Monday, July 21, 2008

Green v. LaMarque (9th Cir. - July 17, 2008)

You can strike one African-American juror from the pool. Or two. Or even three. But when you strike all six of the African-Americans in the pool -- and when the defendant is African-American as well -- well, that's raises some red flags. At least in some circles.

What's interesting about this case is, first, that the Ninth Circuit finds it so clear that the prosecutor engaged in a violation of Batson -- correctly, in my view -- that its grant the habeas petition notwithstanding (1) the strict limitations of AEDPA; (2) the fact that the district court denied relief; and (3) the fact that a very-non-leftie Judge Bea is both on the panel and, indeed, writes the opinion. That's pretty good evidence that there really was something untoward going on in state court. What's also interesting is that it's a good example of a case in which the court doesn't buy the prosecutor's purportedly race-neutral reasons for excusing the jurors in part due to the fact that the prosecutor seemed to examine the African-American jurors much more closely (in an attempt to obtain or support reasons to exclude them) than similarly-situated white jurors. That shows some keen insight on the part of the panel. And you don't see that view actually applied that often.

Finally, the Ninth Circuit's opinion is a testament to the wisdom of Justice Kline. Who -- way back in 2001 when this case was decided on direct appeal -- filed a dissent (albeit an unpublished one) in which he said that he agreed with the deference that his colleagues applied to the trial judge's finding that there were race-neutral reasons for the challenges but said, inter alia, that "a reviewing court is not a potted plant; the deference trial courts deserve does not require us to blind ourselves to the deprivation of an important constitutional right." And concluded -- as did the Ninth Circuit seven years later -- that the defendant should have been entitled to a new trial.

Vindication. At least for Justice Kline and the defendant. (Not so much for Justice Haerle, who wrote the majority opinion in the California Court of Appeal.)