Combs v. Broomfield (9th Cir. - March 12, 2026)

You've got to slog through nearly a hundred single-spaced pages of this opinion to get a complete sense of what's going on. That, I recognize, is a difficult sell. If only because it involves a habeas appeal in a death penalty case in California. Which means you'd be spending an hour or two of your busy life reading about a sentence that, as a practical matter, will never actually occur.

I'll nonetheless attempt to direct your potential attention to pages 82 through 87 of the opinion.

The opinion's author is Judge Bade. She's joined by Judges Callahan and Bumatay. I think that we can all agree that's not the panel you want if you're the person sentenced to death.

Defendant claims that a juror lied during voir dire to get on the panel, and that but for this lie, the biased juror would have been validly challenged for cause. Under Supreme Court precedent, that's a valid Sixth Amendment claim. You're constitutionally entitled to relief if you can establish such a claim.

Defendant submits some evidence to support this claim, based upon statements that the juror at issue made to a defense investigator during two interviews in May 2006. He says that, at a minimum, this establishes a prima facie case.

The Ninth Circuit disagrees. It says that the court could validly disregard this evidence because it's inadmissible hearsay. Since it's not the declaration of a party opponent, it can be entirely ignored. No investigation, no discovery, nothing.

So let's make the resulting rule clear. Imagine that all twelve jurors go out to a restaurant to celebrate after sentencing someone to death. At the restaurant are a hundred people -- other patrons and staff -- alongside fifteen priests and the Pope. Each of the jurors were asked during voir dire if they were current members of the Klu Klux Klan, and each answered "No." During the jurors' celebration, everyone in the restaurant clearly hears each of these twelve jurors repeatedly and loudly declare that they sentenced the defendant to death not because they thought he was guilty, but on the basis of his race, and that they all lied during voir dire about not being members of the KKK because they hoped to be on the jury so they'd have a chance to kill the defendant. All of the hundred-plus people at the restaurant who overhead these statements, including the Pope, submit declarations to that effect.

According to today's opinion, the defendant gets no relief. It's all entirely hearsay. No prima facie case. Not even entitled to discovery to depose the jurors and see if they admit (again) to being members of the Klan and lying during voir dire.

Surely that wasn't the law before today. Right?

The Sixth Amendment right to an unbiased jury when the state seeks to sentence you to death seems fairly hollow if we categorically exclude the only practical way of proving that bias in the first place.