Saturday, September 16, 2006

Case o' The Week: Bybee's Batson Beauty, Great En Banc Decision in Kesser

In an important and welcome en banc decision, Judge Bybee (left) grants a habeas writ and lays out the current Batson analysis in the Ninth. Kesser v. Cambra, __ F.3d __, 06 Cal. Daily Op. Serv. 10941 (9th Cir. Sept. 11, 2006), opinion available here.

Players: Victory by SF counsel Bill Weiner, en banc opinion by Judge Bybee.

Facts: A District Attorney struck three Native American vernirepersons in a NorCal murder trial. Id. at 10947. When called on the strikes before the trial judge, the DA explained that he struck one of the “darker-skinned” potential jurors because she worked for a tribe, and she would be a little more likely to associate herself with the culture and beliefs of the tribe instead of the mainstream system – “they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.” Id. at 10948. The prosecutor also described his experience where an expert allegedly opined that “child molesting is okay in certain [N]ative American cultures . . . .” and described his frustration that Native American offenders were treated within the tribal system “instead of the criminal justice system.” Id. at 10952. Northern District of California Judge Phyllis Hamilton denied the federal habeas; a divided panel affirmed, and the case went en banc.

Issue(s): “Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment.” Id. at 10946.

Held: We hold that the California courts, by failing to consider comparative evidence in the record before it that undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his nonracial motives as genuine. We conclude that the California courts’ finding are not merely wrong, but an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. at 10957.

Of Note: As good as this case is, there are two concurrences that provide even greater depth to a defense Batson challenge. Judge Wardlaw, joined by Judges Paez and Berzon, would also grant the writ because the state appellate court failed to apply the “mixed-motive” analysis required when a prosecutor gives both race-based and race-neutral reasons for a strike of a venireperson. Id. at 10982. Judge Berzon concurred, speculating that on direct appeal (instead of on habeas), the constitution might require an even more vigorous Batson inquiry. Id. at 10990.

How to Use: For habeas folks, this case is interesting for Wardlaw’s reliance on circuit authority to help divine “clearly established” federal law. Id. at 10985. The Supreme Court may address this practice this fall, in Musladin (though we sure hope that it doesn’t).

For defense trial lawyers, Kesser is now the lead Batson decision in the Ninth – an essential case for the trial kit. Note, however, Berzon’s Big Hint that there may be a defense challenge for a more vigorous Batson analysis on direct review – her point is worth making and preserving in the trial court.

For Further Reading: Judge Bybee is a W. Bush appointee who was involved with the infamous “torture memo” while he was at DOJ. We’ve noted before that Bybee has been a welcome surprise – though conservative, he’s got a stubborn individual liberties streak that often comes down on the side of the constitution. See blog here.

Maybe Bybee will turn out to be a Kozinski (photo above right) protege; willing to tolerate whopping-high sentences, but intellectually honest about constitutional protections. See Kozinski blog here. Notably, Kozinski joined author Bybee in Kesser, with both abandoning their dissenting brethren on the right. See id. at 10991 (Judges Rymer, O’Scannlain, Kleinfeld, Callahan, and Bea).

It was smart to put Judge Bybee out front on this opinion – maybe he has the Republican creds to fend off cert.-happy Supreme Court clerks (though it didn’t prevent the en banc hit in Bybee’s great Jewell case, Heredia). See 2006 WL 235801; see also 9th Cir. en banc status, here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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