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SCOTUS: harmless error and procedural Batson challenges

Davis v. Ayala, USSC No. 13-1428 (June 18, 2015), reversing Ayala v. Wong, 756 F.3d 656 (9th Cir. 2013); majority opinion by Justice Alito; concurrences by Justices Kennedy and Thomas; dissent by Justice Sotomayor

SCOTUSblog page (including links to briefs and commentary)

Jury selection for Hector Ayala’s murder trial spanned 3 months and involved more than 200 prospective jurors. So when the prosecutor used peremptory challenges to strike every single Black and Hispanic juror from the pool, the defense objected based on  Batson v. Kentucky. The trial court gave the prosecution a chance to present race neutral reasons for its strikes, but excluded the defense from the hearing. Ayala, who was convicted, said excluding him and his lawyer violated his constitutional rights. The majority assumed, but did not decide that, a constitutional violation occurred  and then held . . . (all together now) “harmless error!”

The California Supreme Court held that it was error (as a matter of state law)

to exclude Ayala from the hearing but that the error was harmless. Ayala filed a petition for writ of habeas corpus in federal court, which brought the AEDPA into play. The 9th Circuit found the error harmful because excluding the defense from the hearing impaired the trial court’s ability to evaluate the prosecution’s justifications for its strikes and impeded appellate review–especially because the questionnaires for the stricken jurors were lost.

None of the justices disputed the proper standard of review. It is set forth in Fry v. Pliler, 551 U.S. 112 (2007) and Brecht v. Abrahamson, 507 U.S. 619 (1993). In a nutshell, the federal court may grant relief only if it has grave doubt about whether a trial error of federal law had a substantial or injurious effect or influence in determining the jury’s verdict or the trial court’s decision. Brecht at 637.  Slip op. at 10. For more detail see our prior post here.

However, the justices battled over where to focus their attention. The majority assessed harmlessness based on whether or not the prosecution’s strikes were valid in light of the existing record (i.e. the hearing from which the defense was excluded). Slip op. at 14-28. The dissent (Sotomayor, Ginsburg, Breyer, Kagan) considered what the Batson hearing would have looked like–what additional information that the trial judge might have had–if the defense been allowed to participate. Dissent at 15. The majority deferred to the “conscientious trial judge [who] determined that the strikes at issue were not based on race.” Slip op. 29. The dissent found a substantial likelihood that the presence of defense counsel would have permitted Ayala to show that the prosecution’s race-neutral reasons were actually pretextual. Dissent at 7.

If a court excludes the defense from a Batson hearing in your client’s case, consider Sotomayor’s proposed strategy.  SCOTUS has not yet decided whether this is a structural error, the effect of which is presumed to be prejudicial. Dissent at 6 n.1 (citing U.S. v. Cronic, 466 U.S. 648, 658 (1984) and Mickens v. Taylor, 535 U.S. 162, 166 (2002)). So argue that it is.

If you’re looking for fireworks, you’ll find them in the two “concurrences.” At oral argument it came out that since being sentenced to death, Ayala has spent most of his 25 years in prison in solitary confinement–a windowless cell, no larger than a parking spot for 23 hours per day. Justice Kennedy described the horror of the situation and called for change, ending with a famous Dostoyevsky quote: “The degree of civilization in a society can be judged by entering its prisons.” Kennedy’s concurrence at 5-6.  To which Justice Thomas replied:

I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.

Since we’re alluding to Russian history, Let History Judge the merits of Thomas’s opinion.

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