This opinion is all about the I-15 in Las Vegas.
A bunch of off-duty Las Vegas cops are hanging out at a local bar listening to a band of other off-duty Las Vegas cops. Masked men make the unfortunate election to rob that particular bar on that particular night, entering the bar and announcing that it's a robbery.
You can guess what happens then. A shoot-out ensues, with several patrons shot, one robber killed, and one police officer wounded. The other robbers escape.
Six years later, Mr. Tarango goes to trial as one of the robbers. As you might imagine, police interest in the trial is extraordinarily high, and numerous police officers attend.
During jury deliberations, the jury sends a note saying it's deadlocked 11-1 in favor of a conviction. One of the jurors, Juror No. 2, is the lone holdout. The judge instructs the jury to continue deliberating.
The next day, when Juror No. 2 gets in his car to drive to the courthouse, and pulls on to I-15, he says he starts to be tailed by a Las Vegas police officer in a marked black-and-white cruiser. Juror No. 2 says he checked to make sure he wasn't speeding, but the police cruiser kept right on his tail, "close enough I couldn't see his front wheels or bumper."
So Juror No. 2 gets in the far right lane, but the police cruiser stays right behind him. This goes on for like seven and a half miles, the cruiser right on his tail, not pulling him over, but also staying so close that no one else can get between them. Juror No. 2 pulls off the freeway, but the cruiser still follows him. Tight.
Juror No. 2 finally reaches the juror parking lot, and pulls in. Only then does the cruiser let him go.
Juror No. 2 is freaked out. He says he felt intimidated, and for that reason, later that day, changes his vote and votes to convict.
The Nevada Supreme Court says this isn't a problem. It says that an officer conspicuously tailing the lone holdout in a police-involved shooting doesn't count as a "communication" so there's no relief.
Everyone on today's Ninth Circuit panel disagrees with that. Rightly so.
But there's still a split in the panel. Judge Murguia, joined by Judge Fisher, says that the last reasoned state court decision in this habeas case assumed arguendo that Juror No. 2 was credible, so there needs to be an evidentiary hearing about prejudice and other fact-finding. Whereas Judge Rawlinson dissents, saying that in her view, the relevant state court didn't think that Juror No. 2 was deliberately followed by the police on the basis of his holdout status. So she'd just go ahead and deny habeas relief.
The majority finds it troubling that an officer would just-so-happen to tailgate someone who, coincidentally, was the holdout juror in a police-involved shooting trial. For over seven miles. Right up to the juror parking lot. For no reason, and without pulling him over. Whereas Judge Rawlinson says that everyone knows that the I-5 is the main highway in Las Vegas, and is on the way the police headquarters, so it's not surprising that an officer during rush hour traffic might innocently tailgate a guy for miles.
Different views, to be sure.
