Crime - Sacto 911

Sacramento case gives high-ranking appellate jurist a taste of trial judge’s life

Alex Kozinski, a senior judge on the 9th U.S. Circuit Court of Appeals, had one of his fill-in rulings in a lower court overturned by a panel of his appellate colleagues.
Alex Kozinski, a senior judge on the 9th U.S. Circuit Court of Appeals, had one of his fill-in rulings in a lower court overturned by a panel of his appellate colleagues. Associated Press file

Another conviction in Sacramento Superior Court has been overturned by a federal court ruling that race was the basis for excluding a juror.

The case has the added distinction of creating a first for one of the nation’s most highly placed jurists.

Because of claims by federal judges in the Sacramento-based Eastern District of California that they are overburdened with much larger caseloads than judges in other districts, counterparts from other locales frequently accept assignments to Eastern District cases. Alex Kozinski helped out, even though he held one of the loftiest judicial posts in the country as chief judge of the 9th U.S. Circuit Court of Appeals, the highest court in nine Western states.

In November 2008 he took on the case of Darryl Darmont Shirley, who was found guilty by a jury in March 2005 of robbery and burglary in Sacramento County. He got 50 years to life in prison, plus another 20 years for enhancements.

Shirley was seeking a federal writ of habeas corpus – a challenge to incarceration after appeals have failed in state courts. Kozinski denied the writ in March 2013.

Never a trial judge, Kozinski now has experienced one of the hard lessons of life as a judge in the trenches of trial court: He has been reversed on appeal, but in his case, by his own circuit court.

A three-judge panel of the 9th Circuit, where Kozinski has completed his seven-year term as chief judge but still sits with a lot of seniority, earlier this month ordered Shirley released from prison unless the District Attorney’s Office in Sacramento wants to retry him.

The panel ruled that Shirley, a 51-year-old African American, has shown “by a preponderance of the evidence” that Deputy District Attorney Alan Van Stralen’s peremptory strike of an African American from the jury pool “was motivated in substantial part by race.”

Almost 30 years ago, the U.S. Supreme Court held in Batson v. Kentucky that the use of race-based peremptory challenges to excuse prospective jurors violates the equal protection clause of the 14th Amendment.

The circuit’s reversal in Shirley’s case was authored by Judge Stephen Reinhardt. Concurring were Judges Sidney R. Thomas, who succeeded Kozinski last year as the court’s chief judge, and Morgan Christen.

Their ruling comes less than three weeks after the release from jail of Richard Alex Williams, an African American whose first-degree murder conviction in Sacramento was thrown out by the late U.S. District Judge Lawrence K. Karlton, who found a prosecutor’s peremptory strike of an African American was motivated by race. After the 9th Circuit affirmed Karlton’s decision, Williams was tried again and acquitted.

Commenting Thursday in an email on the Shirley case, Steve Grippi, chief deputy district attorney in Sacramento County, said his office is “evaluating the case to determine if we will retry the defendant.”

Grippi noted that “every other state and federal court judge … found the dismissal of that juror to be entirely reasonable and legitimate.”

At a March 2013 hearing in Sacramento federal court, Van Stralen described his customs and practices in picking a jury, but said he does not remember why he struck this particular juror. Even though the strike was challenged at the time by Shirley’s attorney, the trial judge did not make Van Stralen give his reasons.

Kozinski said at the conclusion of the hearing that he believes Van Stralen’s jury-selection methods “are entirely sensible, ... and I don’t have any reason to doubt he followed them in this case. At the same time, he said he didn’t remember. I’m not surprised. It has been quite a few years, and he doesn’t remember.

“I have no doubt at all that the prosecutor in this case has no racist views or anything. I think he’s concerned with winning his case, as lawyers tend to be. And I think he would – he, like everybody else – would gladly put on whatever jurors he thinks are going to help his case.”

Kozinski noted there were five African Americans in the jury pool. Two were eliminated upon agreement of opposing counsel. Another was chosen for the panel, leaving two that were struck by Van Stralen for what Shirley’s trial attorney insisted were racist reasons. But the trial judge disagreed. The exclusion of one of those last two – an African American woman three years out of high school – ran afoul of Batson and its progeny, according to the appellate judges.

Batson cases present “an inherently difficult situation for everybody,” Kozinski said at the 2013 hearing. “I have done my best with it.”

His best was not good enough for his 9th Circuit colleagues. In their 42-page, published opinion they said: Shirley’s evidence of discrimination was weakly met with Van Stralen’s testimony that he “liked to see jurors who have life experience. His vague, general preference – as opposed to a regular practice of striking (pool) members for a specific reason – constituted at most an inclination towards jurors with highly indefinite attributes or qualities. A vague approach to jury selection may constitute sufficient circumstantial evidence” to satisfy Batson’s requirement that the prosecutor offer race-neutral justifications for peremptory strikes that are called into question.

But, the panel declared, “In a case in which the prosecutor does not recall his actual reason for striking the juror in question, (such vagueness) provides little or no ... support for a conclusion ... that he struck her” for nonracial reasons.

Without articulated reasons, the three judges said, it is difficult to intelligently analyze the strike at issue against other decisions by the prosecutor during jury selection.

Denny Walsh: 916-321-1189