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Doubly Doubly Wrong

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Bill has already noted the Supreme Court's summary, unanimous reversal of the Ninth Circuit this morning in Felkner v. Jackson.  Two months ago, in Premo v. Moore, the high court characterized the Ninth's decision as "doubly wrong."  The Ninth had failed to give the proper deference to counsel's strategic decisions, as the governing Supreme Court precedent requires, and they had also failed to give proper deference to the state court decision applying that precedent, as the governing statute requires.

Today's decision is very similar.  When one attorney claims that another attorney is challenging jurors based on racial discrimination, and the challenger asserts a race-neutral reason, the trial judge must decide if those reasons are real or pretext.  This is a credibility determination, and the controlling precedent, in accordance with a very long tradition of appellate review of such determinations, requires broad deference to the judgment of the trial judge.  As in Moore, the habeas statute requires a federal court to further defer to the judgment of the state appellate court applying that standard.  The Ninth did none of that in this case.  The Supreme Court is clearly out of patience.

"That decision is as inexplicable as it is unexplained. It is reversed."

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I don't think the Supreme Court gets off so easy here. The Ninth's flouting of the AEDPA standard with respect to this issue has been going on for years. Here's a quote from the unpublished decision:

"In evaluating pretext, our precedent requires a comparative juror analysis. See Boyd v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006) (citing Miller-El v. Dretke, 545 U.S. 231 (2005))."

This isn't the first, or even the second or third time, that we've had this flouting of the law by the Ninth, and yet the Supreme Court only now gets around to dealing with it? I juxtapose that with its flyspecking of capital cases on behalf of the murderer. The cert. grant in Maples is ridiculous compared to the Court's acquiescence to the Ninth's "comparative juror analysis" for a full five years. Maples is clearly guilty, and had local counsel who did not abandon him. The only real nuance here is if somehow the idea that Maples was personally "blameless" (although consider the idea that if he hadn't decided to kill, he wouldn't be in this position) can be read into the Alabama court rules use of "blameless".

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