Kesser v. Cambra

Decision Date16 December 2004
Docket NumberNo. 02-15475.,02-15475.
Citation392 F.3d 327
PartiesRichard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

William Weiner, San Francisco, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California; Robert R. Anderson, Chief Assistant Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Michael E. Banister, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

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

Before: BALDOCK,*** KLEINFELD, and RAWLINSON, Circuit Judges.

BALDOCK, Senior Circuit Judge:

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination in jury selection against members of a cognizable group. Batson v. Kentucky, 476 U.S. 79, 88, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, a racial discrimination case, the Supreme Court established a three-part test for determining whether a prosecutor's use of peremptory challenges to exclude veniremembers of a cognizable group violates the Equal Protection Clause.

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712) (internal citations omitted).

In this appeal, we address a Batson-related question in the context of habeas corpus review: Whether the state appellate court erred in undertaking a "mixed motive" analysis to uphold the constitutionality of three peremptory challenges, when the state prosecutor offered ethnic-neutral reasons for exercising those challenges against three Native American veniremembers, together with an ethnic-based reason for challenging one of those veniremembers. Applying AEDPA's deferential standard of review,1 we hold the state court's "mixed motive" analysis was not contrary to or a clear misapplication of Batson.


Petitioner Richard Kesser and his co-defendants, Jennifer Leahy and Stephen Chiara, were each convicted in California state court of first degree murder with special circumstances and sentenced to life imprisonment without the possibility of parole. See Cal.Penal Code §§ 187(a), 190.2(a)(1), (a)(15). A recitation of the facts leading to Petitioner's arrest and conviction is unnecessary. In sum, Petitioner plotted with Leahy, his fiancee, to hire Chiara to murder Petitioner's former wife Mary. Chiara murdered Mary and Petitioner unsuccessfully attempted to collect the proceeds from Mary's life insurance policy.

During jury selection, the state prosecutor exercised a peremptory challenge to excuse veniremember Debra Rindels, a Native American. The prosecutor similarly exercised peremptory challenges against possible alternate jurors Theresa Lawton and Carla Smithfield, both Native Americans. Petitioner timely objected that the prosecutor had removed every Native American from the venire in violation of the Equal Protection Clause's proscription against "purposeful discrimination" in jury selection. See Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that criminal defendant may object to group-based exclusion of jurors regardless of whether defendant is a member of the group). The state trial court agreed and asked the prosecutor to explain his reasons for striking those veniremembers.

The prosecutor first indicated that he considered certain general factors in rating potential jurors from A to F, or best to worst. The factors the prosecutor considered included (1) bias against law enforcement, (2) willingness to return a guilty verdict, (3) ability to listen to the prosecutor, (4) bond with the defense attorney, and (5) ability to work with other jurors. The prosecutor stated: "There really is no rhyme or reason to the use of the peremptory challenge. These are general categories. Sometimes they will apply and sometimes they won't apply."

The prosecutor then turned to his specific reasons for challenging each Native American veniremember. The prosecutor offered entirely ethnic-neutral reasons for his peremptory challenges against Lawton and Smithfield. Lawton was a Native American female employed as a hospital cook. The prosecutor graded her a "C minus" based on her responses to the voir dire. The reasons for Lawton's low grade were: (1) her husband had been divorced and ordered to pay child support, (2) she had been convicted of driving under the influence seven years prior, (3) she was familiar with a high profile murder case in which Petitioner's defense counsel had obtained an acquittal for a client, (4) she had a hazardous commute in winter, and (5) she was hesitant to serve as a juror. Similarly, the prosecutor graded Smithfield a"C to a C minus" because: (1) her husband was a recovering alcoholic as were Defendants Kesser and Leahy, (2) her husband had recently had a stroke and needed support, and (3) she attended a hardship hearing and wrote the court a letter regarding the difficulties involved in missing work.

As to veniremember Rindels, the prosecutor offered multiple ethnic-neutral reasons together with an ethnic-based rea son:

Miss Rindels was the one darker skinned female from the regular panel or the group of seventeen that I challenged.... Miss Rindels my notes indicate — the grade I gave her was a C. She was a younger, middle-aged Native American female.... She came to the July 29th hardship [hearing]. 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 Indian 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 younger sister had been divorced, it was a particularly messy divorce. [Rindels' older daughter] had been involved with the criminal justice system.... The suspect in that case was [Rindels'] actual father who did a very short period of time apparently in custody.... Still a bit emotional and misty. She teared up when she talked about the experience involving her daughter and her father.... She works for the tribe, and when we talk about Native Americans in Humboldt County, we're talking essentially about two tribes or separate nations, the Hupa and Yurok.

My experience is that Native 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.

Petitioner's trial counsel responded:

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 [reversal], because it's a presumption of a group bias based on a stereotype membership in a racial group


[The prosecutor expressed the view that] 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 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 Indian and a member of the tribe. That's exactly what it says as far as — that's what I heard him say, and I think that would be pegged by the appellate courts as being exactly the type of impermissible stereotyping that makes that type of peremptory [challenge] unconstitutional.

Ultimately, the trial court found "sufficient justification to support the peremptory challenges," and overruled Petitioner's Batson objection. As to veniremember Rindels, the court reasoned: "[M]y understanding of what [the prosecutor] said is that — one of [the reasons] is at least that she worked for the tribe, not because she was one of the tribe, but she worked for the tribe. That's entirely different...."

Petitioner and his co-defendants appealed to the California Court of Appeal. The court upheld the prosecutor's exercise of peremptory challenges against the three Native Americans and affirmed defendants' convictions. People v. Chiara, No. 93DA1422 (Cal. Ct.App., filed Dec. 12, 1995) (unpublished disposition). The state appeal court first concluded that Petitioner had established a prima facie case of ethnic bias in jury selection as required under Batson's first step: "The trial judge's finding that there had been an exclusion of an identifiable group, i.e. Native Americans, coupled with his request for a statement of reasons from the prosecutor, constituted an implied...

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