-GGH (HC) Crittenden v. Calderon, No. 2:1997cv00602 - Document 213 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/29/11 recommending that the third factor of the Batson analysis be found in favor of respondent and adverse to petitioner. Claims 1 and 2 of the operative petition should be finally denied. This conclusion, if adopted, finishes the district court work in this case re 70 Amended Complaint. Objections to F&R due within 21 days. (Matson, R)

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-GGH (HC) Crittenden v. Calderon Doc. 213 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN EDWARD CRITTENDEN, 11 12 Petitioner, No. CIV S-95-1957 KJM GGH P No. CIV S-97-0602 KJM GGH P vs. DEATH PENALTY CASE 13 ARTHUR CALDERON, 14 Respondent. FINDINGS AND RECOMMENDATION ________________________________________________/ 15 16 Introduction and Summary 17 The denial of the operative petition in this death penalty case was affirmed in all 18 respects by the Ninth Circuit in its opinion Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010), 19 except for the Batson claim involving the third part of the Batson paradigm.1 In respect to the 20 remand on that issue, the Ninth Circuit directed that the district court employ the “motivated in 21 substantial part” analysis in lieu of the “mixed motives” analysis employed previously by the 22 district court. 23 24 After briefing and hearing, the undersigned finds and recommends that the bias shown by the prosecutor when striking one African-American juror, although significant, was not 25 26 1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). 1 Dockets.Justia.com 1 2 substantial in terms of the prosecutor’s motivation. Procedural History 3 The entire history of the case is not relevant, and only that pertinent history 4 relevant to the Batson issue will be set forth. The issue centers about the peremptory challenge 5 by the prosecutor of the sole African-American juror in the capital case venire. In initial Findings 6 and Recommendations, the undersigned recommended that no prima facie case was set forth by 7 petitioner. The district judge assigned at the time, the Honorable Frank C. Damrell, Jr., disagreed 8 and upon finding that petitioner had set forth a prima facie case, remanded the remainder of the 9 Batson analysis to the undersigned. 2 10 This further analysis of the last two steps of the Batson analysis was complicated 11 by the fact that the prosecutor had essentially no memory concerning his use of the peremptory 12 challenge. Nevertheless, the undersigned found that the prosecutor’s notes at the time, utilizing a 13 code and cryptic word description, and the context of the voir dire and challenge as set forth in 14 the transcript, enabled the undersigned to find the articulation of non-discriminatory reasons for 15 exercise of the challenge. Findings and Recommendations, dated February 27, 2003, Docket # 16 163 (hereafter Findings and Recommendations or F & Rs) at 16-21. This finding was later 17 upheld by the district judge, Order dated February 23, 2005, Docket #180 (hereafter “the Order”) 18 at 14-18, and the Ninth Circuit, Crittenden at 957-958. 19 The undersigned held an evidentiary hearing to determine whether the articulated 20 reasons were pretextual. The substantive facts found at that evidentiary hearing are set forth at 21 length below. Suffice it to say here that the undersigned found that the prosecutor’s 22 reconstructed reasoning was pretextual in part, i.e., played a significant role, but upon 23 application of the “mixed motives” test (as that test had been defined in case law of other 24 circuits), the undersigned found that a reasonable prosecutor would have exercised the 25 2 26 The Ninth Circuit later upheld the district judge’s finding of a prima facie case. Crittenden at 957. 2 1 peremptory challenge even in the absence of discriminatory animus due to Juror Casey’s 2 reluctance/ambiguity with respect to her ability to vote for a death penalty verdict if such were 3 warranted by the evidence. Findings and Recommendations at 21-40. Put another way, that 4 “prosecutor Flanagan had a good reason to exercise his challenge which outweighed the bad.” Id 5 at 40. The district judge, although not agreeing with all of the undersigned’s analysis, adopted 6 this finding with an explained decision. Order at 18-23. 7 While this case was on appeal, the Ninth Circuit determined (in another case in 8 which the undersigned had been involved), that this circuit would not apply the “mixed motives” 9 analysis to Batson challenges. Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010). The Crittenden 10 11 12 13 14 15 16 17 court applied Cook: Acting prior to our decision in Cook, the district court appears to have conducted its step three analysis by asking whether race played a “significant” part in the decision to issue the peremptory strike, and if so whether the defendant could prove under a mixed motives analysis that the strike would have issued even if race had played no role. Cook framed the first inquiry in different terms and eliminated the second. As Cook explains, the proper analysis at Batson’s step three is whether the peremptory strike was “motivated in substantial part” by race. Id. If it was so motivated, the petition is to be granted regardless of whether the strike would have issued if race had played no role. Id. (“[W]e reject the ... mixed-motives analysis, and limit our inquiry to whether the prosecutor was ‘motivated in substantial part by discriminatory intent.’”). 18 19 20 21 22 23 24 25 26 Crittenden, at 958. However, the Crittenden court did not make the ultimate analysis itself; rather it remanded the case for the district court to make the analysis: As the district court was operating under the erroneous impression that the Batson inquiry required an additional step–i.e., mixed motives analysis–we remand to give the court an opportunity to apply the proper standard, as articulated in Cook. We do not foreclose the possibility that the district court could conclude on remand that its previous finding that “race played a significant part in the prosecutor’s decision to remove Casey” was sufficient under Cook to establish a Batson violation. [FN6 omitted.] Nonetheless, the district court did not have the benefit of Cook when it last 3 1 addressed the question, and its evaluation of the significance of the race factor in the decision to strike Mrs. Casey could have been informed by its understanding that there would be another analytic step focusing on the several race-neutral justifications offered. We therefore leave it to the district court to make a step three determination in the first instance, unconstrained by its prior findings under the pre- Cook standard. 2 3 4 5 6 Crittenden, at 958-959. Substantive Facts 7 Three points bear emphasis before recounting the underlying facts. First, the 8 evidentiary facts underlying the Batson dispute are essentially not at issue as “they are what they 9 are,” i.e., based on incontrovertible transcript and other record evidence. Moreover, the parties 10 did not attempt to add new facts into the analytical mix on remand.3 Rather, it is the application 11 of those established facts, or the inferences to be drawn from them, which are contested. 12 Therefore, the undersigned will repeat at length those evidentiary facts he initially found. To the 13 extent that the district judge previously explicated additional/different/superseding evidentiary 14 facts in his discussion, those facts will be included in the discussion. Further, to the extent that 15 the parties have referred the undersigned to additional, undisputed evidentiary facts, those will be 16 included in this discussion as well. 17 While the complete re-explication of all these facts may seem tedious to counsel 18 who have been involved in this case for years, and who are well aware of the underlying Findings 19 and Recommendations/Orders, the fact is that the district judge newly assigned to this case will 20 not have such familiarity. Rather than have this judge (the Honorable Kimberly J. Mueller) hunt 21 and sift through the now very voluminous file, the undersigned will place as complete a record as 22 feasible before Judge Mueller. 23 24 Secondly, the undersigned will not modify the underlying subsidiary factual determinations with respect to the prosecutor’s state of mind. Such would be beyond the 25 26 3 The parties expressly eschewed any further evidentiary hearing. 4 1 mandate of the Ninth Circuit which simply calls for an application of the already found facts to a 2 new analytical standard, i.e., whether a previously found significant, discriminatory reason for 3 exercising a peremptory challenge was a substantial motivation, or put another way—how 4 significant was significant. “District courts must implement both the letter and spirit of the 5 mandate, taking into account the appellate court’s opinion and the circumstances it embraces.” 6 Vizcaino v. USDC (W.D. Wa.), 173 F.3d 713, 719 (9th Cir. 1999) (internal quotation marks 7 omitted). While the finding under the Ninth Circuit’s articulated third step Batson standard 8 would be considered a new ultimate factual finding, and the Ninth Circuit gave the district court 9 carte blanche to reconsider its ultimate finding, the subsidiary facts will not change. 10 Moreover, neither side requests the opportunity to present new facts; it would be 11 odd then in the absence of such, and years later than the initial deeply thought out determinations, 12 to arrive at completely different subsidiary factual determinations. Thus, the undersigned at this 13 point will neither find the absence of a discriminatory motivation on the part of the prosecutor, 14 nor will he find that discrimination was the only reason the prosecutor exercised his peremptory 15 challenge. The undersigned will only determine how substantial was the prosecutor’s existing 16 discriminatory motivation. 17 Finally, the undersigned presided at the evidentiary hearing, made credibility 18 findings and issued ultimate findings of facts. These ultimate findings were adopted in their 19 entirety by the district judge (Judge Damrell). The district judge did, however, utilize a different- 20 in-part subsidiary factual basis, disagreeing with the undersigned in part on the underlying, 21 subsidiary factual basis. The undersigned has been careful to include Judge Damrell’s findings, 22 and the undersigned has relied on them where they are different from those of the undersigned. 23 The undersigned has been tasked with making the first decision to employ the Ninth Circuit’s 24 Batson third step analytical standard, i.e., the application of those facts to the directed standard. 25 The undersigned has made herein an ultimate factual finding concerning whether the prosecutor’s 26 peremptory challenge of Mrs. Casey, the juror in question, was substantially motivated by racial 5 1 bias. That ultimate finding is the undersigned’s independent finding. 2 3 The undersigned turns to the subsidiary facts. The Casey Voir Dire 4 Prospective juror, Manzanita Casey, the only African-American prospective juror 5 in the entire venire, was initially challenged for cause by the prosecution, and when that 6 challenge was denied, was later peremptorily challenged by the prosecution. This juror, as did all 7 the other jurors, had furnished questionnaire responses about personal histories and opinions. At 8 the time of petitioner’s trial, prospective juror Casey was married and the mother of two children. 9 Respondent’s Exhibit 44 (Evidentiary Hearing) (Casey juror questionnaire). The questionnaire 10 demonstrated that this juror was concerned about drugs and street crime. For questions related to 11 potential racial bias, Mrs. Casey demonstrated concern for the lingering existence of bias in the 12 country, but did not believe that her locale (Placer County) had such a problem. Mrs. Casey’s 13 views were not extremist in any manner. As found previously by the undersigned and the district 14 judge, absent consideration of a willingness to impose the death penalty, Mrs. Casey was 15 seemingly an ideal prosecution juror. 16 Mrs. Casey did express hesitancy about her willingness to apply the death penalty, 17 although at no time did she unequivocally state that she could not vote in favor of such a penalty 18 if warranted under the facts. She wrote in the juror questionnaire in response to a question about 19 her general feelings about the death penalty: “I don’t like to see anyone put to death.” She did 20 not answer other questions concerning whether she thought the death penalty was used too often 21 randomly, or too seldom. Exhibit 44. As petitioner points out, Mrs. Casey did say that she 22 could put aside her personal feelings and follow the law. 23 Mrs. Casey was extensively voir dired by the court, defense counsel, and the 24 prosecutor on her death penalty views. Without being redundant, the pertinent parts of that voir 25 dire are set forth here, as it is important to let juror Casey’s responses speak for themselves, at 26 least initially: 6 1 RT 6106: 23 to 6108: 28 Voir Dire by the Court 2 Against that backdrop, I need to ask you some questions about your concerns and your opinions regarding the death penalty. 3 If the People in the prosecutor [sic] proves beyond a reasonable doubt that Mr. Crittenden is guilty of murder in the first degree, would you refuse to vote for that verdict because of a conscientious opinion concerning the death penalty knowing that if you did vote for a murder in the first degree, you may obligate the jury to get into the question of penalty in a later trial? 4 5 6 7 In other words, would you, even though the prosecutor had shown that the murder was a first degree murder, would you nevertheless not vote for it for the reasons of fearing having to reach the issue of the death penalty? 8 9 10 A: Well, I am against death -- being put to death. And I am against people killing people. 11 Q: Okay. 12 A: That is hard to answer. 13 Q: All I am asking you is whether your feelings concerning the death penalty would influence your vote to the extent – 14 A: No — 15 Q: – that you would not vote for a first degree murder conviction. 16 A: No. 17 Q: Let me also ask you if you have such a conscientious opinion concerning the death penalty that should the jury be requested to vote on the issue of the special circumstances, and should the prosecution prove that the special circumstances were true, would you refuse to vote for the truth of the special circumstances because you know that if you voted for them, then it would obligate the jury to then consider the question of penalty? 18 19 20 21 A: No. 22 Q: Now, let me go one step further and let’s say you are on the jury, and you have voted for a first degree murder conviction. The jury has found first degree murder. The jury has also found the existence of the special circumstances. 23 24 25 //// 26 //// 7 1 2 Now we are in a different trial. And, the evidence that will be put before the jury will deal with primarily the defendant, himself. Background, education, schooling, things relating to the defendant generally is what the law provides may be introduced at that trial. 3 5 Do you have such an opinion concerning the death penalty that regardless of the evidence that would be produced at the penalty trial, that you would automatically and in every case vote against the imposition of the death penalty? 6 A: No. 7 Q: Okay. You can conceive of situations in which you might vote for the death penalty? 4 8 A: Yes. 9 10 11 Q: Let me ask you the reverse of that. And I think I know what the answer is. And that is regardless of the evidence that would be presented at a penalty trial, would you automatically and in every case vote for a death verdict and never vote for life imprisonment without the possibility of parole? 12 13 A: Would I vote for the death? 14 Q: Would you vote for the death automatically and never vote for life imprisonment without possibility of parole? 15 A: No. 16 17 18 RT 6111: 10 to 6112: 16 (voir dire by defense counsel) 19 Q: As I understand your answers to the Judge’s questions just a few moments ago, that as a general principle, you don’t agree with execution as a penalty. Is that correct? 20 A: I don’t believe in death penalty. 21 Q: Okay. 22 A: And I don’t believe in nobody killing anybody either. So I guess – I don’t know what you would say – in between or whatever. 23 24 But– 25 Q: Well – 26 A: It is hard. 8 1 2 Q: You have indicated that you can conceive of a situation where a death penalty might be appropriate? 3 A: Yeah. 4 Q: Just as in terms of generalities, a crime so bad and a defendant so bad that it appears appropriate that under the standards that you would be instructed to apply, that the death penalty would be appropriate penalty? 5 6 A: Yes. 7 8 Q: So you are not telling us that in any situation you couldn’t or wouldn’t vote for a death penalty? 9 A: No. 10 11 Q: What you are telling us is in terms of your opinion, although you have general reservations about it, about the death penalty, it would have to be a severe case before you would? 12 A: It would be have to be awful bad, yes. 13 Q: Okay. And if it was – 14 A: And, if I believed it. You know. 15 Q: I am sorry. 16 A: And if I believed it. 17 Q: Okay. Believed it being that the situation was awfully bad? 18 A: Was that bad, uh-huh. 19 20 21 22 RT 6116: 16 - 6118: 27 (voir dire by the prosecutor) Q: Do you honestly believe, considering what your feelings are toward the death penalty, that you could vote for a verdict which would mean that this gentlemen here, Mr. Crittenden, would be executed in the gas chamber? 23 A: Could I vote – 24 Q: Yes. 25 26 A: – for it? I can’t sit here and really say for sure if I could. 9 1 But, if it is proven to me, truly proven to me, and I feel deep down inside that he did it, I could. I think I could. 2 Q: You think you could? 3 4 5 A: Yes. I have to say I think I could. This is all new to me. So I am very upset with it. 6 Q: Well, this is a – for all of us who have thought in any depth about the death penalty, very few of us ever get into the position that you are in where you have to– 7 A: It is hard. 8 Q: – think out loud and tell us what your feelings are. Do you think that your feelings about the death penalty – in other words, that you don’t believe in it – would make it difficult for you to make a decision regarding the death penalty? 9 10 A: Yes, I think it would. 11 12 Q: And, do you think it might substantially impair your ability to fairly evaluate all of the evidence regarding the death penalty? 13 A: I can’t say yes. I can’t say no. I really don’t – don’t know. 14 Q: Even – let’s say for a moment that a jury has decided, and you are on the jury, that Mr. Crittenden has committed these crimes and that special circumstances are involved. So it is up to the jury then to hear evidence about Mr. Crittenden upon which – and including the information about the crimes you have already heard – you are going to make a decision about life or death. Okay? 15 16 17 A: Uh-huh. 18 20 Q: Do you think that you are in such a position because of your strong feelings about the death penalty that even before you heard evidence in that second part of the trial that you would be leaning toward life instead of death? 21 A: No. I don’t think so. 22 Q: You think – 23 A: I could – after I have set there, has set through it all, and had the feeling that he did do it, then I think I could – 19 24 25 Q: You understand that neither side in this case wants to have as a juror someone who has their mind made up before? 26 A: I haven’t. 10 1 Q: Before they heard the facts. 2 A: I haven’t. Because I haven’t heard the facts. 3 Q: So, is it really the bottom line of your statement to us that despite your statement that you don’t believe in the death penalty, that you could still vote for the death penalty if you heard facts and circumstances which warranted it? 4 5 A: True. Yes. 6 Q: You really think? 7 A: I think I could. Uh-huh. I can’t say – I can’t come out and say fully, yes, I could or, no, I couldn’t, because I don’t know the circumstances. 8 9 Q: That is what I am getting at. I don’t want to give you the circumstances because I don’t want you to have to prejudge the facts. What I am trying to find out is if your general feeling about the death penalty would even interfere with your being able to make a decision about it. 10 11 12 A: I don’t think so. I try not to let it.4 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 Petitioner included the entire voir dire by the prosecutor for discussion. The part omitted by the undersigned in the text again exemplifies the back and forth that Mrs. Casey had with her thoughts on the death penalty. For completeness, that portion of the voir dire by the prosecutor (beginning) is reprinted in this footnote. Q. Mrs Casey, do you understand that if we reach a point in the trial where a jury has to decide upon punishment being life in prison or the death penalty, that both sides, the defense and the prosecution, which I represent, are entitled to an unbiased jury. Do you understand that? A. Yes. Q. Now I gathered from your answer to the question on the death penalty that you do not believe in the death penalty? A. I really don’t. But if it is bad, it really bad and I felt that, you know– I hate death. I don’t know how to express myself, really. But I really hate to see anybody be put to death. And I hate to see someone take a life. I don’t care whose it is. So–it is–it is hard for me to express it. But I could, if proven to me, to, no doubt, that it was a crime, then I don’t think I would hesitate. Q. You understand, I am sure, from years of watching how the system works, that as a representative of the People, that we are asking for the death penalty in this case. You understand that? A. Yes. Q. Do you think considering your feelings on the death penalty that even before we start giving you evidence in this case, that my side, the side of the People, is at a disadvantage with regard to the death penalty because of your feelings about it? A. You feel you are at a disadvantage? Q. Do you think? 11 1 The record facts of the jury selection, much of which was previously set forth in 2 the Findings and Order, are detailed in the subsection entitled “Pretext” because the record as a 3 whole is pertinent to that discussion. For the articulation by the prosecutor of the race neutral 4 explanation, and for other facts pertinent to the “pretext” prong, the undersigned sets forth the 5 following facts developed after Judge Damrell’s Order. 6 7 Facts Developed After Remand From District Judge Prior to the holding of the evidentiary hearing, petitioner engaged in discovery 8 which included taking the deposition of the prosecutor, Gerald Flannagan. As related in the 9 undisputed facts adopted by the Pre-hearing Order, set forth below, the prosecutor did not 10 11 12 13 14 15 remember anything of significance to the exercise of his peremptory challenge. 1. He [the prosecutor] alone conducted the trial and exercised peremptory challenges of prospective jurors at the trial of People v. Crittenden. 2. He has no recollection of exercising the peremptory challenge to remove prospective juror Manzanita Casey. He has no recollection of why he removed Mrs. Casey, who is African-American. He cannot say what he was thinking at the time he exercised the peremptory. 3. He does not recall if he used peremptories to remove African-American jurors. 4. He has no recollection of the peremptory challenge process in the Crittenden trial, or the final selection of the jury, or of the method used for 16 17 18 19 20 21 22 23 24 25 26 A. Do I think? Q. Because of your strong feelings on the death penalty, that my side which is asking of the death penalty is at a disadvantage in this case? A. I don’t really think so. I don’t know. Q. Do you as you sit there today think that you are completely open and objective about the issue of the death penalty? A. I try to be. Q. Do you think? A. I couldn’t say fully. I would try. Q. His Honor has told you at an earlier time in the State of California when a person is sentenced to death, that means exactly what it says? A. Yeah. Q. That he is supposed to die in the gas chamber. Do you understand that? A. Yes. Q. And, as a juror, sitting on a case such as this, it is up to you along with the other eleven members of the jury to make that final decision as to what the penalty is going to be. Do you understand that? A. Yes. [the voir dire as set forth in the text continues at this point.] 12 1 exercising peremptories, or whether he used all of his available peremptories. 5. He has no independent recollection of the individual voir dire of Mrs. Casey, and cannot say what his personal observations of her were. He has no recollection of her and he is not able to describe her. When he reviewed the transcript of the individual voir dire of Mrs. Casey in preparation for the August 26, 2002 deposition, it did not refresh his recollection as to what had taken place. 6. He has no recollection of what his position was, if any, regarding Mrs. Casey at the conclusion of the voir dire by both sides. 7. He has no recollection of having challenged Mrs. Casey for cause, and has no recollection of what the basis was for the cause challenge, other than what is in the record. 8. He does not remember what his general concerns were as he approached selecting a jury in the Crittenden case. *** 10. He does not recall if there were any black people in the original panels of jurors summoned for jury service in the Crittenden case, or how many black people were excused for hardship, if any. 11. He does not recall how many black people were questioned during individual voir dire, or whether there were any other black people in the venire other than Mrs. Casey. *** 13. He made notations on his copy of the questionnaire of Mrs. Casey. He does not recall whether the notations are the actual reasons he exercised a peremptory to remove Mrs. Casey from the jury. He cannot say what he was thinking when he wrote the notations. 14. When he read the California Supreme Court decision in People v. Crittenden in approximately May or June, 2002, he did not recall that a peremptory used by him had been the subject of a Wheeler motion during the trial, and reading the decision did not refresh his recollection as to what had taken place with respect to Mrs. Casey. 15. He has no independent recollection of the reasons why he retained Mrs. Gislea Clark on the jury. When he read the transcript of the individual voir dire of Mrs. Clark in preparation for the August 16, 2002, deposition, it did not refresh his recollection of her voir dire. 16. People v. Crittenden and People v. Willie Junior Johnson are the only capital trials he has participated in. 17. He has no recollection of the Wheeler motion in the Johnson case. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 There is also no dispute that the prosecutor herein was not asked by the trial judge to proffer a 21 race neutral reason after the trial judge found that petitioner had not established a prima facie 22 case. 23 At hearing, respondent’s counsel indicated that he had not stipulated to the above 24 facts, but only that the prosecutor had stated them at deposition. The court need not decide 25 whether respondent’s “clarification” was appropriate in that prosecutor Flannagan testified at the 26 13 1 hearing, and with the possible exceptions of Facts Nos. 8 and 13, did not significantly depart 2 from any of the undisputed facts. The court finds these facts as part of the factual universe 3 pertinent to the Batson issues, but permits the expansion of facts related to Nos. 8 and 13 as set 4 forth below. 5 The undersigned states from the outset that he found Mr. Flannagan to be credible 6 and forthright in his factual testimony relating his non-recollection and recollections with respect 7 to his systemic practices and the rating system in this case. Flannagan was not purposeful in his 8 non-recollection, nor was he creating recollections where he really had none. In general, 9 Flannagan confirmed that he had no recollection for the most part of what he was thinking or 10 observing in the past, except that he did have a recollection of systemic practices that he utilized 11 along with what was meant by certain practices at the time, and a vague recollection of general 12 events, e.g., identities of defense counsel, the presence of the judge, meeting with defense 13 counsel. He could also identify handwriting/marks on juror questionnaires as his, could read the 14 words, and “translate” his marking system. The court was careful to permit only that testimony 15 for which Flannagan could actually recollect, or for which his recollection was actually refreshed, 16 and not that testimony for which Flannagan was testifying to a present day inference of what he 17 must have been thinking at the time. That is, if Flannagan could ultimately recall what he 18 observed, thought, marked, interpreted, practiced etc. at the time of trial, he could testify to that. 19 If however, he was simply attempting to draw his own inferences from presently reading the 20 exhibits to construct a present day hypothetical scenario of a past event, he was not permitted to 21 testify. See RT Evid. Hrg. 20, 22, 23, 24, 25, 26, 27, 42, 54, 55, 56, 57, 93, 94, 95, 96. 22 Thus, even though Flannagan could not recall what he was thinking 15 years ago 23 vis-a-vis a particular juror, it might be perfectly logical for Flannagan to actually recollect a 24 system or methodology pertinent to exercising peremptory challenges in the Crittenden trial, and 25 interpretation of that system, because he had used such for a number of years without significant 26 change, or because the writing/marks on the juror questionnaires were self evident and not 14 1 seriously open to question. The critical evidentiary factor would be whether the exhibit disclosed 2 enough about the system or methodology to be useful to a determination of the prosecutor’s 3 thinking at the time and not be misleading. 4 On the testimony permitted, the court finds that the term “passed for cause” on the 5 questionnaire cover sheet indicated that the juror had actually not drawn a cause objection, or that 6 the juror had survived a challenge for cause. In either event, the juror could potentially be seated 7 absent a peremptory challenge. It is most probable that the “passed for cause” notation was made 8 at a time that the juror had survived an initial hardship inquiry or a pre-voir dire review of 9 counsel. The handwritten number “56”, at the bottom of the questionnaire meant that question 10 56 (an inquiry about death penalty views) had caught Flannagan’s attention as he had reviewed 11 the questionnaires prior to his having met the juror.5 The court does not find that the cartoon 12 doodles on any part of the questionnaires had any significance to the issues before the court. 13 The court further finds that Flannagan’s rating of the juror in terms of favorability 14 to the prosecutions case, especially a willingness to impose the death penalty if the facts at trial 15 indicated such should be imposed, or conversely in terms of non-favorable, appeared generally 16 on page two of the juror questionnaire. The court finds from a review of the entire voir dire 17 transcript that for the most part, Flannagan (and defense counsel) was focused on the death 18 penalty issue during voir dire. However, the rating was not invariably focused solely on the 19 death penalty issue. See juror comparisons below. Moreover, “question 56” or a later annotation 20 of “DP” on page 2 (see below) appeared most frequently as the prosecutor’s concern. If a juror 21 exhibited characteristics, in terms of being a “good” prosecution juror, or conversely a “bad” 22 prosecution juror, even for the liability phase, the comments accompanying the rating system 23 were clear enough to make all notations meaningful to the issues herein. The court rejects 24 petitioner’s assertions that the prosecutor’s ratings and notations are not useful in adjudicating 25 26 5 Other numbers corresponding to the questionnaire appeared as well. 15 1 the Batson issues even if a few seem anomalous.6 Determination of the issues here is enhanced 2 by understanding the rating and notations actually given to each juror at the time even if counsel 3 today believe the rating should have been different, or is somehow pretextual. 4 Thus, “check marks” on page 2 indicated that the prosecutor thought this juror to 5 be favorable to the prosecution—the more check marks, the more favorable. Similarly, “Xs” 6 meant that the juror was thought to be unfavorable to Flannagan—again, the more Xs, the more 7 unfavorable. It appears that the maximum rating either way was four check marks, or four Xs. 8 The prosecutor often made cryptic comments to go along with the rating. The most frequent 9 comment had to do with “DP,”—death penalty. A “DP” set forth on page 2 indicated that the 10 prosecutor had concerns that the juror could have some type of problem (mild or otherwise) in 11 the penalty phase. The court finds that where legible, the other comments were self-evident and 12 easily understood. The notations/comments were made at or about the time that voir dire had 13 been completed with the juror. 14 Taking a few illustrative examples will clarify the above. For example, on juror 15 Fortier’s questionnaire (respondent’s Exhibit 3) at page 2, Flannagan rated him as three checks, 16 but with a possible concern that the juror was “too strong,” i.e., too fixed in his opinions or 17 overbearing in his opinions. On the other hand, juror Hurst (Exhibit 18) received two Xs and no 18 comments. Juror Hunter (Exhibit 20) received two Xs and the comment “teacher, doesn’t like 19 DP.” Flannagan did recall that he had a general aversion to having teachers on the jury. By far, 20 more jurors received check marks than Xs. Indeed, relatively few jurors received Xs. 21 22 23 24 25 26 6 The rating system and understandable notations on the questionnaires were quintessential past recollection recorded. Fed. R. Ev. 803(5). They were “a record” “concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately” “shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” To the extent that the court had any doubt about the content of the notation, the court has not relied on the exhibit. Again, the import of the notations are common sense. The court overruled petitioner’s somewhat unclear objection to use of the exhibits and their notations. RT (Evid. Hrng.) 89. See also RT 102, 103. 16 1 Most pertinent to the past record review of the voir dire, juror Manzanita Casey 2 (the only known African-American) (Exhibit 44) received a four “X” rating, the most 3 unfavorable. Prior to Flannagan ever seeing her, he noted that question 56 was of concern. After 4 her voir dire (presumably), he rated her with four [large] Xs and commented: “DP” and 5 “transport[ation] problems” and “can’t say if could set aside.” Clearly, the last comment was 6 directed to the juror’s death penalty views and not her transportation problems. 7 The other, comparison juror who received much attention in the prior briefing was 8 Gislea Clark (Exhibit 1). Clark was voir dired subsequent to Mrs. Casey. Flannagan did note 9 that question 56 caught his attention as she had starkly written that she was “against” imposition 10 of the death penalty. Despite the continued hesitance about imposition of the death penalty set 11 forth in the Clark voir dire as expounded upon in the initial Findings and Recommendations and 12 the Order, this juror received three checks. For some reason, although it is not readily evident 13 from the voir dire, the prosecutor had obtained the impression that she “might vote DP;” 14 Flannagan liked this juror because she was “otherwise strong.” (Emphasis in original). The 15 latter observation is borne out by the voir dire (see Casey/Clark comparison below). 16 Underlying Facts Found by the Undersigned and the District Judge 17 Both the undersigned and the district judge (Judge Damrell) found that racial bias 18 was a “significant factor” in the state of the prosecutor’s mind when exercising his challenge 19 against Mrs. Casey. Ultimately, both the undersigned and the district judge did not believe that 20 race was the prosecutor’s motive in exercising the challenge—the legitimate, death penalty 21 ambiguity exhibited by Mrs. Casey was a reason which would have led a reasonable prosecutor 22 to challenge her. However, the district judge’s underlying basis for arriving at the same 23 conclusion differed somewhat from that of the undersigned. The undersigned will list each of his 24 explanations, as the undersigned remains of the belief in their accuracy, and then the district 25 //// 26 //// 17 1 judges’s superseding findings, if such were made.7 2 The “Question “56” Annotation 3 Flannagan testified that he annotated the cover page of the juror questionnaire 4 with a “56” prior to voir dire of the juror if he had noted concerns with the way the juror 5 answered the death penalty questions. There is nothing about the Casey questionnaire which 6 would have led a reasonable person to conclude the race of the person answering the question. 7 No evidence at hearing demonstrated that Flannagan knew otherwise. This pre-voir dire concern 8 tends to indicate that Flannagan had a death penalty concern about juror Casey even before he 9 knew her race. 10 This factor weighs in favor of respondent. The district judge did not issue superseding findings. 11 Prosecutor’s Cause Challenge of Mrs. Casey 12 As discussed in the Findings and Order, the meritless cause challenge to juror 13 Casey, denied in a one word ruling from the trial judge, evidenced an ulterior motive to remove 14 her. In other words, the prosecutor appeared too anxious to remove her. As Judge Damrell 15 found: 16 It was well established at the time the prosecutor challenged Casey for cause that challenges for cause based solely on the fact that a juror ‘voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction’ were improper....No other jurors who voiced general objections to the death penalty were challenged for cause.” 17 18 19 20 Order at 27-28 (emphasis in original). 21 However, the undersigned believed that this apparent bias had been mitigated by comparison to 22 other jurors: 23 7 24 25 26 The district judge found that his factual bases for finding a prima facie case were “law of the case.” The undersigned did not believe he was bound by these facts at Step 3 of the Batson analysis held after the evidentiary hearing. What is important here, however, and which will be discussed later, is whether even accepting the district judge’s findings at the prima facie stage as law of the case, the motivation for striking Mrs. Casey was substantially motivated by bias given the circumstances at when the strike was made. 18 This factor weighs in favor of petitioner, but is mitigated by the prosecution’s desire to challenge juror Clark for cause, and juror Moreno’s actual challenge for cause.8 See also juror Smith, R.T. 6141-42 examined immediately after juror Casey. 1 2 3 4 The district judge believed this factor weighed more heavily in favor of petitioner. 5 Also, the F&R understates the importance of Flannagan’s meritless cause challenge of Casey. According to the F&R, and the magistrate judge’s prior findings and recommendations, filed January 29, 1999, this challenge “weighs in favor of petitioner, but is mitigated by the prosecution’s desire to challenge Clark for cause, and juror Moreno’s actual challenge for cause.” F&R at 24-25. However, the May 13 M&O implicitly rejected the F&R findings by concluding that the use of the meritless cause challenge against Casey contributed to a prima facie case of racial discrimination. The MO found persuasive the fact that “No other jurors who voiced general objections to the death penalty were challenged for cause.” M&O at 28 (emphasis in original). 6 7 8 9 10 11 Finally, in the F&R the magistrate judge concluded that he “cannot ascribe a discriminatory animus to the prosecutor in the Casey challenge based on a challenge in [the Willie Junior Johnson) case which the trial court found proper.” F&R at 39. This same finding was made in the January 29, 1999 F&R, and the court rejected it. See May 13 M&O at 28. The court stands by that rejection now. 12 13 14 15 Order at 23. 16 The Very Unfavorable Rating Received by Juror Casey 17 Juror Casey received a “four X” rating, the most unfavorable on the prosecutor’s 18 scale. Only one other juror whose questionnaire was presented to the undersigned at the 19 20 8 21 22 23 24 25 26 The undersigned had previously found that juror Moreno, see RT 6699-6721, had voiced only general objections to the death penalty, but was challenged for cause. Findings (Vol.1) at 44, 46. Moreno had written “undecided” on her questionnaire about her views on the death penalty, Exhibit 32, and through the course of voir dire indicated that she had problems with the death penalty, but would impose it if that was the decision she would have to make under the instructions and the facts. She did say that she would not want to be the foreperson of the jury in any event because the foreperson had to sign the death verdict. Flannagan challenged her for cause because she could not sign the death penalty verdict as foreperson (although she on several occasions related that she could vote for it) and because she was “undecided about her feelings about the death penalty.” RT 6721. The undersigned remains of the view that juror Casey was not the only juror challenged for cause because of general scruples against the death penalty, and this mitigates the bias potential arising out of Casey’s challenge for cause. 19 1 evidentiary hearing9 received such a rating, juror Lois Smith. Petitioner’s point, and it is a good 2 one, focuses on the fact that in all other respects, juror Casey was an ideal juror from the 3 prosecution standpoint. Petitioner argues that the forcefulness of the negative rating could only 4 have been instigated by the fact of Casey’s race. 5 As related above, the main focus of the voir dire, and especially that of juror 6 Casey, were her views on the death penalty. RT (Evid. Hrng.) 31-32. However, within that 7 parameter and in general, the prosecutor, Flannagan, was looking at “people’s backgrounds, 8 whether they’re employed, homeowners, what they had to lose. [The prosecutor] wanted people 9 who had something to lose in society, who might be victims of crime, solid citizens, preferably 10 fairly well educated” [but not teachers]. RT (Evid. Hrng.) 14. These same factors were in play 11 when juror Casey was rated. RT (Evid. Hrng.) 26. Nevertheless, it was possible for an otherwise 12 “good juror” to be rated for rejection, based on death penalty views. See below. 13 However, petitioner’s point is that the “force” of the rejection of juror Casey 14 embodies the motivation to rid the panel of its only African-American. The district judge has 15 found, and the undersigned certainly agrees, that death penalty aside, juror Casey was the 16 epitome of what Flannagan was generally seeking in good juror material. As evidenced by her 17 questionnaire, Exhibit 44, Casey was a middle class person who had something to lose if a 18 victim of crime. She expressed her concern over crime, especially drug related crime. Her 19 husband was a state worker who had also served in the military. Casey read magazines such as 20 Better Homes and Gardens, Reader’s Digest, Women’s Day– not exactly one’s anti- 21 establishment reading list. Although Casey did not respond to questions on her educational level, 22 Casey’s interest in television programs such as “Sixty Minutes” demonstrated a significant 23 //// 24 25 26 9 Evidently, not all juror questionnaires were presented at evidentiary hearing. The vast bulk of juror questionnaires were jurors who sat in the box and were peremptorily challenged, or ultimately chosen. 20 1 intellectual level. Last, but not least, Casey was not, nor had she been, a teacher.10 2 The court will engage in a comparative analysis of juror Casey with other 3 potential jurors below, but based simply on her own responses, and the prosecutor’s predelictions 4 with respect to picking jurors, Casey did not rate a “four X” score based on what she had related 5 on the questionnaire and voir dire. She was not adamantly opposed to the death penalty, 6 although any reasonable prosecutor would have been concerned with her voir dire responses in 7 this respect, and her attributes in other areas indicated that she was a “keeper.” A one or two “X” 8 rating was reasonable based solely on her death penalty views, and the court can understand the 9 reasonable argument that Casey may never have avoided a peremptory challenge because of her, 10 at best, indecisive, negative death penalty views, no matter how favorable she appeared in other 11 areas. However, to reject this juror as the “worst of the worst” appears to be unexplainable 12 overkill—unexplainable unless one attributes a discriminatory motive, be it conscious or sub- 13 conscious, to Flannagan’s rating.11 14 This factor, without other juror comparison, weighs in favor of petitioner.12 The district judge 15 did not issue superseding findings. 16 The Prosecutor’s Manner of Questioning 17 The manner of the prosecutor’s questioning may be relevant to a finding of 18 whether the prosecutor harbored racial animus when exercising his peremptory challenges. 19 Miller-El v. Cockrell, 537 U.S. 322, 344. 123 S.Ct. 1029, 1043 (2003). Mirroring petitioner’s 20 10 21 22 23 24 25 26 In reviewing all of the juror questionnaires, it also appears that the prosecutor disfavored social workers. Mrs. Casey was not a social worker. 11 The court does not place much stock in petitioner’s argument that because the “X” marks given Casey were larger than other juror’s “X” marks, this shows how badly Flannagan desired to be rid of Casey. No one at the evidentiary hearing could testify to such significance, and such an argument smacks too much of Rorschach testing by an amateur psychologist. In any event, other X’ed jurors received large Xs. See e.g., juror Works, Exhibit 34. 12 The purported travel problems that this juror might have had were not fleshed out, have not been demonstrated by respondent as an articulation of a significant reason for rating Casey so poorly, and will be given no credence by the undersigned. 21 1 allegations here, the Supreme Court found possible fault with the very explicit description of the 2 death process utilized with African-American jurors, but with only a handful of non-black jurors. 3 (Although the disparate questioning here was not performed in any way to the degree manifested 4 in Miller-El). In finding a prima facie case in this case, the Order focused upon prosecutor’s 5 Flannagan’s use of the term “gas chamber,” a term not utilized according to petitioner with any 6 other juror. 7 However, respondent has accurately pointed out that the trial judge first utilized 8 this term a relatively short time before the Casey voir dire with juror Shalley. RT 5204. Thus, it 9 might not be viewed as discriminatory that the prosecutor simply picked up on the judge’s 10 11 language in a later voir dire. Moreover, petitioner obliquely argues that the prosecutor was much more pointed 12 and lengthy in his questioning with juror Casey than he was with other jurors. This is not to be 13 completely unexpected, because, as discussed at length below, juror Casey was more equivocal 14 in her death penalty responses than the large majority of other jurors. Indeed, the defense took 15 slightly longer in questioning Casey than did the prosecution. RT 6109-6114 (defense), 6114- 16 6119 (prosecution). Such equivocation would necessarily lengthen and sharpen the focus of the 17 questions. The court has also undertaken an extensive review of the “X” jurors below, and does 18 not find that the prosecutor’s manner of questioning exhibited significant differences when 19 compared with other equivocal jurors. The court could take pages of comparison voir dire, but 20 one example will suffice—that of Lois Smith, the other four “X” juror: “Q. So, if I chose you to 21 sit as a juror in this case would it not be taking a chance that the evidence I produce would not 22 comport with what you already have in your mind as what a death penalty case is?” RT 6139. 23 That is a fairly pointed question. 24 This category is neutral. The district judge disagreed, but only with respect to the prosecutor’s 25 reference to the gas chamber with Mrs. Casey. 26 [T]his court concluded in the May 13 M&O that Flannagan’s 22 1 2 mentioning the gas chamber to Casey constituted disparate questioning and supported an inference of discrimination, yet the F&R concluded it was a “neutral” actor with respect to its ultimate finding on the issue of discriminatory intent. F&R at 28. 3 4 5 6 7 Order at 22-23. Comparison in Ratings between Jurors Casey, Clark and Krueger. Juror Clark Much has previously been made of a comparison between juror Clark and Casey 8 based only on voir dire responses when assessing the prima facie case. See [February 29, 1999] 9 Findings and Recommendations at 40, 46-48; [May 13, 2002] M&O at 29. However, we now 10 know that Juror Clark, who was very similar in background and hesitance on the death penalty 11 vis-a-vis Casey was rated with three TTT. Exhibit 1. We also know that the prosecutor was 12 disappointed enough in the Clark voir dire at the time that he expressed his frustration in not 13 being able to challenge her for cause. RT 6408. (The Clark voir dire took place after Casey’s, 14 and the prosecutor had evidently learned from that denial). One might have expected Clark to be 15 in the “X” category based on her death penalty responses. 16 However, there was something about Clark which the prosecutor liked. He wrote 17 in his notes—“might vote DP otherwise strong” (emphasis in original). The prosecutor’s 18 contemporaneous notes corroborated the independent reading of the voir dire by the undersigned, 19 where Clark seemed to exude decisiveness outside of her hesitant death penalty views. F&R at 20 46-47. The point here is not whether all reasonable prosecutors would agree with Flannagan’s 21 Clark rating; the point is whether the discrepancy between Casey and Clark indicates racial 22 discrimination. While a comparison limited to Casey and Clark by itself would lend quite a bit of 23 weight to petitioner’s inference of discrimination, the anomaly in the scores between these two 24 jurors is so extreme so as to reduce its significance in petitioner’s favor because the Clark score 25 was anomalous with respect to the other “X’ed” jurors as well, not just Casey. See below. 26 Indeed, it was also anomalous with respect to three plus jurors. Based on the fact that the Clark 23 1 discrepancy seems too extreme in the context of all juror questionnaires and voir dire, the 2 significance of the discrepancy fades for the purposes of this case. 3 The undersigned cannot find that this comparison favors either side. 4 The district judge believed the juror comparison of Casey vs. Clark informative, 5 but such was stated in the context of the district judge findings that the rating system was very 6 important, and indeed the primary motivator of the exercise of peremptory challenges. Order at 7 25. Indeed, the district judge did not consider Clark’s rating an anomaly (although the district 8 judge did believe that Casey’s and Clark’s death penalty views were dichotemous), and favored 9 an inference that Casey’s extremely negative rating had been biased. The district judge’s 10 11 12 findings in this regard will be quoted in that section concerning the rating system. Juror Krueger Petitioner points with emphasis to Juror Krueger (++ and ½+) as another 13 otherwise prosecution oriented juror that “should have been challenged” because of her death 14 penalty views, and compares her with juror Casey. If looking only at the juror questionnaire, 15 petitioner is correct. Krueger answered question 56 with: “No one should receive death 16 penalty.” However, in question 57(e), she stated that she could set aside her personal feelings. 17 She portrayed quite a different person at voir dire. In response to the judge’s 18 question about whether she had such an opinion that would preclude her from voting for the 19 death penalty, she responded, “No. I think I would be able to vote for the death penalty.” RT 20 7376. She assured the judge that she could act impartially for both sides. RT 7377. 21 long explanation of aggravating factors and mitigating factors, where defense counsel summed 22 up: “And the jury hears evidence on both sides, and considers and weighs those. And if the jury 23 finds that the aggravating factors so substantially outweigh the mitigating factors, that they feel 24 death is the appropriate verdict; that’s the verdict they return. Otherwise, life without possibility 25 of parole. In that framework, I assume you don’t have any problems with your ability to serve as 26 a fair and impartial juror?” She responded: “No, I would not have any problem with that.” RT 24 After a 1 7385. Later, she was questioned by the prosecutor and explained her Question 56 response as 2 one that there might not be much need to impose the death penalty because life in prison was 3 “close to death” already. RT 7391. The questions continued: 4 Q. So beyond a reasonable doubt, any reasonable doubt, you would have already found– A. Yes. That– Q --him to be guilty? A. That this individual was guilty. Q. Okay. A. Then I would be able to vote for the death penalty. 5 6 7 8 RT 7392 (emphasis added). 9 *** 10 Q. You understand that the People in this case are asking for the death penalty? A. Yes, I do. Q. And obviously, the Defense in this case, should we get that far, would want you to vote for life without the possibility of parole? A. Yes, sir. Q. And you think at this stage, as of today, that you could give us both the benefit of your undivided feeling and intent, and base your decisions solely upon the evidence and His Honor’s instructions? A. Yes, I would be able to. 11 12 13 14 15 16 17 RT 7393. Petitioner’s taking of an ambiguous comment about the State of Texas (a 18 comment that was made in the context of both race and death penalty (“and you know I’m not in 19 agreement.” RT 7379–80), and her general feeling that she “would be more toward the life 20 imprisonment versus death,” RT 7383, does not fairly characterize the entire voir dire. 21 If voir dire can be used to demonstrate that Mrs. Casey was perhaps not as anti- 22 death penalty as question 56 might otherwise indicate, it can certainly be used here to 23 demonstrate the same. In comparison between the two voir dires, there can be no doubt that juror 24 Krueger was a demonstrably more favorable prosecution juror vis-a-vis the death penalty than 25 Mrs. Casey. The prosecutor’s final voir dire evaluation of juror Krueger was not out of line with 26 her voir dire. ( And, it should be noted that this sitting juror’s vote for the death penalty 25 1 confirmed the prosecutor’s analysis.) 2 These comparisons are at least neutral, and could be viewed as favoring respondent. The 3 district judge did not agree: 4 Likewise, a comparative analysis between Casey and juror Mary Krueger is similarly instructive on the issue of discriminatory intent. On Krueger’s questionnaire, Flannagan wrote “NO DP for anyone.” EH Exh. 5 (capitalization in original). In response to question 56 (“What are your GENERAL FEELINGS regarding the death penalty?”), Krueger stated: “no one should receive death penalty.” She also indicated, in response to question 57, that she felt the death penalty was used “too often.” Finally, in response to question 17, which inquired about her involvement with criminal cases, Krueger indicated that her sons had been arrested. RT 7379. 5 6 7 8 9 Based on Krueger’s answers, arguably a prosecutor would give her a more negative rating than Casey, though the two were otherwise demographically similar. Krueger lived 14 years at the same address (Casey lived 17 years at hers); she was 45 years old (Casey was 58); both of their husbands were veterans, and both husbands were employed by the government; neither had prior jury experience; both had two adult sons; and both thought drugs were the primary cause of crime. EH Exh. 5 and 44. 10 11 12 13 14 During her voir dire, Krueger, like Casey, expressed her opposition to the death penalty but indicated that she thought she would be able to impose it. RT 7376, 7391-93. However, Krueger emphasized to the court that although she was originally from the State of Texas, she was not in favor of the death penalty. In fact, Krueger stated, “I would think that I would be more toward the life imprisonment versus death.” RT 7383. 15 16 17 18 Despite Krueger’s hesitancy toward the death penalty, Flannagan rated her as TT1/2 T. EH Exh. 5. Krueger exhibited qualities that Flannagan liked, which apparently outweighed her negative feelings on the death penalty. As the May 13 M&O noted, the purpose of comparative analysis is to determine whether jurors like Krueger and Clark were “sufficiently ‘similar’ or ‘comparable’ such that the striking of Casey, and not Clark or Krueger, provides substantial evidence that Casey was removed on account of her race.” M&O at 31. See Turner v. Marshall, 121 F.3d 1248, 1251-54 (9th Cir. 1997). Again, this factor strongly supports a finding that race played a significant part in the prosecutor’s decision to challenge Casey. 19 20 21 22 23 24 25 Order at 27-28 26 //// 26 1 Comparison with Other Jurors Who Received an “X” Rating 2 An important comparison, one not performed by petitioner or respondent, places 3 juror Casey in the context of other jurors who received “X” ratings. That is, was Mrs. Casey’s 4 placement in the “X” category an ill fit in light of the other jurors put in that category. The 5 undersigned has performed that comprehensive review. Two points become evident as the 6 comparison is performed: (1) Casey did not deserve a “XXXX” rating (favors petitioner); 7 however, (2) Casey was not an ill fit in the “X” category in general (favors respondent). 8 Joy Bertrando XXX- Exhibit 46– 9 12 Question 56– “Sometimes in very terrible crimes I have felt that it might be justified, but that is just an angry reaction. Actually, I think life imprisonment is worse punishment. I also think that killing people isn’t right no matter who is doing it.” but see –question 38 (a) “I feel this country is too lenient about crime” Prosecutor Comments– “DP ‘thinks’ could base[d] on facts” 13 Voir Dire--RT 6256 start 14 When asked whether she could impose a death sentence: “Well, I would–that is–well, I feel–I feel somewhat strongly against the death penalty, but I suppose I am not–I am not just so absolute about it that–I wouldn’t–that is so hard.” RT 6260. In response to Defense counsel’s questions, she related that she would follow instructions regardless of her views; however, upon questioning by the prosecutor she opined–how difficult a situation it was, and could only muster an equivocal– “I think I could,” RT 6278, when asked if she could approach the decision from a neutral position. 10 11 15 16 17 18 19 The answers of this juror are similar to those elicited of Mrs. Casey. 20 Lois Smith XXXX- Exhibit 16 21 23 Question 56– “I do not believe in it as a general rule–there are exceptions” Welfare worker; had questions about the fairness of the legal system Otherwise favorable 24 Voir Dire RT 6121 start 25 “It is horrifying,” id.–in answer to question about the prospect of being on the jury RT 6125. In other questions concerning her feelings about the 22 26 27 1 death penalty, RT 6125-26, she related– “It is hard to–semantics are–confusing.. I don’t think I would have a difficult time if I really believed that it was the correct action.” “I couldn’t say never. No. There might be circumstances in which I would.” 2 3 4 Arguably, this four “X” juror was more disposed to render a death penalty verdict than Mrs. 5 Casey. 6 Robert Hurst XX– Exhibit 18 7 Q 56– “It’s OK.” 8 Voir dire RT 5735 start 9 Hurst answered “no” to the question whether he had a conscientious determination that would preclude him from voting for the death penalty, RT 5742; he could keep an open mind about the death penalty, RT 5747 10 11 12 Karen J. Hunter XX–Exhibit 20 13 Question 56–“In certain circumstances it could be warranted. I’m reluctant to say that I’m wholesale for the death penalty” Prosecutor written comments after voir dire–“teacher, doesn’t like DP” 14 15 Voir Dire RT 5959 start 16 She could vote for the death penalty, RT 5963; “If I really felt strongly that all the evidence warranted a decision and the Judge has so instructed us, then I would have to do that. I would have to give that [death] judgment.” RT 5968 17 18 19 Donald Gilbert XX–Exh. 22 20 21 Question 56–death penalty could be imposed in rare cases where it fits Prosecutor written comments–“if OK, will never vote DP” 22 Voir Dire–RT 5496 start 23 “I’m an extremely liberal person,” RT 5500; “I would have a difficult time voting for the death penalty,” RT 5502; “Maybe” he could impose the death penalty, but would have a “very difficult time.” RT 5504-5505 24 25 26 //// 28 1 This juror seemed “worse” than Casey from a prosecutor’s viewpoint in terms of 2 death penalty responses. 3 Mary Haffly X–Exhibit 24 4 Question 56–(response illegible) 5 Prosecutor written comments–“too young” “says could do death penalty” 6 Voir Dire RT 5140 start 7 8 9 The voir dire supports the prosecutor’s notes. This juror stated that she could vote death penalty; she did not seem to have too much of a problem with it; on other hand she was “not looking forward to it,” RT 5147. She would have voted for Briggs initiative (reinstituting the death penalty in California). RT 5152 10 11 12 13 This juror was clearly an “X” only because she was young. Nancy L. Pisarek X– Exhibit 26 Question 56–“Generally, I am against the death penalty. It is the law tho + [and] I can see where I could support it...” 14 Voir Dire 6479 start 15 16 This juror was a bit anxious to make a decision on someone else–“I could vote for the death penalty, but I am generally opposed to the death penalty. But I could, because it is the law....” RT 6483. 17 18 19 20 21 22 William Lloyd Henley X and T–Exhibit 28 Question 56–“There are times and circumstances when I have considered it appropriate” Prosecutor written comments– “‘Borderline’ DP weak” Candice Works XXX (and pretty large Xs)–Exhibit 34 Recovery Counselor Q 56–“All life is precious–But I will keep an open mind” 23 Voir Dire RT 5903 start 24 25 26 This juror was a recovering addict/alcoholic; she thought the legal system to be unfair. With respect to the death penalty, she could vote for it in some cases, but– “You know, honestly, I don’t know. I really can’t 29 1 2 3 project;” RT 5908; she could “conceive of a situation where she would,” RT 5913; she would not refuse to vote death penalty on a “conscientious ground,” id. She told the prosecutor that she was not “uncertain” about the death penalty, she just wouldn’t say whether she would vote for the death penalty in this case or not. RT 5918. 4 5 While the undersigned has found that the prosecutor exercised his peremptory 6 challenge against Mrs. Casey in part because of discriminatory reasons, the undersigned also 7 finds that juror Casey belonged in the “X” category. The court reiterates some of Casey’s 8 answers that so persuade the undersigned for comparison purposes. 9 10 Q: Do you honestly believe, considering what your feelings are toward the death penalty, that you could vote for a verdict which would mean that this gentlemen here, Mr. Crittenden, would be executed in the gas chamber? 11 A: Could I vote – 12 Q: Yes. 13 15 A: – for it? I can’t sit here and really say for sure if I could. But, if it is proven to me, truly proven to me, and I feel deep down inside that he did it, I could. I think I could. 16 Q: You think you could? 17 A: Yes. I have to say I think I could. This is all new to me. So I am very upset with it. 14 18 *** 19 20 Do you think that your feelings about the death penalty – in other words, that you don’t believe in it – would make it difficult for you to make a decision regarding the death penalty? 21 A: Yes, I think it would. 22 23 Q: And, do you think it might substantially impair your ability to fairly evaluate all of the evidence regarding the death penalty? 24 A: I can’t say yes. I can’t say no. I really don’t – don’t know. 25 26 *** Q: That is what I am getting at. I don’t want to give you the 30 1 circumstances because I don’t want you to have to prejudge the facts. What I am trying to find out is if your general feeling about the death penalty would even interfere with your being able to make a decision about it. 2 3 A: I don’t think so. I try not to let it. 4 5 The “I don’t know(s),” the “I think so(s)” and the “I’ll try(s)” combined with Casey’s 6 unmistakable reluctance to impose the death penalty would, by any reasonable measure when 7 comparing her to the other “X” jurors, have placed her in an “X” category. The court recognizes 8 that in other parts of the voir dire juror Casey was less equivocal, e.g.: 9 Q. You can conceive of situations in which you might vote for the death penalty? 10 A. Yes. 11 *** 12 Q. So you are not telling us that in any situation you couldn’t or wouldn’t vote for a death penalty? 13 A. No. 14 15 However, the voir dire, judged as a whole, demonstrated repeated doubts on Casey’s part as to 16 whether she could in fact vote for the death penalty if warranted. Indeed, in the second answer 17 set forth above, Mrs. Casey expressed that she was not sure she could vote for the death 18 penalty—that she could so vote—and then back to she did not know. The prosecutor was not 19 tasked with the obligation to ignore the doubts and indecision. 20 This factor favors both the petitioner and respondent. 21 The district judge believed that the undersigned had meant to imply in this 22 comparison that the prosecutor’s rating system was “solely dependent on the juror’s death 23 penalty views.” Order at 23. If this were conveyed in the above analysis, the undersigned did not 24 mean to convey it, nor does the undersigned disagree with the district judge that other factors 25 //// 26 //// 31 1 entered into the ratings.13 The findings of the district judge are quoted below, and fairly read 2 indicate the same conclusion found by the undersigned—this factor favors petitioner and 3 respondent: 4 Turning next to certain substantive “factors” reviewed by the magistrate judge, regarding Flannagan’s jury rating system, a close look at many jurors’ ratings illustrates that Flannagan’s rating system was not, contrary to the magistrate judge’s conclusion, solely dependent on jurors’ death penalty views. Flannagan assigned positive ratings to several members of the jury pool who expressed anti-death penalty views. For example, Suzanne Tennies (TT, EH Exh. 58), repeatedly expressed strong anti-death penalty views, and Flannagan noted on her questionnaire “probably wouldn’t vote for DP.” RT 4992, 4994, 4995, 4997, 4999. In fact, unlike Casey, Tennies was unable to conceive of situations in which she would impose a death sentence. RT 4992, 6108, 6111, 6112, 6114-6115, 6116, 6118. 5 6 7 8 9 10 11 Similarly, Francis Sullivan (TT, EH Exh. 54) stated he “would automatically and in every case vote for life without possibility of parole and never vote for the death penalty” and “he had reservations about the death penalty.” RT 6413. 12 13 Michael Fisher (T,EH Exh. 50) claimed he was “generally opposed to the death penalty” and stated “where there’s an option between a death penalty and life in prison without the possibility of parole, generally, I believe, I would choose the latter option ....” RT 6846. Fisher said he could only conceive of imposing the death penalty in an extreme case of serial murder, stating “good example would be Ted Bundy... somebody who has killed, or allegedly killed, 40 people.” RT 6846. When the trial judge asked Fisher if his bias against the death penalty, and in favor of life without possibility of parole, was “based on an absence of information on [his] part at this particular point of the case, insofar as [his] preference between those two entities?” he replied, “No, it is not. It would be easier if it was, but it isn’t. It’s not relative to this particular case at all. This is just my disposition.” RT 6864-6865. When Flannagan asked Fisher if “the People at the outset are at a disadvantage in seeking [the death penalty] with regard to having 14 15 16 17 18 19 20 21 22 13 23 24 25 26 In fact, as set forth previously, the undersigned had previously found: “However, the rating [of the prosecutor] was not invariably focused solely on the death penalty issue.” Perhaps the district judge got this impression from the undersigned’s juror comparison which focused upon those jurors who received Xs in addition to Mrs. Casey– the majority of such marks were death penalty related. See also Findings and Recommendations dated January 29, 1999, Docket #62 at 45: “The prosecutor exercised all 26 of his peremptory challenges. He did not strike only anti-death penalty jurors; he struck several persons for other reasons even though they had expressed a willingness to impose a death sentence if appropriate.” 32 1 you as a juror?” he replied, “They could be,” since he was “more inclined to give life than death.” RT 6860-6862. 2 Despite their strong anti-death penalty views, Flannagan rated Tennies, Sullivan, and Fisher substantially more positively than Casey. Although each was ultimately struck during jury selection, their positive ratings are additional indicators that Flannagan’s juror rating system was not based solely, or even primarily, on jurors’ death penalty views. Therefore, the question remains what, if not Casey’s death penalty views, explains her “XXXX” rating? This factor weighs strongly in favor of finding that race played a significant part in Flannagan’s challenge of Casey. 3 4 5 6 7 8 Second, the magistrate judge did not find a comparative analysis of Casey and trial juror Clark highly probative. However, in the May 13 M&O this court classified such analysis as “substantial evidence that Casey was removed on account of her race.” MO at 31. There is a notable difference in the way Flannagan rated jurors Casey and Clark, considering the similarity of their backgrounds and their shared hesitancy on the death penalty issue. Despite their similarities, the prosecutor rated Casey a “XXXX,” while juror Clark received a rating of TTT. See Exh. 1. Further, Flannagan expressed his frustration during the voir dire in not being able to challenge Clark for cause, as he had unsuccessfully done with Casey. See RT 6408. Despite Flannagan’s initial hesitancy, he liked something about Clark, writing in his notes: “might vote DP otherwise strong” (emphasis in original). 9 10 11 12 13 14 15 16 The F&R underestimates the importance of Flannagan’s rating system, even labeling Clark’s rating “an anomaly.” F&R at 15. The objective facts, supported by the testimony at the evidentiary hearing, suggest that the prosecutor did not primarily rely on jurors’ death penalty views in the jury selection process, as the F&R suggests. 17 18 19 However, the facts do suggest that, in selecting jurors, Flannagan substantially relied upon his rating system. For example, Flannagan left Clark (TTT), and other TTT-rated jurors, on the jury. Notably, when given the opportunity, Flannagan exercised a peremptory against every X-rated juror he could remove. When no X-rated jurors were available to strike, Flannagan removed singleT jurors. [footnote] In fact, every juror who sat on the trial jury received a rating of at least TT, and all but two jurors scored even higher. Therefore, Clark’s rating cannot be dismissed as an “anomaly,” and a comparative analysis between Clark and Casey is instructive as to whether Flannagan’s dismissal of Casey was racially motivated. 20 21 22 23 24 25 26 //// 33 1 2 3 4 5 6 [footnote] The prosecutor’s juror ratings and his challenges, in the order in which he exercised his peremptories, follow. The court notes that because the trial court used the “modified struck system” to select the final jury (as a juror was removed, a panelist was selected from the pool to take the struck juror’s place), an X-rated juror may appear in the pool late in the selection process: Smith (XXXX); Hurst (XX); Hunter (XX); Gilbert (XX); Haffly (X); Pisarek (X); Henley (X- T); Anderson (T); Moreno (T); Works (XXX); Testa (TT); Thelan (T); Culbertson (TT); Lester (T?); Casey (XXXX); Bertrando (XXX); Rehm (T); Fisher (T); Shalley (T ); Murillo (no rating); Sullivan (T); Brand (TT); Tennies (TT); Naess (T); McMullin (TT); Bell (T). 7 [Krueger analysis quoted above omitted here] 8 9 10 11 12 Additionally, comparing Casey to panelist Lois Smith, the only other juror to whom Flannagan assigned a XXXX rating, is also instructive. A review of Smith’s voir dire indicates why the prosecution considered her so unappealing. Smith stated that she had a strong anti-death penalty belief, and found the prospect of sitting on a death penalty case “horrifying” and “frightening.” RT 6121, 6138. Further, Smith had a “preconceived notion as to the type of crime or the type of evidence which would allow [her] to vote for the death penalty.” RT 6139. 13 14 15 16 17 18 During voir dire, Smith also indicated she might require a higher standard of proof than beyond a reasonable doubt when considering special circumstances. In fact, she failed to give clear answer to the questions about reasonable doubt, indicating to the judge and the attorneys that she had difficulty with the concept of reasonable doubt. RT 6125, 6132-33. In Smith’s juror questionnaire, she indicated a prior bad experience within her family pertaining to law enforcement. During questioning by defense counsel, the reason for Smith’s XXXX rating became clear: 19 20 21 22 23 24 25 26 Q. Okay. You had mentioned in your questionnaire that there was some bad experience within your family as it pertains to law enforcement. In that answer were you referring to the situation with your daughter? [footnote] A. No. No. I had a situation quite a few years back where they came to arrest my husband for stealing a bottle of whisky out of a drug store. And, they came to my house. They had witnesses who saw him. And then when they asked to see a picture of my husband, my husband is a white man, and they were looking for a black man. So, it wasn’t funny. It was horrendous. Q. I imagine it was. A. But, I mean, that is the only thing that saved him. He would have been in jail because there was a witness who saw him, you know, get into our car, and we have a black and white 34 1 2 3 4 5 dog, and he described the dog. And they still thought it was my husband and - so, I mean, that kind of - horrified me. You know. Q. Well, obviously Mr. Flannagan wasn’t part of that situation some years ago? A. No. It was a long time ago, and hopefully it doesn’t happen very often. But And I take it there is nothing about that experience that is going to spill over in terms of your ability? A. Only in that I think I would be extra cautious because of it. RT 6133-34, emphasis added. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [footnote] Earlier, Smith had revealed that her daughter had been a complaining witness or victim of a crime. RT 6123. Flannagan was likely troubled by Smith’s “extra cautious” approach because an important piece of the government’s evidence was testimony by a witness about seeing a black man in the victims’ neighborhood near the time of the murders. Witness Rodney Cox lived four houses away from the victims’, and claimed to have seen a male fitting the description of the defendant near the victims’ home on the date the prosecution claimed the murders occurred. RT 9058. However, when Cox observed defendant Crittenden in a lineup, Cox could not identify him as the man he had seen. RT 6069. Flannagan knew he was going to present this shaky testimony to the jury, hoping they would nevertheless conclude that the man Cox observed was in fact Crittenden. Under these circumstances, it is apparent why Flannagan would want to avoid an “extra cautious” juror like Smith. Therefore, solid justifications exist for Smith’s XXXX rating. Although a clear and identifiable reason for Smith’s XXXX rating exists, no such justification exists for the “XXXX” rating of Casey. It is puzzling why Casey received the same rating as Smith, when no similarly glaring evidence for prosecutorial disfavor of Casey exists. Turning finally to Casey’s XXXX rating, one of the two worst juror ratings Flannagan gave. The rating is troubling, since Casey’s responses on her juror questionnaire and during voir dire do not seem to justify such a negative rating. Flannagan made several written notations next to Casey’s rating, but none satisfactorily explain her rating. First, on the jury questionaire, Flannagan wrote “DP,” indicating an issue with the death penalty. As discussed above, while Casey first stated in her juror questionnaire that she didn’t “like to see anyone put to death,” later when asked whether her feelings about the death penalty would interfere with her being able to make a decision about it, she answered, “I don't think so. I try not to let it.” F&R at 10. Certainly, jurors Tennies, Sullivan, and Fisher had equally negative, if not more negative, death penalty views than Casey, yet all received positive ratings. On Casey’s questionnaire, Flannagan also noted that she had “transport problems.” EH Exh. 44. Although Casey raised a 35 1 concern that she would need to make arrangements to get to the court, after being questioned and reassured by the judge, her transportation issue appeared resolved. RT 6119-20. Finally, Flannagan made the notation “can’t say if could set aside,” referring to Casey’s views on the death penalty. However, at no time during her voir dire did she unequivocally make such a comment.14 Accordingly, the three notations made by Flannagan, while they indicate some qualities a prosecutor would find unattractive, do not justify Casey’s XXXX rating, especially when compared to the other venire members. Therefore, for all the above reasons, and others not discussed herein but analyzed by the magistrate judge, the court agrees with the magistrate judge that race played a significant part in the prosecutor’s decision to remove Casey. 2 3 4 5 6 7 8 9 Order at 23-31. 10 The Make-up of the Potential Jury at the Time of the Casey Challenge 11 The undersigned continues with the analysis of the district judge at this point, in 12 that it demonstrates the counterweight to the above finding of bias on the part of the prosecutor. 13 The undersigned will then continue with his final analysis of the most important juror 14 comparison in the case—the comparison of the jurors at the time of the Casey peremptory 15 challenge. 16 First, while Casey “did not rate a ‘four X’ score based on what she had related on the jury questionnaire and voir dire,” (F&R at 26:14-15), she did nonetheless reasonably deserve a “X” rating based on her death penalty views (F&R at 34-35, recounting key portions of her voir dire testimony). Indeed, Flannagan noted concern about Casey’s death penalty views on her jury questionnaire even before he met her. Additionally, judged as a whole, her voir dire demonstrates Casey’s repeated and substantial doubts as to whether she could in fact vote for the death penalty. The prosecutor was not, on account of her race, obligated to ignore her doubts and indecision. Nor was the prosecutor the only one to place Casey in the “X” category. The trial judge commented on his perception of Casey in ruling on the “Wheeler” motion, calling her “indecisive” on the death penalty issue and finding that she “couldn’t decide whether or not she would be able to follow the law.” The judge expected that a “peremptory challenge was going 17 18 19 20 21 22 23 24 25 26 14 Undersigned’s note—It is true that no such express statement was made; however, the gist of Casey’s responses are accurately summed up by this notation. This is made clear by the district judge’s further analysis. 36 1 to be [made].” F&R at 38:10-13. Importantly, these factual comments are entitled to special weight. [citations omitted] It is the trial judge, and not this court, who witnessed her testimony and observed her demeanor. Moreover, petitioner’s defense counsel at trial conceded on the Wheeler motion that Casey was in a group who “have expressed views opposing the death penalty or with their own ability to impose a death penalty.” F&R at 39:7-8.15 Accordingly, it was not only the prosecutor who would have placed Casey in the “X” category; the trial judge and defense counsel placed her in that category as well.16 These contemporaneous observations are critical to this analysis. [emphasis in the original and added by the undersigned] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 15 The undersigned expressed similar findings. “The Trial Judge’s Views Nor was the prosecutor alone in placing Casey in the “X” category. Whatever the correctness of the trial judge’s determination not to find a prima facie case of discriminatory use of peremptory challenges, the trial judge did comment on his perception of Casey herself. This is a case where a Wheeler motion would be inappropriate, because of the fact that she is indecisive and cannot guarantee that she would vote a certain way. And in my language that does not mean that, that (sic) would vote a certain way, based on the facts. But that she couldn’t decide whether or not she would be able to follow the law.... And, as such, her wrestling with these issues indicated to me that; although a cause challenge was certainly not called for, that a peremptory challenge was going to be expected in any event. RT 7302-03 ... The value of observing how a response is made can be very bit as descriptive of a response as the literal substance of the response. Even assuming arguendo that latter day readers might reasonably argue, selectively taking textual portions of the Casey voir dire, that she was decisive with respect to her death penalty questions, or that the trial judge may have been incorrect in his perception, the point here is that the trial judge also observed how Casey made her responses, something of which the text transcript gives only a partial answer. That is, “she is indecisive,” her “wrestling with the issues,” speaks loudly as to how she answered the questions. The trial judge kept copious notes of the voir dire so that the Casey challenge was fresh in his mind at the time of the Wheeler motion. The law correctly gives great deference to such observations.” Findings and Recommendations at 38-39. 16 23 24 25 26 The undersigned also thought the placement of Casey in the “X” category was critical, and not a latter day stretch of the facts. “Defense Counsel’s Views Finally, not only the prosecutor and the trial judge would have placed Casey in the “X” category, defense counsel said as much themselves. In support of the Wheeler motion, defense counsel placed Mrs. Casey in a group who “have expressed views opposing the death penalty or with their own ability to impose a death penalty.” CT 3300-3301.” Findings and recommendations at 39. 37 1 2 3 4 Where such a valid and well supported race-neutral reason exists for Casey’s challenge, the court cannot find the “real” or “motivating” reason for Casey’s removal was her race. Order at 32-33. The undersigned also found critical the make-up of the potential jury art the time 5 the Casey strike was made. A very important context in which to review the Casey challenge 6 requires a snapshot of the potential jury at the time of the Casey challenge, i.e., was the Casey 7 challenge ill advised in light of the jurors at that time, or was the jury so prosecution oriented that 8 the prosecutor had little choice but to strike juror Casey. The court has charted the pertinent part 9 of the jury selection: 10 Italics-- indicates a seated but struck juror 11 (P_)-- indicates a prosecution challenge 12 (D_)-- indicates a defense challenge 13 1. etc.-- indicates the seat which each juror took 14 Bold– indicates the jury at the time of the Casey challenge 15 1. Simmons(D3) Testa(P11) Naake(D11) Thelen(P12) Corrao 16 2. Fox (D4) Culbertson(P13) CASEY–P15 17 3. Fisher 18 4. Erickson (D2) Paul(D5) Carrington(D6) Cousley(D13) Lester(P14) Rehm 19 5. Luna(D7) Houck(D10) Martinez(D12) Tennies 20 6. Lois Smith (P1) Silveira (D1) Henley(P7) Moreno(P9) Naess 21 7. Roberts(D14) Bertrando 22 8. Pisarek(P6) Anderson(P8) Shalley 23 9. Haffley(P5) Shumski(D8) Phelps(D9) Works(P10)McMahan 24 10. Gilbert(P4) Stewart 25 11. Hurst (P2)Hunter (P3) Fortier 26 12. Curtis 38 1 At the time of Mrs. Casey’s Challenge, the jury was comprised of : 2 Corrao–TTT 3 CASEY– XXXX 4 Fisher–T 5 Rehm–T 6 Tennies–TT 7 Naess–T 8 Bertrando–XXX 9 Shalley–T 10 McMahan–TTT 11 Stewart – {T}[no rating on the questionnaire but see RT 7735 where the 12 prosecutor called her one of his “good jurors” when she was later excused for hardship after 13 Casey challenge; she would have rated at least a T based on that comment] 14 Fortier–TTT 15 Curtis–TTT 16 Neither Gislea Clark nor Mary Krueger had been seated at this point. The 17 prosecutor did not challenge Casey the moment he could have; he exercised a challenge to juror 18 Lester ( “T?” rating) after Casey had been seated. Bertrando was seated immediately after a 19 defense challenge and after Casey was seated. 20 It is apparent to the undersigned that the prosecutor, if following his own 21 evaluations, had little choice in determining to strike juror Casey at this point. The make-up of 22 the jury was pro-prosecution at the time Casey was challenged. There exists no authority that 23 requires the prosecution to strike a favorable juror in order to maintain an appearance of non- 24 discrimination in not striking a minority when that minority is an unfavorable juror. And, 25 whether Casey was stricken first, or Bertrando was stricken first (Bertrando was the very next 26 prosecution strike, RT 7283), would seem to make little difference. The prosecutor would want 39 1 both off the jury, and striking them in the order in which they were seated appears reasonable. 2 Of course, the significance of the above depends on whether Casey was properly 3 in the “X” category at all. If she should have been a “T” juror, the prosecutor would not have 4 been faced with a decision to strike Casey or some other “X” juror. He would have simply struck 5 Bertrando. 6 opposed to the strength of such rating) was not unreasonable at all. Given that Casey fit into that 7 general strike category, it then becomes apparent that she would have been stricken regardless of 8 her race.17 Nevertheless, as seems clear from the previous section, Casey’s “X” rating (as 9 Yes, as petitioner notes, there were a few, very few, jurors who received check 10 ratings which might puzzle the objective observer when reading only the prosecutor notes and 11 transcript years later, e.g. juror Tennies (Exhibit 58) (however, her voir dire was much less 12 strident and she indicated that she, as foreperson, could even sign the death verdict if warranted). 13 But puzzlement about a few jurors does not indicate that the entire system used by the prosecutor 14 is unfathomable, or that legitimate comparisons cannot be made when viewing the jury selection 15 as a whole. While the prosecutor may be viewed as “wrong” about juror Tennies, that does not 16 indicate that he was “wrong” in the vast majority of his ratings or wrong about placing Casey in 17 the “X” category. It should also be noted that the prosecutor ultimately struck juror Tennies. RT 18 7228). 19 This category significantly favors respondent. 20 Discussion 21 1. AEDPA Standards Do Not Apply 22 It bears repeating that although this habeas petition was otherwise subject to 23 24 25 26 17 The conclusions to be drawn from the strike chronology also might have been different if the composition of the jury at the time of the Casey strike was primarily unfavorable as far as the prosecutor was concerned. Then reaching out to strike Casey, as opposed to a significant number of other unfavorable jurors might be viewed in petitioner’s favor. However, the history of the strike chronology cannot be changed to fit petitioner’s views. 40 1 AEDPA strictures, the Batson issue was not reviewed under AEDPA deference: 2 [W]hen it is clear that the “[state] courts did not reach the merits of [the petitioner’s constitutional] claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings;’” “[i]nstead, the claim is reviewed de novo.” Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (quoting 28 U.S.C. § 2254(d)). 3 4 5 6 Williams v. Cavazos, ___F.3d ___, 2011 WL 19475744 (9th Cir. 2011) 7 In this case, the state courts never reached the third step of the Batson analysis 8 (pretext) because the state courts ceased analysis with the first step (prima facia case). An 9 evidentiary hearing was held, and the third step was adjudicated under de novo review. That 10 same standard applies here on remand. 11 2. The Application of “Motivated in Substantial Part” 12 As the Supreme Court has instructed, “the ultimate burden of persuasion 13 regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett 14 v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769 (1995). However, this burden applies to the factual 15 presentation; the court has the ultimate duty to get the law right—here, what precisely is the 16 quantum of proof necessary before one has demonstrated a peremptory challenge “motivated in 17 substantial part” by discrimination. 18 As stated previously, the case was remanded to this court to make a determination 19 whether the peremptory challenge was motivated in substantial part by race bias. But how 20 substantial must a motivation be before it can be said that a peremptory challenge so motivated 21 results in a vacating of the entire trial. That is, what is the quantum of discriminatory animus 22 which must be shown—de minimis, more than a scintilla but less than a preponderance, clear 23 possibility, or a predominant motive. Put another way, when does a legitimate reason for striking 24 a juror become so tainted by discriminatory animus that the striking of the juror would be 25 considered motivated in substantial part by the animus. 26 //// 41 1 The undersigned looks, first and foremost, to the case which instituted the 2 “motivated in substantial part” analysis—Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010), and 3 which stood as the basis for remand of the present case. Cook, not argued by petitioner herein in 4 any meaningful way, is especially instructive in that it involved a situation where there was 5 arguably mixed motives for the striking of jurors, and the Ninth Circuit analyzed the reasons 6 expressed by the prosecutor. The majority in Cook analyzed the prosecutor’s reasons for the 7 striking of several jurors. In applying the “motivated in substantial part” test, the majority 8 utilized a number of explanatory phrases to describe how they were implementing the test: 9 “primary motivation [was race],” id. at 821; “the motivating factor [was valid],” id. at 822, “the 10 valid reason is overwhelming in substance,” id. at 824; “significant motivating factor [was not 11 race],” id. at 825; “most significant justifications [were valid],” id. at 826 (cumulative 12 assessment). The dissent in arriving at a conclusion opposite that of the majority utilized an 13 assessment where the treatment of the African American jurors “contrasted starkly” with the 14 treatment of the non-African American jurors. To the dissent, the “critical question” involved 15 the persuasiveness of the prosecutor’s justifications (quoting Miller v. El I, 537 U.S. at 338-339, 16 123 S.Ct. At 1040. 17 Distilling all of the above, it appears to the undersigned that when the legitimate 18 articulation(s) of the prosecutor for striking a juror clearly and convincingly predominated in the 19 prosecutor’s mind over the discriminatory, illegitimate reason, petitioner has not met his burden 20 of demonstrating that the illegitimate reason motivated the challenge in substantial part.18 This 21 standard could be phrased in its mirror image form, but judges have more experience in 22 determining whether a fact clearly predominates, as opposed to finding whether a fact is less than 23 18 24 25 26 This is not the application in different clothes of the “one-good, one-bad” analysis utilized previously. That analysis ultimately uses an objective basis to demonstrate that whatever the substantiality of the prosecutor’s motivation for exercising the challenged strike, a strike would have been made in any event by a reasonable prosecutor. Here the focus remains on the believability and weight of the prosecutor’s articulated justifications in this case based on the evidence of record. This is precisely what Cook illustrates. 42 1 probable, but substantial nevertheless. In any event, judging the persuasiveness of the legitimate 2 factor on a clear and convincing basis gets all to the same point in this analysis as judging the 3 nature of the illegitimate factor. Indeed, as shown above, Cook itself primarily looked to the 4 predominance of the legitimate factors in employing the new standard. 5 This showing of the prosecutor’s mind can be made from direct evidence as to 6 that state of mind (not available in this case), or circumstantial evidence. Indeed, from the 7 undersigned’s experience, in most situations where the finding of discriminatory intent, or its 8 absence, is necessary, circumstantial evidence is the most important evidence. 9 The undersigned has reviewed a myriad of Ninth Circuit (unpublished) and 10 district court cases citing the Cook motivated in substantial part test. However, the vast majority 11 were unhelpful to the analysis here in that the ultimate assessment determined either that the 12 reason(s) chosen by the prosecutor were entirely suspect, or entirely non-pretextual. There were 13 very few cases where the situation of found mixed motives were arguably in play. One possible 14 case was Munoz v. McDonald, 2011 WL 569889 (N.D. Cal. 2011), which utilized an analysis of 15 “most significant justifications were entirely sound,” but it is difficult to decipher whether the 16 court in Munoz ever found that the prosecutor was motivated in part by discriminatory animus. 17 Also considered for utilization here, but ultimately rejected, were other areas of 18 the law in which “substantial” was the lynchpin for assessing the issue, e.g. the “a substantial 19 factor” causation standard in tort law; whether retaliation “substantially motivated” the actor’s 20 decisions (civil rights actions), Social Security law “substantial evidence” test. However, these 21 tests designed for use in totally different contexts were not as persuasive as the actual 22 explanations set out in the Cook case.19 23 3. The Substantiality of the Motivation May Vary At Different Times 24 Whether a discriminatory state of mind was a substantial motivator in the acts of a 25 19 26 See e.g., Consalo v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018 (1966) (substantial evidence is “something less than the weight of the evidence.”) 43 1 person, or the mirror image utilized here, whether a legitimate reason “clearly predominated,” 2 depends on the circumstances in existence at the time the act is performed. Here, the question on 3 remand, the pertinent act, involves the peremptory challenge of juror Casey. The state of mind of 4 the prosecutor at this point, and whether bias was a substantial motivation for the strike 5 necessarily is pinpointed at the time of the strike. 6 This common sense proposition is best illustrated by a hypothetical divorced from 7 the facts of this case. Assume that an employer has indicated through unambiguous statements to 8 others at the commencement of a hiring process that his company would be better off if persons 9 of a particular race, religion or gender were not working there. One could label this 10 discriminatory mindset “substantial” at the commencement of the process. However, also 11 assume that during the interview process, a person with the “wrong” characteristics conceded 12 that he had misrepresented his criminal history background on the application, and that in fact he 13 had been convicted on several occasions of serious fraudulent conduct in connection with 14 working with similar businesses. The employer immediately told the applicant that his services 15 were not needed. While the unlawful mindset at the commencement of the process was 16 substantial, quaere whether it remained so at the end of the interview, and whether the abrupt 17 termination of the hiring process for this applicant/interviewee was “motivated in substantial 18 part” by bias at the time of the action in question. Probably not, because the legitimate factors, 19 need for honesty, and fear of further criminal acts in his business, so clearly would predominate 20 in the employer’s mind. 21 The same dichotomy is present in this case. While one could say that the 22 prosecutor’s bias in this case (not to have an African American on the jury so as to preclude any 23 possible commiseration at verdict time) substantially motivated the challenge for cause, the 24 circumstances present at the time of the peremptory challenge may have mitigated the effect of 25 //// 26 //// 44 1 the bias quite a bit.20 2 This is not to say that the initial bias is not probative of the question at the time of 3 the challenge; it may be very active at the time. However, it is to say that this bias must be 4 assessed in light of the other circumstances at the time of the challenge. 5 4. The Decision in this Case 6 Clearly, based on the factual recitation set forth above, the prosecutor had dual 7 motives at the time he challenged Mrs. Casey for cause, and one of those motivations was bias. 8 The court will not repeat the previous analysis of the pros and cons for the existence of that bias, 9 but the “XXXX” rating of Mrs. Casey as a suitable juror, especially as analyzed by the district 10 judge, could only lead one to a conclusion of significant bias. In addition, the district judge 11 compared marks given to other jurors and found that Mrs. Casey’s grade could not be justified in 12 light of the similarity or dissimilarity of compared juror attributes. The fact of bias has been 13 previously established and will not be revisited here. And, based on the analysis of the district 14 judge, as well as the undersigned, one would have to ascribe a substantiality to it at the time the 15 challenge for cause was made. 16 However, additional, significant circumstances existed at the time of the 17 peremptory challenge. As set forth previously herein, those circumstances were the composition 18 of the prospective jury panel at the time of the challenge. If juror comparison is an important 19 aspect of analyzing juror challenges, and it unquestionably is, the most important comparison at 20 issue occured at the time of the challenge, and involved the other jurors who could be stricken at 21 the time of the challenge. It is that panel composition which could most likely lead one to 22 believe that bias substantially motivated the challenge, or did not. 23 Both the undersigned and the district judge found that the marking system was the 24 standard on which the prosecutor was exercising challenges. One can debate the precise attributes 25 20 26 Nothing in the record of this case, and nothing at the evidentiary hearing, indicated that the prosecutor had a bias against African Americans in all aspects of his life. 45 1 which would have placed a particular juror with a higher or lower mark, but for the vast number 2 of jurors who had received marks, the grades were justifiable. Given Mrs. Casey’s ambivalence 3 as to whether she could ultimately vote for death if warranted, it is indisputable that Mrs. Casey 4 was not a good juror for the prosecution’s sentencing case (as opposed to liability). It is further 5 not reasonably disputable that all actors present at the time of the challenge viewed Mrs. Casey 6 as a poor prosecution juror (sentencing phase), and the defense counsel expressly conceded so. 7 Both the undersigned and the district judge (and inferentially the trial judge and defense counsel) 8 found that Mrs. Casey could easily have been found “X” by this prosecutor or any non-biased 9 prosecutor. Comparing the then sitting jurors with Mrs. Casey, her unacceptability even at a 10 lower level than four “X”’s, in view of the clear acceptability of the other jurors, had to be the 11 clearly predominant reason for the prosecutor’s peremptory challenge in this case. 12 Did this conclusion have to be so if other jurors had been in place at the time of 13 the challenge? No. If a number of the jurors at the time of the challenge had been rated as low 14 as Mrs. Casey in the range found appropriate, i.e., one “X,” and Mrs Casey had still been 15 stricken, then one could come to a conclusion that the striking of Mrs. Casey had more to do with 16 race than the bona fide reason, or at the very least, the strike would have been substantially 17 motivated by race because one could not find a bona fide reason that clearly predominated. This 18 conclusion was also found in the previous Findings. See footnote 17 herein. However, the 19 opposite set of circumstances actually existed, and one can say given the circumstances at the 20 time, that the bona fide reason clearly predominated in the prosecutor’s mind. 21 There is some contemporaneous corroboration for this conclusion. Most 22 importantly, the prosecutor knew at the time he was making the peremptory challenge that the 23 defense was lying in wait for him to make the challenge; the prosecutor knew that his life was 24 going to get complicated with a collateral issue if he made the challenge. This had been 25 announced by the defense. See Findings and Recommendations dated January 29, 1999, Docket 26 #62 at 38; see also RT 4403-4404. Even the trial judge had been sensitive to the potential Batson 46 1 issue and made notations concerning such at the time of the Casey questioning. RT 7302. It is 2 reasonable to infer, and the inference chosen by the undersigned, that the prosecutor had to have 3 reassessed just how strongly he felt about Mrs. Casey’s death penalty views in light of the 4 accusations of bias that would inexorably be made against him. Such must have given him pause 5 because he did not strike Mrs. Casey right away. He struck another juror, but when a “sure 6 strike” replaced this person, , i.e., a person with greater than one “X” unacceptability, the jury 7 was getting sour for the prosecutor and he went ahead and struck Mrs. Casey, and thereafter as 8 soon as possible, the newer, and equally or greater poor replacement. 9 The undersigned concedes that petitioner can fashion other inferences unfavorable 10 to the prosecutor. For example, petitioner could speculate that the prosecutor waited one round 11 to challenge Mrs. Casey “just to look good” so as to hide his true motivation. But that 12 speculation cannot match the proven facts about how the prosecutor used his grading system 13 throughout the jury selection process. He did not fail to strike an “X” if he had a chance to do 14 so. 15 At hearing, petitioner’s counsel could not address the scenario that actually 16 existed at the time Mrs. Casey joined the potential jurors in the box; rather, his argument was that 17 the peremptory challenge had also been made, in effect, when the prosecutor made the challenge 18 for cause. But this argument ignores that the prosecution had bona fide motivations for not 19 desiring Casey even at time of cause challenge, and assumes that the circumstances afterwards 20 facing the prosecutor in balancing his motivations at the actual time of making the peremptory 21 challenge were irrelevant in assessing substantiality. Again, this balancing of motivations is not 22 static, but is rather a dynamic process dependent on the circumstances at which time the 23 balancing would be made. 24 Petitioner correctly focused the undersigned on his comments, and those of the 25 district judge in adopting the previous Findings and Recommendations, that the prosecutor’s bias 26 motivation was termed “significant.” Use of the word “significant” can be fairly synonymous 47 1 with the word “substantial.” As seen above, the district judge at one point used them in close 2 proximity. However, the focus must be made in the proper context. In employing the now 3 discarded “mixed-motivation test, i.e. the Mt. Healthy doctrine, the undersigned used the word 4 “significant” as that quantum of evidence necessary to compel the state (respondent) at the 5 second step of that analysis to show that the challenge would have been made for “good” reason 6 and not the bad. See also Crittenden at 958. This was certainly more than a de minimis 7 quantum, but not viewed in the context of what would be substantial or insubstantial in the final 8 analysis. In the undersigned’s thinking, the quantum involved in “significant” was more or less 9 establishing the prima facie case in the first place. See Gattis v. Snyder, 278 F.3d 222, 233 (3rd 10 Cir. 2002) referring to test used by lower court. Indeed, the evidence favoring petitioner at the 11 pretext stage was essentially the same evidence used to establish the prima facie case. However, 12 unlike the Batson first step in which the strength of the inferences are not weighed, the key part 13 of the Batson third step is weighing the various inferences that can be drawn. The evidence 14 favoring respondent was fully developed for the first time at the evidentiary hearing, i.e., the 15 rating system. The district judge adopted the undersigned’s “significant” finding—but indeed 16 found that discriminatory bias was not the motivating factor. Order at 33 (“Where such a valid 17 and well supported race-neutral reason exists for Casey’s challenge, the court cannot find that the 18 “real” or “motivating” reason for Casey’s removal was her race.”) 19 In any event, it is not the undersigned’s task here to speculate how the previously 20 assigned district judge might view the “substantiality” of the prosecutor’s bias motivation at this 21 time. The undersigned has been given the assignment to arrive at his own conclusion, and this 22 conclusion will receive de novo review from the newly assigned judge. 23 The undersigned, the trier of fact at the evidentiary hearing, has conscientiously 24 reviewed the evidence and his thought pattern in reassessing the evidence in light of the 25 analytical paradigm directed by the Ninth Circuit. In sum, although the finding that the 26 prosecutor harbored bias was “significant,” it was not “substantial” in terms of the motivating 48 1 2 3 factor at the time of the exercise of the peremptory challenge. Conclusion Accordingly, the undersigned recommends that the third factor of the Batson 4 analysis be found in favor of respondent and adverse to petitioner. Claims 1 and 2 of the 5 operative petition should be finally denied. This conclusion, if adopted, finishes the district court 6 work in this case. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 9 one (21) days after being served with these findings and recommendations, any party may file 10 written objections with the court and serve a copy on all parties. Such a document should be 11 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 12 objections shall be served and filed within fourteen (14) days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: June 29, 2011 16 17 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 49

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