one juror accepted while the other excused unrelated to race.

This practice, named a “comparative juror analysis” enabled the panel to undertake an alternative Batson objection never made in the state appellate court or trial court.  Those judges, said the panel, should have rendered the comparative juror analysis.  This incoherent rule, again invented by the Supreme Court, requires the reviewing court to compare the questions and answers by excused  and non excused jurors in jury questionnaires and the trial record on voir dire. According to the 9th Circuit, the comparative juror analysis rule is the “only tool available for review.” This statement reflects the subjective opinion of a judge rendering judgment of the prosecutor without knowledge of any collateral facts.

Pre trial questionnaires may reflect some factors the prosecution (and the defense) want to know, but written responses are no substitute for actual questioning by counsel.  Answers to questions on paper are important, but verbal answers to questions the prosecution asks of a potential juror in court are more critical. The voice and personal presence of a potential juror outweighs the “comparative analysis” of reading a cold voir dire transcript.  The answers of the juror to prosecution questions on voir can be indecisive, inconsistent with the questionnaire, abrupt, querulous, language mistakes, uncertainty, or demeanor.  Any number of personal factors warrant exercise of a peremptory challenge, despite similarity of questions and answers between jurors excused and non excused.

Prosecutor decisions to excuse a potential juror are not based solely on the individual person. Intangible issues include the nature of the crime(s) charged, the experience of defense counsel, the judge, the witnesses level of credibility, the possible sentence, media publicity, use of accomplices, the composition with other potential jurors, and multiple defendants. In capital cases the attitude of a juror in imposing the death penalty, in addition to deciding the merits, may justify excusing a juror.

In the years that followed Batson, the courts were flooded with endless delays holding hearings prior to trial, and the decision provided an automatic ground for appeal in state and federal courts.  The 9th Circuit eagerly seized on Batson as another method to reverse state courts but was reversed by a unanimous decision of the Supreme Court with the comment “The 9th Circuit merely substituted its own opinion.” Rice v. Collins, 546 U.S.333 (2006). 

 Ayala v. Davis illustrated another 9th Circuit device to stall imposition of the death penalty evidenced by its per curiam opinion written by the same judge who has never affirmed a death penalty conviction in state courts. The Supreme Court reversed.

In Davis v. Ayala,135 S.Ct. 2187 (2015) the Supreme Court rejected a Batson motion granted by the 9th Circuit decision in Ayala v. Wong, 756 F.3d 656 (2014). On remand, the Justices did not address other Ayala claims, including a claim of state violation of the Vienna convention. So, now the 9th Circuit on remand had to review a claim not resolved in its original reversed opinion. And critics ask why executions take so long.

The district court had denied Ayala’s Vienna motion but neither the 9th Circuit nor the Supreme Court ruled on it.  Had the 9th Circuit found in favor of Ayala in its per curiam opinion  (2016 WL 61002), another appeal to the Supreme Court would have been filed by the state. Fortunately, the 9th Circuit denied the Vienna claim with knowledge the Supreme Court had already denied similar claims in state courts.

This case is not an unusual 9th Circuit device for delay.  On appeal from the district court, leave some claims without decision and rule on other claims.  If the Supreme reverses the claims asserted, it cannot rule on claims not addressed at the 9th Circuit level and require remand and resolution, another hearing-and possible appeal again to  the Supreme Court.

For a discussion of the original case, see above, Davis v. Ayala, 135 S.Ct. 2187 (2015).

A 9th Circuit panel decision, written by a judge who had never tried a criminal case and who allegedly read the voir dire transcript of a trial, tried to find some reason for reversal. (in fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant for an unarmed eighty dollar second degree robbery harming no one).   Unable to find any state trial court error, no improper jury instructions on the merits or the sentence, counsel was not ineffective, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory evidence, the judge  focused on voir dire.  He wrote an academic hair splitter, lawyerly parsed, and unintelligible opinion frustrating justice by reversing the California Court of Appeal and  federal district court causing a guilty man freedom. In the absence of cert. the panel decision will cause another Supreme Court reversal to increase the 9th Circuit record in reversals.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  The California Court of Appeals affirmed the judgment.  So did the district court on habeas corpus.  Not the 9th Circuit. Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to adopt the judgment of the trial court judge in a Batson hearing. A guilty man escapes on the grounds of an alleged prosecution challenge of a black juror.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense incapable of explanation.  What the 9h Circuit does is compare the questions of white jurors with those of black jurors.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same and one juror accepted and the other excused unrelated to race.

Voir dire is no different than life.  We like some people and dislike others.  Personality conflicts are inexplicable  The voice: pitch, acute, abrupt,  indecisive, abusive, whatever.

And, the 9th Circuit has found a way to evade AEDPA.  The panel just holds the state court decision is an “unreasonable application of federal law.”  No explanation.  That enables the panel to review on an appellate basis instead of collaterally on habeas.

As of July 9, 2016 state attorney general Harris has done nothing.

For additional biefs on peremptory challenges, see other cases in that category.

For a complete discussion of 9th Circuit cases, see “Disorder in the Court” written by Judge Waddington.  Amazon.com

When  the Supreme Court decided Batson v. Kentucky the Justices never eliminated the AEDPA provisions requiring federal deference to state courts on habeas corpus.  Each time the Supreme Court reverses the 9th Circuit the Justices verbally lash refusal of several federal judges who fail to adhere to AEDPA.  And in each of these reviews the Court imposes stricter provisions than before.  In Mayes v. Premo the majority of the 9th Circuit panel correctly cites its role as federal habeas corpus judges: uphold the state trial court finding that the prosecutor did not excuse black jurors on racial grounds unless the record is clearly wrong.

But one judge In Mayes dissents, ignores AEDPA, and reviews the finding of the trial court de novo. In other words, he just makes up his own mind and substitutes his own judgment.  The trial judge specifically upheld the defense objection to the prosecution peremptory challenge of a potential black juror; the Oregon Court of Appeal upheld the trial judge; the Oregon Supreme Court denied review; the U.S. district court judge denied the habeas corpus petiton.  In other words, this judge ignores 12 judges with his aberrant dissent and disregard of the law.

The Batson case has made every case involving a black or Hispanic defendant a ground for appeal if the prosecutor excuses a minority juror. The dissenting judge in Mayes, who has never tried a criminal case, apparently thinks he can impose his judgment from reading a cold record. A trial lawyer excuses jurors for a variety of reasons, regardless of race.  The juror’s demeanor, their voice; the way they answer questions; the inconsistency of their answers to questions in court or their pre trial questionnaire; or just plain dislike of a potential juror.  None of this shows up on a cold appellate record.  Add to that the Supreme Court comment that the trial judge is the best observer of voir dire.  The  dissent shows complete disregard for these factors.

The amount of time taken to voir dire the jury is now incredible, and even though the evidence consists of overwhelming evidence of guilt, if one juror is arguably excused wrongfully, this judge will reverse. His decision in this case is not the first time he and others judges search the trial record in a quest for error.

Another death penalty case reversed by the same judge who has never affirmed a state court capital case during the last decade and who himself has been reversed by the Supreme Court more often than any other judge.  If this case is not reheard en banc it will be reversed by the Supreme Court if the AG seeks cert.

When the Supreme Court decided Batson v. Kentucky 476 U.S. 79 (1986) the case gave every trial with a black or Hispanic defendant an automatic ground for appeal if the prosecution excused a minority juror. The Court set up a framework that applies in an infinite fact driven variety of cases and requires trial courts  to spend more time selecting a jury than conducting the trial.  A motion objecting to prosecution excusal of a minority juror now fills rooms with thousands of pages of voir dire transcripts, objections, hearings, appeals and grist for the habeas corpus mill-including the so-called “comparative jury analysis” requiring review of every juror questioned compared with those excused.

Ayala is no exception. Unfortunately, the trial judge inexplicably committed a serious mistake by allowing the prosecutor to explain his reasons for excluding minority jurors in camera without the presence of defense counsel.  In any event, the jury convicted Ayala and voted the death penalty.  On automatic appeal the California Supreme Court affirmed the conviction but only after holding erroneous the trial court hearing without counsel.  Despite the state supreme court ruling that the trial court hearing without defense counsl qualified as state and federal constitutional error, the Justices held the error harmless.  Conviction affirmed on appeal; habeas corpus granted in U.S. district court; appeal by the Warden to a three judge 9th Circuit panel; affirmed in 2-1 decision.

The majority 9th Circuit panel engaged in an academic linguistic analysis of the Batson case and its progeny. The panel concluded the California Supreme Court committed federal constitutional error and had not decided the direct appeal in state court on the “merits” of the Batson motion as required by AEDPA.  Absent a ruling on the merits, de novo review followed. The panel agreed the trial judge had decided erroneously, held this practice caused prejudice, and reversed.  Then the majority panel engaged in an endless discussion of comparative analysis of jurors, one of the most questionable rules ever invented, and completely misunderstanding the reason prosecutors excuse jurors.  Ayala, who killed three men, will probably go free after the 12 year period from his conviction.

The dissent skewers the majority and cites two cases recently decided by the Supreme Court specifically rejecting the majority analysis. Both case had reversed the 9th Circuit. The Ayala case has no precedential consequence, completely misrepresents the law, and is another example of the 9th Circuit efforts to manipulate and undermine the death penalty.

When the Supreme Court in Batson v. Kentucky, 476 U.S.79 (1986) decided that prosecutors could not excuse jurors from serving on a criminal case if the ground for a peremptory challenge was race based, the Justices opened up another opportunity for the 9th Circuit to savage forests. In the first place, the appellate court must now read the entire voir dire transcript, in addition to the trial record, to determine if the prosecutor excused a juror on pretextual grounds.  Because the appellate court reads a cold record, and several 9th Circuit judges have never tried a criminal case, the transcript loses the entire “chemistry” of criminal cases in general and voir dire in particular.  The record will not show juror body language, the tone of answers, the indecisive answer, or a host of other character traits evident not only to the prosecutor but the trial judge who must rule on a defense motion alleging a prosecution peremptory challenge based on race.The Supreme Court has repeatedly reversed the 9th Circuit in these cases and reminded the appellate court that the trial judge is in the best position to evaluate the juror, and the questioning by the prosecutor.
 One of the legal tests formulated for determining prosecutorial bias requires the court to undertake a “comparative analysis” of questions asked of all the jurors on voir dire.  Of course this test is highly subjective and subject to the idelogical perspective of the reader. In addition, some jurors are obviously more acceptable and do not need the same kind of questions asked of others.

No better case illustrates this point than the dissent in Briggs v. Grounds. The majority of the three judge 9th Circuit panel upheld the state court trial judge who denied the defense motion alleging the prosecutor excused a juror on racial grounds. The dissenting judge, selectively reading the voir dire transcript, concluded – on habeas corpus – that the state court trial judge, the California Court of Appeal and the district court were wrong in not finding prosecutor bias.  Reluctantly rendering lip service to AEDPA deference (questionably applicable to “comparable analysis” in the 9th Circuit), the dissenting judge on appeal simply read the transcript, ignored the obvious reasons for excusing the juror, and invented an explanation of bias. In essence, the dissenting judge applied de novo review of the state court and ignored the rule of deference under AEDPA.  This practice is routine in the 9th Circuit.

This case illustrates again the federal interference with state courts regardless of repeated Supreme Court decisions reprimanding decisions comparable to the dissent. Fortunately the 9th Circuit majority decision understood the rationale of the prosecutor, the approval of the trial judge, the district court judge, and California Court of Appeal. Petition denied.

In a curt and dismissive opinion, the Supreme Court reversed a 9th Circuit decision of a state court judgment so “inexplicable “and “unexplained” that it required only a unanimous per curiam decision.  The Justices have repeatedly warned the 9th Circuit to review state court judgments in criminal cases on a “highly deferential basis.”  All the 9th Circuit wrote in Felkner v. Jackson was a three paragraph reversal without any analysis and absent any reference to the California state court decision.

Felkner v Jackson involved another Batson application on excusing minority jurors.  The 9th Circuit  has embraced Batson and reversed state courts on habeas corpus as early as Rice v. Collins,543 U.S. 333 (2006).  Apparently the judges, most of whom have never tried a criminal case, know nothing about voir dire. Appellate judges reading from a cold record without any understanding of the impression an individual juror presented, and rejecting the decision of the trial judge who supervised voir dire, some of  the 9th Circuit judges view any peremptory challenge of a minority juror as questionable In…..the judge wrote that the decision to excuse a juror was understandable but not the “real reason.” This is incomprehensible.

9th Circuit judges who reverse state court judgments are the same almost every time and their decisions predictable regardless of the evidence.  See, Crittenden v. Ayers, 624 F.3d 943 (2010) [earlier blog]

Here is the 9th Circuit opinion referenced by the Supreme Court:

“The prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors.”
That decision is as inexplicable as it is unexplained. It is reversed.”