Averill Briggs v. Randy Grounds

person testified that a expert tional characteristics who would miss

Brewes’ A employable.

that much work was not

finding disability required. is therefore (consid- Lingenfelter, 504 F.3d at 1041

See

ering additional evidence submitted to reversing and re-

Appeals Council

manding for an award of benefits where expert

vocational testified that claimant’s him unemploya-

limitations would render Ramirez,

ble); (reversing at 1455 remanding for an award of benefits

based on new evidence submitted to the Council).

Appeals

Conclusion hold that the district court

We erred considering the evidence Brewes sub-

mitted to the Council. re- Appeals We

verse the Commissioner’s decision and re- a payment

mand for of benefits. AND REMANDED

REVERSED FOR

PAYMENT OF BENEFITS. BRIGGS,

Averill W. Petitioner-

Appellant,

v.

Randy GROUNDS, Warden,

Respondent-Appellee.

No. 10-16683. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Feb. 2012.

Filed June Eibert, CA, Bay,

Mark D. Half Moon petitioner-appellant. Helfman, Stan Office of the California General, Attorney Francisco, CA, San the respondent-appellee. GRABER,

Before: SUSAN P. BERZON, MARSHA S. and RICHARD TALLMAN, Judges. C. Circuit TALLMAN; Opinion by Judge Dissent by Judge BERZON. on which rely following on the evidence

OPINION Briggs: the medi- jury later convicted TALLMAN, Judge: Circuit report that confirmed one of cal examiner’s Briggs Petitioner-appellant Averill W. anal, oral, and genital sustained girls the district court’s deni- (“Briggs”) appeals trauma, injuries penetration from blunt petition § 2254 habeas al of his 28 U.S.C. pretrial victims’ identification both jury for one challenging his conviction finger- Briggs’s and evidence of Briggs, committing a forcible lewd act count from the scene. There prints recovered years age; eight a child under upon however, was, no DNA evidence. sexual assault of aggravated counts of years age including four child under 14 life, years — to 50 Briggs was sentenced counts of copulation, of oral two counts followed seven consecutive sentences penetration rape, one count sexual life, years prior for a years plus 30 five sodomy; object, and one count of foreign a conviction, years a total of 265 sentence is cur- first-degree burglary. Briggs and to life. years to rently serving a sentence of 265 petition, In his life for those convictions. B argues per- that the use of he County Superior The Alameda challenges to strike three African emptory jury pool people.1 consisted of 65 Court jurors violated his prospective American During process the selection the district Equal under the Protection Clause rights attorney eighteen twenty per used of her of the Fourteenth Amendment. We have §§ chal jurisdiction emptory challenges. under 28 U.S.C. 1291 and Three of those 2253, and we affirm. lenges prospec struck African American L., jurors: tive Lawrence prospective R.2 African American Sam One prosecu was excused for cause. The A tor thus struck fifteen non-African Ameri 9, 2002, Briggs through On June climbed jurors peremptorily. can apartment window of an second-floor After struck second in building neighbor- the Lockwood Tevis juror, Briggs challenged African American Oakland, California, sexually hood racially the action as under Bat motivated 13-year-old girls. two In assaulted Asian 79, jury, Kentucky, v. 106 S.Ct. picking the intended son U.S. 31, (Jan. 2012), Briggs's opening County, 1'. brief makes much of the California: Oakland, gov/qfd/states/0 http://quickfacts. in Cali- census. fact this trial was held 6/ event, fornia, any jurors. point any without African American 06001.html. In this is mis- Oakland, however, leading challenge, focusing “under a By solely because Batson on against government Briggs jury pool we do not hold overlooks the fact that the panel lacked African-American county fact drawn from the entire of Alameda. Collins, Thus, drawing population members.’’ United States v. instead of from a 914, (9th Cir.2009). Oakland, Briggs solely petitioner has never from which the American, potential jurors being asserted that the were drawn cites as African 30.8% non-representative pool county from cross-section was drawn from that in 2000 Missouri, community. See Duren v. 439 U.S. African American and in 2010 was was 14.9% 357, 363-64, 664, 58 L.Ed.2d 579 12.6 African American. U.S. Census Bu- % (1979). reau, County Demographic Alameda —General 2000, http://factfinder2. Characteristics: Throughout opinion census.gov/faces/tableservices/jsPpages/ we use num- (last ju- productview.xhtml?src=bkmk visited bers or abbreviated names instead of 13, Bureau, 2012); protect privacy. Apr. U.S. Census Alameda rors’ full names to their (1986), comparative jury analysis er L.Ed.2d 69 and its Califor could be con- Wheeler, 22 appeal v. Cal.3d sidered on if it was made a analogue People part nia (1978). 148 Cal.Rptr. 583 P.2d 748 the record after the trial court ruled on challenge motion, his after Briggs again pressed point the Batson but at some be- used a strike judgment fore was entered.3 The state pro court, nonetheless, third African American excuse the considered judge The trial held a spective juror. conjunction with its review hearing prose at which she considered the of the individual The court re- explanations exercising her cutor’s viewed the record to determine whether prospec challenges as to each individual supported substantial evidence the trial juror. prose concluded the tive finding court’s that the chal- jurors for cutor excused these three “non- lenges were not race based. The court they’re race reasons and valid.” based then turned to the analysis, finding nothing in it that “undermine[d] trial, sentencing, After the but before earlier [its] conclusion substantial evi- trial, part Briggs moved for new based supported] dence trial court’s Batson- argument on the same ruling” Wheeler and affirmed the trial peremptory challenges misused her had Supreme court. The California Court de- L., Lawrence and Sam strike nied review. comparative jury R. offered a Briggs also analysis to rebut race- Briggs filed a petition. federal habeas explanations challenges. neutral for her The district court also examined the com- argument The trial court heard on the parative jury analysis and voir dire record previous ruling affirmed its motion and and held no Batson violation had oc- had a race-neutral rea- Briggs timely appeals. curred. exercising her strikes son II challenged juror: for each There was a race-neutral reason for A challenge Batson has three each one of the three [defense] first, steps: “the defendant must make a just were concerned about. Miss M. facie prima showing challenge that a was basically said she could follow sever- race”; second, based on prosecution law, points al there was Mr. L. who must offer a race-neutral basis for the harassment, had been accused of sexual third, challenge; and the court must deter basically and then there was Mr. R. who mine whether the defendant has shown thought susceptible teens were to coach- “purposeful discrimination.” AM v. Hick ing, and there were some other reasons (9th man, 1174, Cir.2009); 584 F.3d 1180 for each one of them. But all the rea- Batson, 96-98, see 476 U.S. at 106 S.Ct. gave, the reasons that she sons she dispute 1712. The sole before us is wheth they would not be felt appellate reasonably er the state court ap that panel, legiti- she wanted on plied step. Batson’s third To decide this mate. issue, “totality we must consider the relevant Briggs challenge again his Batson facts” to decide “whether coun raised time, open explanation per an sel’s race-neutral for a appeal. on direct At the question emptory challenge as to wheth- should be believed.” existed California Supreme analysis upon 3. The Court later answered this that relied the voir dire tran- script part in the affirmative. Miller-El v. Dret- that was a of the record before the ke, 231, 1, 2, 2317, court, nn. 125 S.Ct. state where the defendant offered the 545 U.S. 241 (2005) judgment). (using after 162 L.Ed.2d 196 (9th proceeding.”4 court 351, in the State presented Cambra, 465 F.3d v. Kesser doubly deferential: banc) (internal Here our standard (en Cir.2006) quotation objec court was the state unless omitted). marks that a concluding tively unreasonable A credibility determination trial court’s evidence, we race was substantial supported whether “To determine Collins, 546 is, Rice v. uphold it. See motivating factor—that must a substantial 338-42, 126 S.Ct. purpose U.S. has shown the defendant whether 341-42, (2006); see id. at L.Ed.2d 824 step— Batson’s third ful discrimination (“Reasonable reviewing minds S.Ct. 969 persua must evaluate trier of fact disagree prose about might the record by the offered siveness review credibility, on habeas cutor’s but LaMarque, v. Cook prosecutor.” supersede the trial not suffice to (internal that does (9th Cir.2010) quotation 810, 815 determination.”). credibility court’s omitted). To decide and brackets marks burden, has met his the defendant whether ultimately “re Although the dissent in “undertake a sensitive court must review, ... standard of proper eite[s] and direct into such circumstantial quiry novo] its improperly substitute^] [de [it] may be available.” of intent as evidence that of the of the record for evaluation Batson, 106 S.Ct. 1712 Rice, 546 U.S. at [appellate] court.” state omitted). (internal marks This quotation 337-38, (overturning African Ameri comparing includes inquiry Circuit). AEDPA, citing Ninth While with those who were struck panelists can that we cannot repeatedly suggests dissent who were panelists American non-African justifications be prosecutor’s credit prosecutor’s prof “If a allowed to serve. characterization of the cause the defense’s panelist a black fered reason for challenged jurors’ questionnaire answers just to an otherwise-similar applies as well characteriza prosecutor’s contradict serve, that permitted is to non-black who hearings judge. at the before the trial tion purposeful tending prove 1184-85, 1186, to is evidence n. 6. The Dissent at 1188 at Batson’s to be considered we discrimination seems to conclude because dissent Miller-El, 545 U.S. at step.” verify third the answers independently cannot they are not in questionnaires 125 S.Ct. 2317. from the as record, characterization the defense’s B more, despite equally, plausible is -if not appellate review the state We to the con the state court determinations did not finding However, court’s high “AEDPA trary. imposes under purposeful discrimination engage evaluating ly deferential standard of the Antiterror the deferential standard rulings and demands state-court Penalty Act of and Effective Death given ism decisions be the benefit state-court — 2254(d)(2). (AEDPA). doubt,” Jackson, § 28 U.S.C. of the Felkner v. U.S. 2254(d)(2), 1305, 1307, 179 -, § must defer to the L.Ed.2d 374 we 131 S.Ct. Under curiam) (internal (2011) (per quotation that there was court’s conclusion California omitted) (overturning the Ninth that conclusion marks unless no discrimination Circuit). The dissent’s readiness doubt on an unreasonable determina “was based court determination based on the state light the facts in evidence tion of Appeal. 2254(d)(2) Court of § was before the California apply instead 4. We 2254(e)(1), peti- Kesser, § because the evidence 465 F.3d at 358. See upon is found in the record tioner relies characterization of the record petitioner’s defendant’s we were assume that apply appropriate not level of questionnaires does contentions about the are Congress simply deference the United States true because the record before us Supreme required Court have of us. jurors’ does not contain the ques- excused tionnaires. The burden to disprove the Additionally, widely it ac factual findings Briggs. rests with knowledged judge that the trial is in the 2254(e)(1) § (requiring U.S.C. “clear and position credibility best to evaluate the convincing evidence” to rebut “a determi- proffered justifications. prosecutor’s nation of factual issue made a State Rice, e.g., See court”). (“[T]he (Breyer concurring) J. trial whether, judge placed is best to determine C case, in a borderline hesi The trial hearings held two on (a) or decep tation contradiction reflect Briggs’s Batson concluding motion before (b) tion, difficulty providing prosecutor’s explanations rational reason for an instinctive deci pretextual. The California Court of sion.”); York, Hernandez v. New 500 U.S. Appeal carefully reviewed the record for (1991) 1859, 114 L.Ed.2d 395 substantial in upholding evidence the trial (“As juror, with the state of mind of a findings, court’s and the state appellate evaluation of the state of mind court’s determination on review is “entitled credibility on demeanor and lies pe based Cook, appropriate deference.” culiarly a trial judge’s province.” within 815; Felkner, see 131 S.Ct. at 1307. (internal quotation marks and citation omitted)). state court Given that the trial court did also considered Briggs’s comparative analysis viewing question have the benefit of and found it unpersuasive. rejected The court prospective jurors Briggs’s naires and the who an incomplete swered them because it was making when a determina Batson, primarily upon comparisons tion relied under and that the California jurors’ questionnaire Appeal presumably Court of had answers and failed to those review, account for the questionnaires on we must defer to differences between the jurors’ same credibility during these answers voir dire. findings.5 and factual See Rice, 338-39, Thus a careful examination of the full rec- U.S. 126 S.Ct. 969 (“[A] ord, along with consideration of the only grant prose- federal habeas court can whole, cutor’s as a petition supported Collins’ if it was unreasonable to the trial court’s credit the determination that the expla race-neutral challenges non-discriminatory. nations for the challenge. Batson State- Moreover, review, moreover, on federal findings, court factual are habeas the pre correct; sumed district court petitioner has the bur evaluated the voir dire tran- script, rebutting presumption by comparative juror analy- den of ‘clear conducted ”) convincing and (quoting possible, evidence.’ Mil sis where and found that 2317). ler-El, objec- state-court’s determination Thus it would be anathema to AEDPA if tively unreasonable. agree.6 We Indeed, R., during colloquy viewing challenged jurors' questionnaires on Sam question- some confusion arose as to which during hearing discrepancy. and found no naire and was refer- pages See 1179-80. infra clarification, ring. The trial court asked for hearing after which the court allowed the compara- 6. Where the state court conducted continue, leading to the reasonable inference prosecu- tive and determined that the simultaneously the trial court was re- your experi- Q. Based on [prosecutor] L. Lawrence

1. Juror ence, you you think though, do perempto- her first used than the demanding more would be L. As Lawrence challenge to strike ry of the evi- requires in terms law challenge she offered justification for dence? (1) L. been Lawrence had reasons:' five harassment, A. Yes. he which of sexual accused (2) questionnaire; on failed to include his Now, everyone, and we’ve Q. [Court] for him that it would be difficult he stated this, requirement talked about witness only word of one to convict on the a reasonable doubt. proof beyond is as the sub- experience of his own because A. Yes. investigation; ject aof sexual-harassment beyond any possible Q. proof Not (3) court that he would admitted to the he proof her standard doubt. So standard higher prosecution hold the beyond a reasonable doubt. Would (4) law; he proof required than beyond any you hold her to proof believability teenagers thought that the reasonable doubt? they hear at see and was affected what A. Yes. (5) home; other he failed to answer and dire, point during voir Law- At another to the questions pertained written it would be rence L. also indicated types of witnesses proof or the burden juror for him to be fair because difficult at trial. presented who would be case, “in he was a sexual harassment appellate Both the trial court and way ... like the it came out.” No didn’t the prosecutor’s court concluded that other was accused of sexual harass- L.’s primarily rested on Lawrence strike ment, analysis is of little comparative so workplace-sexual- in the involvement Cook, (compari- help. See investigation and the concern harassment is not “otherwise simi- son to a who affect how he that his involvement would value). lar” nullifies in Briggs’s the witnesses case: two viewed record, it upon Based our review of the teenage victims of sexual assault. objectively unreasonable for the was not found The state court Appeal Court of to find that California L.’s that both Lawrence supported evidence the trial substantial supported during his statements voir dire that the prosecutor court’s determination the trial court’s determination race-neutral, challenged Lawrence L. for striking Lawrence prosecutor’s reasons for legitimate reasons. example, L. race-neutral. For dur Georgia Juror ing following exchange voir dire the be exercised her trial tween Lawrence L. and the challenge Georgia to excuse M. The fourth occurred: appellate [such] court did not undertake did not exercise her chal- state tor manner, discriminatory lenges analysis in a AEDPA was not detailed in their [it] because applies and we need not undertake deference opinions.” LaMarque, v. Green de novo. The state 1028, (9th Cir.2008). n. 2 Here the explicit that it considered and re- court was did, however, give some state court comparative analysis, jected Briggs's but why comparative analysis specific reasons give explanation rejec- did a detailed purposeful failed to show discrimination proffered justifications. In tion of each of the Thus, step three. we include a detailed com- Miller-El, parative analysis only appropriate. where “presumed court and [that] Court trial prosecutor gave following justification more evidence because this is a sex challenging Georgia M.: yes, case? She said I do need more Steckler, got up

Mr. when he to do his evidence. Other did not have a voir dire of Miss M. with some of question with that area that are seated. jurors, question, other directed a first a Now, I point should out that Miss M. comment a question then to Miss. M. He also page indicated on ques- 18 of her said to Miss M. as well as [Lawrence L. tionnaire, S., as did Mr. who was not jurors], said, and two other he it sound- American, African H., and Mr. who was though you ed as when were talking to American, not African kicked, I prosecutor, you going were not they would hesitate to convict on the case, follow the law the end of the word of one witness alone. moved, and he then ... which signifies acknowledgment to me an on part She also indicated that whether sex defense there were answers victims were more believable, or less given that warranted that remark that she did not opinion. have an counsel that he made aas blanket re- Now, her ambivalence significant was jurors, mark to four two of which were that, to me because compounded with African American.7 her lack of clear responses, indicated He then on to went ask about the that she was impressionable and was proof, beyond standard of a reasonable impressionable in the direction of re- doubt, said, fact, and Miss M. volun- quiring more of me. And that’s further said, well, teered and if slight there’s a by, asked, corroborated when you do mind, your doubt in then there’s a rea- you’d DNA, think require said, she de- sonable doubt. pends strong how the other evidence is. I exactly why That is was concerned M., for Miss. and that’s So this is corroborated someone who clearly look- for, what she said to me when I probed. ing felt, at least how stronger And she said that in response my evidence than I would otherwise be re- question: you need a quired present. little bit matter, preliminary 7.' aAs we slight note that if your there’s doubt that in mind— okay. dissent finds this rationale "false” and there- instance, demonstrably In the other pretextual, fore dissent at 1184— defense counsel direct- group ed question pertaining another to the because defense counsel addressed three H., L., proof burden of at Miss Mr. jurors, and Mr. C. Georgia none of whom was M. There immediately and then were, however, question went on to during two instances voir dire topic. M. on a appears different It when defense counsel addressed this same prosecutor's reference confused the group The first encounter follows: wording exact that defense [Defense counsel] I have one kind of a posed counsel in the first instance with the group question, mini primarily and this is second, wording in the worry but her H., C., for Miss Mr. Mr. [Lawrence] L. and explicitly identified as M.'s answer [Georgia] somewhat a little bit for Ms. "slight equivalent doubt” was to "reason- concerning concept proof and this is of able Accordingly, doubt.” this reason is not beyond a reasonable doubt. easily reject- so labeled "false” and cannot be Just a show of hands who what Rice, knows ed out of hand. See proof beyond a reasonable doubt means. ("Seizing 126 S.Ct. 969 plausibly on what can PROSPECTIVE JUROR [GEORGIA M.]: transposition be viewed as an innocent makes means____I I don’t know if I .know what it headway little toward the conclusion that the think I know what it means. prosecutor’s explanation It’s when clearly was not cred- whatever, you ible.”). a case or evidence or —when And, somebody who thinks clearly, not a that she’s Now, said she also a doubt is equals truth. And reasonable telling slight doubt judge of good her, hesitant you be scary juror I asked for me. when you if believed a defendant to convict concern fundamental The a reason- testimony beyond the victim’s prose- hold the Georgia that M. would was there, memorial- doubt, the answer able than proof of higher to a burden cution know. don’t page on is I as well ized sev- offered The required. law sentence, her an- regard to Again, with question- M.’s Georgia of examples eral know.” is “I don’t swer that, dire statements or voir naire answers good rap- Further, have I did not concern. this cumulatively, supported a warm get I not with her. did port may not prosecutor cites Each detail the actually got a cold I feeling from her. justifi- necessarily a stand-alone constitute contact, con- had no eye little stare support for cation, provided in total but And her. I nection with noted. juror. with this See her overall concern actually good rapport between there Cook, (noting individual F.Bd at 819-20 attorney herself. and defense to the factors that contributed answers were answers Her “juror’s overall demean- concern with comfort, any and gave me or”). court affirmed The in were coming up the box prose- determination that the trial court’s I she was. stronger for me than much bur- overall concern regarding cutor’s to more than I would have do felt like of the proof was credible. Six out den of her, I required persuade to the law factors identified the prosecutor seven again go—to that’s corroborated think con- compounded to or contributed started, the defense back where going each related reason cern.8 consider We her that it sounded attorney’s remark to Georgia cites for you going were not to follow though as overarching light of that concern.9 of the the law the end case. testimony a rea- eight justifica- beyond lieved a victim’s Although Briggs identifies 8. tions, reading the record reveals doubt? a careful of sonable Yes_No_ that, Georgia prosecutor referred to when the page questionnaire justification on 18 of the as and not M.’s answer Thus treat this one we could convict the word of separate to whether she on two ones. witness, then to one referred Contrary Briggs's assertion the sheer convict on to whether she could M.'s answer pretext, upon testimony justifications belies only the victim’s uncorroborated number 18), (also actually prosecutor was evident that page careful examination it becomes on question. referring many prosecutor's justifications were to the same only question page 18 to which the underlying on deeper The facets concern referring been was: legal could have apply the M. would not correct quantity prosecutor's standard. The require a testimo- victim’s law does not alone, without examination ny other evidence. to be corroborated justifications, quality of those cannot is, testimony you if believe victim’s That Rice, prove See purposeful discrimination. doubt, beyond a that alone is reasonable 340-41, (finding 546 U.S. guilty. find a defendant sufficient prosecutor did state-court determination that you convict a Would at all hesitate to a. challenges not exercise his you charges if believed a defendant of the objectively discriminatory was not manner testimony beyond a reasonable victim's despite constitu- concern about unreasonable doubt? Yes_No__ "[t]he tionality of one where per- prosecutor provided a number of other acquit a you at all b. Would hesitate reasons”). plausible and race-neutral charges you disbe- missible defendant of the if First, significantly, prose- the voir dire averments does not that most establish and Georgia Cook, only out that not did pointed pretext.”); cutor she offered 593 F.3d at with “slight doubt” “reasonable equate (crediting prosecutor M. giving more the bur- doubt,” opined she also that but weight to initial answers increases with the seriousness proof den exercising than voir dire answers when tran- charged.10 crime The voir dire challenges). pros- questionnaires support the script and support find justifica We also for this accepted No other justification. ecutor’s prosecutor’s per tion from the use of a of state- juror similar combination made to excuse at emptory strike least one non- that would create doubt about ments that potential juror African indi American who ability faithfully to the law. juror’s apply questionnaire, cated on her and reaffirmed rea- juror equated no seated particular, In dire, during voir that she would hold slight with doubt or volun- sonable doubt higher prosecution to standard of proof, any similar statements. teered she though even retracted that statement justification Georgia second As to the — Rice, by the pressed when court.11 See that a rape M.’s statement case 969(“Even 341, 126 if S.Ct. evidence than an auto-theft require more overly prosecutor was cautious in this re 6, 8, case—Jurors also answered gard, her of the young wariness and the require “yes” question, you “Would to neutral, rootless be seen as race could in a sexual case as more evidence assault she peremptory used a strike on a white opposed type to another of crime such as 6, juror, male Juror the same charac jurors But auto theft?” none those teristics.”); Giurbino, Ngo v. answer dire. In repeated during that voir (9th Cir.2011) sup 1116-17 (finding fact, immediately “no”— each answered port for determination that more is not needed—-when asked. evidence justifications were not pretextual where contrast, Georgia In M. was asked three struck prosecutor also other prospective times, once prosecutor twice presented who similar characteris court, before she state retracted her tics). regarding proof. ment burden of The The third required ignore is not to Geor prosecutor closely also related to her overall concern repeated simply gia “yes” answer be M.’s M. Georgia prosecu- would hold the eventually acquiesced to the cause she First, higher tion burden. Rice, Georgia to M. judge’s explanations. 546 U.S. Cf. 969(“That suggested that she would hesitate con- to hold despite claimed to concerns Juror 16’s vict on the word of one alone. witness recognize concept juror, proposing 10. We of reason- excused American alterna- and, explain why able doubt can be difficult to tive this See reasons was excused. alone, justification may support this dissent at 1184-85. Because the However, explain use of the strike. peremptory was not her asked Georgia compound juror, speculation considered effect of why strike of it is M.’s statement and the other answers only was excused. We note she gave. Georgia credited M. trial court presented characteristics similar reasoning, appeal Rice, the state court af- Supreme M. The Court in U.S. it, objectively firmed and —unless unreason- technique very 969 used this must defer able —we to these determinations support prosecutor’s justification for the find under AEDPA. for the use of without comment potential on or consideration of other reasons compari- poten- excused the 11. The dissent takes issue with our non-black juror. son of with this other non-African tial 1176 that uncertainty it her And was similar victims. 1 and had jurors,

Two seated prosecution: the “Her ambiva- simply concerned Juror question. that to answers that, to me because significant 10 said was Juror lence “yes”, whereas checked her lack of clear re- compounded factual cir- upon the “maybe” depending impres- that she was on voir indicated questioned sponses, cumstances. When ” word of Each of the twelve seated dire, that the .... answered sionable Juror sufficient, as did alternates either wrote and the four jurors would be one witness is that justification or indicated qualification “no” without prosecutor’s 10. The Juror Georgia M.’s simi- the individual. by believability upon is based somewhat weakened out, dire, would be points that she a “no” Although, lar answer on voir as the dissent one witness the can be read to question to convict on word to this able answer ex- Careful that thus person opinion, if she believed witness. has no mean shows, though, the record ambivalence, amination of make this does not indicating expressed that Juror nor Georgia neither that M. prosecutor’s concern understanding or lack of same ambivalence by might easily have been influenced other exhibited, was what Georgia M. which that com- jurors clearly pretextual as is the troubling. identified as Here, analyze. that we must plete picture identified several reasons Instead, clearly com- 1 was able to Juror Georgia that led her believe an- clarify his municate jurors. easily be influenced fellow would gave 10 also succinct swers. Juror jurors one of The fact that seated shared posed to the dur- questions direct answers ineluctably characteristics does not those Georgia on the other ing voir dire. prosecutor’s lead to the conclusion that the hand, more than once that she expressed pretextual. concern was questions various not understand did agreed she to follow legal concepts, and justification fifth also prosecutor’s The interjected to only after the court the law weak, supported by nonetheless com- but points prose- certain of law. The explain prosecu- parison to the seated that this ambivalence led explained cutor “it answer Georgia depends” tor cited M.’s Georgia M. could be her to believe whether, in to the the absence of jurors in how she influenced other evidence, she could convict a defen- DNA apply proof. the burden of As eight crime. other dant of sexual While noted, non- she also struck two jurors answers to the DNA gave similar jurors rea- African American same one of these shares all question, not son, finding lending support further to the troubling characteristics that the reason for the strike was not her contributing identified as at 1116. pretextual. Ngo, F.3d ability Georgia apply M.’s doubt of not met burden Briggs has his under proof. During burden of both appropriate nothing AEDPA: in the record dictates a motion, prose- hearings on the Batson clearly pretex- finding this reason was primary concern explained cutor her tual. compounded by was M.’s ambiva- require whether she would lence about isolation,

Viewed judge, The trial after hav- DNA evidence. Re- fourth is somewhat weak. jury pro- ing the entire selection record, however, observed supports view of the cess, explanation, credited the finding state court’s that this reason Nothing and the court affirmed. pretextual. M. answered record contradicts those determina- not know if victims she did sexual assault than other tions. were more or less believable prosecutor’s justification sixth cannot presume that the trial court credit- —that

Georgia good M. said she was not at as- reason, ed or discredited this but instead sessing telling plausibly who is the upon base our determination jus- the other truth — compound prosecutor’s could concern tifications offered. See Georgia good juror M. would not be a Snyder, 479, 552 U.S. at 128 S.Ct. 1203. “ unduly because she could be influenced Consequently, because AEDPA ‘demands her fellow Juror 8 said that she given state-court decisions be the ben- ” really” good judge was “not a of whether doubt,’ efit of the say we cannot that the telling someone was the truth and Juror record objectively shows it was unreason- “usually” good judge said that he was able for the trial prose- to credit the truth, telling always. not but These justification cutor’s as a whole. Cullen v. similar answers somewhat undermine the — Pinholster, U.S.-, 1388, 131 S.Ct. prosecutor’s reasoning, but the record 1398, (2011) 179 L.Ed.2d 557 (quoting pretext does not rise to the level of clear 19, 24, v. 537 U.S. Visciotti Woodford considering the combined effect of Georgia 357, (2002) 154 L.Ed.2d 279 (per M.’s and voir dire answers. curiam)); Rice, see also 546 U.S. at Finally, noted that she 126 S.Ct. 969.13 “good rapport” did not have a with Geor- The state court noted that gia gave M. and that her a cold prosecutor’s justifications primary for stare, while M. seemed to have a Georgia M. were her misunderstanding of good rapport with the defense counsel. reasonable opinion doubt and her be, Although it could as points the dissent burden proof should higher be in a rape out, prosecutor’s difficult to evaluate a rea- case. Four prosecutor’s secondary only son if she stated she had bad support prosecutor’s also “feeling,” simply this is not the case here.12 primary The state trial court did concern. specif- Viewing justifica not make a justification, ic about finding thus together, we tions generous the most reading 12. The dissent’s citation to United easy prosecutors States v. would be too for to mask (11th Horsley, Cir.1989) (per 864 F.2d 1543 racial claiming rapport animus a lack of curiam), note, first, inapposite. We that a juror. argument with a At its core this is not applied less deferential standard of review novel, new or and in fact similar contentions there, Horsley appeal. as was a direct Sec- rejected. have been In Batson itself Justice ond, prosecutor’s justification Horsley difficulty Marshall noted the inherent in eval excusing an African American uating prosecutor’s justifications, 476 U.S. prosecutor’s far different than the observation (Marshall, J., 106 S.Ct. 1712 concur rapport Horsley, here. In Rice, ring). And in said, simply any particular "I don't have rea- J., (Breyer, concurring), Breyer Justice just got feeling son. about him as I have asking: echoed this concern "Insofar as Bat- Gonzalez, about Mr. and several others.” Id. prosecutors explain son asks unexplain Having at 1544. no articulable reason is a far able, long how can it succeed?” Given the cry from the detailed history progeny, of Batson and its the Su excusing Georgia rapport in which preme grappled Court has ques with these Furthermore, played a minor role. we note times, many changed tions but it never has find, that we could not and the dissent does such, the framework of Batson. As even cite, any precedent not sup- Ninth Circuit though recognize we problem the inherent port "rapport” the distinction between a citing rapport, where the record is not clear justification. a demeanor-based as to whether the trial upon court relied reason, AEDPA, rejected argues reject 13. The dissent that we must under we can rapport justification simply say as it it was is unfalsifia- unreasonable for the state court ble or non-verifiable on the record because it to find no constitutional violation of Batson. tion, and we must as well. only “[R]ace-neutral the state court suggest challenges often

had reason reasons for the strike of justification ..., for juror’s making demeanor the invoke Rice, 341, 126 969. “That at U.S. of even trial court’s firsthand observations not, however, compel the conclusion does importance.” Snyder, 552 U.S. at greater permissible the court had no [state] prosecutor The clear- 128 S.Ct. 1203. reject prosecutor’s but to the alternative behavior influ- ly articulated how Sam R.’s conclude race-neutral and perception that he was not tak- enced her shown a Batson chal [petitioner has] seriously and ing process the therefore AED- say, cannot lenge.” applying Id. We good juror. not be a This reason is PA, Appeal Court of California Indeed, credible. the record shows that objectively finding unreasonable in was R.’s were short and often Sam answers tri supported evidence substantial vague or review of the rec- evasive. Our prosecu that the al court’s determination exchanges ord reveals at least four be- challenge tor her exercised prosecutor during tween the and Sam R. reasons. race-neutral questions which he answered her questions giving any or avoided direct an- R. 3. Juror Sam Prunty, swer. McClain v. Cf. prosecutor following The offered the (9th Cir.2000) (finding a de- (1) challenging Sam R.: reasons Juror challenge pretextual meanor-based where responding his demeanor and manner of to prosecutor explain signifi- “the did not prosecutor’s questions sug- on voir dire juror’s body language] cance of or [the gested taking that Sam R. was not gesture otherwise indicate how that evi- (2) seriously; R. process selection Sam bias”). Thus, denced the record npthing answers; and in his flippant was evasive clearly pretex- shows that this reason was (3) R. did not feel that he needed to Sam tual. teenage daughters talk to his about the (4) assault; potential for sexual Sam R. prosecutor’s justification The third is during thought indicated voir dire that he clearly pretextual. also not It seems to us teenagers susceptible were more to coach- completely logical that a in a (5) ing; Sam R.’s answer that sexual as- charges case that horrific sexual crimes sault victims are sometimes less believable against young teenage girls would be con- age personal background; because of responds cerned with who that he (6) “yes” question Sam R.’s to the answer “never found the need to” discuss sexual of whether he had a bias and his failure to daughters they assault with his own when (7) dire; explain that answer on voir growing up. Briggs points to no prosecutor’s perception that Sam R. expressed seated who the same am- physical

would look for because evidence bivalence, can anything nor we find of his answers. to support record his claim this rea- prose- The district court noted that the clearly pretextual. son was cutor’s fundamental concerns were her prosecutor’s The fourth reason is also justifications: first and second Sam R.’s supported During the record. voir dire demeanor, offhand as well as his curt and “Well, R.: asked Sam do Here, sharp questions. answers to her you think that teenagers prone are more judge trial was in the position best being coached Sam [as witnesses]?” credibility prosecutor’s evaluate the times, they “At response R.’s was: are.” demeanor-based reasons —the California of Appeal agree Briggs Court deferred to that evalua- We with both and the dissent was that there some confusion related to and asked the identify and the next question exact to which she was referring. justification. “Seizing plausi- on can what gave page bly an innocent transposition be viewed as number, point which the pro- headway makes little toward the conclu- ceedings continued. The reasonable infer- explanation sion ence is that the answers matched up with Rice, clearly not however. credible!]]” justification, the prosecutor’s not that the It plausible U.S. S.Ct. 969. trial court eschewed constitutional merely that the confusion stems from the standards set forth in Batson crediting related nature of questions,14 the two and demonstrably a pretextual justifi- false and a tenuous say is inference to that an “[i]t Visciotti, cation. See respect accidental reference with to one” (“Th[e] S.Ct. 357 readiness to attribute R.’s pros- Sam answers undermines the error [to state is court] inconsistent credibility. ecutor’s Id. with the presumption that state courts By including questions these on the law.”). know and follow the questionnaire and focusing during on them We also find support justifica- for this dire, prosecutor presumably voir by comparing tion R. jurors Sam to other attempting poten- to ascertain whether the whom the also challenged: jurors tial would find either sexual assault three non-African American were teenagers victims or or both less credible excused who voiced similar opinions about clearly as witnesses. Her concern related susceptibility teenagers coaching fact teenagers to the the victims— as witnesses. Mr. stated on ques- S. his subject to a pos- violent sexual assault — tionnaire, and then during confirmed voir sessed those characteristics and would be dire, that he teenagers believed were more testifying. The reason is fur- susceptible to outside influence. Mr. H. supported by ther her statement that she also answered questionnaire on his that he part believed of the defense strategy teenagers might “just say believed what an argue would be to that the victims’ identifi- adult has told” them. He explained during Briggs cations of suggest- were coached or may depend voir dire on the individ- And, indeed, during ed to them. Sam R. ual, but that “it’s more so with young teenagers voir dire said that be could teenagers.” agreed Ms. B. also that teen- cannot, AEDPA, coached. Thus we under agers would be “easier lead” as wit- simply credit the defense’s version of Sam nesses. comparisons These support questionnaire R.’s answer. Even if we conclusion that this reason was pretex- discussing question same in the tual. fourth and fifth we —which

are not—we must credit the trial court’s justification The fifth was Sam R.’s determination. questionnaire answer that sexual assault victims could age be less believable due to transcript apparent

From the it is personal background questionnaire the trial had his failure during during explain front of her the Batson voir dire to challenge. opinion trial judge recognized The adequately. confusion The attempted to question justification 14. The you any opinions written refer- asks: “Do have you in the ences fourth asks: “Do that the victims of sexual assault are more or teenager any feel more or less believable report being less believable than those who as a witness than an adult?” The written the victim of other crimes?” question references in the fifth answer, analysis is of little value. parative but instead clarify Sam R.’s however, equivo- he the voir answering queries her also cited directly prosecutor, cated: as further exchange on this dire think you that sometimes R.’s evasiveness. When Q. You said evidence of Sam answer, victims of sexual assault cases with confronted with his believable, less are sometimes “Do I again replied question: with a he they’re less believable sometimes probably ... misunder- have a bias? personal back- age because your question.” pressed When he stood you mean do ground. What “no,” At he did not have bias. answered that? minimum, forthcoming R. was not Sam sayI that? A. Did during voir dire. This with his answers circle around Q. put big Yeah. I old supports factor further it. court’s conclusion that substantial evidence ques- Maybe A. I misunderstood the trial court’s determination supported tion. during voir dire that Sam R.’s manner was was, Q. question you the do have Well justification. a non-race-based any opinions victims of sexual [that] Finally, prosecutor the cited sev assault are more or less believable. questionnaire R.’s answers and eral Sam gist ques- that the of the And was responses during percep voir dire for her you thought tion. And then “physical tion that R. was a evidence” Sam they’re sometimes less believable. type guy. Ap The California Court of Why you say that? do support not peal found that the record did I say, misinterpret- A. I don’t. Like court, justification. appellate this The question, ed the so. however, prosecutor’s also found Q. somebody’s age ... is it about What main concern was Sam R.’s off-hand de personal background, your or meanor, and the court concluded that the view, that affect the could believa- justification existence of one weak did not bility of a victim? sexual assault purposeful require prove discrimination They A. in the ques- could be coached reversal of the trial court’s determination. tions, they’re but I don’t think less Rice, 340-41, U.S. believable. (“Concerned constitutionality of about the Briggs Neither nor the dissent address- strike, trial such a court made clear es this or offers a accept gender that it would not as a race- point. on this A review of the explanation.... prosecutor neutral The record, however, finding supports provided permissible a number of other justification. this was non-race-based As reasons, plausible and race-neutral and noted, previously prosecutor we was provides argument why no Collins explicit about her concern that Sam R. portion colloquy of the demonstrates that a would not find the victims credible as wit- exchange supports nesses. This that rea- reasonable factfinder must conclude the soning. Nothing in record shows that eye rolling lied about the clearly pretextual. was race.”); struck Juror 16 based on her see Cook, (concluding also reason,

As the sixth cited the state court’s determination that “yes” R.’s answer of Sam substantially peremptory strike was not question whether he had a bias. No objectively motivated race was not un “yes” other seated to this answered Thus, questionnaire. on the com- reasonable even where “the illegitimate III gave legitimate four and two juror]. The grounds [the prosecutor’s The trial court credited the motivations are primary two justifications, and the California Court of and are unrefuted quite persuasive Appeal found that substantial evidence record”). not refute As the record does supported the determination. Both the main concern with Sam district court’s and our own review of the R., court’s conclusion that record fail to purposeful show discrimina- grounds valid race—motivated the —not tion part prosecutor. on the of the Al- objectively strike was not unreasonable. though prosecutor’s justifica- some of the may tions be weak when dissected and Evidence Cumulative individually, justifica- examined central struck three African tions for each are sound permis- no dispute American There is sible. Under AEDPA’s deferential stan- searching inquiry. this fact calls for a A review, dard of we cannot conclude that shows, though, close review record the California of Appeal’s finding— Court objectively court state was there was no racial discrimination— finding ju- that the three unreasonable objectively unreasonable. rors excused for race-neutral rea- therefore Briggs We conclude that did sons. any not suffer rights violation of his under whole, When viewed as a the record the Fourteenth Amendment. prosecutor consistently reveals that AFFIRMED. questioned jurors in the same vein as her main African concerns with the three BERZON, Judge, Circuit dissenting: example, American For the record respectfully I dissent. prosecutor questioned reveals that the al- The California Court of Appeal accept- every juror most about whether he or she ed, examination, -with little convict, require especially DNA to proffered justifications using perempto- given anything when the individual had ry challenges to strike three African- a question- short of “no” answer on the panelists, resulting jury American in a naire. This concern stemmed apparently any jurors.1 pur- without it black While prosecution’s from the lack of DNA evi- ported to comparative juror undertake a Similarly, consistently ques- dence. she analysis, it did so backwards. Rather than jurors in proof tioned about the burden of examining proffered each of the reasons rape juror case and whether each could by for striking African- convict on the one word of witness alone— jurors American to determine whether questioning anticipa- a line of linked to her any, many, pretextual, or most were only tion that the victims would be the through prosecu- court sifted eye testifying prosecu- witnesses for the justifications, ignoring pre- tor’s numerous consistency tion at trial. The in her lines rationales, textual in questioning jurors of all search of at least one of races and its happened apply reason that not to equally relevance to the circumstances support juror. to a retained Both crediting Supreme fundamental Court L., precedent concerns with Lawrence and our case law make clear potential jurors. R. as that a court conducting comparative juror Sam panel sixty-five prospective ju- peremptory challenges 1. Out of a used to strike the re- rors, there were four African-Americans. maining three. One was excused for cause. The omitted) (internal is, quotation marks law” do the analysis opposite must —that added)). as- justifi- (emphasis shall therefore proffered of the must examine each that we worse, purposes of this dissent any or, in If sever- sume cations turn. — Ap- jurors, must defer to California Court applicable to seated equally al—are arises, legal analysis. its inaccurate rendering peal, despite pretext inference of an Still, challenge. only we must defer to the extent suspect permissibility Dretke, court’s decision rested on a See, California Miller-El v. 545 U.S. e.g., jreasonable 250-52, determination of the facts “[ 162 L.Ed.2d light presented.” of the evidence (2005); Cambra, Kesser v. 2254(d)(2). banc). § It (9th Cir.2006) (en did not. U.S.C. 351, 369 justifi- offered numerous Thus, Ap- while the California Court each of the African- cations for comparative “reviewed” the peal panel. Proper American from the “review” analysis Briggs, submitted its demonstrates, analysis indis- comparative methodologically incorrect. It is no was view, my majority that the vast putably that, according wonder to the California respect to the of these Appeal, analysis “largely its Court majority calls M. were Comparative juror point.” beside the pretextual and thus indicative of decision if analysis point” will often be “beside the largely motivated race. Absent a racial conducted, erroneously, by casting aside motivation, there would be no reason to obviously pretextual all of the rationales up large pretextual make number of foraging unique for one that is to the while reasons. juror. stricken caselaw, Under our chal- It is unclear under our caselaw whether “ lenge violates Batson if it is ‘motivated in indi this flawed itself part by discriminatory substantial in- “in cates that the state court decision ” Cook, tent,’ Sny- 593 F.3d at 815(quoting an application of[] volved unreasonable Louisiana, 472, 484, der v. 552 U.S. law,” clearly established Federal 28 U.S.C. (em- 1203, (2008)) S.Ct. 170 L.Ed.2d 175 2254(d)(1), § that of such our review added). phasis regard Georgia With to Briggs’ challenge ought Batson to be de M., clearly this standard is met. Compare LaMarque, novo. Cook v. (9th Cir.2010) 810, (holding F.3d 816 n. prosecutor pretextu offered several that AEDPA “even if the applies deference striking Georgia al reasons for raising trial court and the California Court of the inference that the strike was because ju Appeal engage did not demonstrably of race. In addition to six (internal analysis” rationales, ror quotation pretextual marks the of omitted)) LaMarque, only with Green v. 532 fered two weak that (9th Cir.2008) 1028, (holding obviously justi F.3d were not false. These two trial court’s to undertake fications —themselves “fail[ure] dubious—are insuffi inquiry a sensitive into such circumstances cient to combat the inference raised may and direct evidence of intent as be demonstrably pretextual numerous ratio available, including comparative analy a nales that the strike was moti ” vated, similarly sis situated contra part, least in substantial of Kesser, (“The “clearly dicted Supreme established Court race.2 465 F.3d at 368 Cf. instances, course, proffered justifications In some of a rationale not failure of other to sur- disproven through comparative analysis may comparative analysis. example, vive For al- plausibility many though have such inherent as to of the override reasons ("Law- any pretext gave inference of that arises from the Juror Lawrence Lane objective proof evidence of discrimi- burden of stronger the nation, way ought vary severity based on the require by more we will at issue. a trial court’s crime facts to sustain verifiable exercise of chal- finding upholding the Georgia explanation M.’s of reasonable (internal quotation marks omit- lenges.” “slight doubt as doubt” occurred before ted)). I would hold that California explained the concept had contrary conclusion is Appeals’ Court transcript reasonable doubt. The voir dire unreasonable. Georgia demonstrates M. was not stating apply that she a would different I. doubt,” standard than “reasonable but First, Appeal Court of California having difficulty rather that she was ex- majority Georgia relied —as does the —on plaining judge’s the benefit of a —without ostensibly indicating that M.’s statements instruction —the reasonable doubt stan- require higher burden of “she difficulty This is not surprising, dard.4 as than in proof rape case” other kinds of concept notoriously is elusive. “Al- only is this characterization of cases. Not though [the reasonable standard doubt] point on this in- Georgia M.’s statements aspect an ancient and honored of our crim- majority acknowledges, complete, as the justice system, easy inal it defies explica- credibility non-pretextual as a ratio- but its Nebraska, tion.” v. Victor 511 U.S. thoroughly by compar- nale is undermined (1994); 127 L.Ed.2d 583 see juror analysis. ative Nolasco, also United States v. (9th Cir.1991) (en banc) As evidence that M. would not (high- 871-72 proof, the correct standard of apply lighting difficulty defining “the reason- doubt”). majori- Appeal California Court of and the prosecu- able The notion ty point Georgia during M.’s statements tor would have stricken because explaining difficulty voir dire reasonable doubt as “a the had in defining, without mind,”3 slight your stating any guidance, legal concept doubt in widely re- dubious, L.”) simply attorney Lawrence L. did rence false is the defense "said McCutchen,” that he in a sexual state "was harassment to Miss as the con- case, out,” way and ... didn't like the it came tended, though you that “it sounded as ... and therefore it would be “difficult for” him going were not law to follow the at the end of higher to a not hold stan- pages the case....” See 1184—85. I infra required by dard than that law. This bald do think that the may sufficiently strong a statement have been equated "slight M. with reasonable doubt challenging dispel L. basis for Lawrence to Rather, explain, doubt” I was false. as it is any pretext compar- inference of derived from demonstrably pretextual. juror analysis justifications ative of the other striking offered Still, the for him. Georgia response 4. M.’s statement came in to offered some dubi- attorney asking prospective jurors the defense ous for Lawrence L. explain Georgia to reasonable doubt. M.'s my provides support further for conclusion answer was: full challenge Georgia M. that the of was race- Kesser, 465 F.3d at 369. Because based. See I think I know what it means. It's when a this conclusion is sufficient to find Batson whatever, you a case or evidence or —when violation, Snyder, 552 U.S. at see slight your if there’s doubt mind- challenge that the I assume here okay. trying I'm to find the words for permissible of Lawrence L. was and do not this—then there's a chance of reasonable analysis. conduct a detailed doubt. any I don’t know how to take it further. majority that I characterize this The states “simply tongue-tied right rationale as false.” Not so. What is I’m kind of now. because of the confused ex- legal community as a but rather within the garded plausible. change prosecutor. one is not her and the difficult between jurors, judge once the Like the seated confusing exchange During a somewhat Georgia proper M. as to the instructed prosecutor, Georgia M. did state proof of and asked whether she burden proof greater should be that the burden law, immediately could follow the she case, assenting proposition to the rape in a affirmed that do so. clearly she could would have offer no There is thus relevant difference be- “just ... a little bit more” evidence. How- interceded, ever, in- Georgia point the trial then tween M.’s answers on this Georgia M. that the standard of forming those of the seated vary on the crime. proof does not based majority contends dismissal Georgia responded that she understood supports Juror Hernandez prospective and could “followthat law.” proof the conclusion that burden that, perhaps plausible It as the justification dismissing Georgia M. was majority despite Georgia suggests, M.’s First, pretextual. disagree. contrary, ultimate assurances to the prosecutor gave no reason at all for dis- exchange could leave the con- Hernandez, missing Juror nor did she Georgia cerned about whether M. would any might make other statement that indi- satisfy a require prosecution high- cate that the reason for Hernandez’s dis- proof er burden of because the .case in- regarding missal was her statements rape. comparative juror volved But fact, In proof. exceedingly burden of it is prosecu- reveals that even if the unlikely that such statements were the concern, tor harbored such could not basis for the decision. Juror upon have been the rationale which she regarding Hernandez’s statements Georgia relied to strike M. Three seated proof indistinguishable burden jurors “yes” question- checked on their from those of the seated cited response naires majority. then, anything, If Juror you require “Would more evidence in a Hernandez’s dismissal indicates that simi- sexual case as opposed assault to anoth- lar statements could not have been a bona type er of crime such as auto theft?” fide dismissing prospec- explained One that such additional evi- juror. tive required dence would be because sexual Furthermore, a significant there is dif- assault is “a more serious crime than ference Georgia between Hernandez and auto theft.” Another stated that more M. that makes it impossible to draw a required evidence is because “a sexual meaningful assault conclusion from complex comparing case is little more than prospective jurors. auto theft case.” Like a[n] two Unlike M., upon being instructed expressly Hernandez stated that she required amount of evidence does not sympathetic to the defendant because vary ju- charged, the crime these juveniles of her work with a deputy as rors retracted their statements. probation Although officer. Hernandez that sympathy clarified such would not majority significant

The finds that it re- impact her decisionmaking, it is much quired questioning more to elicit a clear likely more that the prosecutor challenged Georgia retraction from M. than from the Hernandez because of her jurors. expressed sym- seated But the record makes clear for pathy that such additional the defendant than because of questioning occurred Georgia not because M. intransigent, proof. was her statements about the burden of jurors ques- excuse two whose justifications fare Caucasian other The they tionnaires stated that would hesitate prosecutor The stated no better. M.], [Georgia testimony as attorney “said to convict based on the victim’s defense jurors] ... it prospective alone, they testimony as even if believed such [other well talking though you when were as beyond Georgia sounded a reasonable doubt. M.’s going you that prosecutor, thus, worst, to the exactly written answer was the case.” the law at the end of to follow jurors. the same as that of two seated counsel rationale is false. Defense This statement, by Such a followed her affirma- jurors prospective three did indeed tell could, fact, during voir dire that she tion testimony indicated their voir dire that testimony convict based on victim’s the law. But they that would not follow alone, could not have been the reason she one of these Georgia M. was not was excused. wrong on this prosecutor simply The was prosecutor The further stated that she raising pretext. an inference of point, again by Georgia was concerned M.’s ambiva- Miller-El, 545 U.S. at See lence as indicated an answer on her Hickman, 2317; v. Ali questionnaire stating opin- that she had no (9th Cir.2009). ion about whether sexual assault victims cites, majority non-pretextual as a The were more less than believable victims her, Georgia M.’s state- reason majority suggests of other crimes. The that she questionnaire ment on her juror expressed that no other similar un- to convict on the word of “would hesitate certainty, nearly but all—ten out preliminary mat- one witness alone.” As jurors gave twelve—of the seated substan- ter, point. unclear on this the record is Therefore, tially the same answer.5 analysis be- Defense counsel’s genuine answer could not be reason Georgia that the state court indicates fore striking Georgia M. actually wrote not that she would be M. prosecutor sought justify The also her if she be- hesitant to “convict defendant Georgia by explaining strike M. beyond a rea- testimony a victim’s lieved juror questionnaire], “when [in asked doubt,” but that she did not know sonable said, DNA, you you’d require do think she hesitant to do so. whether she would be depends strong the other evidence is. how However, if did even her clearly looking somebody So this is who is claimed, state, that she as the for, felt, stronger I evidence least how to convict based on the would hesitate required than I would otherwise be witness, testimony single acknowledges that present.” majority The during clarified this statement voir dire. I this rationale is “weak.” would hold if she could asked When just clearly pretextual. weak is not but on the testi- convict the defendant “based jurors gave substantially Three seated if mony person of one alone believed [she] Furthermore, the same answer. two seat- testimony beyond a reasonable answered, far doubt,” gave ed answers indicated Georgia M. “If be- it, yes.” strongly did not more than M. did lieved majority jurors, majority’s likely of seated meant that 5. The confusion stems from did question, phrasing of the which asked stating he or she had no you any opinions that victims of "Do have opinion. precisely what such This answer is than assault are more or less believable sexual Georgia M. indicated asserted report being the victim of other those who questionnaire. on her "No,” Answering question this as crimes?” always” good discerning “not at whether presen- likely require they would be lying. answered evidence. One someone tation of DNA question of whether “maybe not” to the acknowledging majority, evidence, DNA could convict without she “[tjhese answers somewhat under- similar necessary prov- in “I think it’s explaining reasoning,” states prosecutor’s mine the that, juror par- noted ing case.” That Georgia M.’s statement that nevertheless cases, in sexual assault ticularly rape or good discerning was not she was, require this one she would which lying “could com- whether someone was evidence, going far as to state DNA so concern that pound prosecutor’s [she] “maybe not” follow the law that she would good juror not be a because she presenta- require as it does not insofar unduly be influenced her fellow could Another seated tion of DNA evidence. why jurors.” I do not understand this is if “could juror checked “no” when asked he is, tell, far as I can no so. There as rape of or sexual assault convict someone juror good whether a is a relation between “yes” when without DNA evidence” and judge truth-telling and the extent of evidence require asked if he “would DNA susceptible is to the influence of which she Thus, rape in a or sexual assault case.” sure, prosecu- To be her fellow jurors nearly half of the who were seated ju- permissibly tor could decide to excuse gave regarding the same answer the need they good who'stated that were not rors for DNA evidence or one that was worse determining telling someone was whether Georgia M. Her prosecution for the than However, the truth. not, therefore, a point answer on this is analysis reveals that the in this justification for the credible Therefore, pros- did not do that. case challenge against her. in contrary ecutor’s assertion to the Geor- Nor is the statement demonstrably" pretextual. case is gia M.’s Georgia good judge M. “said she was not a justification The final cited the ma- telling Preliminarily, of the truth.” de- jority upon is one which the California fense counsel contradicted this character- explicitly rely: declined to Appeal Court Georgia ization of M.’s statement. He stat- prosecutor’s poor rapport Georgia that, ed answer to majority prose- M. Unlike the vast good judge “a of whether or whether she is proffered cutor’s truth,” telling Georgia not is someone Georgia rationale cannot imme- this be “no, not all time.” M. wrote Because diately by comparative juror discredited not con- federal record does credible, it is because but —not jurors, questionnaires tain the of excused upon rather because relies assertions verify we cannot this characterization. impossible that are to evaluate from the way, comparison Either with seated record. The stated she that, prosecu- even on the indicates get feeling “did not a warm from” version, tor’s statement not a credi- this her,” M., that she “had no connection with justification striking Georgia ble giving and that M. was her “a cold One seated checked “No” and stated eye stare with little contact.” good really” that she was “not Notably, this rationale is equivalent truth-telling. who And several others prospective to a based on a they generally good stated were is, instead, juror’s report It demeanor. their an- judges truth-telling qualified sense of her rela- swers, on the own adding that there were instances such, juror. jus- they they tionship had erred or that with the As which circumstances, serve as credible rea- essentially unfalsifiable. some tifieation I striking juror from a a doubt— cannot be determined sons for “Rapport” —which Indeed, exception, the dispel with much too weak to transcript. they are and nature of Geor of the extent perhaps, that arises from the numerous inference contact, it would be difficult eye gia M.’s pretextual other rap judge trial to evaluate for even acted, at in least substantial dire not during voir presence his port, part, based on race. aspects

withstanding. In contrast crystal the caselaw is point, On this or “inat such as “nervousness” demeanor If, many pretextual in clear: addition to often upon prosecutors which tention” rationales, prosecutor manages a also to 477, 128 rely, Snyder, that survive up come with two reasons 1203, whether a judge no could discern juror analysis, that circum- giving prospective ordinarily stance does not undermine the v. feeling.” See United States a “warm peremptory challenge inference (11th Cir. Horsley, F.2d was, part, racially in at least substantial 1989) “feeling” (holding that a See, v. e.g., Prunty, motivated. McClain to overcome was insufficient about (9th Cir.2000). 1209, 1221 If 217 F.3d of discrimination prima facie case enough explanations, offers Batson). Unsurprisingly, the violation of bound, chance, are simply some of them finding about the judge trial here made no result, apply not to to other As with prosecutor’s “rapport” multiple pretextual justifi- provision Moreover, quite aside from its inherent suggests apparent validity cations nature, justifi ly would view this opaque any facially plausible justification is illu- skepticism. Lack of significant cation with Instead, sory. the other where rationales un can be the manifestation of “rapport” demonstrably pretextual, are inference or cultural differences conscious racial bias any given arises that other “is Ken See Batson v. communication. Ali, make-weight.” also a 584 F.3d at 79, 106-107, 106 S.Ct. tucky, 476 U.S. (1986)(Marshall, J., concur 90 L.Ed.2d Chinchilla, In States v. (“A United or prosecutor’s own conscious ring.) (9th Cir.1989), example, we easily him may racism lead unconscious four ju held that “the fact that two of the prospective that a black the conclusion ‘sullen,’ ‘distant,’ ju- a characteriza reasons” for Latino proffered ror is to his mind up that would not have come rors in that case did “not hold under tion identically.”). juror had acted judicial scrutiny against if a white militates suf- [the] evaluate its credi reasons, And because we cannot ficiency” remaining two rap on lack of bility, explanation an based normally be even if such reasons “would a racial easily can serve to conceal port Here, adequately explanations.” ‘neutral’ peremptory challenge. for a motive reasons prosecutor’s proffered six of the up. not hold The other two are either do short, justifi- despite plethora In (Georgia explana- M.’s exceedingly weak for strik- offered cations provided tion of reasonable doubt before M., only quite weak ratio- ing Georgia two meaning) on its instructed plausible after possibly nales remain even (the inherently suspect or unfalsifiable and (1) Georgia M.’s ex- careful examination: rationale). only reasonable “rapport” “slight doubt” as planation of “reasonable (2) expla- this combination of inference from doubt”; pros- rapport her justifica- could, in nations is Even if these rationales ecutor. were, part, ager in can be more believable than an adult tions at least substantial Ali, F.3d at pretexts expectly for race. See when violent crime has [sic.] (“ of prosecution’s proffer against (emphasis [one] them.” ‘[T]he committed be[en] explanation naturally gives added). rise pretextual intent,’ discriminatory to an inference of prosecutor The also stated that R. Sam other, potentially expla valid even where “suggested physical that evidence (quoting Snyder, nations are offered.” 552 would be different” in a sexual case assault 1203)). best, At U.S. cases, than in other kinds of a conclusion pretextual justifica provision of numerous the prosecutor explained, supported her only that are even tions and two rationales man, “concern that a physical this is he’s weakly plausible demonstrates a mixed guy, evidence kind of that’s some- is, it motive—that indicates the system one who also looks that the some- part

was motivated at least in substantial times makes the victim seem at fault.” by race. I would therefore hold There problems are numerous with this Appeal’s contrary con California Court First, justification. unsurprising an clusion was unreasonable determination physical someone would comment that the before it. the facts in a rape evidence case would be different in, than that an example, auto theft II. because, course, it would be. It case— of Appeal’s Whether Court determi- why is difficult to recognizing understand prosecutor’s nation that challenge of such a difference would make Sam R. a (“Sam R.”) Juror Sam Richardson was not juror. fit less race-based is also unreasonable is a closer Second, prosecutor’s ostensible con- question. Because Constitution for- “[t]he “physical cern that Sam R. awas evidence striking single prospective ju- bids even a guy” by kind of is belied discriminatory ror for a purpose,” Snyder, analysis. prosecutor apparently had 1203(internal objection no seating who stated marks, alteration, quotation and citation questionnaire in her she could omitted), and, my view, challenge “maybe” convict a defendant “of or rape Batson, Georgia M. violated I need not any sexual assault without DNA evidence” note, nevertheless, Sam R. I address physical because “other evidence is also while contention that Sam acceptable to consider.” curt, flippant, R. was and evasive does record, support have some in the other Finally, logical there seems to be no by offered connection between con- inaccurate, him were either irra- “physical clusion that Sam R. was a evi- tional, by or comparative juror belied anal- guy” dence kind of and the inference she ysis. claimed to draw from that characteriza- tion, that system Sam R. “looks that the example, For stated that sometimes makes the victim seem at Richardson stated in his fault.” It is difficult to discern teenagers “are what the less believable because of age personal when, fact, meant this. To background” the extent he made no such Quite statement.6 she meant that Sam R. viewed the opposite: system Richardson stated that a “teen- unfairly as sometimes blaming questionnaires 6. Because the for non-seated resentations in his memorandum before the part are not representations federal trial court. These have not record, relying rep- I am on defense counsel’s been contested the state. demographic juror’s likely vote as other bias him in the victim, seem to this would any not be a age and therefore as or education or of favor factors such prosecution’s Ali, him. to strike reason arbitrary upon pros- credible bases which the other Cf. (indicating that bias on at 1184-86 F.3d juror. to excuse a ecutors decide whether plausi- not a was prosecution behalf race, Still, the use of proscribes our law challenge a reason for ble factors, of these other as a but not the use instead, If, prose- juror). prospective hunches. prosecutorial basis for R. himself contending that Sam cutor was challenges Maintaining peremptory victim, the rec- inclined to blame was proscribing at the same time one while fact, he, in held the suggests ord exercising price. them comes at a basis for questionnaire, Sam view. In his opposite scrupulous, that we must be price That stated, justice is not R. “Sometimes assuring in sloppy, than race rather serv[ed]; regarded by the victim is not motivating not a substantial factor for trial, criminal ... outcome of the juror. striking a prosecu- Neither the set free.” sometimes evidence was physical tion’s assertion Here, the trial court failed to examine to Sam R. nor the important particularly jus- prosecutor’s proffered thoroughly to draw from purported she inference striking every single for Afri- tifications per- for her credible fact are prospective juror from the can-American challenge. emptory in an African-Ameri- panel a case which of whether Regardless charged with a cross- can defendant was Batson, the R. violated challenge Sam Yet, despite this failure to racial crime. justifi- pretextual provision prosecutor’s inquiry, the California proper conduct bolsters the conclu- cations for this strike Appeal deferred to the trial Court of striking reasons for that her actual sion Although court’s conclusion. from jurors “differed African-American compar- to review the purported court also and that [her] asserted [she] those that juror analysis by Briggs, it provided ative Ali, race-based.” ulterior motive was perfunctory in a manner that missed did so willing- “The F.3d at 1196. analysis. This flawed point of such up nonracial reasons ness to make in a that unrea- analysis resulted decision makes it even harder striking [Sam R.] concluded that the did sonably reasons [her] believe exercising peremp- race in her rely not on Kesser, [Georgia were race-neutral.” M.] instead, If, tory challenges. we conduct the careful and its proffered justifications Batson III. that, clear progeny require, becomes otherwise valid convictions Discarding respect least with Juror for racial rea- jurors were ousted because motivated, at least substan- strike was It is nonetheless tough son is medicine. simply race. Our law does part, tial judicial if we are to maintain necessary to exercise even permit prosecutors of the taint of racial system that is free basis. discretionary challenges on this very temp- There is a real discrimination. therefore reverse. peremp- to exercise prosecutors tation for the basis of race—and tory challenges on

not, necessarily, because at least not or Rather, prose- racist.

they are themselves wrongly— may rightly cutors believe— bad) (or predictor good

that race is as

Case Details

Case Name: Averill Briggs v. Randy Grounds

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 15, 2012

Citation: 682 F.3d 1165

Docket Number: 10-16683

Court Abbreviation: 9th Cir.