This opinion by Judge Murguia -- in a habeas case -- begins in the way you usually begin these things when you're going to deny relief: with a poignant recitation of the facts.
Plus, I gotta say, those facts made a difference to me. If only on an initial, emotional level. Because here's what they are:
"Petitioner Anthony Castellanos, who was 17 years old at the time of the incident giving rise to this case, was at his apartment with his 11-year-old and 12-year-old neighbors, Joey and Nicky. Castellanos was trying to recruit Nicky to join his gang, the King Kobras, but Nicky had previously
refused. Castellanos, who had been cooking French fries in the kitchen, walked into the living room where Nicky was sitting on the couch, pulled a gun from his waist, and pointed it at Joey and Nicky. Joey ducked, fearful of what might happen. Castellanos then turned and pointed the gun directly at Nicky, put his finger on the trigger, and said, “What do you think about this?” He fired, shooting Nicky in the head."
Yikes. I mean, shooting a 12-year old child in the head, killing him in cold blood, for not joining a gang?! Seriously?! And in front of his 11-year old brother?! Wow.
Yet, notwithstanding this opening gambit, Judge Murguia reverse the conviction and grants habeas relief. On the ground that one or more Hispanic jurors was improperly dismissed by the prosecutor.
It's difficult to look into the heads of prosecutors. I have no doubt whatsoever that there are improper race-based dismissals. But the record here is especially unclear. Particularly with respect to the one juror that the opinion extensively discusses. Defense counsel challenged five dismissals of Hispanic jurors. The prosecutor had to justify each one. It's clear to me that the prosecutor didn't really have his act entirely together. For example, the central juror at issue was one that the prosecutor thought was white. As a result, he didn't really focus on this one, and gave a lame (and, ultimately, not very persuasive) reason for bouncing her. That's why the Ninth Circuit grants relief.
At the same time, however, look at the ultimate jury that convicted the defendant: four Caucasians, one Asian, and seven Hispanic jurors. Hard to argue that the prosecutor's bouncing jurors on account of their race when a majority of the jurors are, indeed, Hispanic. Moreover, it's not like he ran out of challenges: the prosecutor only used 12 of his 20, leaving 8 left. If you've got 8 challenges left and let 7 Hispanics on the jury, that's some evidence -- and remember that we're in deferential AEDPA land -- that the prosecutor was not, in fact, discriminating based on race.
I can't help but wonder what really went down here. Maybe, of course, the prosecutor was really discriminating based on race, and his failure to submit a rational explanation for his strike is good evidence of pretext. But it's also distinctly possible that the lameness of the reason for striking this particular juror was because the prosecutor was focused on the other four -- remember, it's clear the prosecutor thought that this juror was actually Caucasian -- and simply "failed to show his work." A conclusion somewhat supported by the ultimate composition of the jury.
So this is a toughie. One framed by an initial articulation of the facts that doesn't make one especially empathetic towards the defendant.
