Reply #146: nine judges on the 9th circuit court of appeals did. [View All]

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAWLINSON, Circuit Judge, with whom PREGERSON,
REINHARDT, THOMAS, WARDLAW, W. FLETCHER,
FISHER, PAEZ, and BERZON, Circuit Judges join, dissenting
from denial of rehearing en banc:
In this case, a prosecutor, publicly castigated by the Supreme Court of California for his pattern of racially motivated peremptory jury challenges, removed all blacks from Williams’ jury. In declining to take this case en banc, our court bestows an implicit imprimatur upon the trial court’s denial of a constitutionally mandated jury selection process.
In my view, the panel opinion contains two errors: (1) failure
to issue a certificate of appealability (COA) to Williams despite his satisfaction of the standard for the grant of a COA, and (2) misapplication of the standard of proof to establish a prima facie case of Batson error. By increasing the burden of proof necessary to make a Batson prima facie showing, the panel cleared the way for attorneys “who are of a mind to discriminate” by exercising their peremptory challenges to excise prospective African-American jurors from the jury box. Batson v. Kentucky, 476 U.S. 79, 96 (1986).
I dissent from the denial of rehearing en banc not only because every defendant is entitled to a jury that is unbiased and untainted by racial discrimination in the jury-selection process, but also because the very legitimacy of our system of justice depends upon continued vigilance against such prac-tices.