Ali v. Hickman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MOHAMMED HAROON ALI,  No. 07-16731
Petitioner-Appellant,
D.C. No.
v.
RODERICK Q. HICKMAN, Director  CV-05-05243-PJH
ORDER AND
California Department of
AMENDED
Corrections,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted
December 12, 2008—San Francisco, California

Filed July 7, 2009
Amended October 23, 2009

Before: A. Wallace Tashima and Marsha S. Berzon,
Circuit Judges, and Robert J. Timlin,* District Judge.

Opinion by Judge Berzon

*The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.

14245
 ALI v. HICKMAN 14249

COUNSEL

Albert Joel Kutchins, Berkeley, California, for the petitioner-
appellant.

Michele Swanson, Office of the California Attorney General,
San Francisco, California, for the respondent-appellee.

ORDER

The opinion filed on July 7, 2009, and published at 571
F.3d 902, is hereby amended as follows:
14250 ALI v. HICKMAN
1. Slip Op. 8263, line 36: Replace <“reasonable” and
demonstrated that the peremptory challenges had not
been motivated by the juror’s race.> with
<“reasonable.”>

2. Slip Op. 8264, line 14: Replace with

With these amendments, the panel has unanimously voted
to deny the petition for panel rehearing. Judge Berzon has
voted to deny the petition for rehearing en banc, and Judges
Tashima and Timlin recommend denial.

The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on the
petition for rehearing en banc. Fed. R. App. P. 35(f).

The petition for rehearing and the petition for rehearing en
banc are DENIED.

No further petitions for rehearing or rehearing en banc may
be filed.

OPINION

BERZON, Circuit Judge:

In 2001, a California state court jury convicted Petitioner-
Appellant Mohammed Ali of the first-degree murder of his
girlfriend, Tracey Biletnikoff. During jury selection, the pros-
ecutor, Stephen Wagstaffe, peremptorily struck the only two
African-American members of the jury pool. Ali maintains
that these strikes were racially-motivated and therefore vio-
lated his rights under the Equal Protection Clause of the Four-
teenth Amendment. See Batson v. Kentucky, 476 U.S. 79
(1986). We hold that a comparative juror analysis, in combi-
 ALI v. HICKMAN 14251
nation with other facts in the record, demonstrates that the
prosecutor’s purported race-neutral reasons for striking at
least one of the jurors were pretexts for racial discrimination.
We further hold that the California Court of Appeal’s contrary
conclusion was not only incorrect, but unreasonably so.
Accordingly, we reverse the district court’s denial of Ali’s
petition for writ of habeas corpus and grant the writ.1

I. Background

A. Jury Selection

On November 8, 1999, the State of California charged
Mohammed Ali with the first-degree murder of his girlfriend,
Tracey Biletnikoff. Ali entered a plea of not guilty, and stood
trial.

During the jury selection process, the state prosecutor used
two of his peremptory challenges to strike the only African-
Americans in the jury pool, first striking M.C.2 and then Dar-
rell Jefferson. Ali’s trial counsel challenged both these strikes
in turn under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr.
890, 583 P.2d 748 (1978) (California’s equivalent of Batson),
requesting an evidentiary hearing on the issue of the prosecu-
tor’s motive. After the prosecutor struck Jefferson, the trial
judge granted the request.

At the ensuing hearing the prosecutor provided the follow-
ing explanation for his strike of M.C.:

M.C. — yesterday, I exercised my challenge there
for the following reasons: We had an out-of-the-
presence-of-the-jurors discussion with her about pri-
1
Ali also raised several ineffective assistance of counsel claims in his
habeas petition. Because we grant Ali’s petition based on his Batson chal-
lenge, we do not reach these additional claims.
2
We refer to this juror by her initials in order to protect her privacy.
14252 ALI v. HICKMAN
vate matters wherein she talked about family mem-
bers and the discussion with those involving the
molestation of one child by another child, the
involvement in the system. The way she described
that, she ultimately told the Court she thought that
that would not play a role, would not affect her judg-
ment. Her words were that she doesn’t think it will
affect her judgment in this case. She did not say it
won’t. She said she doesn’t think on that. It did
involve family members within the system. That
was, level one, a concern that I had. I have exercised
challenges to other jurors for that same reason.

No. 2, she was very emphatic that — about — to
Mr. Morales, and then to me later, about her con-
cerns about attorneys and the way they conducted
themselves in the courtroom; that if it was anything
less than professional and respectfully done that that
would affect her.

THE COURT: Would that be an unreasonable
expectation?

PROSECUTOR: It would not be an unreasonable
expectation to say; that it would occur to say it
would affect her judgment was unreasonable. That’s
why Mr. Morales initially dealing on this issue fol-
lowed up with that with her to say there were times
he might cross-examine witnesses in an aggressive
fashion and do that, to find out whether that would
affect her judgment of him on that. I then followed
up with her in my questioning to inquire about the
same things. I thought we would act respectfully, but
did she think it would affect her. Her demeanor, and
the way she responded to that made it very clear to
me that something she would — I think all of us
would like to have occur, I expect it will occur, but
as Mr. Morales has properly pointed out to several
 ALI v. HICKMAN 14253
jurors, at times there could be an aggressive
approach to the case; that sometimes there may not.
That gave me cause for concern, more so, of course,
is the prior involvement in the prior offense.

No. 3, Your Honor, the question was posed to her
and it was posed by the defense about what she felt
in terms of sitting in judgment of others. Her
response to that was a pause, reflection, and then she
said, yes, that could be a problem for her, sitting in
judgment of others, because she was thinking of her
Christian faith. Mr. Morales then explored that with
her and went further into, Well, what we would be
talking about here is judging facts and that type of a
matter. She thought about it and said, Well, taking
that into consideration, I believe that is something I
could do without crossing my religious tenets. I
thought there was hesitancy in what she said.

Obviously, it is my burden to get twelve jurors
who could judge the case. I thought a combination
of these factors gave me good reason to be con-
cerned about her ability to fairly and impartially do
it, and I exercised a peremptory challenge for that
reason and for that reason alone.

The trial court then asked the prosecutor to provide his rea-
sons for striking Darrell Jefferson, to which he responded:

I thought Mr. Jefferson was an excellent juror up
until the questioning here, based on what he did —
you recall he came in and engaged in some banter
with the Court when he was talking about his hard-
ship request; that he — I believe it was a hardship,
not publicity, inquiry that was done in chambers. As
the Court stated a few minutes ago, when you
expressed it, there were two things that caused me to
change my mind. One of them was in response to
14254 ALI v. HICKMAN
Mr. Morales’ question. That question had to do with
there was something — where he talked about, we
make decisions as we go along. It gave Mr. Morales
some concern. It gave me some concern.

Mr. Morales explored it a bit further with him.
Well, wait. You can’t make the decision. He said,
Well, we do it. That’s how life works. I know — and
he said, We may change them as we go along but we
make decisions. I have a phenomenally great con-
cern about the intellectualizing. I thought that would
do — it would be an over-intellectualizing of the
case.

I want jurors, what I think Mr. Morales was striv-
ing for with him, about keeping an open mind until
the end and not making decisions. The Court arrived
at a conclusion there that that may be a semantical
difference or something else, and I respect that con-
clusion, when you told Mr. Morales [during Jeffer-
son’s voir dire] to move on, but it gave me cause for
concern there.

But at that point I was still considering the
peremptory challenge, became evident to me when
in response to a question from me he gave what —
and it’s personal to me. I respect it may be. I thought
he gave me, and I respectfully use these words, a
smart-ass answer.

THE COURT: Which [response]?

PROSECUTOR: The one when I commented to
him, Is there anything else that you could think of
that would cause you not to be fair and impartial, a
question I have asked probably of over 50 jurors, 40
jurors in this case and never received other than no
or maybe some answer. His was, I haven’t done any-
 ALI v. HICKMAN 14255
thing yet, immediately provoking a barrel of laughter
throughout the courtroom. I was offended by that
comment.

By those two things, combined with the fact that
he had had some contact, although he said he could
lay it aside, and I respect that possibility, with deal-
ing with a public defender and hearing about those
cases.

That combination of things caused me to change
my mind. Race had nothing to do with either of these
things.

Those are my reasons, Your Honor.

THE COURT: What was the reason again about
the hardship that you assert, Mr. [prosecutor?]

...

PROSECUTOR: My comment was, when [Jeffer-
son] came in and spoke with you in the hardship —
I am relaying to the Court my thought process —
and the banter he engaged in. I thought it was light-
hearted. It was not the hardship itself that concerned
me. I thought it was a lighthearted banter, but I
thought it reflected — the word I’m looking for is
not disrespectful, but I thought it reflected a casual-
ness that was not typical of jurors.

Again, this is a very subjective item and in and of
itself would never give cause, but what I noted was
the banter he engaged in was very much at ease, and
that is not what I’m looking for in a juror; however,
again, I would never exercise a challenge on that
alone. That is merely factors that go into it. I’ve
14256 ALI v. HICKMAN
given you four factors I believe that went into that
decision.

THE COURT: With all due respect, I thought I
heard two, one having to do with his banter and,
slash, casualness during the hardship discussion;
and, two, the response to the question you had asked
that elicited laughter in the courtroom and then the
— make that three — the judgment back and forth
and mindchanging.

What was the fourth one?

PROSECUTOR: Yes, I understand. The fourth
one was the contact that he had had with cases where
he had been — briefed may be too strong a word, but
he had had a rundown from his brother, who was an
appellate defender, on some case before the Supreme
Court. Hearing about that, that gave me cause for
concern.

After providing Ali with an opportunity to respond to these
explanations, the trial court denied Ali’s Wheeler motion. The
court concluded that the prosecutor’s proffered justifications
were “reasonable”. In reaching this conclusion, the trial court
did not consider comparative evidence regarding the
responses of M.C. and Darrell Jefferson and the responses of
non-African American members of the jury pool during the
jury selection process.

Following the denial of Ali’s Wheeler motion, the case pro-
ceeded to trial. After three days of deliberations, the jury
found Ali guilty of first-degree murder. He was sentenced to
55 years to life in state prison.
 ALI v. HICKMAN 14257
B. California Appellate Proceedings

The California Court of Appeal affirmed Ali’s conviction
on direct appeal in an unpublished opinion. With respect to
Ali’s Wheeler/Batson claim, the appeals court concluded that
“[t]he jury selection process was not marred by purposeful
discrimination,” holding that “substantial evidence sup-
port[ed] the trial court’s finding that the peremptory chal-
lenges were exercised without a discriminatory purpose.”
Like the trial court, however, the California Court of Appeal
did not engage in comparative juror analysis. At the time, Cal-
ifornia law did not permit a court to conduct comparative
analysis for the first time on appeal. See People v. Johnson,
30 Cal. 4th 1302, 1325 (2003), rev’d sub nom. Johnson v.
California, 545 U.S. 162 (2005).3

In a separate order, the California Court of Appeal denied
Ali’s state habeas corpus petition without further analysis.
The California Supreme Court denied Ali’s petition for
review and, later, rejected his state habeas petition in a one-
line disposition.

C. Federal Habeas Proceedings

Ali thereupon filed a federal habeas petition. The district
court, unlike the California courts, performed a comparative
juror analysis during its evaluation of Ali’s Batson claim. In
doing so, the court found that such an analysis “called into
question” two of the prosecutor’s reasons for striking M.C.
Nevertheless, the court concluded that:

While the instant comparative juror analysis does
reveal some minor faults in the prosecutor’s reason-
ing, the court finds that these faults do not demon-
3
California courts are now required to conduct a comparative juror anal-
ysis even if such an analysis was not performed by the trial court. See Peo-
ple v. Lenix, 44 Cal. 4th 602 (2008).
14258 ALI v. HICKMAN
strate racial bias or pretext. The court further finds
that the prosecution’s race-neutral justifications were
sufficiently credible, clear, and reasonably specific.
It therefore concludes that based on the totality of
relevant facts, Ali has not shown purposeful discrim-
ination . . . .

Ali asks this Court to reverse that decision.

II. Legal Standards

A. The Batson Framework

[1] The Equal Protection Clause forbids a prosecutor from
challenging potential jurors solely on the basis of their race.
See Batson, 476 U.S. at 89. We apply a now-familiar three-
part test when evaluating a defendant’s equal protection chal-
lenge to a prosecutor’s use of peremptory strikes. See id. at
96-98; see also Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.
2006) (en banc): First, the defendant must make a prima facie
showing that a challenge was based on race. See Kesser, 465
F.3d at 359. If such a showing is made, the burden then shifts
to the prosecutor to produce a “clear and reasonably specific”
race-neutral explanation for challenging the potential juror.
See id. Third and finally, the court must determine whether,
despite the prosecutor’s proffered justification, the defendant
has nonetheless met his burden of showing “purposeful dis-
crimination.” See id. To make this last determination, the
court evaluates the “totality of the relevant facts” to decide
“whether counsel’s race-neutral explanation for a peremptory
challenge should be believed.” See id. (quoting Hernandez v.
New York, 500 U.S. 352, 365 (1991)). The consideration of
“purposeful discrimination” at step three of the Batson inquiry
is a factual one. See Batson, 476 U.S. at 98 n.21 (“[A] finding
of intentional discrimination is a finding of fact entitled to
appropriate deference by a reviewing court.”) (internal quota-
tion marks and citations omitted); see also Miller-El v.
Dretke, 545 U.S. 231, 240 (2005).
 ALI v. HICKMAN 14259
Here, neither party challenges the trial court’s conclusion
that Ali established a prima facie case and that the prosecutor
satisfied his step two burden by providing specific race-
neutral explanations for his strikes of M.C. and Darrell Jeffer-
son. The sole issue therefore is whether the California courts
and the district court erred in concluding that Ali had failed
to meet his ultimate burden of establishing that the prosecu-
tor’s challenges were motivated by purposeful racial discrimi-
nation.

B. The Standard of Review

1. Review of the State Court’s Decision

Section 2254(d)(2) of Title 28, United States Code governs
our review of the state appellate court’s finding that the prose-
cutor did not engage in purposeful discrimination. See Kesser,
465 F.3d at 358 & N.1.4 Pursuant to § 2254(d)(2), we must
defer to the California appellate court’s conclusion that there
was no discrimination unless that finding “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” See 28 U.S.C.
§ 2254(d)(2).5
4
Relying on our opinion in Taylor v. Maddox, 366 F.3d 992 (9th Cir.
2004), we held in Kesser that § 2254(d)(2), rather than § 2254(e)(1), gov-
erns our review of a state court’s factual determination of the presence or
absence of discriminatory animus where our review is based entirely on
information that was contained in the state court record. See Kesser, 465
F.3d at 358 n.1. In this case, as in Kesser, the relevant evidence is found
in answers to juror questionnaires and a transcript of voir dire, both of
which were before the California Court of Appeal. Section 2254(d)(2)
therefore applies. We note, however, that, also as in Kesser, “the question
of which AEDPA standard we apply [is] academic, because the record sat-
isfies either standard.” See id.
5
For AEDPA purposes, we evaluate the state court’s last reasoned deci-
sion as the basis for the state court’s judgment. See Franklin v. Johnson,
290 F.3d 1223, 1233 n.3 (9th Cir. 2002). In this case, that decision was
the California Court of Appeal’s opinion affirming Ali’s conviction on
direct appeal.
14260 ALI v. HICKMAN
2. Review of the District Court’s Decision

We review de novo a district court’s denial of a habeas cor-
pus petition. See Juan H. v. Allen, 408 F.3d 1262, 1269 n.7
(9th Cir. 2005). If the district court makes independent factual
findings, we review those findings for clear error. See id. If
the district court does not make independent factual findings,
we simply review the state court’s findings under
§ 2254(d)(2), as discussed above.

In this case, the district court reviewed the state court
record de novo and, after conducting a comparative juror anal-
ysis, found that the prosecutor did not act with a racially dis-
criminatory motive when he peremptorily struck M.C. and
Darrell Jefferson. Although the district court reviewed the
state court record independently, its ultimate factual finding
on the issue of the prosecutor’s discriminatory intent was one
that had already been made by the California Court of Appeal.
Moreover, the district court’s conclusion was based entirely
on information that had been before the California appellate
court. As a result, the district court did not make any factual
findings that were independent of those made by the state
appellate court. As both we and the district court are therefore
obliged to review the California Court of Appeal’s decision
under the reasonableness standard provided in § 2254(d), we
review the district court’s Batson analysis de novo.6

III. Discussion

A. The Prosecutor’s Challenge of Juror M.C.

The prosecutor provided three reasons for his decision to
strike M.C. First, he stated that he was concerned that M.C.’s
6
For the reasons discussed below, the district court’s finding that the
prosecutor did not act with a discriminatory motive when he struck M.C.
was clearly erroneous. Therefore, even if we considered that finding to be
an independent one, we would not uphold it.
 ALI v. HICKMAN 14261
judgment and objectivity as a juror might be adversely
affected by the fact that her daughter had been the victim of
an attempted molestation by the daughter’s half-brother. Sec-
ond, he said that he excused M.C. because she had indicated
that “anything less than professional and respectful[ ]” con-
duct on the part of the attorneys might affect her view of the
case. He explained that although it was reasonable for her to
expect the attorneys to act professionally, he was concerned
that she would react negatively to aggressive cross-
examination. Finally, the prosecutor asserted that he struck
M.C. because she had said that she might have trouble “sitting
in judgment of others” due to “her Christian faith.”

Without evaluating each of these justifications individually
or performing comparative juror analysis, the California Court
of Appeal concluded that “substantial evidence support[s] the
trial court’s finding that the peremptory challenge[ ] [of M.C.
was] exercised without discriminatory purpose.” The district
court, however, did evaluate each of the proffered justifica-
tions one at a time and conducted comparative juror analysis.
It found that such an analysis largely, although not entirely,
undermined the prosecutor’s first justification and wholly
failed to support the second. At the same time, the court con-
cluded that a comparative analysis buttressed the prosecutor’s
third explanation and that, “on balance,” Ali had not shown
that the prosecutor’s removal of M.C. was motivated by “pur-
poseful discrimination.”

Our own review of the record convinces us that each of the
prosecutor’s justifications is logically implausible, under-
mined by a comparative juror analysis, and otherwise unsup-
ported by the record. As we held in Kesser, where “an
evaluation of the voir dire transcript and juror questionnaires
clearly and convincingly refutes each of the prosecutor’s non-
racial grounds,” we are “compell[ed] [to conclude] that his
actual and only reason for striking [the relevant juror] was her
race.” Kesser, 465 F.3d at 360. Such a conclusion is com-
pelled in this case. The California Court of Appeal’s contrary
14262 ALI v. HICKMAN
finding was not only incorrect, but an “unreasonable determi-
nation of the facts in light of the evidence presented.” 28
U.S.C. § 2254(d)(2).

1. Reason 1: The Attempted Molestation of M.C.’s
Daughter

On her juror questionnaire, M.C. indicated that she had had
contact with law enforcement “when [there] was an attempt
of molestation of my daughter.” M.C. then discussed this
response during private voir dire. The discussion transpired as
follows:

COURT: [On your questionnaire, you wrote] private,
“When there was an attempt of molestation of my
daughter.” That’s the area you would like to explore
privately, right?

M.C.: Uh-huh.

COURT: How old was your daughter?

M.C.: My daughter was 14.

COURT: How old is she now?

M.C.: She is 22.

COURT: This is about eight years ago?

M.C.: Yes.

COURT: Who was the supposed molester?

M.C.: Her brother.

COURT: Was he living at home with you as well?
 ALI v. HICKMAN 14263
M.C.: No. It’s a child by another lady that was visit-
ing in our home. Because he had been having prob-
lems with where he lived with his mom, and he was
staying with us.

COURT: Was your significant other or your husband
the father of this boy?

M.C.: Yes.

COURT: I’m sorry?

M.C.: Yes.

COURT: So he was at some other home having
problems there, and I take it that you agreed and
your husband wanted to help him out by having him
live with you?

M.C.: Yes.

COURT: How long was he in the home before this
happened?

M.C.: I would say about three months.

COURT: Was it reported to the authorities?

M.C.: Yes.

COURT: In this county or elsewhere?

M.C.: In this county.

COURT: What happened? By the way, how old was
he when this happened?

M.C.: He was about 17 years old.
14264 ALI v. HICKMAN
COURT: So what happened?

M.C.: There was an incident, my daughter came to
our room and reported it to us, and I called the police
department, and the police came and they arrested
the young man and took him to Juvenile Hall.
Because he resided, his home residence was in Santa
Clara County, they took him from San Mateo
County to Santa Clara County, and he was in Juve-
nile Hall until we had — I call it a trial, court, what-
ever. And we went to court, and then they put him
on a probation where he couldn’t be in contact with
her for, you know, x number of years.

COURT: Did your daughter testify in that court
hearing?

M.C.: Yes. In a private chamber.

COURT: Is that the only incident that you were ask-
ing to have us discuss privately?

M.C.: Yes.

COURT: That’s the only time that that molestation
occurred was that one incident?

M.C.: Yes.

COURT: How do you think that incident and all of
its ramifications, going to court and all of that, might
influence you in this case?

M.C.: I really don’t think — I don’t think it would
have any bearing. I don’t know. I don’t think it
would. My daughter is 22 years old. She didn’t have
to have — we all had to do family counseling.
 ALI v. HICKMAN 14265
COURT: Did family counseling help her deal with
the molestation?

M.C.: Yes. I know that it does still affect her even
though she is 22 years old, and we have discussed it
recently, before I was called to jury duty. It still has
an effect on her. However, I didn’t want it to be dis-
cussed in open court —

COURT: Don’t worry about it.

M.C.: — in open session, so I thought I would put
it out there.

COURT: You don’t have to apologize for putting
“private” on there. That’s why we have these pro-
cesses. Was it the East Palo Alto Police Department
or was it the sheriff’s office that did the investiga-
tion?

M.C.: I believe it was the sheriff’s department.

COURT: Do you remember who the investigating
officer was?

M.C.: No.

COURT: Anything about their the law enforcement
angle, the local police department, whether it was the
police or the sheriff, did you feel that they treated
you with respect and your daughter with respect as
a result of all of this?

M.C.: Yes.

COURT: Did you think it was a fair process that you
had to go through and your daughter had to go
through?
14266 ALI v. HICKMAN
M.C.: Yes.

COURT: Would there be any lasting effect on either
the defense or the prosecution in this case as a result
of your experiences or knowledge about that?

M.C.: No.

COURT: Mr. Morales, any questions?

DEFENSE: No questions.

COURT: Mr. [Prosecutor]?

PROSECUTION: No.

According to the prosecutor, this exchange provided the
first race-neutral reason for his dismissal of M.C. He
described that reason as follows:

M.C. — yesterday, I exercised my challenge there
for the following reasons: We had an out-of-the-
presence-of-the-jurors discussion with her about pri-
vate matters wherein she talked about family mem-
bers and the discussion with those involving the
molestation of one child by another child, the
involvement in the system. The way she described
that, she ultimately told the Court she thought that
that would not play a role, would not affect her judg-
ment. Her words were that she doesn’t think it will
affect her judgment in this case. She did not say it
won’t. She said she doesn’t think on that. It did
involve family members within the system. That
was, level one, a concern that I had. I have exercised
challenges to other jurors for that same reason.

The district court perceived this explanation as revealing
not one, but two concerns that the prosecutor had with M.C.
 ALI v. HICKMAN 14267
as a juror. The prosecutor’s first concern, according to the dis-
trict court, was that M.C.’s equivocal initial response to the
trial court’s question about how the child molestation incident
might influence her ability to sit as a juror in Ali’s case indi-
cated that she might not be able to judge the case objectively.
The district court described the prosecutor’s second qualm as
a “concern with [M.C.’s] involvement in the criminal justice
system . . . .”

In evaluating these two expressed bases for striking M.C.,
the district court concluded that a comparative juror analysis
undermined the prosecutor’s first purported concern but sup-
ported the second, because “the prosecutor’s concern with a
potential juror’s, including M.C.’s, involvement in the system
was legitimate and consistently applied without apparent dis-
criminatory purpose.”

As explained below, we agree with the district court’s con-
clusion that a comparative juror analysis, as well as other evi-
dence in the record, thoroughly undermines the prosecutor’s
alleged first concern with M.C.’s objectivity. We disagree,
however, with the court’s determination that the prosecutor
was legitimately troubled by M.C.’s “involvement in the sys-
tem.” As to the second concern, contrary to the district court’s
assertion, a comparative juror analysis reveals that the prose-
cutor did not “consistently” strike jurors who had experience
with the criminal justice system. In fact, he accepted at least
two white jurors who had more problematic experiences than
M.C. Thus, even if we assume, like the district court, that the
prosecutor’s first explanation for his strike of M.C. conveyed
two distinct concerns, a review of the record, including com-
parative juror analysis, compels the conclusion that both the
alleged justifications were pretextual make-weights.

1.a. M.C.’s Objectivity

[2] The prosecutor’s assertion that he excused M.C.
because she initially hesitated when responding to the court’s
14268 ALI v. HICKMAN
inquiry about the effect of the molestation incident on her
ability to judge Ali’s case is wholly unpersuasive, for several
reasons.

[3] First, to the extent that the attempted molestation of her
daughter might affect M.C.’s impartiality, any bias on M.C.’s
part logically would favor the prosecution, not the defense. To
be believable, a prosecutor’s “[r]easons must be ‘related to the
particular case to be tried.’ ” Kesser, 465 F.3d at 359 (quoting
Batson, 476 U.S. at 98). In this case, the victim, Tracey Bilet-
nikoff, was, like M.C.’s daughter, a young woman and the
victim of a domestic assault.

Moreover, M.C.’s description of the molestation focused
entirely on the effect that the incident had on her daughter,
with whom M.C. still lives. She stated, for example, that “I
know that [the molestation incident] does still affect [my
daughter] even though she is 22 years old, and we have dis-
cussed it recently, before I was called to jury duty. It still has
an effect on her.” When the trial court asked M.C. if the inci-
dent might influence her in evaluating Ali’s case, M.C. again
focused on her daughter, stating “I really don’t think — I
don’t think it would have any bearing. I don’t know. I don’t
think it would. My daughter is 22 years old. She didn’t have
to have — we all had to do family counseling.” (emphasis
added) If anything, then, M.C.’s experience and her descrip-
tion of that experience would suggest that she was more likely
than the average juror to identify with the victim of the crime.

The State disagrees with this assessment of M.C.’s poten-
tial bias, arguing instead that the molestation incident reveals
that M.C. may have “harbored some sympathy” for the perpe-
trator of the daughter’s molestation, M.C.’s stepson. This
view simply cannot be squared with the record.

Tellingly, M.C. never refers to the perpetrator as either her
son or her stepson. Instead, she describes him alternately as
“[my husband’s] child by another lady,” “the young man,”
 ALI v. HICKMAN 14269
and her daughter’s “brother.” In addition, M.C. stated that the
stepson had only lived with the family for three months prior
to the incident and was prohibited from contacting her daugh-
ter for several years afterwards. There is absolutely no indica-
tion that M.C. had any affection for, sense of family
responsibility for, or ongoing relationship with the perpetra-
tor.

The State nevertheless tenders the following “evidence” of
M.C.’s alleged sympathy for the stepson: First, the State
argues that “although her stepson received what could be per-
ceived as a light sentence for a molestation that still affected
her daughter eight years later, [M.C.] indicated that she
thought the process had been fair.” The State then suggests,
absurdly, that “even though the molestation was apparently
serious enough to merit police intervention and juvenile court
proceedings, [M.C.] appeared to minimize the incident by
referring to it as an ‘attempt of molestation’ in her juror ques-
tionnaire.” Attempted sexual battery is a serious crime in Cal-
ifornia, see People v. Dixon, 75 Cal.App.4th 935, 942 (1999),
and could certainly trigger law enforcement action. Nothing
in the record indicates that there was actual, as opposed to
attempted, molestation. The State’s suggestion that M.C. “ap-
peared to minimize” the incident, rather than to report it accu-
rately, is therefore wholly without merit.

Two sentences later the State lurches further from the
record when it writes, “Indeed, we note that the prosecutor
seemed genuinely concerned about [M.C.’s potential sympa-
thy for the defendant], and questioned [M.C.] about whether
she might identify with Ali because she had a son in the same
age range whom she might be able to picture in the same cir-
cumstances.” It is true that the prosecutor asked M.C. about
having a son the same age as Ali. And it is also true that M.C.
expressed some concern over that fact. However, it is equally
clear that M.C. was referring to her biological son, with
whom she and her daughter live.
14270 ALI v. HICKMAN
Contrary to the State’s contention, then, there is no evi-
dence in the record from which the prosecutor could have
inferred that M.C. harbored sympathy for the stepson. She
mentioned him only briefly, did not refer to him as her son or
stepson, and expressed clearly and repeatedly her ongoing
concern for her daughter and her daughter alone. It is little
wonder that neither the prosecutor nor the State put forward
this explanation previously.

[4] Second, a comparative juror analysis reveals, as one
might expect, that the prosecutor favored jurors who had been
the victims of domestic abuse or who had friends who had
been victims of such abuse, even if the juror indicated that his
or her experiences might affect his or her objectivity. Indeed,
as in Kesser, “it seems that experience with domestic violence
and abuse was not a liability, at least in the prosecutor’s view.
In fact, he might have found [a] woman a good juror precisely
because she was the mother of a vulnerable daughter who,
like [Ali’s girlfriend,] had fallen victim to abuse.” 465 F.3d
at 367.

Juror 6, for example, described during voir dire an event
that culminated in her husband’s arrest: The husband, while
drunk, began to physically abuse the couple’s 15 year old son.
When Juror 6 intervened, her husband shoved her backwards
into the oven door, hard enough to incapacitate Juror 6. The
police were called and the husband arrested. Although he
spent a night in jail, no charges were filed.

As in M.C.’s case, the court asked Juror 6 whether the inci-
dent would influence her objectivity when evaluating Ali’s
case. She replied,

I think I would be fair and impartial. It did affect me.
I do believe that people do things under the effects
of certain drugs or alcohol that maybe they wouldn’t
ordinarily do.
 ALI v. HICKMAN 14271
Two questions later, she clarified that she thought drug use
was “a factor to evaluate,” but did not automatically excuse
murder. She was not asked follow-up questions regarding her
objectivity.

Juror 6’s status as the direct victim of domestic violence
provided her with a slightly closer connection to Biletnikoff
than M.C., who was the mother of the victim. Nonetheless, it
is difficult to see how her response to the court’s question
about how the incident would affect her objectivity was less
equivocal than M.C.’s initial response. Compare Juror 6 (“I
think I would be fair and impartial. It did affect me.”) with
M.C. (first stating “I really don’t think — I don’t think it
would have any bearing. I don’t know. I don’t think it
would[,]” but then answering an unequivocal “No” when
asked “Would there be any lasting effect on either the defense
or the prosecution in this case as a result of your experiences
or knowledge about that?”). In addition, Juror 6, unlike M.C.,
did express some sympathy for the perpetrator, noting that
“people do things under the effects of certain drugs or alcohol
that maybe they wouldn’t ordinarily do.” This statement is
particularly relevant in this case, because evidence introduced
at trial showed that Ali was a chronic drug user and had been
using drugs and alcohol on the days preceding Biletnikoff’s
murder.

A comparison of M.C. to Juror 8 is likewise instructive on
this point. Like M.C., Juror 8 had experience with domestic
violence. During voir dire, she explained that she had “several
close friends who have been . . . sexually assaulted by some
male figure in their life.” She also stated that she had a close
friend whose father had attempted to kill the friend’s mother.
When asked how these experiences might affect her approach
to this case, she responded,

I guess what I was trying to say in the questionnaire
was that if I learned that there had been some kind
of conflict with, you know, the defendant and the
14272 ALI v. HICKMAN
Biletnikoff woman, I might be more sympathetic
with the victim.

In the questionnaire itself, she had written, “I believe that my
friend’s experiences with sexual abuse by men will make me
biased against any man who may have assaulted or murdered
a woman.” Although she later stated that she could “look at
[the case] objectively,” she had the following exchange with
Ali’s attorney after making that statement:

Q. This is indeed a domestic violence case. How do
you think you would be as a juror sitting on this case
having those experiences or at least through your
friend?

A. I cannot say that would not be part of my opinion
in my thought process. I wouldn’t make a decision
just based on the fact that this involves domestic vio-
lence. A defendant here shouldn’t be guilty just
because of that. It’s not that. That plays into my
thought process, though.

...

Q. Saying that statement, from what I’m hearing,
there may be a little bit of bias if you sat as a juror
on this case; is that correct?

A. That’s correct.

The prosecutor’s failure to strike Juror 8 substantially
undermines one of his supposed reasons for striking M.C. —
that he was concerned about selecting a juror whose past
experiences with domestic violence might affect her objectiv-
ity as a juror. Juror 8 acknowledged, at several points, that she
might have problems remaining impartial if the case involved
domestic violence. In addition, Juror 8’s statements were far
more equivocal than M.C.’s. She vacillated from “I might be
 ALI v. HICKMAN 14273
more sympathetic with the victim” to “I could look at [the
case] objectively” and then back to “there may be a little bit
of bias if [I] sat as a juror on this case.”

In short, the prosecutor’s reason for striking M.C. — her
equivocal response to a question about the impact of a domes-
tic violence incident on her objectivity — applies with equal
or greater force to Jurors 6 and 8, both of whom he accepted.
“The fact that [a proffered] reason also applied to these other
panel members, most of them white, none of them struck, is
evidence of pretext.” Miller-El, 545 U.S. at 248.

The State argues that a potential juror, D.W., whom the
prosecutor peremptorily struck from the jury, not Jurors 6 and
8, is the most appropriate person for a comparative analysis
as to the prosecutor’s explanation regarding experience with
domestic violence. D.W., like M.C., described an incident
involving the molestation of one family member by another.
In D.W.’s case, his eight-year old son had molested his two-
year old daughter.

A comparison of M.C. to D.W., however, only confirms
that the prosecutor was concerned with the direction of a
juror’s bias, not with objectivity. As noted, M.C.’s discussion
of her daughter’s molestation was focused entirely on the
effect that the incident had had on her daughter’s life. M.C.
mentioned the alleged perpetrator, her husband’s son by
another woman, only briefly and only to point out that the boy
had been living with her family for a very short time and was
subsequently prohibited from contacting her daughter.

By contrast, the focus of D.W.’s discussion was almost
exclusively on the actions of his son, the perpetrator of the
crime. He even suggested that his daughter, the two-year old
victim, did not remember and so was not affected by the inci-
dent. The reasonable inference, then, was that D.W. might be
more sympathetic to Ali than the average juror.
14274 ALI v. HICKMAN
More importantly, D.W. actually expressed a bias in favor
of the defendant:

DEFENSE: Can you give [the prosecution] a fair
case? Can you give them a fair shake?

...

D.W.: I think I can give the prosecution a fair shake.

DEFENSE: How about the defense?

D.W.: I’m certain I can give the defense a fair shake.

M.C., on the other hand, never expressed a preference for the
defense. She simply indicated originally that she did not think
the molestation incident would affect her and, in the end,
stated unequivocally that it would not.

[5] An analysis of the record supplies a third reason why
the prosecutor’s alleged concern with M.C.’s objectivity is
implausible: his failure to clear up any lingering doubts about
M.C.’s objectivity by asking follow-up questions. See Kesser,
465 F.3d at 364 (“ ‘We expect the prosecutor would have
cleared up any misunderstanding by asking further questions
before getting to the point of exercising a strike.’ ”) (quoting
Miller-El, 545 U.S. at 244). After the trial court finished ask-
ing M.C. about the molestation incident, including questions
about how the incident might affect her objectivity, the court
provided the prosecutor with an opportunity to ask questions
of his own. He did not do so.

This failure to seek clarification is even more striking in
light of the fact that the prosecutor did ask a follow-up ques-
tion on potential bias during the private voir dire of potential
juror D.W., who, as noted, also relayed a molestation incident
involving family members. At the end of D.W.’s interview,
the trial court asked, “How do you think the circumstances of
 ALI v. HICKMAN 14275
this incident would influence you here in this case?” D.W.
responded, “I don’t think they have any impact whatsoever.”
At that point, the judge asked the prosecutor if he had any
questions. Unlike in the questioning of M.C., the prosecutor
responded affirmatively, and proceeded to ask D.W.:

Very briefly. On that last question, sir, good morn-
ing. Does it — by impact, what we’re looking to
determine is does it cause you to be sympathetic to
people at all that have problems of their own such
that it might influence you, or the inverse, or it
causes you to be intolerant to somebody that has
committed a crime? Do you think it’s a problem
either way?

D.W. responded in the negative.

The prosecutor’s failure similarly to ask M.C. a follow-up
question indicates that his later alleged concern with her
objectivity was a make-weight. Further, as it was apparent
from D.W.’s responses that D.W.’s biases might lie with the
defendant, the follow-up questioning of D.W. confirms once
again the prosecutor was concerned with the direction of a
prospective juror’s bias, not with objectivity.

[6] Fourth and finally, while M.C. hesitated in her initial
response to a very general question about the effect the moles-
tation incident might have on her judgment as a juror, she
later responded to a more specific question about whether the
incident would have an “effect on either the defense or the
prosecution in this case” with an unequivocal “no.” As the
district court stated, “[t]he record is replete with examples of
other [unchallenged] jurors qualifying or even completely
changing their answers.” Juror 8, for example, vacillated on
the issue whether she could remain objective. In her final
statement about the issue, Juror 8 actually stated that she
would be a little biased, whereas M.C. concluded by stating
unequivocally that she could judge Ali’s case objectively.
14276 ALI v. HICKMAN
Given the answers of other jurors as to potential bias, M.C.’s
alleged initial equivocal statements about her ability to remain
objective could not have been a neutral reason for excusing
her from jury service in the case.

[7] In sum, a comparison of M.C. to Jurors 6 and 8 and to
potential juror D.W. demonstrates that the prosecutor favored
potential jurors who, like M.C., were likely to sympathize
with the victim and disfavored those, like D.W., who may
have been biased towards the defendant. This comparative
analysis therefore leads to only one reasonable conclusion: the
prosecutor’s asserted concern about objectivity was not an
actual reason for his decision to strike M.C., but was pretext.

1.b. M.C.’s Involvement in the System

[8] An analysis of the record as a whole likewise invali-
dates the prosecutor’s statement that he struck M.C. because
of an alleged concern with M.C.’s involvement in the criminal
justice system.

[9] Nothing in the record indicates that M.C. had had a neg-
ative experience with the criminal justice system that might
bias her against the prosecution. In fact, the opposite is true:
When questioned about her interactions with public officials
following the attempted molestation incident, M.C. informed
the court that she thought that the process that she and her
daughter had gone through was “fair,” and that the police had
treated her and her daughter with respect.

[10] In Kesser, we rejected in similar circumstances the
prosecutor’s alleged concerns about a juror’s involvement
with the criminal justice system, noting that the record

show[s] that [the struck potential juror] felt comfort-
able with a system that had prosecuted and incarcer-
ated her father for the offense. When she was asked
if she was ‘satisfied with [the] conclusion’ of the
 ALI v. HICKMAN 14277
proceedings, she answered “Yes.” On her question-
naire, she also answered that she was satisfied with
the response of the police, the district attorney, and
the court system.

Kesser, 465 F.3d at 364. “In fact,” we observed, the struck
potential juror “seems a better juror for the prosecution than
others who were accepted despite minor run-ins with the law
that might foster resentment.” Id. at 365.

[11] As in Kesser, there were other jurors in this case who
had experience with the criminal justice system but were not
struck. Juror 7, for example, had actually been arrested and
prosecuted (including a court appearance) for a minor crime.
She described the incident as “a very negative experience,”
although she did note that the police had been respectful and
that her bitterness over the affair was directed primarily
towards an ex-roommate. Nonetheless, if “involvement with
the system” was a legitimate concern of the prosecutor, he
would almost certainly have struck Juror 7. Moreover, like the
juror in Kesser, M.C. was, if anything, a better juror for the
prosecution than juror 7 who was accepted despite an arrest
that she described as “a very negative experience.”

Juror 6 also had experience with the criminal justice sys-
tem: Juror 6’s husband had been arrested for assaulting her
and had spent a night in jail. Although charges were never
filed, Juror 6 hired an attorney in response to the arrest, and
the attorney “handled” the matter with the district attorney’s
office and the police department. Thus, Juror 6 also had some
involvement with the criminal justice system.

[12] In sum, even if severed from the objectivity rationale,
the prosecutor’s “involvement in the system” explanation for
his strike of M.C. is not, on the record as a whole, a plausible,
race-neutral justification for the strike. No court could reason-
ably conclude otherwise.
14278 ALI v. HICKMAN
2. Reason 2: M.C.’s Expectation that the Attorneys
Would Act Professionally

During an exchange with Ali’s counsel, M.C. provided the
following views on the conduct of lawyers:

DEFENSE: Do you have any opinions about crimi-
nal defense attorneys?

M.C.: No.

DEFENSE: Do you think they will say or do any-
thing to get their clients off?

M.C.: Well, I haven’t had that much experience in
being in the company of defense attorneys or attor-
neys at all. I feel that they will do the right thing for
their client. Their position is to go the last line for
their client. I would hope that that would be done in
a decent and respectable manner.

DEFENSE: I understand that. Any opinions about
prosecutors, they’ll say or do anything to get a con-
viction?

M.C.: My same statement goes for them as well.

DEFENSE: You would hope that everybody would
act professionally?

M.C.: Yes.

DEFENSE: Let me ask you this: If at sometime dur-
ing this trial we, Mr. Buenaventura [the defense
attorney’s co-counsel] and I, have to sort of aggres-
sively cross-examine some witnesses, how would
you feel about that?
 ALI v. HICKMAN 14279
M.C.: Well, I believe that as long as you don’t cross
the line of being disrespectful and still keep it in a
professional matter.

DEFENSE: You wouldn’t penalize us for aggres-
sively advocating for our client?

M.C.: No.

DEFENSE: Just as long as we do it in a respectful,
professional manner?

M.C.: Yes.

DEFENSE: That seems fair.

The prosecutor later asked M.C. a series of similar questions,
eliciting nearly identical answers.

M.C.’s expectations regarding the conduct of the attorneys
during trial was the basis for the prosecutor’s second race-
neutral reason for his strike. As the prosecutor explained,
“No. 2, [M.C.] was very emphatic that — about — to Mr.
Morales, and then to me later, about her concerns about attor-
neys and the way they conducted themselves in the court-
room; that if it was anything less than professional and
respectfully done that would affect her.” He further clarified
that his concern was that she would view “aggressive” cross-
examination as unprofessional conduct and hold that against
one side or the other.

The district court did not credit this explanation. It noted
that “[t]he prosecutor himself gave a short speech about the
level of professionalism the attorneys would maintain during
the trial, thus suggesting that [M.C.’s] expectation was not
unreasonable or particularly relevant to [M.C.’s] ability as a
juror.” It also pointed out that Juror 1 had expressed similar
14280 ALI v. HICKMAN
expectations regarding the professionalism of the attorneys,
but had not been struck.

[13] We agree with the district court. As the above excerpt
reveals, M.C. simply expressed reasonable expectations con-
cerning attorney behavior. She did not say, as the prosecutor
stated during the Wheeler/Batson hearing, that unprofessional
conduct or aggressive cross-examination would “affect her
judgment.” See Wheeler/Batson Hearing Transcript (Prosecu-
tor: “[T]hat it would occur [to M.C.] to say it would affect her
judgment was unreasonable”). Instead, she said the opposite
— that she would not penalize the attorneys for aggressively
advocating on behalf of their clients. The prosecutor’s mis-
characterization of M.C.’s testimony is evidence of discrimi-
natory pretext. See Miller-El, 545 U.S. at 244.

The voir dire transcript also demonstrates that Juror 1, who
the prosecutor did not strike, expressed similar expectations
about the lawyers’ conduct.

DEFENSE: . . . [Do you have] any opinions about
defense attorneys or prosecutors. They’ll say or do
anything to win?

JUROR 1: No, no. Not any more than a policeman
might lie.

DEFENSE: I take it you say that because we sort
[sic] have been talking a lot about police officers and
witnesses and stuff like that?

JUROR 1: Exactly, exactly. Then you said earlier
that everybody should act professionally and above-
board.

DEFENSE: You probably agree with that statement.

JUROR 1: Absolutely.
 ALI v. HICKMAN 14281
[14] Given that M.C.’s expectations were reasonable, that
they were fully consistent with the prosecutor’s own views
about the level of professionalism that the lawyers would
maintain during the trial, and that they were very similar to
those of a juror who the prosecutor did not challenge, the
prosecutor’s “professionalism” justification, like his first
explanation for his strike of M.C., is contradicted by the
record. We therefore agree with the district court that the
attorney professionalism explanation was not genuine and that
the California courts unreasonably accepted it as non-racially
motivated.

3. Reason 3: M.C.’s Reluctance to Judge

The prosecutor’s third reason for striking M.C. was based
on the following exchange between M.C. and Ali’s counsel:

DEFENSE: I believe in your questionnaire that you
said you are a regular member of a church?

M.C.: Yes.

DEFENSE: Anything about your spiritual training or
spiritual practice that will prevent you from judging
other people if you’re chosen to be a juror?

M.C.: No.

DEFENSE: You had to think about that for a second.

M.C.: Just because the phrase “judging.” Here in this
position would mean something totally different than
I would apply as far as my Christian faith would be
interpreted. More or less this is to make a decision
based on information I’ve gained. Judging to me
means I’ve made a decision based on no informa-
tion, just from what I see and not knowing the per-
son or just arbitrarily. To me, that’s a difference.
14282 ALI v. HICKMAN
DEFENSE: I understand that difference. We’re
going to do our best, and as you’ve heard over and
over again, it’s [the prosecutor’s] job to present evi-
dence, and he will do his best to present lots of evi-
dence to you, and the defense may also present
evidence to you. But at the end of the day, there still
may be some questions about what exactly happened
or what somebody was actually thinking.

M.C.: Yes. That’s true.

DEFENSE: What I’m saying is you may not have
exactly every fact that you need when you retire
back to the jury deliberation room.

M.C.: That’s correct. But then that would be — to
me that would be — I wouldn’t say that’s judging.
That would be making a decision based on the evi-
dence that has been presented and taking that into
consideration.

DEFENSE: What you’re saying is that you would do
your very best with the information that you have?

M.C.: Yes.

At the Wheeler/Batson hearing, the prosecutor explained
why this exchange provided him with a race-neutral reason to
strike M.C.:

No. 3, Your Honor, the question was posed to her
and it was posed by the defense about what she felt
in terms of sitting in judgment of others. Her
response to that was a pause, reflection, and then she
said, yes, that could be a problem for her, sitting in
judgment of others, because she was thinking of her
Christian faith . . . I thought there was hesitancy in
what she said.
 ALI v. HICKMAN 14283
The district court recognized that the prosecutor misstated
M.C.’s testimony about her ability to judge others, but none-
theless credited this explanation. We do not agree, for several
reasons.

[15] First, we have already concluded that the prosecutor
offered two (or three) pre-textual reasons for striking M.C.
That the other reasons were pretextual raises an inference that
this final rationale is also a make-weight. As the Supreme
Court explained in Snyder v. Louisiana, 128 S.Ct. 1203, 1212
(2008), “the prosecution’s proffer of [one] pretextual explana-
tion naturally gives rise to an inference of discriminatory
intent,” even where other, potentially valid explanations are
offered. See also Kesser, 465 F.3d at 360 (“[I]f a review of
the record undermines the prosecutor’s stated reasons, or
many of the proffered reasons, the reasons may be deemed a
pretext for racial discrimination.”) (emphasis added) (internal
quotation marks and citations omitted); United States v. Chin-
chilla, 874 F.2d 695, 699 (9th Cir. 1989) (“[T]he fact that two
of the four proffered reasons do not hold up under judicial
scrutiny militates against [the] sufficiency [of the remaining
two reasons].”).

[16] Second, the prosecutor once again mischaracterized
M.C.’s comments, thereby providing further evidence of pre-
text. See Miller-El, 545 U.S. at 244. M.C. did not state, as the
prosecutor suggested, that her Christian faith would make it
difficult for her to judge Ali. She quite clearly indicated that
jury service did not qualify as the type of “judging” that
would conflict with her religious beliefs.

Moreover, M.C.’s statements about her Christian faith were
elicited by the defense attorney. Although the prosecutor sub-
sequently questioned M.C. at length, he did not ask a single
question about her religious views or the implications of those
views. This failure to inquire makes the mischaracterization
of M.C.’s “Christian faith” response all the more indicative of
pretext. For, as in Miller-El,
14284 ALI v. HICKMAN
“[p]erhaps [the prosecutor] misunderstood, but unless he
had an ulterior reason for keeping [the juror] off the jury we
think he would have . . . cleared up any misunderstanding by
asking further questions . . . .” Id. at 244.

Third, although the district court relied on a comparison of
M.C. with potential juror Marck in upholding the prosecutor’s
“Christian faith” rationale, that comparison in fact provides
no support for the religion justification. Marck identified her-
self as a practicing Buddhist. When asked about her religious
beliefs, Marck stated that they would not interfere with her
ability to judge Ali because his case was not a capital case.
Noting that the prosecutor struck Marck, the district court
concluded that the “prosecutor’s concern with the effect of
religious beliefs on a juror’s ability to remain objective was
equally applied to minority and non-minority jurors.”

Marck’s voir dire was different from M.C.’s, however, in
two important respects. First, Marck did, in fact, indicate that
her religious beliefs would affect her ability to sit as a juror
under certain circumstances — i.e., in capital cases. M.C., on
the other hand, clearly stated that her religious beliefs could
not conflict with jury service under any circumstances
because the word “judging” ”mean[s] something totally dif-
ferent” in the context of jury service. Although Ali’s murder
trial was not a capital trial, the prosecutor could reasonably
have had qualms about a potential juror who admitted that she
could not vote in favor of the prosecution in certain circum-
stances for religious reasons. M.C., however, did not qualify
her ability to judge a criminal case in any way.

[17] Second, Marck, like M.C., explained the effect that her
Buddhist beliefs would have on her ability to judge Ali in an
exchange with defense counsel. Unlike in M.C.’s case, the
prosecutor asked Marck follow-up questions about her reli-
gious beliefs. Thus, when the prosecutor was concerned about
a juror’s religious views, he specifically asked about them.
His failure to do so in M.C.’s interview indicates that he did
 ALI v. HICKMAN 14285
not think the issue was a significant one in her case. See
Miller-El, 545 U.S. at 244 (“[W]e expect the prosecutor
would have cleared up any misunderstanding by asking fur-
ther questions before getting to the point of exercising a
strike.”) (internal quotation marks and citations omitted).

This conclusion is confirmed by the prosecutor’s failure to
ask follow-up questions of Juror 3, who identified himself as
a Jehovah’s Witness and was not struck. When asked by
defense counsel how his “spiritual practice” might affect his
ability to serve as a juror, Juror 3 stated, “I don’t believe [it
would.] I believe I can fairly and impartially consider what-
ever testimony and evidence would be presented and make a
judgment based on that, regardless of background and my
involvement.” These statements are arguably more equivocal
than M.C.’s unqualified statement that she would be able to
engage in the type of judging required of a juror. Yet, as in
M.C.’s case, the prosecutor did not ask Juror 3 any questions
about religious beliefs. This parallel further confirms that
M.C.’s religious views were not a cause of concern to the
prosecutor.

4. Conclusion — M.C.

[18] In sum, an analysis of the “totality of the relevant
facts,” including a comparison of M.C. to other potential and
actual jurors, convincingly refutes each of the prosecutor’s
non-racial justifications for his peremptory challenge of M.C.
We are therefore “compell[ed] [to conclude] that his actual
and only reason for striking [M.C.] was her race.” Kesser, 465
F.3d at 360. Moreover, “the California courts, by failing to
consider comparative evidence in the record before it that
undeniably contradicted the prosecutor’s purported motiva-
tions, unreasonably accepted his nonracial motives as genu-
ine.” Id. at 358. In so doing, the California appellate court,
like the district court, reached a conclusion regarding the
prosecutor’s intent that was not only incorrect, but unreason-
able. See Miller-El, 545 U.S. at 266.
14286 ALI v. HICKMAN
B. The Prosecutor’s Challenge of Juror Darrell Jeffer-
son

[19] “The Constitution forbids striking even a single pro-
spective juror for a discriminatory purpose.” Snyder, 128
S.Ct. at 1208 (quoting United States v. Vasquez-Lopez, 22
F.3d 900, 902 (9th Cir. 1994)). As the record compels a find-
ing that the prosecutor’s removal of M.C. was racially moti-
vated, we need not evaluate the validity of the prosecutor’s
peremptory challenge of Darrell Jefferson. We do so briefly,
however, because the weakness of at least two of the prosecu-
tor’s justifications for challenging Jefferson lends further sup-
port to our conclusion that M.C.’s strike was racially
motivated.

The prosecutor stated that he struck Jefferson because (1)
he feared that Jefferson would “over-intellectualize” the
decision-making process; (2) Jefferson had provided a “smart-
ass” answer to one of his questions; (3) Jefferson exhibited a
casual attitude; and (4) Jefferson had discussed criminal cases
with his brother, whom the prosecutor mistakenly believed to
be a criminal defense attorney.

The prosecutor’s first justification is highly questionable.
During voir dire, Ali’s attorney asked Jefferson if he would
be able to keep an open mind throughout a multi-week trial
and not decide the case until he deliberated with other jurors.
Jefferson responded in the following way:

JEFFERSON: Can I rephrase the statement?

DEFENSE: Absolutely.

JEFFERSON: I think I would be able to continu-
ously evaluate, but the way I think people work is —
I mean, you make decisions and then you change
them and then you change them. That’s the way as
things are presented to you.
 ALI v. HICKMAN 14287
DEFENSE: As you sit here today, if you’re chosen
to be a juror, you think that you would do that?

JEFFERSON: Yes. Continuously evaluate.

DEFENSE: So you may decide on Monday, looks
like he is guilty, and then hear a little bit more testi-
mony, and on Tuesday, then change my mind, well,
he is not guilty, and then go back and forth in that
manner.

JEFFERSON: Yes, probably.

Jefferson then explained that, in his opinion, adaptive
decision-making is “just the way people’s minds work.”

The prosecutor cited the above exchange as evidence that
Jefferson would “over-intellectualize” the decision-making
process and would not keep an open mind during the trial.
The State makes this argument again on appeal, noting that
California’s standard jury instructions inform jurors that they
are not to decide an issue until the case has been submitted.
See CALJIC No. 0.50.7

[20] As the trial judge pointed out, however, Jefferson’s
willingness constantly to re-evaluate his position is evidence
of open-mindedness, not closed-mindedness. In addition, Jef-
ferson’s statements are likely an accurate assessment of the
natural decision-making process and do not indicate an
unwillingness to follow the law. The prosecutor’s character-
ization of Jefferson’s statements as demonstrating an unwill-
ingness to keep an open mind is therefore dubious, and, in
7
CALJIC No. 0.50 reads in relevant part: “During the course of this trial
and before you begin your deliberations, you must keep an open mind on
this case and upon all of the issues that you will be asked to decide. In
other words, you must not form or express any opinions on this case until
the matter is finally submitted to you.”
14288 ALI v. HICKMAN
turn, raises doubts about the legitimacy of his first reason for
striking Jefferson.8

[21] The prosecutor’s third justification for removing Jef-
ferson, Jefferson’s alleged “casualness,” is likewise weak. See
Kesser, 465 F.3d at 364 (noting that the prosecutor’s rationale
for striking a potential juror, that the juror was “emotional
about the system,” was “so underdeveloped that it likely falls
short of Batson’s mandate for a ‘clear and reasonably spe-
cific’ explanation of the legitimate reasons for exercising the
challenges.”) (alteration omitted). Although Jefferson joked
with the court on a couple of occasions, his lengthy voir dire
indicates that he was a thoughtful individual who would have
taken the trial seriously. The trial court itself noted that “given
[Mr. Jefferson’s] thoughtful answers, his demeanor, his back-
ground, . . . [h]e, from this perspective, would have been an
excellent juror.” Moreover, the trial judge joked with a num-
ber of seated jurors during voir dire and acknowledged that he
had made efforts to “keep things reasonably open and not too
tense so that the jurors would be more apt to answer truthfully
and expose their feelings about various matters if they felt
they were comfortable.” So, to the extent that Jefferson did
engage in “lighthearted banter,” it was with the encourage-
ment of the trial court.

The prosecutor also failed to explain why a casual or light-
hearted demeanor would render Jefferson unfit for jury ser-
8
Ali argues that a comparative juror analysis also supports a finding that
the prosecutor’s “over-intellectualizing” justification is pretextual. More
specifically, Ali argues that the prosecutor failed to strike a number of
jurors who exhibited “intellectual proclivities,” including one juror who
stated that he was “trained in logical thinking.” A comparative juror analy-
sis is not useful with respect to this justification, however. The prosecu-
tor’s alleged reason for striking Jefferson was not that Jefferson was too
intellectual in general, but that he would “over-intellectualize” the deci-
sionmaking process. No other seated or potential juror discussed his or her
decisionmaking processes. As a result, it is not possible to compare Jeffer-
son to other jurors with respect to this issue.
 ALI v. HICKMAN 14289
vice. Like the “emotional about the system” justification
offered by the prosecutor in Kesser, the prosecutor’s “casual-
ness” rationale is “so underdeveloped that it likely falls short
of Batson’s mandate for a ‘clear and reasonably specific’
explanation of the legitimate reasons for exercising the chal-
lenges.” Kesser, 465 F.3d at 364 (alteration omitted); see also
id. (“Even if the prosecutor could establish that [the struck
juror] was unusually pretentious about her work, he offered
no explanation about how this would render her unsuitable for
the jury.”). It also seems to contradict the prosecutor’s alleged
concern that Jefferson would “over-intellectualize” the deci-
sionmaking process.

Although two of the prosecutor’s justifications for chal-
lenging Jefferson are exceedingly weak, we acknowledge that
his other two reasons for removing Jefferson find some sup-
port in the record. Jefferson twice responded to questions
from the prosecutor with answers that the prosecutor credibly
could have viewed as sarcastic or hostile. Ali does not iden-
tify a single unchallenged juror who made similar remarks.

The prosecutor’s concern about Jefferson’s close relation-
ship with a criminal defense attorney also appears to be credi-
ble. Jefferson asserted during his voir dire that his brother was
an attorney who had represented the defendants in two crimi-
nal cases that were heard by the Supreme Court. Jefferson
also acknowledged that he had discussed the cases with his
brother at length. Although the relevant cases involving Jef-
ferson’s brother were, in fact, civil cases and Jefferson’s
brother was not a criminal defense attorney, it was reasonable
for the prosecutor to rely on the information that Jefferson
provided during his voir dire.

A comparative juror analysis also reveals that Jefferson’s
exposure to the legal system through his brother was unique
among the jurors. Two unchallenged jurors had relatives who
were practicing attorneys, but both of these jurors stated that
they did not discuss cases with these relatives. The record
14290 ALI v. HICKMAN
therefore substantiates the prosecutor’s contention that he
struck Jefferson because of a concern about Jefferson’s
asserted connection to a criminal defense attorney.

Overall, the validity of the prosecutor’s decision to chal-
lenge Jefferson is a close question. Two of the prosecutor’s
proffered explanations for the strike are entirely unconvinc-
ing, while the two others could be legitimate. If Jefferson had
been the only African-American juror that the prosecutor
struck, we might well affirm the district court’s denial of Ali’s
petition.

[22] But Jefferson was not the only African-American the
prosecutor peremptorily challenged. He also struck the only
other African-American potential juror, and, in so doing, pro-
vided several pretextual explanations for that strike. In light
of this additional strike, the prosecutor’s proffer of two ques-
tionable explanations for his strike of Jefferson take on a sig-
nificance that they might otherwise lack. See Lewis v. Lewis,
321 F.3d 824, 831 (9th Cir. 2003) (“The proffer of various
faulty reasons and only one or two otherwise adequate rea-
sons, may undermine the prosecutor’s credibility to such an
extent that a court should sustain a Batson challenge.”). At a
minimum, these dubious explanations reaffirm our conclusion
that the prosecutor’s actual reason for striking M.C. differed
from those that he asserted and that his ulterior motive was
race-based. See Kesser, 465 F.3d at 369 (“The prosecutor’s
willingness to make up nonracial reasons for striking [three
minority jurors] makes it even harder to believe that his rea-
sons for striking [a fourth juror] were race-neutral.”).

IV. Conclusion

[23] Taken as a whole, the record compels a finding that
the prosecutor’s non-race based reasons for peremptorily
striking M.C. were pretexts. The fact that the prosecutor
peremptorily struck the only other African-American juror in
the jury pool and provided at least two implausible reasons for
 ALI v. HICKMAN 14291
that challenge reinforces this conclusion. We therefore hold
that both the California Court of Appeal and the district court
clearly erred when they found that Ali failed to establish pur-
poseful discrimination. We further hold that, in light of the
overwhelming evidence indicating that the prosecutor in Ali’s
case acted with discriminatory intent when he struck M.C.,
the California appellate court’s finding to the contrary was an
unreasonable determination of the facts in light of the evi-
dence presented in the state court proceedings. See 28 U.S.C.
§ 2254(d)(2). We therefore reverse the judgment of the dis-
trict court and remand with directions to issue a conditional
writ of habeas corpus requiring Ali’s release from custody,
unless the State elects to retry Ali within a reasonable time to
be determined by the district court.

REVERSED and REMANDED.