Post by Okwes on Sept 15, 2006 11:27:42 GMT -5
Court Tosses Convictions, Says Indians Wrongly Kept Off Jury Ninth
Circuit, in 6-5 Decision, Brands Prosecutor’s Motives in Murder
Case Illegitimate By KENNETH OFGANG, Staff Writer
www.metnews.com/articles/2006/kess091206.htm
<http://www.metnews.com/articles/2006/kess091206.htm> A sharply
divided Ninth U.S. Circuit Court of Appeals en banc panel yesterday
threw out the first degree murder conviction of a Native American man,
saying minority members were improperly excluded from the jury at his
Humboldt Superior Court trial. Prosecutor Worth d**eman used
“blatant racial and cultural stereotypes” in striking
Native American women from the jury that convicted Richard Kesser and
Jennifer Leahy of murdering Kesser’s ex-wife, Judge Jay Bybee
wrote for the court in a 6-5 decision. Comparing voir dire responses by
white and non-white panelists, an approach mandated by last
year’s ruling in Miller-El v. Dretke, 545 U.S. 231, leads to the
conclusion that state courts and a U.S. district judge were wrong when
they ruled that d**eman had legitimate reasons for striking the women,
Bybee said. Life Sentences Kesser and Leahy, along with alleged
triggerman Stephen Chiara, are serving life sentences without the
possibility of parole for the murder, which prosecutors said was
intended to secure insurance proceeds for Kesser and Leahy. The case,
tried over a decade ago, took on political overtones this year when
tribal leaders branded d**eman a racist during his election challenge to
District Attorney Paul Gallegos. Gallegos was reelected in June by a
vote of 53 percent to 47 percent for d**eman. Bybee was joined by Chief
Judge Mary M. Schroeder and Judges Alex Kozinski, Kim M. Wardlaw,
Richard A. Paez, and Marsha Berzon. Judge Pamela Ann Rymer authored a
dissent joined by Judges Diarmuid F. O’Scannlain, Andrew
Kleinfeld, Consuelo Callahan, and Carlos T. Bea. d**eman struck the
only Native American on the regular juror panel�"the other
stricken venire members were on the alternate panel�"saying her
outlook was likely skewed by the fact that she worked for a tribe.
“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,” d**eman explained to the judge, “and my
experience is that they are sometimes resistive of the criminal justice
system generally and somewhat suspicious of the system.” In
striking the potential Native American alternates, d**eman expressed
fears that they would be unwilling to hold a fellow Indian criminally
responsible. The prosecutor cited cases in which an expert had
testified that, in d**eman’s words, “child molesting is
okay in certain Native American cultures, and we can’t treat
Native American child molesters the same way we treat other child
molesters, and have to treat them through the Indian culture center and
there are a whole bunch of people that violate our laws that are Native
Americans and they go much more often through the Native American system
than the criminal system.” Comparative analysis of the venire
members’ responses to questionnaires and questions asked on voir
dire “undeniably contradicted the prosecutor’s purported
motivations,” Bybee wrote, adding that the law “is not
toothless in the face of such blatant race-based strikes.”
Excusal Request As an example, Bybee cited d**eman’s statement
that he struck potential juror Linda Rindels because her unsuccessful
request to be excused in order to complete work on a tribal grant
application showed her to be “pretentious...and self-important
with the thought that only she could complete the necessary
paperwork.” Bybee noted that several unchallenged panelists
“protested, as Rindels did, that they could not leave their work
to others.” Rymer argued in dissent that the Court of Appeal made
a reasonable determination that d**eman’s motives for striking
the minority panelists were at least partially legitimate, and that
habeas corpus relief was thus inappropriate under the Antiterrorism and
Effective Death Penalty Act. The case is Kesser v. Cambra, 02-15475.
Circuit, in 6-5 Decision, Brands Prosecutor’s Motives in Murder
Case Illegitimate By KENNETH OFGANG, Staff Writer
www.metnews.com/articles/2006/kess091206.htm
<http://www.metnews.com/articles/2006/kess091206.htm> A sharply
divided Ninth U.S. Circuit Court of Appeals en banc panel yesterday
threw out the first degree murder conviction of a Native American man,
saying minority members were improperly excluded from the jury at his
Humboldt Superior Court trial. Prosecutor Worth d**eman used
“blatant racial and cultural stereotypes” in striking
Native American women from the jury that convicted Richard Kesser and
Jennifer Leahy of murdering Kesser’s ex-wife, Judge Jay Bybee
wrote for the court in a 6-5 decision. Comparing voir dire responses by
white and non-white panelists, an approach mandated by last
year’s ruling in Miller-El v. Dretke, 545 U.S. 231, leads to the
conclusion that state courts and a U.S. district judge were wrong when
they ruled that d**eman had legitimate reasons for striking the women,
Bybee said. Life Sentences Kesser and Leahy, along with alleged
triggerman Stephen Chiara, are serving life sentences without the
possibility of parole for the murder, which prosecutors said was
intended to secure insurance proceeds for Kesser and Leahy. The case,
tried over a decade ago, took on political overtones this year when
tribal leaders branded d**eman a racist during his election challenge to
District Attorney Paul Gallegos. Gallegos was reelected in June by a
vote of 53 percent to 47 percent for d**eman. Bybee was joined by Chief
Judge Mary M. Schroeder and Judges Alex Kozinski, Kim M. Wardlaw,
Richard A. Paez, and Marsha Berzon. Judge Pamela Ann Rymer authored a
dissent joined by Judges Diarmuid F. O’Scannlain, Andrew
Kleinfeld, Consuelo Callahan, and Carlos T. Bea. d**eman struck the
only Native American on the regular juror panel�"the other
stricken venire members were on the alternate panel�"saying her
outlook was likely skewed by the fact that she worked for a tribe.
“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,” d**eman explained to the judge, “and my
experience is that they are sometimes resistive of the criminal justice
system generally and somewhat suspicious of the system.” In
striking the potential Native American alternates, d**eman expressed
fears that they would be unwilling to hold a fellow Indian criminally
responsible. The prosecutor cited cases in which an expert had
testified that, in d**eman’s words, “child molesting is
okay in certain Native American cultures, and we can’t treat
Native American child molesters the same way we treat other child
molesters, and have to treat them through the Indian culture center and
there are a whole bunch of people that violate our laws that are Native
Americans and they go much more often through the Native American system
than the criminal system.” Comparative analysis of the venire
members’ responses to questionnaires and questions asked on voir
dire “undeniably contradicted the prosecutor’s purported
motivations,” Bybee wrote, adding that the law “is not
toothless in the face of such blatant race-based strikes.”
Excusal Request As an example, Bybee cited d**eman’s statement
that he struck potential juror Linda Rindels because her unsuccessful
request to be excused in order to complete work on a tribal grant
application showed her to be “pretentious...and self-important
with the thought that only she could complete the necessary
paperwork.” Bybee noted that several unchallenged panelists
“protested, as Rindels did, that they could not leave their work
to others.” Rymer argued in dissent that the Court of Appeal made
a reasonable determination that d**eman’s motives for striking
the minority panelists were at least partially legitimate, and that
habeas corpus relief was thus inappropriate under the Antiterrorism and
Effective Death Penalty Act. The case is Kesser v. Cambra, 02-15475.