Wednesday, June 27, 2012

Briggs v, Grounds, 2012 WL 2161370 (C.A. 9)

When the Supreme Court in Batson v. Kentucky, 476 U.S.79 (1986) decided that prosecutors could not excuse jurors from serving on a criminal case if the ground for a peremptory challenge was race based, the Justices opened up another opportunity for the 9th Circuit to savage forests. In the first place, the appellate court must now read the entire voir dire transcript, in addition to the trial record, to determine if the prosecutor excused a juror on pretextual grounds.  Because the appellate court reads a cold record, and several 9th Circuit judges have never tried a criminal case, the transcript loses the entire "chemistry" of criminal cases in general and voir dire in particular.  The record will not show juror body language, the tone of answers, the indecisive answer, or a host of other character traits evident not only to the prosecutor but the trial judge who must rule on a defense motion alleging a prosecution peremptory challenge based on race.The Supreme Court has repeatedly reversed the 9th Circuit in these cases and reminded the appellate court that the trial judge is in the best position to evaluate the juror, and the questioning by the prosecutor.
 One of the legal tests formulated for determining prosecutorial bias requires the court to undertake a "comparative analysis" of questions asked of all the jurors on voir dire.  Of course this test is highly subjective and subject to the idelogical perspective of the reader. In addition, some jurors are obviously more acceptable and do not need the same kind of questions asked of others.

No better case illustrates this point than the dissent in Briggs v. Grounds. The majority of the three judge 9th Circuit panel upheld the state court trial judge who denied the defense motion alleging the prosecutor excused a juror on racial grounds. The dissenting judge, selectively reading the voir dire transcript, concluded - on habeas corpus - that the state court trial judge, the California Court of Appeal and the district court were wrong in not finding prosecutor bias.  Reluctantly rendering lip service to AEDPA deference (questionably applicable to "comparable analysis" in the 9th Circuit), the dissenting judge on appeal simply read the transcript, ignored the obvious reasons for excusing the juror, and invented an explanation of bias. In essence, the dissenting judge applied de novo review of the state court and ignored the rule of deference under AEDPA.  This practice is routine in the 9th Circuit.

This case illustrates again the federal interference with state courts regardless of repeated Supreme Court decisions reprimanding decisions comparable to the dissent. Fortunately the 9th Circuit majority decision understood the rationale of the prosecutor, the approval of the trial judge, the district court judge, and California Court of Appeal. Petition denied. 

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