Ali v. Hickman (CA9) is going to be tedious - but required - reading. Hickman (here) discusses comparative juror analysis in detail. A comparative juror analysis is common sense, but until recently, wasn't the law.
Under Batson v. Kentucky, a prosecutor cannot discriminate against black prospective jurors. Prosecutors still do. A prosecutor will make up an excuse to strike a black juror. "Judge, I don't like jurors who wear red shoes. Red shoes are distracting to me. Thus, I want this black guy off the jury. He is wearing red shoes." Far too many judges don't care about black people. They accept whatever reason the prosecutor gives.
Well, what if the prosecutor does not strike a red-shoe-wearing white juror?
Before, judges excused prosecutorial intellectually inconsistentcy. A defense lawyer would say: "But, your honor, the white juror is wearing red shoes! If the prosecutor doesn't like red-shoe wearing jurors, why didn't he strike the white juror?! That the prosecutor did not strike this white juror is proof that he was lying earlier when he struck the black juror." That argument wouldn't work.
The prosecutor would say, "Your honor, the difference is that this juror is wearing blue socks. I have found that when a person is wearing blue socks with red shoes, then the red shoes do not distract me as much."
Judges usually then say, "Prosecutors are officers of the court. I will take what the prosecutor has said at face value. Your objection is overruled." On appeal, you'd raise the issue again. You would lose, since appellate judges are reluctant to say, "There's no rational way a judge could have bought into the prosecutor's explanation." Instead, the panel - at best - would say, "While we might have disagreed with the trial court's ultimate determination: Trial courts are afforded great discretion in the conduct of trials."
In California, anyway, judges and prosecutors will have more trouble getting away with their racism. Hickman, which discusses a recent California Supreme Court opinion, People v. Lenix, 44 Cal. 4th 602 (2008), gives you the details. If you're a criminal trial lawyer in any jurisdiction, Hickman is required reading. Even though non-binding in your jurisdiction, Hickman has good arguments to harvest.
Incidentally, the racist prosecutor in Ali v. Hickman was Chief Deputy District Attorney Stephen Wagstaffe. The Ninth Circuit panel actually identified Wagstaffe, by name, in the opinion. Kudos to the Ninth Circuit for standing up to racist prosecutors. All too often judges identify unethical conduct or prosecutorial misconduct. The panel then refuses to identify the prosecutor.
Perhaps, in light of some very public prosecutorial misconduct, the Ninth Circuit has decided: "Enough is enough. If you are unethical, we will not protect you from public scrutiny. We will identify you as a shaming sanction; and to deter other prosecutors from violating their ethical duties." One can hope.
