[00:00:05] Speaker 03:
Our next case is Jackson versus Broomfield.

[00:00:39] Speaker 03:
You can proceed.

[00:00:40] Speaker 01:
Thank you, Your Honor.

[00:00:41] Speaker 01:
Good morning and may it please the court, California Deputy Attorney General for Warden.

[00:00:45] Speaker 01:
I would like to reserve five minutes for rebuttal.

[00:00:48] Speaker 03:
Thank you.

[00:00:49] Speaker 01:
Thank you, Your Honor.

[00:00:51] Speaker 01:
The district court in this case did something that this court and the United States Supreme Court have repeatedly cautioned courts not to do.

[00:00:59] Speaker 01:
It claimed it was applying the EDPA standard, but then viewed every disputable inference in the light least favorable to the state court judgment.

[00:01:09] Speaker 01:
The court engaged in deeply flawed comparative analysis and then used that comparative analysis to conclude that the prosecutor was lying about all 14 of the reasons that he proffered for excusing the three potential jurors.

[00:01:20] Speaker 02:
Can you address for me how the failure for the state courts to have utilized a comparative juror analysis impacts our review, or because we're reviewing de novo, the

[00:01:37] Speaker 02:
proffered statements of the prosecutor.

[00:01:39] Speaker 02:
So the fact that there was no comparative juror analysis done and now there is a comparative juror analysis.

[00:01:47] Speaker 01:
Yes, Your Honor.

[00:01:48] Speaker 01:
At the time that the California Supreme Court decided the case in 1996, it was not required

[00:01:53] Speaker 01:
to conduct comparative analysis.

[00:01:55] Speaker 01:
So it could not have erred by failing to conduct comparative analysis because that was not clearly established United States Supreme Court authority at the time.

[00:02:03] Speaker 01:
Now, in Miller, Allen, and several other cases, it is clear that comparative analysis can be conducted in the first instance in federal court.

[00:02:11] Speaker 01:
But it's also clear that the state court ruling is still entitled to deference.

[00:02:15] Speaker 01:
So although the state court didn't conduct that comparative analysis, it's not error.

[00:02:20] Speaker 01:
The next step is that this court, just like the district court, is allowed to use comparative analysis as a tool in its toolbox to decide whether or not the prosecutor was lying.

[00:02:29] Speaker 02:
But it's not really an apples to apples comparison because there was no comparative juror analysis done by the state courts.

[00:02:35] Speaker 02:
And so in some of these cases where that application of the deference standard is sort of easier to apply because it's an apples to apples comparison, whereas here you have really more of an apples to oranges.

[00:02:47] Speaker 01:
That's absolutely correct, Your Honor.

[00:02:48] Speaker 01:
So there's one of the cases cited in the District Court opinion that says it becomes convoluted when you're trying to give deference to something that never really happened.

[00:02:57] Speaker 01:
Although there is one thing I would add on that, which is that at the California Supreme Court, Justice Mosk, in a concurrence, did engage in comparative analysis.

[00:03:06] Speaker 01:
And although, of course, that's not the controlling opinion for purposes of Edpa deference,

[00:03:10] Speaker 01:
It still gives some insight into the fact that there was another judge who did conduct comparative analysis and concluded that there was no error in this case.

[00:03:18] Speaker 01:
So although it's not helpful for presidential reasons, it's still insightful.

[00:03:23] Speaker 01:
So moving first to Juror V.

[00:03:25] Speaker 01:
Juror Vivi was the juror where the district court most plainly erred.

[00:03:30] Speaker 01:
The prosecutor proffered two reasons for excusing Juror Vivi.

[00:03:33] Speaker 01:
The first reason was his frankly bizarre exchange where the juror promised to go home, get something of value, which was a special family recipe, return to court, and give it to the attorney.

[00:03:44] Speaker 01:
The court gave the juror several outs by saying that he didn't need to give up trade secrets and saying that he couldn't have contact with defense counsel.

[00:03:52] Speaker 01:
Nevertheless, the juror kept insisting he was going to do this.

[00:03:55] Speaker 01:
Now no reasonable prosecutor or reasonable attorney of any kind wants a juror who's doing favors for the opposing attorney.

[00:04:03] Speaker 03:
But with that same juror, it seems that the prosecutor had a personal sort of off-topic conversation about bottled water and chapstick and a town that I guess they both had lived in or were familiar with.

[00:04:17] Speaker 03:
So I mean, what do we make of that?

[00:04:19] Speaker 01:
Yes, Your Honor.

[00:04:22] Speaker 01:
exchange that the prosecutor had, he mentioned that his father wore chapstick and drank sparkling water, and the jury responded, I do too.

[00:04:29] Speaker 01:
It was three words.

[00:04:30] Speaker 01:
The Cajun food exchange spanned three pages, and the jury promised to go home, get something of value, return, and give it to the defense counsel.

[00:04:39] Speaker 01:
And even after that jury was excused,

[00:04:41] Speaker 01:
He actually went home, the record shows, and got the recipe and sent it back to court, even though he was no longer associated with the case at all.

[00:04:48] Speaker 01:
So comparing a three-word response to a promise to go home and do a favor for the other attorney, this is the sort of announcement.

[00:04:55] Speaker 02:
This is the question that was asked, though.

[00:04:57] Speaker 02:
Mr. Carville and I both want to know.

[00:04:59] Speaker 02:
I mean, it was a statement that was really presented on behalf of both lawyers.

[00:05:04] Speaker 01:
Yes, Your Honor, and that's another critical mistake that the District Court erred at.

[00:05:09] Speaker 01:
At 12 ER 2639, the prosecutor made clear that he did not want the recipe and that that was a misrepresentation and he was not interested in the recipe.

[00:05:19] Speaker 01:
The District Court omits any reference to that fact and uses and instead concludes, oh, both parties wanted it, so the prosecutor was probably lying.

[00:05:28] Speaker 01:
So additionally, another place where the district court erred on this point was comparative analysis with juror MF, which as I point out in my brief, juror MF was added to the panel after the prosecutor had already used all of his peremptories for the alternate jurors.

[00:05:44] Speaker 01:
And he was picked at random.

[00:05:45] Speaker 01:
So the prosecutor had no control as to whether that juror would be on the jury.

[00:05:49] Speaker 01:
And there can be no inference gleaned from his presence on the jury, because even if the prosecutor

[00:05:55] Speaker 01:
he disliked that juror's answers, he couldn't have done anything about it.

[00:05:59] Speaker 01:
Nevertheless, the district court either ignores this fact or isn't aware of it and then conducts comparative analysis with juror MF as to all three of the prospective jurors.

[00:06:08] Speaker 01:
So there's a strong reason to excuse VV that's much greater than the small exchange that the prosecutor had.

[00:06:17] Speaker 01:
If there are no further questions as to VV, I'll move to juror AH.

[00:06:20] Speaker 00:
Before we start parceling out the jurors, I want to go back to Judge Desai's original question.

[00:06:28] Speaker 00:
What factual determination are we affording deference to?

[00:06:33] Speaker 00:
Because the original trial judge just said, well, I agree with you, prosecutor, and we're just going to go on the record.

[00:06:44] Speaker 00:
And the prosecutor even tried, I guess,

[00:06:47] Speaker 00:
allow the judge or to have the judge make a finding and the trial judge didn't really make a finding.

[00:06:54] Speaker 00:
He just said, oh, for the reasons you stated and the factual and the record, the transcript.

[00:06:59] Speaker 00:
Then we go to the appellate court and they essentially say the same thing.

[00:07:04] Speaker 00:
You have to defer good faith efforts and then left it at that.

[00:07:11] Speaker 00:
We're supposed to be looking at a factual determination and I'm just not seeing it on the first two levels.

[00:07:19] Speaker 00:
The first actual analysis we start to see is when the district court judge starts making these comparative analysis.

[00:07:30] Speaker 00:
Do you agree or do you think there was some kind of factual determination in the lower courts that we should be considering?

[00:07:38] Speaker 01:
Your Honor, I do disagree.

[00:07:40] Speaker 01:
I think there was a little bit more than that.

[00:07:43] Speaker 01:
At the Batson process that took place, the California Superior Court properly engaged in a three-step analysis.

[00:07:50] Speaker 01:
First, it allowed defense counsel to make the Batson objection.

[00:07:54] Speaker 01:
Then it moved properly to the second step, which was to ask the prosecutor his proffered reasons.

[00:07:59] Speaker 01:
And at the third step, it didn't just say motion granted, which is what happens in some cases.

[00:08:03] Speaker 01:
It said, I agree with the prosecutor's reasons, and then it also added something that you didn't mention, was it said, and on my own observations.

[00:08:11] Speaker 01:
So it's agreeing with the prosecutor, and it's saying that it additionally observed things, and then in the motion for new trial, the Superior Court again said, in response to the prosecutor's prompting, said, I'm adopting the prosecutor's arguments.

[00:08:26] Speaker 01:
So the Superior Court isn't required to go through each reason and say, I find this reason credible, I find this reason credible, through all 14 reasons, but it did credit all those reasons.

[00:08:35] Speaker 01:
And when we look to the record, every single one of those 14 reasons is supported in the record.

[00:08:40] Speaker 01:
And if you have a question about any of them, I can point you to the actual page number where the prosecutor said X,

[00:08:45] Speaker 01:
And the record supports X. So the Superior Court was presumably aware of voir dire.

[00:08:51] Speaker 01:
It had conducted the whole voir dire.

[00:08:53] Speaker 01:
And it was crediting those responses.

[00:08:55] Speaker 01:
And this court should defer to that.

[00:08:57] Speaker 01:
The district court did not defer to that.

[00:08:58] Speaker 01:
The district court drew its own inferences and then concluded that the Superior Court and the California Supreme Court were unreasonable because their inferences differed.

[00:09:07] Speaker 00:
But there were no observations made on the record, correct?

[00:09:12] Speaker 00:
He just said it on my own observations, but he didn't put anything in the record as to what he was observing.

[00:09:17] Speaker 01:
That's correct.

[00:09:19] Speaker 01:
But one thing I would add is that the vast majority of the prosecutor's responses were not demeanor-based that would require an observation.

[00:09:26] Speaker 01:
There was one reason given as to nervousness for one of the jurors.

[00:09:29] Speaker 01:
But the Cajun food exchange, we can go, we can see there.

[00:09:32] Speaker 01:
VV's comment about how police officers fabricate reports, we can go to the record there.

[00:09:37] Speaker 01:
Whether it's, say for example, for juror AH, quote unquote, too fair-minded, we find that in the record.

[00:09:42] Speaker 01:
Soap operas, we find that in the record.

[00:09:44] Speaker 01:
So there wasn't really much for the district court to go through and say, this isn't in the record, but I credit this explanation.

[00:09:53] Speaker 01:
Okay, so moving to juror 8H, the prosecutor's stated reason was that she opposed the death penalty.

[00:10:00] Speaker 01:
This juror checked the box in the questionnaire saying that she opposed the death penalty.

[00:10:04] Speaker 01:
There were 16 jurors in total, 12 sitting jurors and four alternates.

[00:10:09] Speaker 01:
None checked that box.

[00:10:10] Speaker 01:
She also stated, this is on 5ER929, quote unquote, I really don't believe in the death penalty.

[00:10:16] Speaker 01:
None of the other jurors made that sort of statement.

[00:10:18] Speaker 03:
Opposition to the death penalty is a race-neutral reason for excusing the jury.

[00:10:31] Speaker 03:
said it multiple times that it would be very difficult to impose the death penalty.

[00:10:35] Speaker 03:
It would not lead to a decrease in crime rates.

[00:10:37] Speaker 03:
Another juror said it would be difficult for them to impose the death penalty.

[00:10:41] Speaker 03:
A third juror said it was difficult to reconcile the death penalty with the sanctity of human life.

[00:10:47] Speaker 03:
So, you know, why aren't those sort of the same response?

[00:10:50] Speaker 01:
Yes, Your Honor.

[00:10:50] Speaker 01:
So the district court did comparative analysis with three jurors, as you point out, VR, MP, and AP.

[00:10:56] Speaker 01:
None of those jurors checked that they opposed the death penalty.

[00:10:59] Speaker 01:
And none of those jurors said, quote unquote, I really don't believe in the death penalty.

[00:11:03] Speaker 01:
When the district court did its comparative analysis in the first instance, it omitted any reference to the quote, I really don't believe in the death penalty.

[00:11:11] Speaker 01:
And then it compared that juror AH's other answers to VR, MP, and AP.

[00:11:17] Speaker 01:
But it's an apples and oranges comparison.

[00:11:19] Speaker 01:
It's not a fair comparison, because it's leading out her strongest statement of opposition, ignoring or overlooking that strong statement, and then saying that she's similar to those other jurors who didn't say they opposed the death penalty, and they didn't check that box.

[00:11:34] Speaker 01:
And some of the other jurors, like MP, which is, I believe, the one that you referenced,

[00:11:37] Speaker 01:
She also had an unsolicited answer about the great value that capital punishment has in removing threats to future victims.

[00:11:44] Speaker 01:
And so giving an unsolicited policy reason that supports a death penalty is something that a prosecutor would be looking for and would view positively.

[00:11:52] Speaker 01:
And Jur AH had nothing like that.

[00:11:55] Speaker 01:
She also volunteered that, quote unquote, police entrap people.

[00:12:00] Speaker 01:
That was something that there is no comparative analysis except for with Jur MF, which as I stated that juror, no inferences can be drawn.

[00:12:08] Speaker 01:
from that juror's presence on the jury.

[00:12:09] Speaker 01:
So there's no other juror that said anything about entrapment and certainly didn't volunteer this idea that police entrap people.

[00:12:16] Speaker 01:
And keep in mind, this is a case where the defendant was a hit man who was hired by someone he didn't know.

[00:12:20] Speaker 01:
So it wouldn't be out of the question that he could proffer an entrapment defense.

[00:12:25] Speaker 01:
So if there are no further questions to AH, I'll move to MA.

[00:12:29] Speaker 01:
The prosecutor proffered seven reasons for excusing MA.

[00:12:32] Speaker 01:
All are strongly supported by the record.

[00:12:34] Speaker 01:
But certainly the strongest was that she had a juvenile daughter who was recently prosecuted by the Riverside County District Attorney's Office.

[00:12:42] Speaker 01:
That was the same agency that was prosecuting this case.

[00:12:45] Speaker 01:
Her daughter had committed theft, had been prosecuted just three or four months earlier, and placed on probation.

[00:12:52] Speaker 01:
The prosecutor was completely reasonable in not wanting a juror

[00:12:58] Speaker 01:
who had a daughter who had recently been prosecuted and might harbor some latent bias towards the prosecution.

[00:13:04] Speaker 00:
Was there any follow-up question as to that?

[00:13:07] Speaker 00:
Because I know that we have juror pools, and there's always people that have issues with the prosecuting agency, because a lot of places, you only have one prosecuting agency.

[00:13:19] Speaker 00:
And then you follow up with, do you harbor any ill feelings towards them?

[00:13:23] Speaker 00:
Did you think you were treated fairly, et cetera, et cetera?

[00:13:26] Speaker 00:
Is there any follow-up as to that juror?

[00:13:28] Speaker 01:
There wasn't, but two responses.

[00:13:30] Speaker 01:
First, defense counsel asked many follow-up questions that span nearly a page in the record, so there was plenty of information out there for the prosecutor to glean from.

[00:13:39] Speaker 01:
Second point, the prosecutor asked MA a total of eight questions.

[00:13:46] Speaker 01:
The prosecutor asked two other jurors in that same pod, six questions each.

[00:13:50] Speaker 01:
So the prosecutor asked questions in proportion to the other jurors.

[00:13:54] Speaker 01:
The prosecutor did not desperately question the juror.

[00:13:57] Speaker 01:
There were seven different reasons, and my friend on the other side and the district court both make a big deal about how the prosecutor didn't ask about each reason, so that must prove that he's lying.

[00:14:07] Speaker 01:
If the prosecutor had asked about each reason, he would have engaged in disparate questioning, which, as Flower says, that can be a pretextual reason that shows racial discrimination.

[00:14:17] Speaker 01:
Here, he asked an appropriate number of questions, as he did to all the jurors, and so he didn't have time to follow up on each response.

[00:14:24] Speaker 01:
If there are no further questions, I'll reserve the remainder of time.

[00:14:28] Speaker 03:
I'll give you three minutes.

[00:14:28] Speaker 01:
Thank you, Your Honor.

[00:14:29] Speaker 03:
Thank you.

[00:14:39] Speaker 04:
May it please the court, James Thompson on behalf of Noel Jackson.

[00:14:44] Speaker 04:
I will comment briefly on some of the points that were made by the attorney general here, but I wanted to direct my argument to some other matters that are related to some of the points that are made in the briefing.

[00:15:02] Speaker 04:
Just quickly, with respect to Gerveret, I'm going to use last names because they're in the record in parts.

[00:15:09] Speaker 04:
While the district court applied the Edpur standard, it did apply the right standard and applied it correctly as it should.

[00:15:16] Speaker 04:
The fact that there was no comparative analysis made by the California Supreme Court is troublesome for two reasons.

[00:15:24] Speaker 04:
Because there was a comparative analysis that was made by trial counsel at the motion for new trial when he had the chance to go through the record and look at it.

[00:15:33] Speaker 04:
And that was tendered up to the court for the appeal.

[00:15:37] Speaker 04:
So the court was not, it's not in a situation where the California Supreme Court did not sui sponte, you know, fail to provide the comparative analysis.

[00:15:46] Speaker 04:
It's the fact that the California Supreme Court did not look at the full record, look at all of the facts, as Batson and Miller-El and Foster and Snyder all require.

[00:15:57] Speaker 04:
They declined to do it.

[00:15:58] Speaker 04:
In the briefing, the district attorney makes much to do about the fact that the California Supreme Court's opinion is four pages in length.

[00:16:06] Speaker 04:
Two pages are of the law, generally.

[00:16:08] Speaker 04:
And the last two pages are some comments about some of the DA's reasons, and then a flat declaration that they won't conduct a full analysis.

[00:16:19] Speaker 04:
So you compare that to the 57 page district court order in which complete comparative analysis is done.

[00:16:27] Speaker 04:
And the difference between the two is striking.

[00:16:30] Speaker 04:
It was only when the district court came forward and did the analysis that was

[00:16:34] Speaker 04:
important to do under Batson and the other cases, looking at all of the factors that they consider, the totality of those factors in making the determination.

[00:16:45] Speaker 04:
And what Justice Mosk's slight concurring opinion really does is only points out the need that the California Supreme Court should have done the full comparative analysis.

[00:16:56] Speaker 04:
With respect to juror Fogarty, we acknowledged in the answering brief that that was not correct with respect to the district court's order.

[00:17:07] Speaker 04:
Fogarty shouldn't have been compared.

[00:17:11] Speaker 04:
The court didn't just compare Juror Fogarty with other people.

[00:17:17] Speaker 04:
He also compared Mr. Verrett to Ms.

[00:17:20] Speaker 04:
Van Campen and set out in detail why those distinctions were important.

[00:17:26] Speaker 04:
As I said, we noted errors in the brief.

[00:17:29] Speaker 04:
And then lastly, with respect to Highsmith, the district court acknowledged that analysis begins with the statement that she personally opposed the death penalty.

[00:17:40] Speaker 04:
And that she checked the box and provided and identified the reasons that she did so.

[00:17:45] Speaker 04:
And that's at Excerpt 41, I believe.

[00:17:49] Speaker 04:
And then with respect to Durer Alford, the daughter was

[00:17:55] Speaker 04:
The reason that the district, excuse me, that the attorney general gives in the brief as made to be that of the district attorney is not the reason that was given.

[00:18:10] Speaker 04:
And that was set out in our answering brief at 48.

[00:18:14] Speaker 04:
I do want to comment briefly on some of the other matters here.

[00:18:20] Speaker 04:
That the prosecutor in these several points, the prosecutor here did not ask the black jurors about matters that became his reasons for striking those jurors.

[00:18:29] Speaker 04:
Not in any instance.

[00:18:32] Speaker 04:
The DA challenged every black juror that entered the box.

[00:18:37] Speaker 04:
Exclusion rate was 100%.

[00:18:41] Speaker 04:
And Batson, long ago, said that the issue, the objective was to ensure equal protection rights of black defendants against prosecutors who used their peremptory challenges to purposely remove black jurors.

[00:18:58] Speaker 04:
Batson's focus was on the race of the defendant and the excluded jurors, where the prosecutor struck all four black jurors in that case.

[00:19:07] Speaker 04:
As far back as 1998 in McCaffrey versus Page 162, Fed 3rd, 481, 484 to 485, the court explained by far the most important factor in this case, quote,

[00:19:22] Speaker 04:
was the state's exclusion of all black jurors so that not a single member of McAfee's own race was seated on the jury that decided his fate.

[00:19:33] Speaker 04:
And that's what happened here.

[00:19:35] Speaker 04:
Flowers commented that the prosecutor in that case on the sixth trial in Flowers' case, he removed as many black people, black prospective jurors as possible.

[00:19:49] Speaker 04:
The sequence of challenging was also evidence of purposeful discrimination.

[00:19:54] Speaker 04:
Save the district attorney's second challenge of a white juror.

[00:19:59] Speaker 04:
All three black jurors were moved as quickly as possible.

[00:20:05] Speaker 04:
At the Batson hearing, defense counsel argued the salience of race in the case.

[00:20:11] Speaker 04:
Mr. Jackson is black, testimony of a white victim in the penalty phase about a rape charge.

[00:20:19] Speaker 04:
Mr. Jackson would be tried by an all-white juror if the challenges weren't made.

[00:20:24] Speaker 04:
And the DA questioned jurors, the black jurors, about whether race would affect their fairness of their determination in the case when they came to conclusion as to either guilt or penalty.

[00:20:38] Speaker 04:
The DA's protestations not about race were refuted by the DA's statements to the various panels and to the jurors.

[00:20:47] Speaker 04:
The district court found DA assertions were not credible after fully analyzing the record in the case.

[00:20:54] Speaker 04:
Neither trial court or the California Supreme Court considered the statistical evidence that was there, nor the salience of race.

[00:21:04] Speaker 04:
The district court determined this factor and that this failure was objectively unreasonable under 2254D.

[00:21:11] Speaker 04:
Trial and Pellet Council both offered a comparative jury analysis.

[00:21:17] Speaker 04:
As I mentioned, the court did not take it, even though it was in the record and they should have done so.

[00:21:24] Speaker 04:
California Supreme Court has turned away from Batson, as we argued.

[00:21:28] Speaker 04:
The United States Supreme Court found that California's step one test used by the court was unconstitutional in Johnson.

[00:21:37] Speaker 04:
And we cited in the brief a number of instances in which Justice Lew, the associate justice of the California Supreme Court, points out the problems that the California Supreme Court has had in applying Batson.

[00:21:48] Speaker 04:
The district court conducted comparative analysis is repeatedly approved by the United States Supreme Court.

[00:21:56] Speaker 04:
And the courts compare jurors who are similarly situated or give similar answers.

[00:22:03] Speaker 04:
Whereas the attorney general in the briefing is asking for this court to do what was condemned in Miller L, is take a cookie cutter approach.

[00:22:13] Speaker 04:
It is not looking for identical jurors.

[00:22:16] Speaker 04:
It is not looking for identical answers.

[00:22:19] Speaker 04:
It is looking for individuals who are similarly situated.

[00:22:23] Speaker 04:
The AG also tries to, the Attorney General also tries to provide reasons after the fact about what the prosecutor may have said or may have wanted.

[00:22:33] Speaker 04:
And that test is not what the courts decide.

[00:22:40] Speaker 04:
The prosecutor, it's not what the prosecutor might have said.

[00:22:43] Speaker 04:
It's not what the prosecutor might have reasoned.

[00:22:46] Speaker 04:
It is what are the actual reasons that are given that control the matter.

[00:22:51] Speaker 04:
And in this case, looking at those, the district court appropriately found that there was a violation.

[00:22:57] Speaker 04:
The post-hoc reasons wreak of afterthought, as Miller-El condemned.

[00:23:02] Speaker 04:
And that's what has happened here.

[00:23:04] Speaker 04:
The DA's multiple misstatements were evidence of discriminating intent, as the district court found.

[00:23:11] Speaker 04:
Example, the DA said the juror, Alfred, said she felt sorry for drug users.

[00:23:17] Speaker 04:
Her answer was, they need help.

[00:23:21] Speaker 04:
District Court found the DA's pattern of not questioning black jurors about areas of concerns was evidence of purposeful discrimination.

[00:23:30] Speaker 04:
The AG then doubles down on this by providing reasons of his own, but those afterthought reasons cannot be considered.

[00:23:51] Speaker 04:
The exclusion rate is what's key.

[00:23:53] Speaker 04:
An exclusion rate in this case is 100%.

[00:23:55] Speaker 04:
And that exclusion rate is really what should control in terms of the analysis.

[00:24:02] Speaker 04:
It's not the challenge rate that has been mentioned in the AG's brief of 16%.

[00:24:07] Speaker 04:
It's the exclusion because where all black jurors are struck, that's the rate that controls.

[00:24:13] Speaker 04:
So the California Supreme Court's opinion was objectively unreasonable determination of the facts because at that third step, the fact-finding determination, the Supreme Court did not uphold what it should have done.

[00:24:29] Speaker 04:
The Supreme Court has said that Batson

[00:24:32] Speaker 04:
that reaffirmed the description in step three in case after case, including the non-exclusive list in flowers in which the district court relied in making this determination.

[00:24:44] Speaker 04:
All the circumstances that bear upon the issue of racial animosity must be considered by trial and review in courts, Foster and Snyder.

[00:24:54] Speaker 04:
Based on the record, these circumstances included, at a minimum, the prosecutor's removal of all three eligible black jurors where a black defendant was on trial for his life, the sequence of the prosecutor's strikes, the sensitive issue of race involving the aggravating factor of a white rape victim, the prosecutor's multiple misstatements of the record and giving his reasons.

[00:25:21] Speaker 04:
The prosecutor asking the black jurors about whether race would in fact affect their ability to decide fairly the issues.

[00:25:33] Speaker 04:
The similarity between the answers of the struck black jurors and some of the seated white jurors concerning the reasons the DA give.

[00:25:40] Speaker 04:
All are things that had to be considered by the courts and were not until the district court issued its order.

[00:25:48] Speaker 04:
The trial court's perfunctory, almost global denial of the defense counsel's objection was insufficient to satisfy Batson's third step.

[00:25:56] Speaker 04:
And more importantly, the California Supreme Court made no attempt to salvage the trial judge's ruling by conducting its analysis.

[00:26:06] Speaker 04:
For all of those reasons, the court should find that there is an objective determination that the California Supreme Court did not meet the standard of EDPA.

[00:26:21] Speaker 04:
I just want to leave with one thing.

[00:26:23] Speaker 04:
Who were the three black citizens that were excluded?

[00:26:27] Speaker 04:
They were all mainstream, long-term Riverside County residents.

[00:26:32] Speaker 04:
Miss Alfred was born and raised in Riverside, married for 24 years.

[00:26:37] Speaker 04:
She and her husband owned their current home for 19 years.

[00:26:41] Speaker 04:
They had two children, one of whom was in college.

[00:26:44] Speaker 04:
She and her husband were both steadily employed.

[00:26:47] Speaker 04:
She was a newspaper reader and a churchgoer, and she had previously served on a jury that reached a verdict.

[00:26:55] Speaker 04:
Mr. Verrett had been married for 23 years.

[00:26:58] Speaker 04:
He and his wife owned their current residence for 18 years.

[00:27:02] Speaker 04:
They had three children, one of whom was in college.

[00:27:05] Speaker 04:
He had long-term employment in a construction company where he had management experience.

[00:27:12] Speaker 04:
His wife was a teacher's aide.

[00:27:14] Speaker 04:
His favorite hobby was working on his home.

[00:27:17] Speaker 04:
Ms.

[00:27:18] Speaker 04:
Highsmith lived in Riverside County since 1941.

[00:27:22] Speaker 04:
She was married for 40 years with a grown son who was employed by a mortgage company.

[00:27:27] Speaker 04:
She and her husband owned their home where they had lived for over 30 years.

[00:27:32] Speaker 04:
Both were retired.

[00:27:33] Speaker 04:
She was a newspaper reader and a churchgoer.

[00:27:37] Speaker 04:
The only difference between them and the other jurors that were seated is that they were black.

[00:27:58] Speaker 01:
Thank you, Your Honor.

[00:27:59] Speaker 01:
Just three brief points in rebuttal.

[00:28:02] Speaker 01:
First, in response to my friend on the other side's comment that the prosecutor didn't ask about each of the questions, one other thing I would like to note is that there was a time limit that was set.

[00:28:14] Speaker 01:
And so the prosecutor also didn't have unlimited time to question these jurors.

[00:28:17] Speaker 01:
Not only would it be disparate questioning, but at 5 ER 768, the court said, this is taking too long.

[00:28:23] Speaker 01:
You already have the questionnaire.

[00:28:24] Speaker 01:
You need to speed things up.

[00:28:25] Speaker 01:
And so the prosecutor was on notice that he needed to start going faster.

[00:28:28] Speaker 01:
And that's another reason why he didn't ask about each of the reasons.

[00:28:32] Speaker 01:
Second thing I wanted to cover is that

[00:28:34] Speaker 01:
My friend on the other side said the three jurors were removed as quickly as possible.

[00:28:38] Speaker 01:
That's incorrect factually because a white juror was excused before MA when MA was in the panel.

[00:28:45] Speaker 01:
So in order to believe that the prosecutor was using these peremptories based solely on race, you would have to believe that he was excusing jurors out of order in order to confuse the record.

[00:28:56] Speaker 01:
Then you also have to look at the fact that he was willing on the spot to turn over all of his notes to the defense attorney.

[00:29:02] Speaker 01:
And voir dire took three months.

[00:29:04] Speaker 01:
There were 78 death-qualified jurors.

[00:29:07] Speaker 01:
The prosecutor stated that he wasn't making the decisions based on race.

[00:29:10] Speaker 01:
And of course, we can't go into his head and see what he was thinking.

[00:29:13] Speaker 01:
But all the evidence that he was willing to give up at that point, all of his notes, the fact that the jurors were not kicked as soon as he could have, supports that he was being truthful.

[00:29:23] Speaker 01:
And last thing I would just touch on was this notion from my friend on the other side that

[00:29:28] Speaker 01:
I'm saying that the jurors have to be identically situated and also providing post hoc rationale.

[00:29:34] Speaker 01:
They don't have to be identical, but this court shouldn't take a myopic view of the jurors and ignore the statements that were made in context of what was stated immediately before, what was stated after, and how those compare to the other jurors.

[00:29:46] Speaker 01:
As far as the post hoc rationale, there is zero post hoc rationale.

[00:29:50] Speaker 01:
For example, AH was a janitor.

[00:29:52] Speaker 01:
There are many bats in cases where prosecutors excuse people because they're janitors.

[00:29:56] Speaker 01:
If I were to stand up here and say that the reason why she was excused was because she was a janitor, that would be a brand new reason that's never been proffered.

[00:30:04] Speaker 01:
Here, the prosecutor gave 14 reasons.

[00:30:06] Speaker 01:
I provided citations in my brief.

[00:30:08] Speaker 01:
You can go look in the record and find that all 14 are supported.

[00:30:11] Speaker 01:
For that reason, the district court erred and this court should reverse.

[00:30:15] Speaker 03:
Thank you very much.

[00:30:16] Speaker 03:
We thank both counsel for their arguments this morning and this case is submitted.