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.