CA9 generally requires defense counsel’s presence at Batson proceedings.

Ayala v. Wong, No. 09-99005 (9th Cir. Aug. 29, 2012) (Reinhardt, J.) — A sharply divided panel of the Ninth Circuit (Judge Callahan dissented) reversed the denial of a § 2254 petition filed by a California death-row prisoner, holding that the trial judge’s exclusion of defense counsel from argument at steps two and three of his Batson challenge, made in response to the prosecutor’s use of peremptory strikes against all of the Latino and African-American jurors, coupled with the state court’s loss of significant portions of the appellate record for use in the petitioner’s direct appeal, violated his right to counsel during the Batson hearing and required a new trial.

During jury selection at the petitioner’s 1989 trial for capital murder in the San Diego County Superior Court, the prosecution used peremptory strikes to remove all of the Latino and African-American members of the jury pool. The petitioner made three separate Batson challenges during this process. The trial judge found that the petitioner had made a prima facie case of systematic discrimination, then allowed the prosecutor to explain his reasons for the strike in camera and ex parte. The transcript of these in camera, ex parte proceedings was not made available to defense counsel until after the trial had ended. The trial judge overruled each Batson challenge after finding the prosecutor’s explanations satisfactory. After trial, the trial court apparently destroyed the questionnaires of all the unseated members of the jury pool. The petitioner was convicted of capital murder and sentenced to death.

On direct appeal, the California Supreme Court held that the trial court erred when it excluded defense counsel from presenting argument in relation to the last two steps of Batson (that is, excluding defense counsel from the in camera proceedings on the Batson challenge), but held this error harmless beyond a reasonable doubt. It also held that the trial court’s destruction of the questionnaires was harmless beyond a reasonable doubt. It therefore affirmed the petitioner’s conviction and sentence. Chief Justice George dissented, questioning how excluding defense counsel from the Batson proceedings could be harmless at all. The federal district court subsequently denied relief on this Batson issue, but certified it for appeal.

1. Because the California Supreme Court did not expressly hold that excluding defense counsel from the in camera Batson proceedings violated the petitioner’s constitutional rights, the Ninth Circuit reviewed this aspect of his Batson claim de novo.

2. But before reaching the merits, it had to confront the state’s objection that granting relief to the petitioner on this basis would require creating a new rule of law that would not apply retroactively under Teague v. Lane, 489 U.S. 288 (1989). After a protracted discussion of the issue that included a comprehensive survey of the decisions of not only the U.S. Supreme Court but also many other state and federal appellate courts, the Ninth Circuit held that at the time the petitioner’s conviction became final in 2001, it was clearly established that a criminal defendant has a right to the assistance of counsel at the last two steps of Batson whenever the prosecution does not rely on its trial strategy to justify its use of peremptory strikes. Because no aspect of trial strategy justified the prosecution’s use of peremptory strikes to remove all of the African-American and Latino jurors from the jury pool in this case, the petitioner’s right to counsel was violated.

3. The question of whether that violation prejudiced the petitioner was subject to AEDPA’s limitation on relief. Contrary to the petitioner’s contention, no clearly established federal law held that such an exclusion was structural error. Batson proceedings are not a “critical stage” at which counsel’s presence is required, because the right to counsel is not absolute — it can be overridden in the face of “compelling reasons,” such as the prosecution’s need to reveal trial strategy in order to justify its peremptory strikes.

4. Thus the question became whether excluding defense counsel from the in camera Batson proceedings had a substantial or injurious effect on the verdict. “The prejudice [the petitioner] suffered was the deprivation of the opportunity to develop, present, and likely prevail on his Batson claim.” Because defense counsel was excluded from the in camera Batson proceedings, he was not able to point out to the trial judge where the prosecution’s proffered explanations were pretextual or the product of bad faith. That was especially true in a case like this, where jury selection took 3 months and spanned 6000 pages of trial transcript. Similarly, defense counsel had no opportunity to engage the trial judge and the prosecutor in a comparative juror analysis, an inquiry the trial judge is best suited to superintend. Likewise, trial counsel had no opportunity to preserve his Batson objections for appeal — a deficiency that was only augmented by the fact that the trial court destroyed the questionnaires of the unseated jurors (making comparative juror analysis on appeal virtually impossible).

5. Moreover (and this is probably just dictum), the court added that the limited record before it smacked of discriminatory intent. The prosecution used peremptory strikes to remove all of the African-American and Latino jurors from the pool. This evidence alone raises the specter of discriminatory intent. The Ninth Circuit discussed the evidence relating to three jurors at length.

Even on this deficient record, Ayala’s Batson claim is compelling: the prosecution struck all seven of the black and Hispanic jurors in a position to serve on the jury, and many of its proffered race-neutral reasons are highly implausible. Given the strength of Ayala’s prima facie case, the evidence that the prosecution’s proffered reasons were false or discriminatory, the inferences that can be drawn from the available comparative juror analysis, and the deficiencies in the record that are themselves the product of the state’s constitutional errors, it is impossible to conclude that Ayala’s substantial rights were not affected by the exclusion of defense counsel from the Batson proceedings and the loss of the juror questionnaires.

6. The main issue that the majority (Reinhardt and Wardlaw) took with the dissent (Callahan) was the dissent’s mistaken premise that the trial judge’s finding that the prosecutor had adequately justified his strikes was entitled to deference under AEDPA. This premise “assumes, incorrectly, that we are confronting an ordinary Batson challenge on habeas review — a challenge to the holding in a case in which defense counsel was able to present arguments to the trial court regarding racial bias, appeal that claim to the state appellate court, and subsequently seek reversal in federal court of the judgment that one of the jurors were struck by the prosecution for impermissible racially motivated reasons.” Deference to the trial judge’s conclusion was not appropriate precisely because of the deficiencies in the procedure used by the trial judge and in the appellate record. “We cannot defer to the trial court where procedural error (such as the state supreme court found here) has rendered the trial court’s determination unreliable.” See also Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004).