[00:00:00] Speaker 04: Lead us off and maybe let us know if you want to reserve some time for rebuttal. [00:00:04] Speaker 02: Good morning, Your Honor. [00:00:05] Speaker 02: May it please the court? [00:00:06] Speaker 02: Jamie Halper on behalf of Jabri Bennett, and if I may reserve two minutes, please. [00:00:11] Speaker 02: The prosecutor in Jabri Bennett's case struck prospective juror Dominique Jones in substantial part because he was black. [00:00:19] Speaker 02: The prosecutor repeatedly offered purported reasons contradicted by the record for striking him, and the trial court piled on with inaccurate facts [00:00:28] Speaker 02: and with legal errors contrary to clearly established Supreme Court precedent. [00:00:33] Speaker 02: Despite this, the California Court of Appeal turned a blind eye to the racial animus underpinning this strike. [00:00:40] Speaker 02: But the prosecutor had been clear that he would accept one and only one black juror. [00:00:46] Speaker 02: And once that juror was seated, Mr. Jones had to be struck. [00:00:50] Speaker 03: Did the Court of Appeal rely on that aspect of this election? [00:00:54] Speaker 02: Yes, Your Honor. [00:00:55] Speaker 02: So with respect to the powerful evidence standard that the trial court credited with the fact that there was one seated black juror, the Court of Appeal was clear that its position was that that was acceptable under California law and that the judge had been appropriate. [00:01:14] Speaker 03: Well, doesn't it in footnote six of the opinion disclaim any reliance on that point and said it would reach the same result? [00:01:21] Speaker 02: It says that it was not an inappropriate consideration and that even, I believe it says, [00:01:35] Speaker 02: Among many other factors, it concluded this, but it doesn't separate out the fact that it was still weighing this just in an appropriate manner. [00:01:44] Speaker 02: So it was more taking issue perhaps with the powerful evidence degree and saying that even if this were not considered powerful evidence, but just one factor among many, it would be appropriate, but the Supreme Court [00:01:55] Speaker 02: has been clear that this is actually a suspect consideration and not even something that should be considered appropriately. [00:02:04] Speaker 03: They seem to go farther than that. [00:02:06] Speaker 03: They say even if we were to assume that this amounted to legal error, I think they concede your point and then say they'd reach the same decision anyway with respect to the two other pieces on the juror questionnaire, which might be the focus of your remarks going forward. [00:02:24] Speaker 02: Absolutely. [00:02:24] Speaker 02: Well, I would be happy to turn to the Sue Espante error. [00:02:27] Speaker 02: So the trial court also provided its own reason approving of the strike of Mr. Jones, even though the Supreme Court has been clear that a Batson determination is not an exercise in a court thinking up any rational basis. [00:02:44] Speaker 02: And on top of that, the trial court's reason was actually false. [00:02:48] Speaker 03: Again, it seems like you're asking us to review the trial court decision, which Congress says we don't do. [00:02:54] Speaker 02: So the Court of Appeal accepted that reason when it was articulating the bases that the trial court offered. [00:03:02] Speaker 02: It noted that the trial judge made this sua sponte reason and it sort of accepted it in some. [00:03:09] Speaker 02: It didn't separate out whether it would still uphold the strike absent this sua sponte consideration offered by the trial court and considering this altogether and not parsing it is the error that [00:03:22] Speaker 02: the Supreme Court indicated courts cannot engage in and it would entitle Mr. Bennett to de novo review of the claim. [00:03:29] Speaker 03: Well, Ms. [00:03:30] Speaker 03: Halper, let's assume for sake of argument that we are able to, again, focusing on the questionnaire issues, the jurors' views on the criminal justice system and the jurors' family involvement with the criminal justice system. [00:03:44] Speaker 03: Would it be sufficient under Batson and I think the Flowers Test, where it says where it's motivated in substantial part, where you're looking at the strike, you're not? [00:03:55] Speaker 03: As I understand it, we don't look at the individual reasons for the strike. [00:04:00] Speaker 03: What the Supreme Court has told us is we're looking at whether the strike itself was motivated by race. [00:04:07] Speaker 03: Would it be enough if, for sake of argument, we determine that the familial involvement [00:04:15] Speaker 03: mistake was not material and sufficient grounds. [00:04:19] Speaker 03: Would that be enough to sustain the strike? [00:04:21] Speaker 03: And if the other aspects taint it, how? [00:04:25] Speaker 02: So even if the court were to find that the familial mistake wasn't sufficient, was not inappropriate or not an issue, the substantial part [00:04:38] Speaker 02: standard requires that we look at all of the reasons. [00:04:41] Speaker 02: And given the fact that the prosecutor gave the opposite reason or the opposite statement of what Mr. Jones wrote in his questionnaire with respect to his views on the criminal justice system, that itself is evidence of the animus. [00:04:55] Speaker 04: Can I address that? [00:04:56] Speaker 04: Because you said it was the officer reason. [00:04:57] Speaker 04: I thought about that a little bit. [00:04:59] Speaker 04: I mean, I'm not sure that I [00:05:04] Speaker 04: would agree that it's necessarily an opposite reason, because somebody said that I think that sometimes the criminal justice system gets things wrong, but more often it gets it right. [00:05:19] Speaker 04: I mean, that could be like a 40-60 split, right? [00:05:22] Speaker 04: 60 percent of the time it gets it right, 40 percent of the time it gets it wrong. [00:05:25] Speaker 04: And then the prosecutor's statement that more often than not it gets it wrong could be 60-40 the other way, which is only 20% difference, right? [00:05:35] Speaker 04: As I read your brief and it talked about it being the opposite, but there is a difference, obviously. [00:05:40] Speaker 04: But I'm not sure if I follow you that it's the opposite in the sense that it could be relatively close. [00:05:47] Speaker 04: One could be slightly one side of 50% and the other side. [00:05:51] Speaker 04: So is it really the opposite? [00:05:54] Speaker 02: We would submit that it's the opposite because it's important to hear that this was apparently a very important reason to the prosecutor for striking Mr. Jones. [00:06:04] Speaker 02: He framed his entire Batson discussion before he even got it. [00:06:10] Speaker 04: If, let's say, he theoretically thought it, 45 percent of the time, the system gets the answer wrong. [00:06:18] Speaker 04: And you're right, he thought it was very important, the prosecutor, to strike him because he, for some reason, thought it was 55 percent of the time. [00:06:29] Speaker 04: But there's not, this reason that the prosecutor thinks it's very important, he's not that wrong about, I mean, under these numbers I'm putting in, I'm trying to make it, you know. [00:06:41] Speaker 04: If he still thinks a significant amount of the time it gets the answer wrong, he's not that wrong. [00:06:48] Speaker 04: Does that make sense? [00:06:49] Speaker 04: The prosecutor is wrong, but he's not that wrong. [00:06:51] Speaker 02: So Miller-El indicates that you don't actually have to provide the opposite reasoning from what a voir dire or a questionnaire indicated. [00:06:59] Speaker 02: Miscaracterization is sufficient. [00:07:01] Speaker 02: That was the issue in Miller-El with respect to a juror's position on whether he could impose the death penalty in that case. [00:07:09] Speaker 02: And similarly here, [00:07:10] Speaker 02: even though we would argue that it is the exact opposite, even if it's somewhat wrong, it is a mischaracterization. [00:07:16] Speaker 02: And it's important that the prosecutor never question Mr. Jones. [00:07:21] Speaker 04: But it's also true that mischaracterizations can be... Sometimes you can mischaracterize something and it does not rise to the level that would... And it seems like what it turns on is... [00:07:36] Speaker 04: whether the mischaracterize, you know, whether the general, you know, similar, you know, even you're mischaracterized it, but it's not completely incorrect. [00:07:43] Speaker 04: And here, if they are, if they could be close, how, and we kind of defer to the state court, how could, how would it fit into the idea that it has to be completely wrong, as opposed to just sort of a not getting it quite right off a little bit? [00:08:01] Speaker 02: This position is in the broader context of all of the issues with the reasons that the prosecutor gave and his broader statements about his approach when he was taking part in the Batson colloquy. [00:08:11] Speaker 02: So for one thing, he indicated that he would swap the seated black juror and the alternate juror, which raises the suggestion, you know, he never suggested that he would swap the black alternate in for a non-black seated juror. [00:08:27] Speaker 02: He was really willing to make the one for one. [00:08:29] Speaker 04: So it sounds like [00:08:31] Speaker 04: just because we don't have a lot of time. [00:08:32] Speaker 04: It sounds like that's more where, that's what you see as the biggest error that requires, that supports the bet. [00:08:38] Speaker 04: The other errors are? [00:08:41] Speaker 02: It's all of the circumstances. [00:08:43] Speaker 02: It's his fixation on arguing that Mr. Jones was not in fact black when there was no evidence. [00:08:48] Speaker 02: It was the fact that he questioned, for example, juror seven who wrote that he found or that he believed that there were racial differences in the legal system. [00:08:57] Speaker 02: He gave him an opportunity to explain his position and he [00:09:00] Speaker 02: never gave Mr. Jones the opportunity to explain that position. [00:09:03] Speaker 02: The cases are clear that disparate questioning and failing to question a person about the basis of a strike is evidence of pretext and so it's no individual reason. [00:09:13] Speaker 02: It is all of the reasons taken together where it is objectively unreasonable for the Court of Appeal to have said that there was not racial animus underpinning this strike. [00:09:22] Speaker 04: It looks like we're taking you down in your time. [00:09:25] Speaker 04: Let me make sure my colleagues don't have any questions. [00:09:27] Speaker 00: Well, I had just one quick question. [00:09:29] Speaker 00: You indicated that you feel the trial court erred by providing its own sui sponte justification. [00:09:36] Speaker 00: Did the state appellate court rely upon that in its decision? [00:09:43] Speaker 02: It credited that reason and it did not separate out whether it would have upheld the decision absent that Sue Esponte basis and therefore it must be taken to have relied on that reason and so the only remedy would be to then review de novo the court of appeals decision in order to separate that justification out and reconsider the case without that piece of information. [00:10:09] Speaker 04: I will make sure you got some time for you but let's put to two minutes on there we we definitely took you over we'll hear from the government you might address the first office this question of uh... the sua sponte and particularly how that court of appeals uh... the way the court appeals addressed the district courts extra reason that it kind of tacked on and whether or not how we should evaluate that [00:10:38] Speaker 01: If I may please the court, Masha DeVisa for respondent appellee. [00:10:43] Speaker 01: Yes, your honor. [00:10:44] Speaker 01: So as an initial matter, I would like to state that the specific extra reason that the trial court may have offered under Flowers completely fits within the framework of were the totality of the circumstances considered by the Court of Appeal in considering [00:11:03] Speaker 01: the step three of the Batson analysis, sufficient. [00:11:06] Speaker 01: Did it show purposeful discrimination on the basis of race? [00:11:09] Speaker 01: It did not. [00:11:10] Speaker 01: The court's stated reason potentially contributes to the fabric of what the court was considering of how it considered the prosecutor's credibility, how it considered the prosecutor's specific rationale for excluding Dominique Jay compared to some of the other jurors. [00:11:29] Speaker 01: I would submit that the trial court's statement about the powerful evidence simply was a reflection of its determination of the prosecutor's [00:11:38] Speaker 04: of the prosecutor's rationale in light of... There's some tension, it seems like, between the fact that you need to rely on the reasons given by the prosecutor. [00:11:47] Speaker 01: Correct. [00:11:47] Speaker 04: But you also need to look at the totality of things. [00:11:49] Speaker 04: I think towards the end of your colleague on the other side's argument, she brought up something, I'm forgetting what it was now, but something that the prosecutor... [00:12:01] Speaker 04: something that the prosecutor had said that the trial court didn't rely on or anything. [00:12:04] Speaker 04: And so since we have to take into account the totality of the circumstances, and the courts need to take that into account. [00:12:13] Speaker 04: In theory, I suppose that they would be touching on some things that the prosecutor didn't give just to sort of fill out and get the holistic picture. [00:12:21] Speaker 04: But there's some tension there in that they aren't supposed to be adding reasons that the prosecutor didn't give. [00:12:25] Speaker 04: So it sounds like your position is this is just filling out the picture. [00:12:30] Speaker 04: Not an additional reason? [00:12:32] Speaker 01: Is that correct? [00:12:34] Speaker 01: What we are here to do is to determine whether the state court's determination of the Batson claim was unreasonable in light of the entirety of the court record. [00:12:46] Speaker 01: And so what the court with the trial court said or didn't say and you know, as your honor noted in the footnote, the Court of Appeal went on and on saying that there are so many other reasons why the bats and claim was absolutely not. [00:13:01] Speaker 01: The petitioner did not meet his burden to demonstrate purposeful discrimination. [00:13:06] Speaker 01: So the fact that the trial court gave its own reasons is, I would submit, irrational. [00:13:11] Speaker 01: And under Rice, you know, reasonable minds can differ whether something was or was not relevant. [00:13:20] Speaker 03: Does the state argue that it's not contrary to Batson for a trial court to view black jurors as fungible? [00:13:27] Speaker 03: That you can swap one black juror for another? [00:13:34] Speaker 03: uh... that is not our position that is not being argued here that is not an issue here and i i think that's that's what the trial court did here the trial court also said uh... it seems uh... again let let me know whether you think this is consistent with batson that it would all that it basically made clear to the prosecutor that were only going to assess the total uh... jury makeup at the end of the process which in creates as i don't be recognized some [00:14:02] Speaker 03: incentives for gamesmanship in terms of, well, if we have enough, if we're able to have one black juror but not another, how is that permissible under Batson? [00:14:12] Speaker 01: It is not permissible under Batson, but that's not what occurred here. [00:14:15] Speaker 03: And isn't that what the trial court said that at the outset, that we're going to assess it at the end, we're going to look at the entire makeup? [00:14:22] Speaker 01: The court, first of all, the Court of Appeal here did not rely on the trial court statement that it was going to conduct some sort of statistical Miller-El type analysis of, oh, do we have enough jurors or do we not have enough jurors? [00:14:35] Speaker 01: The Court of Appeal here very clearly focused on the specific claim at issue here, which is whether Dominique J. specifically was struck for a [00:14:45] Speaker 01: prohibited reason under the 14th Amendment. [00:14:49] Speaker 01: And the Court of Appeal, the state court here found that the petitioner did not sustain his burden to prove purposeful racial discrimination. [00:15:00] Speaker 01: And that is what we are looking at here. [00:15:02] Speaker 01: We're looking at whether that particular Batson claim has been sustained by the petitioner. [00:15:07] Speaker 03: Well, that sounds like something different than the totality of the circumstances analysis you led with. [00:15:12] Speaker 01: Well, the totality of the circumstances analysis focuses on the specific struck jar here, not on, we're not backing up and we're not stepping into the shoes of the trial court to see [00:15:25] Speaker 01: if we get to reweigh the evidence and we get to relook at the racial composition of the jury. [00:15:30] Speaker 01: That's not what we're doing here. [00:15:31] Speaker 01: We're focused on the very specific determination by the state court, considering all the evidence before it, of whether the Batson claim has been sustained. [00:15:42] Speaker 01: And we're conducting a highly, highly deferential review under the AADPA to determine whether the court's [00:15:53] Speaker 01: whether the court's determination was objectively unreasonable. [00:15:55] Speaker 01: And it was not here. [00:15:56] Speaker 01: And we don't get to reweigh, you know, at the voir dire stage, we don't get to reweigh the court's reasoning. [00:16:03] Speaker 03: Well, I take your point that we were focused here. [00:16:06] Speaker 03: And so, for example, the Court of Appeals seems to be suggesting that the family involvement with the criminal justice system was a sufficient reason. [00:16:20] Speaker 03: Assuming that that's a sufficient non-pretextual reason, are we allowed or is the Court of Appeals allowed to rely on that factor to the exclusion of all of the other assertions of pretext? [00:16:36] Speaker 03: Does one good reason under Batson or under Flowers cancel out all the other suspect reasons? [00:16:44] Speaker 01: As an initial matter, yes. [00:16:47] Speaker 01: However, there was not just one reason. [00:16:49] Speaker 01: There was, you know, first of all, Dominique Jay not just had a familial relationship, but Dominique Jay also very specifically stated in voir dire and in questionnaires that the criminal justice system [00:17:05] Speaker 01: question, quote, whether the criminal justice system works for the most part. [00:17:09] Speaker 03: And the court then went... Right, but the court, you can't lean on that because the Court of Appeals itself distanced itself from that. [00:17:14] Speaker 03: It said on a comparative juror analysis, we had other jurors who expressed similar misgivings about the criminal justice system. [00:17:21] Speaker 03: So that kind of cancels out, doesn't it? [00:17:24] Speaker 01: Absolutely not, Your Honor. [00:17:25] Speaker 01: I would push back on that because the Court of Appeals specifically conducted a comparative juror analysis and looked at juror 12, juror 9, juror 7. [00:17:32] Speaker 01: There were several jurors who the court considered the extent of their statements about the criminal justice system. [00:17:38] Speaker 01: None of the other jurors [00:17:41] Speaker 01: had a close familial relationship with an individual who had been convicted. [00:17:45] Speaker 03: Well, that's just my point, though. [00:17:48] Speaker 03: So if, for sake of argument, the prosecutor in the district court unreasonably [00:17:57] Speaker 03: misread the statement about the jurors' views about the criminal justice system, and then you do this comparative thing where the only difference now is the family involvement. [00:18:10] Speaker 03: Can we just then disregard that misreading of the jurors' views on the criminal justice system, which, let's assume for sake of argument, it was? [00:18:19] Speaker 01: I'm not sure I'm comfortable making several assumptions in a hypothetical where we have [00:18:24] Speaker 01: to very clear rationales for why this particular juror had extreme skepticism about the criminal justice system and a close... Extreme skepticism about the criminal justice system? [00:18:36] Speaker 03: It's fair for the most part. [00:18:40] Speaker 01: question whether the criminal justice system was fair for the most part said not interested in the criminal justice system and again your honor as compared to the other jurors yes it absolutely set dominic j apart dominic j was not set apart by virtue [00:18:55] Speaker 03: I don't think that, I guess that's not, just to zoom in on the Court of Appeals reasoning, I don't understand that's what it's saying, and I think this is a point in the state's favor. [00:19:06] Speaker 03: As I understand, and this is at ER 4243, pages 20 and 21 of the Court of Appeals decision, [00:19:14] Speaker 03: It seems to be saying there were other jurors who expressed similar misgivings about the criminal justice system, but what distinguished Juror Jones was the familial involvement. [00:19:31] Speaker 01: I'm looking at footnote seven of the Court of Appeal opinion where the state court wrote, indeed the record supplies additional reasons to conclude that Dominic Jay was not similarly situated to these jurors because in addition to the two reasons for the challenge advanced by the prosecutor, Dominic Jay had also been convicted of a crime and further appears to have had issues with one of the [00:19:50] Speaker 01: one witness rule and expressed lack of interest in the criminal justice system, et cetera. [00:19:55] Speaker 01: And there were many race neutral reasons why his inclusion on the jury might have been troubling to the prosecutor. [00:20:00] Speaker 01: And I would submit that that statement by the state court is not unreasonable under D2, under section 2254 D2 of the AEDPA. [00:20:10] Speaker 01: and is subject to a lot of deference by this court. [00:20:13] Speaker 03: Do you think you win if we rely solely on its statements that later on, and of course, as you know, in habeas review, our question is if we can read it to be reasonable, we must. [00:20:27] Speaker 03: Do you think if we rely solely on the familial involvement as a distinguishing factor and as a non-protectual basis at step three that you win under that? [00:20:38] Speaker 01: I'm not sure the court must, but if the court wishes to rely solely on the familial distinction, I would submit that that is definitely sufficient and supports the state court's determination because Dominic Jay did not simply have a familial relationship as in he had an aunt that was in prison, he had an aunt that he was close to, he visited her [00:21:02] Speaker 03: And is Flowers the best case on that, or what do you think the best case is that we can take one good reason and parse it from what we may believe are suspect reasons? [00:21:12] Speaker 01: Well, first of all, I would submit to Your Honor that Snyder supports that. [00:21:17] Speaker 01: that the prosecutor's rationale, even of just that one reason of a familial relationship, is consistent with the record, right? [00:21:26] Speaker 01: The prosecutor did not make up a reason and rely on that reason in a pretextual way. [00:21:31] Speaker 01: Second of all, I would submit that even, for example, in Perkett v. Elam, a case where [00:21:38] Speaker 01: The United States Supreme Court found that striking a juror, quote, because he had long unkempt hair and a mustache and a beard, was sufficient and race neutral and satisfied Batson's review. [00:21:52] Speaker 01: And here, I would submit that having a close, familial relationship with a woman whom a petitioner visited three separate times in prison as she served her term and [00:22:08] Speaker 01: whom he spoke to after her incarceration, after she was released, with whom he, quote, he stated, I stated there at the time. [00:22:17] Speaker 01: It's not clear where exactly that was, but he clearly was very close to her, unlike any other member of the jury. [00:22:25] Speaker 03: And this, just to be clear, we're talking about the juror, not the petitioner here. [00:22:29] Speaker 01: We're talking about, I'm sorry, yes, I'm sorry, Your Honor. [00:22:32] Speaker 01: We're talking about Dominique Jay, who was very close to his aunt. [00:22:35] Speaker 01: And I would say, closeness to the aunt, visiting the aunt in prison as she served time for several years, speaking to the aunt, and subsequently expressing [00:22:48] Speaker 01: skepticism about the criminal justice system is certainly more of a rationale than having long unkempt hair. [00:22:55] Speaker 01: And so, yes, that would be a sufficient reason to uphold the state court's determination as... Well, thank you, counsel. [00:23:02] Speaker 04: We've taken you several minutes over. [00:23:04] Speaker 04: Unless either of my colleagues have further questions, we will allow the other side to have their two minutes over. [00:23:10] Speaker 01: Thank you, Your Honors. [00:23:11] Speaker 01: Thank you. [00:23:11] Speaker 01: I submit. [00:23:15] Speaker 02: Just two brief additional comments. [00:23:18] Speaker 02: First, under Snyder's substantial part standard, it's clear that the defendant need not prove that all of the reasons were pretextual, but with respect to the aunt in [00:23:32] Speaker 02: prison issue. [00:23:33] Speaker 02: It's an incredible basis in and of itself, because the aunt went to prison for a handful of years for drug trafficking, and Mr. Bennett was on trial for murder and attempted murder. [00:23:45] Speaker 02: These are not similar circumstances. [00:23:47] Speaker 04: In addition to that, fall immediately following the ref... That argument is a little bit like saying somebody with unkempt hair is not a good reason to... But that's not really our inquiry, right? [00:23:57] Speaker 04: Our inquiry isn't whether the reason [00:24:00] Speaker 04: if it's a sincere reason was a sufficient reason because you can prosecutor can have a dumb reason it's just our quarry is whether or not it's pretextual certainly in all of the additional surrounding visiting like a relative and it's not that it's not his mom it's his aunt but [00:24:17] Speaker 04: But I don't know if I'd visit my aunt if she was in prison three times. [00:24:21] Speaker 04: You know, I mean, obviously he's fairly close to her, so it doesn't sound like a pretextual reason. [00:24:25] Speaker 04: It sounds like he's, it sounds like kind of a unique, very close relationship with this family member. [00:24:30] Speaker 02: Well, he was clear that it would have no effect on him in this case, and nobody suggested that he wasn't trustworthy for some reason. [00:24:37] Speaker 04: But again, maybe not, but the question is whether that's a pretextual reason as opposed to, and I guess your argument would be that it's such an absurd inference to draw that it would have an effect on him, that it's got to be pretextual. [00:24:51] Speaker 04: Is that your argument? [00:24:52] Speaker 02: Yes, it's pretextual and it need not be in order to find for Mr. Bennett in this case. [00:24:59] Speaker 02: Additionally, I wanted to just clarify quickly the the Court of Appeals position on considering this presence of a seated black jurors. [00:25:08] Speaker 02: was it said that even if the trial court improperly inflated that, which was really a reference to California law, which perhaps allowed it, but not as substantially as the court used it. [00:25:22] Speaker 02: But in reality, the Supreme Court's position is that that should be treated skeptically. [00:25:26] Speaker 02: And so to consider it at all, even in a deflated way, but to not treat it skeptically itself, [00:25:33] Speaker 02: is a legal error that is contrary to Supreme Court precedent. [00:25:38] Speaker 02: And the whole protocol was designed around the importance of this. [00:25:41] Speaker 02: So it's also a factual error on the part of the Court of Appeal to find that it had not been improperly inflated because the trial court was clear that the entire reason he conducted the Batson colloquy in the way he did was because the most important factor to him was the ultimate composition of the jury. [00:25:59] Speaker 04: Thank you, Council. [00:25:59] Speaker 04: Thank you to both sides for your argument this morning. [00:26:02] Speaker 04: The case of Bennett versus Lynch is now submitted.