The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATION
The denial of the operative petition in this death penalty case was affirmed in all respects by the Ninth Circuit in its opinion Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010), except for the Batson claim involving the third part of the Batson paradigm.*fn1 In respect to the remand on that issue, the Ninth Circuit directed that the district court employ the "motivated in substantial part" analysis in lieu of the "mixed motives" analysis employed previously by the district court.
After briefing and hearing, the undersigned finds and recommends that the bias shown by the prosecutor when striking one African-American juror, although significant, was not substantial in terms of the prosecutor's motivation.
The entire history of the case is not relevant, and only that pertinent history relevant to the Batson issue will be set forth. The issue centers about the peremptory challenge by the prosecutor of the sole African-American juror in the capital case venire. In initial Findings and Recommendations, the undersigned recommended that no prima facie case was set forth by petitioner. The district judge assigned at the time, the Honorable Frank C. Damrell, Jr., disagreed and upon finding that petitioner had set forth a prima facie case, remanded the remainder of the Batson analysis to the undersigned. *fn2
This further analysis of the last two steps of the Batson analysis was complicated by the fact that the prosecutor had essentially no memory concerning his use of the peremptory challenge. Nevertheless, the undersigned found that the prosecutor's notes at the time, utilizing a code and cryptic word description, and the context of the voir dire and challenge as set forth in the transcript, enabled the undersigned to find the articulation of non-discriminatory reasons for exercise of the challenge. Findings and Recommendations, dated February 27, 2003, Docket # 163 (hereafter Findings and Recommendations or F & Rs) at 16-21. This finding was later upheld by the district judge, Order dated February 23, 2005, Docket #180 (hereafter "the Order") at 14-18, and the Ninth Circuit, Crittenden at 957-958.
The undersigned held an evidentiary hearing to determine whether the articulated reasons were pretextual. The substantive facts found at that evidentiary hearing are set forth at length below. Suffice it to say here that the undersigned found that the prosecutor's reconstructed reasoning was pretextual in part, i.e., played a significant role, but upon application of the "mixed motives" test (as that test had been defined in case law of other circuits), the undersigned found that a reasonable prosecutor would have exercised the peremptory challenge even in the absence of discriminatory animus due to Juror Casey's reluctance/ambiguity with respect to her ability to vote for a death penalty verdict if such were warranted by the evidence. Findings and Recommendations at 21-40. Put another way, that "prosecutor Flanagan had a good reason to exercise his challenge which outweighed the bad." Id at 40. The district judge, although not agreeing with all of the undersigned's analysis, adopted this finding with an explained decision. Order at 18-23.
While this case was on appeal, the Ninth Circuit determined (in another case in which the undersigned had been involved), that this circuit would not apply the "mixed motives" analysis to Batson challenges. Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010). The Crittenden court applied Cook:
Acting prior to our decision in Cook, the district court appears to have conducted its step three analysis by asking whether race played a "significant" part in the decision to issue the peremptory strike, and if so whether the defendant could prove under a mixed motives analysis that the strike would have issued even if race had played no role. Cook framed the first inquiry in different terms and eliminated the second. As Cook explains, the proper analysis at Batson's step three is whether the peremptory strike was "motivated in substantial part" by race. Id. If it was so motivated, the petition is to be granted regardless of whether the strike would have issued if race had played no role. Id. ("[W]e reject the ... mixed-motives analysis, and limit our inquiry to whether the prosecutor was 'motivated in substantial part by discriminatory intent.'").
However, the Crittenden court did not make the ultimate analysis itself; rather it remanded the case for the district court to make the analysis:
As the district court was operating under the erroneous impression that the Batson inquiry required an additional step--i.e., mixed motives analysis--we remand to give the court an opportunity to apply the proper standard, as articulated in Cook. We do not foreclose the possibility that the district court could conclude on remand that its previous finding that "race played a significant part in the prosecutor's decision to remove Casey" was sufficient under Cook to establish a Batson violation. [FN6 omitted.] Nonetheless, the district court did not have the benefit of Cook when it last addressed the question, and its evaluation of the significance of the race factor in the decision to strike Mrs. Casey could have been informed by its understanding that there would be another analytic step focusing on the several race-neutral justifications offered. We therefore leave it to the district court to make a step three determination in the first instance, unconstrained by its prior findings under the pre- Cook standard.
Three points bear emphasis before recounting the underlying facts. First, the evidentiary facts underlying the Batson dispute are essentially not at issue as "they are what they are," i.e., based on incontrovertible transcript and other record evidence. Moreover, the parties did not attempt to add new facts into the analytical mix on remand.*fn3 Rather, it is the application of those established facts, or the inferences to be drawn from them, which are contested. Therefore, the undersigned will repeat at length those evidentiary facts he initially found. To the extent that the district judge previously explicated additional/different/superseding evidentiary facts in his discussion, those facts will be included in the discussion. Further, to the extent that the parties have referred the undersigned to additional, undisputed evidentiary facts, those will be included in this discussion as well.
While the complete re-explication of all these facts may seem tedious to counsel who have been involved in this case for years, and who are well aware of the underlying Findings and Recommendations/Orders, the fact is that the district judge newly assigned to this case will not have such familiarity. Rather than have this judge (the Honorable Kimberly J. Mueller) hunt and sift through the now very voluminous file, the undersigned will place as complete a record as feasible before Judge Mueller.
Secondly, the undersigned will not modify the underlying subsidiary factual determinations with respect to the prosecutor's state of mind. Such would be beyond the mandate of the Ninth Circuit which simply calls for an application of the already found facts to a new analytical standard, i.e., whether a previously found significant, discriminatory reason for exercising a peremptory challenge was a substantial motivation, or put another way-how significant was significant. "District courts must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces." Vizcaino v. USDC (W.D. Wa.), 173 F.3d 713, 719 (9th Cir. 1999) (internal quotation marks omitted). While the finding under the Ninth Circuit's articulated third step Batson standard would be considered a new ultimate factual finding, and the Ninth Circuit gave the district court carte blanche to reconsider its ultimate finding, the subsidiary facts will not change.
Moreover, neither side requests the opportunity to present new facts; it would be odd then in the absence of such, and years later than the initial deeply thought out determinations, to arrive at completely different subsidiary factual determinations. Thus, the undersigned at this point will neither find the absence of a discriminatory motivation on the part of the prosecutor, nor will he find that discrimination was the only reason the prosecutor exercised his peremptory challenge. The undersigned will only determine how substantial was the prosecutor's existing discriminatory motivation.
Finally, the undersigned presided at the evidentiary hearing, made credibility findings and issued ultimate findings of facts. These ultimate findings were adopted in their entirety by the district judge (Judge Damrell). The district judge did, however, utilize a differentin-part subsidiary factual basis, disagreeing with the undersigned in part on the underlying, subsidiary factual basis. The undersigned has been careful to include Judge Damrell's findings, and the undersigned has relied on them where they are different from those of the undersigned. The undersigned has been tasked with making the first decision to employ the Ninth Circuit's Batson third step analytical standard, i.e., the application of those facts to the directed standard. The undersigned has made herein an ultimate factual finding concerning whether the prosecutor's peremptory challenge of Mrs. Casey, the juror in question, was substantially motivated by racial bias. That ultimate finding is the undersigned's independent finding.
The undersigned turns to the subsidiary facts.
Prospective juror, Manzanita Casey, the only African-American prospective juror in the entire venire, was initially challenged for cause by the prosecution, and when that challenge was denied, was later peremptorily challenged by the prosecution. This juror, as did all the other jurors, had furnished questionnaire responses about personal histories and opinions. At the time of petitioner's trial, prospective juror Casey was married and the mother of two children. Respondent's Exhibit 44 (Evidentiary Hearing) (Casey juror questionnaire). The questionnaire demonstrated that this juror was concerned about drugs and street crime. For questions related to potential racial bias, Mrs. Casey demonstrated concern for the lingering existence of bias in the country, but did not believe that her locale (Placer County) had such a problem. Mrs. Casey's views were not extremist in any manner. As found previously by the undersigned and the district judge, absent consideration of a willingness to impose the death penalty, Mrs. Casey was seemingly an ideal prosecution juror.
Mrs. Casey did express hesitancy about her willingness to apply the death penalty, although at no time did she unequivocally state that she could not vote in favor of such a penalty if warranted under the facts. She wrote in the juror questionnaire in response to a question about her general feelings about the death penalty: "I don't like to see anyone put to death." She did not answer other questions concerning whether she thought the death penalty was used too often randomly, or too seldom. Exhibit 44. As petitioner points out, Mrs. Casey did say that she could put aside her personal feelings and follow the law.
Mrs. Casey was extensively voir dired by the court, defense counsel, and the prosecutor on her death penalty views. Without being redundant, the pertinent parts of that voir dire are set forth here, as it is important to let juror Casey's responses speak for themselves, at least initially:
RT 6106: 23 to 6108: 28 Voir Dire by the Court
Against that backdrop, I need to ask you some questions about your concerns and your opinions regarding the death penalty.
If the People in the prosecutor [sic] proves beyond a reasonable doubt that Mr. Crittenden is guilty of murder in the first degree, would you refuse to vote for that verdict because of a conscientious opinion concerning the death penalty knowing that if you did vote for a murder in the first degree, you may obligate the jury to get into the question of penalty in a later trial?
In other words, would you, even though the prosecutor had shown that the murder was a first degree murder, would you nevertheless not vote for it for the reasons of fearing having to reach the issue of the death penalty?
A: Well, I am against death -- being put to death. And I am against people killing people.
A: That is hard to answer.
Q: All I am asking you is whether your feelings concerning the death penalty would influence your vote to the extent --
Q: -- that you would not vote for a first degree murder conviction. A: No.
Q: Let me also ask you if you have such a conscientious opinion concerning the death penalty that should the jury be requested to vote on the issue of the special circumstances, and should the prosecution prove that the special circumstances were true, would you refuse to vote for the truth of the special circumstances because you know that if you voted for them, then it would obligate the jury to then consider the question of penalty?
Q: Now, let me go one step further and let's say you are on the jury, and you have voted for a first degree murder conviction. The jury has found first degree murder. The jury has also found the existence of the special circumstances.
Now we are in a different trial. And, the evidence that will be put before the jury will deal with primarily the defendant, himself. Background, education, schooling, things relating to the defendant generally is what the law provides may be introduced at that trial.
Do you have such an opinion concerning the death penalty that regardless of the evidence that would be produced at the penalty trial, that you would automatically and in every case vote against the imposition of the death penalty?
Q: Okay. You can conceive of situations in which you might vote for the death penalty?
Q: Let me ask you the reverse of that. And I think I know what the answer is. And that is regardless of the evidence that would be presented at a penalty trial, would you automatically and in every case vote for a death verdict and never vote for life imprisonment without the possibility of parole?
A: Would I vote for the death?
Q: Would you vote for the death automatically and never vote for life imprisonment without possibility of parole?
RT 6111: 10 to 6112: 16 (voir dire by defense counsel) Q: As I understand your answers to the Judge's questions just a few moments ago, that as a general principle, you don't agree with execution as a penalty. Is that correct?
A: I don't believe in death penalty.
A: And I don't believe in nobody killing anybody either. So I guess -- I don't know what you would say -- in between or whatever.
Q: You have indicated that you can conceive of a situation where a death penalty might be appropriate?
Q: Just as in terms of generalities, a crime so bad and a defendant so bad that it appears appropriate that under the standards that you would be instructed to apply, that the death penalty would be appropriate penalty?
Q: So you are not telling us that in any situation you couldn't or wouldn't vote for a death penalty?
Q: What you are telling us is in terms of your opinion, although you have general reservations about it, about the death penalty, it would have to be a severe case before you would?
A: It would be have to be awful bad, yes.
A: And, if I believed it. You know.
Q: Okay. Believed it being that the situation was awfully bad? A: Was that bad, uh-huh.
RT 6116: 16 - 6118: 27 (voir dire by the prosecutor)
Q: Do you honestly believe, considering what your feelings are toward the death penalty, that you could vote for a verdict which would mean that this gentlemen here, Mr. Crittenden, would be executed in the gas chamber?
I can't sit here and really say for sure if I could.
But, if it is proven to me, truly proven to me, and I feel deep down inside that he did it, I could. I think I could.
A: Yes. I have to say I think I could. This is all new to me. So I am very upset with it.
Q: Well, this is a -- for all of us who have thought in any depth about the death penalty, very few of us ever get into the position that you are in where you have to--
Q: -- think out loud and tell us what your feelings are.
Do you think that your feelings about the death penalty -- in other words, that you don't believe in it -- would make it difficult for you to make a decision regarding the death penalty?
A: Yes, I think it would.
Q: And, do you think it might substantially impair your ability to fairly evaluate all of the evidence regarding the death penalty?
A:I can't say yes. I can't say no. I really don't -- don't know.
Q: Even -- let's say for a moment that a jury has decided, and you are on the jury, that Mr. Crittenden has committed these crimes and that special circumstances are involved. So it is up to the jury then to hear evidence about Mr. Crittenden upon which -- and including the information about the crimes you have already heard -- you are going to make a decision about life or death. Okay?
Q: Do you think that you are in such a position because of your strong feelings about the death penalty that even before you heard evidence in that second part of the trial that you would be leaning toward life instead of death?
A: I could -- after I have set there, has set through it all, and had the feeling that he did do it, then I think I could --
Q: You understand that neither side in this case wants to have as a juror someone who has their mind made up before?
Q: Before they heard the facts.
A: I haven't. Because I haven't heard the facts.
Q: So, is it really the bottom line of your statement to us that despite your statement that you don't believe in the death penalty, that you could still vote for the death penalty if you heard facts and circumstances which warranted it?
A: I think I could. Uh-huh.
I can't say -- I can't come out and say fully, yes, I could or, no, I couldn't, because I ...