Kesser v. Cambra, No. 02-15475 (9-11-06)(en banc). The 9th, en banc, granted a habeas petition in a Batson challenge. The state struck Native American prospective jurors, using such telling reasoning as "Indians always favor their cultural institutions," or "she was the one with the darkest skin," or "she seemed too misty and emotional." The 9th would have none of it, embracing the concept of Batson, and finding that the state courts' pooh-poohing the reasoning, or finding a mixed collection of reasons, as being unacceptable. Concurrences also focused on the equal protection issues with such purposeful exclusion. The dissenters (including O'Scannlain) would defer to the state courts under the deferential AEDPA standards.

Yee v. Duncan, No. 05-55265 (9-11-06). The 9th dealt with another Batson issue. On this petition,. the state prosecutor could not recall the reason he struck a minority juror. The 9th had originally granted relief, but withdrew the opinion, and issued this, which upheld denial. Tthe 9th ruled that the third prong of Batson was not met, which was the finding of discriminatory intent. The first two prongs, of making a case and shifting reasons to the state, were procedural proof production. The second prong, though, could not be the deciding prong; the court had to find. Thus, the forgotten reason, although proof and a factor, was not sufficient to grant a relief; a court had to discern and hold that intent was present, and here, under AEDPA, the state courts were not contrary to law.