Ayala v. Wong, No. 09-99005 (8-29-12) (Reinhardt with wardlaw; dissent by Callahan).

The defense made a Batson challenge after the state, in this capital prosecution, used all their peremptory challenges to strike all prospective Black and Hispanic jurors.  The court found that a prima facie case had been made, and then granted the state's request for an in camera hearing as to the justifications. Yes, you read right, defense counsel was excluded from the hearing where the state explained why it struck the minority jurors, leaving the jury non minority. The state later admitted that no trial strategy had been discussed. And, in addition, most of the juror questionnaires had been lost. The California Supreme Court found error, but, with two dissents, held it harmless. The district court denied the writ. The 9th reversed, and granted. It held that exclusion of counsel was error, violated the Constitution, ran counter to precedent, and was prejudicial. The reasons on the record for excluding jurors seemed not to be valid, and were not applied to other non-minority seated jurors. The focus was denial of counsel as opposed, for example, confrontation. Counsel could have challenged some of the reasons, and would have made a record. Dissenting, Callahan argues for AEDPA deference, and the deference to the state trial judge in finding the reasons proffered valid.