Robinson v. Schriro, No. 05-99007 (2-22-10) (B. Fletcher joined by Berzon; dissent by Rawlinson). The 9th reversed the district court's denial of petitioner's claims regarding the capital aggravator of cruel, heinous or depraved; and of IAC. The 9th concluded that the aggravator of cruel, heinous, and depraved was arbitrarily found here because no evidence was presented that the petitioner was in the house when the murders took place; nor that he had ordered the murders; nor that he even could have foreseen the murders. The IAC was for the penalty phase, where counsel failed to investigate petitioner's background, childhood, mental and emotional abuse, his low IQ, his mental condition, nonviolent nature, and his potential for rehabilitation. Dissenting, Rawlinson would find the aggravating factor procedurally barred and that there was no prejudice in the IAC.

U.S. v. Jennen, No. 09-30146 (2-24-10) (Gould joined by Tallman and Benitez, D.J.). The defendant entered a conditional plea, challenging the anonymous tip and then the buy by the CI that lead to the issuance of a warrant. The anonymous tip reported that the defendant was selling cocaine and meth from his house, using drugs in front of his children, had guns, and a surveillance camera. This lead the Seattle police to a controlled buy by a CI. The CI had been convicted of a crime of dishonesty and was receiving compensation. A second controlled buy was refused by the defendant. The 9th found that the anonymous tip had sufficient details to identify the defendant, and that the CI, who had proved dependable in the past, met the standard of probable cause. In sentencing, the 9th found that Washington's 2nd degree assault with a dangerous weapon was a crime of violence.

U.S. v. Guerrero, No. 09-30066 (2-18-10) (Tallman joined by Beezer; dissent by Gould). This appeal revolves around a Batson challenge. The defendant raised Batson for a strike on a prospective juror. Defense counsel pointed out that the struck juror appeared Native American or Hispanic. The court and prosecutor both said that they did not recognize her as a minority, and the challenge was denied. After lunch recess, the court stated that the questionnaire indicated she had a connection to Hawaii, and may be Hawaiian. The court then turned to the prosecutor, who said that he did not notice her as being a minority, and had not paid attention to her background. The court agreed, and then denied the Batson challenge. On appeal, the 9th affirmed the district court's ruling that the defendant failed to state a prima facie case for discrimination because, apparently, the prosecutor and court had not recognize her as a minority. The 9th explained that the district court had confused Batson's three-step process (a cognizable minority, peremptory strike used, and a totality of circumstances analysis), but that defendant's contention that steps 2 and 3 were not carried out is not the point: the court had ruled that no prima facie case had been made. The judge had seen the strikes, and the circumstances. Under a clear error standard, the decision not to see the juror as being a minority was not illogical, implausible, or without support.

Dissenting, Gould argues that the opinion (a Tallman decision again) "makes a new and ill-advised doctrine" that should be resolved with a remand. Gould says this new rule -- that a Batson challenge fails if the prosecutor says he or she does not recognize the juror as a minority -- is inconsistent with Batson. The prosecutor can evade the Batson analysis and process by merely stating that he did not think race was involved. Gould also takes issue with the consequences for the record, since the focus was on the prosecutor's subjective intent. Gould argues that the reasoning that the juror did not look like a minority is troublesome because the juror was noticed by defense counsel, and self-identified as an Hawaiian/Pacific Islander. The third step of Batson should be followed.