Judge Tashima's analysis looks better than Judge Bea's in this one.
It's a case involving a Hispanic defendant in a death penalty trial in which the prosecutor struck three-quarters of the Hispanic jurors as compared to one-quarter of the White jurors. There might, of course, be reasons for that. But Judge Tashima's dissent argues that even a "smell test" would tend to suggest that there might be something going on there.
Judge Bea responds by going down juror-by-juror and explaining why the prosecutor probably struck each one. Judge Bea himself makes up most of these arguments, because the prosecutor didn't offer any actual reason himself -- he simply said "I don't recall why I struck anyone, but I'm sure it wasn't based on race."
I'm nonetheless persuaded by most of Judge Bea's defenses. Some of these jurors do indeed seem struck for valid reasons. So I agree with Judge Bea.
Except for juror Martinez. There's no reason whatsoever why he was struck other than his race.
Judge Bea concedes that Martinez didn't say anything especially favorable towards either the prosecution or the defense, or about the death penalty. So no reason to excuse him on that basis. Judge Bea (like the district court) also notes that Martinez lived thirty miles away from the courthouse, so there might be a punctuality issue. But so did juror Allen, who the prosecutor didn't strike. The difference? Allen was White.
Judge Bea also speculates that maybe the prosecutor struck Martinez because this juror said he had some sort of disability that required him to stop working as a truck driver seven years ago, arguing that the prosecutor might have thereby been trying to ingratiate himself to the other jurors by relieving Martinez from juror service. But Judge Tashima rightly responds that there's both no evidence for this speculation and, in any event, discriminating against the disabled in jury selection is also illegal. I might also add that it's very unclear to me that striking a juror based on his disability is likely to make jurors happy with you, especially since (unlike some other jurors) Martinez never even hinted that he didn't want to serve as a juror. Saying to someone: "You're disabled, so we don't want you" is hardly something designed to make people pleased with your performance.
Judge Bea's best argument is his speculation that defense counsel might not have objected to the prosecution's dismissal of juror Martinez for strategic reasons that don't appear on the record. Maybe there was eye-rolling. Maybe the juror was wearing a funny hat. Maybe the defense was happy with the juror being dismissed. Who knows? The defendant bears the burden of proving that there was ineffective assistance of counsel, Judge Bea argues, and that's not satisfied here.
But Judge Bea's defense -- while facially credible -- is mistaken. Take the following hypothetical: The jury venire consists of 50 persons; 30 White jurors and 20 Hispanic jurors. The parties and the court each ask the jurors questions, but each of the juror's answers are unremarkable. None of these answers give valid reasons for excusing a juror for cause, nor do any of the answers hint at potential bias in favor of one side or the other. Notwithstanding that fact, the prosecutor strikes all 20 Hispanic jurors and none of the White jurors. Defense counsel doesn't object. Later on, the prosecutor says that he doesn't recall why he struck any particular juror, but says that it definitely wasn't on account of their race.
That's precisely the case here. Only the numbers are different; here, we're talking about one juror instead of twenty. But that doesn't matter; even the improper exclusion of a single juror is structural error that requires a new trial.
Judge Bea's arguments are identical in both the hypothetical and the present case. After all, it's the defendant's burden in both cases. Maybe all twenty jurors rolled their eyes. Maybe the defense attorney was happy with their exclusion, and it was a strategic decision to let the prosecutor strike them. The same arguments that Judge Bea makes would apply equally to the hypothetical. But it's both implausible and, I submit, wrong to conclude that the defendant hasn't made out a case of improper race-based dismissal. Both as a matter of policy and under existing doctrine.
If -- as here -- there's no apparent reason for striking a juror apart than their race, that seems enough to me. Both at the explanatory phase as well as in an ineffectiveness challenge. And that's exactly what we have here.
There are plenty of reasons why a juror might validly be struck. Similarly, given the plethora of questions we ask jurors -- particularly in death penalty cases -- there are plenty of ways for a prosecutor to justify striking any particular juror. Even, quite frankly, when the real reason is the juror's race. Lots of questions. Lots of answers. Lots of ways to say: "Oh, these twenty answers were why I struck them, and unless you can match all twenty of them to a different White juror to whom I asked the same question and I can't find a more pro-prosecution answer on a different question, I win, since I only need to win one of the twenty purported reasons."
But when neither the prosecutor or the court can come up with a persuasive reason for striking the juror apart from their race, other than sheer speculation that it must have been something off the record -- or that the defense attorney might be(for, again, reasons off the record) happy with that juror being struck -- that seems inadequate. Because we know that jurors are indeed struck based upon their race. There's a long history of that. And to think that it doesn't continue even today amounts to deliberately sticking one's head in the sand. If you can't give a reason why the prosecutor struck a Hispanic juror but left a similarly-situated White juror on the stand, and are forced to admit "We dont' know," there's a reasonable default value. And it's not that there must be some reason out there, so we should simply affirm.
I see no reason why Martinez was bounced off the jury. I see no reason why the defense counsel, who didn't object to the dismissal of any of the Hispanic jurors who were bounced, would fail to object. That seems to me error. I'd reverse.