Kesser v. Cambra

• Decision Date: 11 September 2006
• Docket Number: No. 02-15475.,02-15475.
• Citation: 465 F.3d 351
• Parties: Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 351

465 F.3d 351

Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee.

No. 02-15475.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2005.

Filed September 11, 2006.^*

William Weiner, Law Offices of William Weiner, San Francisco, CA, for petitioner-appellant Richard Kesser.

Russel Covey, Costa Mesa, CA, for petitioner appellant Jennifer Leahy.

Michael E. Banister, Deputy Attorney General, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, Magistrate, Presiding. D.C. No. CV-96-03452-PJH.

Before: SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, RYMER, KLEINFELD, WARDLAW, PAEZ, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and BEA, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge WARDLAW; Concurrence by Judge BERZON; Dissent by Judge RYMER.

BYBEE, Circuit Judge:

Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We hold that, in light of Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the California Court of Appeal's findings are "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Accordingly, we reverse the judgment of the district court and grant the writ.

I

After the prosecutor struck three Native American women and one Asian woman from the jury in Kesser's California murder trial, the court conducted an evidentiary hearing under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) (California's equivalent of Batson), at defendants' request. The prosecutor explained that he struck Debra Rindels, the only Native American on the regular panel, because she worked for a tribe and he feared that she was inclined to favor Native American culture and institutions over "the mainstream system." He also argued that Native Americans were "resistive" and "suspicious" of the criminal justice system, and gave several other reasons for striking each of the other jurors. Here are his explanations in full:

Ms. Rindels was the one darker skinned female from the regular panel or the group of seventeen that I challenged. My notes indicate that she was my second peremptory challenge. My first was exercised against an older white male. Miss Rindels my notes indicate— the grade I gave her was a C. She was a younger, middle-aged [N]ative American female, Trinidad eight years, Humboldt County twenty-five years. She came to the July 29th hardship. She claimed a hardship because she was in the process of completing an application for HUD funding, which was very important I guess to her, and she was the office manager for an [I]ndian tribe and had been for twelve years. Married fourteen years. Her husband was a foreman for a roofing company, two kids, eighteen and twelve. Her sister worked for Bill Bertain. Her younger sister had been divorced, it was a particularly messy divorce. Someone had been involved with the criminal justice system. That person turned out to be her older daughter. The suspect in that case was her actual father who did a very short period of time apparently in custody. I note she was a little chubby. I have a note here that says "perm." I don't know what that means. Still a bit emotional and misty. She teared up when she talked about the experience involving her daughter and her father, and she was in Washington for a vacation for a couple of months in late 1991 and had no—no recollection of anything here. She works for the tribe, and when we talk about [N]ative Americans in Humboldt County, we're talking essentially about two tribes or separate nations, the Hupa and the Yurok.

My experience is that [N]ative Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system, and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.

She was pretentious in my mind and self-important with the thought that only she could complete the necessary paperwork which would get the grant. She was emotional about the system as I indicated before. Her daughter had been molested by her father, and for that reason I'm assuming that the living situation was indicative of something of a dysfunctional family. I viewed her as somewhat unstable, fairly weak, and somebody who I thought would be easily swayed by the defense.

The prosecutor then explained his strike against Lawton, which removed her from alternate panel:

The first peremptory I exercised was against . . . a younger white male. The second one was against Theresa Lawton. Mrs. Lawton had claimed no hardship, so the first time I saw her was when the Court questioned her during the individualized questioning. I had given her a C minus based upon her responses to the Court's questions and the defense attorney's questions and the questionnaire.

I noted her to be an older middle-aged [N]ative American female. She lived in Willow Creek, Humboldt County for twelve years. She had been married twenty years. She was a cook, Trinity County Hospital, two children, twenty-two and seventeen. Her husband was a logger. Her husband had been divorced and went to a hearing to pay child support. It had been ordered, and they paid a hundred and seventy-five dollars a month. And her brother-in-law was with the highway patrol in Willets.

It appears someone who was involved in the criminal justice—speed tickets, a D.U.I. over seven years ago. Curly brown hair, fashionable brown blouse, wore earrings, not overly irritated.

She knew about the twins, the Hanson twins, but didn't know about Hanson himself. I believe she indicated that she had followed that trial. Of course [Kesser's counsel] was involved as the lead attorney for the defense which resulted in some very favorable publicity in the local newspapers by [Kesser's counsel]. There was a large article on the case after the verdict came in, extensive interviews with [counsel]. He also was the subject of some national media attention. I'm not familiar with the name of the program, but he did talk to them. The Hanson parents were interviewed about their feelings about the case and the reward that apparently is still outstanding for the killer.

She would be commuting from the Willow Creek area. We're going into the winter. That sometimes is a fairly hazardous commute, although she had been commuting from where she lived to Trinity County and Weaverville and that is equally hazardous, but sometimes the road is closed, and that sometimes can affect our ability to go forward, and there is a certain flow to the proceedings that I frankly don't like to see disrupted if I can help it.

She was not overly educated. She was weak. She was the person who announced that she would have great difficulty just answering out loud, if the Court asked her if that was in fact her verdict as read, and that she thought that it would affect her ability to render a decision in this case, and that certainly reinforced my first impression of her, which was that she was not a good juror for this particular case.

Finally, the prosecutor explained why he struck Carla Smith-field:

I gave her a C overall. She came in August 31 for the hardship. She was the sole support for her family. She was concerned about her position at Humboldt State where she teaches two year olds, and there was nobody really in her mind who could take her place, and that was I think in her words, fairly important, teacher of two year olds to whom they are attached, apparently to her.

She has some kind of relationship with her—Her husband it turns out is fifty-nine years old and had a stroke last year. She was heavier, wore a flowery lacy blouse. Has cousins apparently down in the L.A. area apparently involved with the police. She knew someone, an uncle, who was arrested for driving under the influence. Her husband is an alcoholic who has been sober for quite a while, and the Court was questioning a lot of people about that. I proposed a voir dire question which I thought would neutralize some of the Court's questions, because in my mind we kind of left a lot of these people with the impression that somebody who is a recovered alcoholic or recovered drug addict like Mr. Kesser is or Miss Leahy is is somehow, you know, more believable than others.

She also was the individual who wrote a letter to the Court to reemphasize how important she thought her position was and how important that she thought it was that she be there.

. . . .

I would mention Miss Smithfield, I'm not sure, I believed her to be a Chicano and not a[N]ative American, but certainly I'm not expert on guessing somebody's ethnic background.

The court then asked to hear from defense counsel.

[Defense Counsel]: Your Honor, I believe that the expressed concern that [the prosecutor] had, particularly Miss Rindels, is a classic example of what the Court—in fact would be used by the appellate courts as a basis for exclusion, because it's a presumption of a group bias based on a stereotype membership in a racial group, and I think that—

THE COURT: I don't believe that's what it said.

[Defense Counsel]: That's what I heard. Native Americans that work for tribes are a little more prone to identify with the culture of the tribe, and feel alienated and are not willing to accept the— what is perceived to be the wide [sic] judicial system and the ethics and the legal requirements that are imposed on them by that system. That is a stereotype that is placed upon that lady because she happens to be an [I]ndian...