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).