Wednesday, November 10, 2010

Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010)

Lawyers who litigate in civil cases, and prosecutors and defense counsel in criminal cases, know the importance of voir dire of the jury. But all lawyers do not agree on whom to challenge, and their reasons vary infinitely.  They decide not necessarily based upon the answers to their questions but juror demeanor, their voice, the way they answer questions, their body language or just an intuition about the juror that suggest a peremptory challenge.

None of this resonates on the cold appellate record but the Ninth Circuit judges, particularly those who have never tried a case, ignore these factors and search the record in a quest for error-particularly in death penalty cases.

A perfect example is Crittenden v. Ayers.  From an exerpt of the case, here is the exchange between the prosecutor and the prospective juror: "Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire 'I don't like to see anyone put to death.' During voir dire, Ms. Casey said she was 'against death-being put to death' and 'against killing people.' She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty."
"After questioning Ms. Casey, the prosecutor challenged her for cause 'based upon her answer that she doesn't believe in the death penalty.' The trial court immediately denied the challenge without explanation."
"Several days later the exercise of peremptory challenges began. The prosecutor used his fifteenth peremptory challenge to remove Ms. Casey from the jury. Crittenden's counsel moved for a mistrial . . . and filed a lengthy motion asserting that striking Ms. Casey was race-based.

Objectively, would any lawyer fault this challenge?  The answers of the juror on the death penalty were so equivocal that the prosecutor challenged her for "cause."  But according to three judge panel,  the challenge could have been "race based," and they remanded for an evidential hearing despite the fact the California Supreme Court had already affirmed the conviction.

In addition, the evidence of guilt was overwhelming.  For the last decade in the Ninth Circuit, any death penalty is subject to reversal.  And on this case for the flimsiest of reasons.

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