Shirley v. Yates, 807 F.3d 1090 (9th Cir. 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.

Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015)

Once again, the 9th Circuit has written an opinion which could easily be described as inconceivable, or even more so in less polite terms.  Several years ago the 9th Circuit, over four dissents on rehearing, was reversed by the Supreme Court in another  case written in a scathing per curiam opinion; Gonzales v. Thomas, 547 U.S. 183.  The en banc 9th Circuit in Thomas had held the immigration laws applied to a family as a “social group” eligible for asylum.  The Supreme  Court told the 9th Circuit in Thomas to allow the BIA to make those kind of decisions, and the role of the appellate court is not first review but appellate review.  The harshness of Supreme Court language in Thomas was devastating. All nine justices concurred.

The 9th Circuit panel in Rios had  the same factual issues as in Thomas: approval of the use of a family as a “social group” in compliance with BIA “withholding of removal Rules.”  The panel cited – in italicized letters- the Thomas opinion (9th Circuit reversal) was “vacated on other grounds.”  To put it mildly, this is inaccurate.  In fact, Thomas was not vacated “on other grounds” but reversed on exactly the same grounds as the 9th Circuit held in in Rios. The family is not a “social group.”

Rios had sought asylum, CAT, and withholding of removal, but abandoned the first two grounds on appeal.  The evidence supporting all three grounds was identical. If this case is not reheard, the Attorney General will certainly seek Supreme Court intervention.