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.