Today, in Taylor v. Sisto, 09-15341 (full opinion available here) the Ninth Circuit reversed and remanded the denial of Taylor’s petition for a writ of habeas corpus. The issue involved the state court trial judge’s admonishment to prospective jurors during jury selection about what to leave at the door when deciding the case. In somewhat of a paradox, the prospective jurors were instructed to “bring their common sense” with them, but to leave their “life experiences” outside the courtroom. Circuit Judges Noonan and Berzon (Cir. Judge Ikuta in dissent) announced the following: (1) “juries are made up of human beings” (2) human beings have varied life experiences; (3) this variety of life experience creates diversity in the jury pool; and (4) “a jury is meant to be made up of human beings whose experience is vital to the validity of the verdict.” Simply put, to ensure the guarantees of the Sixth Amendment, jurors can’t, and more importantly, shouldn’t be instructed to leave their “life experience” at the door.
So what happened in the trial court?
At the beginning of voir dire, the trial judge admonished prospective jurors with the following:
The reason that being a juror is hard is because it’s probably the only time in your life that you are ever asked to take all of the experiences that you have had that have contributed to how you think about everything that you think about and to lay those experiences aside and to only make your decisions based upon what you hear that goes on in this trial, that you hear in this courtroom, and upon that, you must make your decision. So I ask you to imagine as prospective — as jurors, that there is a large box at the doorway to this courtroom. And when you walk into this courtroom as a juror, you take all the decisions that you have made, all the opinions you have about how people act, how people behave, what kind of people behave in what way, what makes them do that, and you leave them in that box. We call them your biases and your prejudices, and we all have them. We depend upon those biases and prejudices in our normal lives a lot of times, but you can’t depend upon them when you are jurors. The only thing that we ask you to walk into this courtroom with is your common sense, and that serves you well as a juror, and that’s why it’s the second hardest job in the world [the most difficult job being that of a parent], but that’s what we call upon you to do.
Questioning of 10 potential jurors included further discussion on the issue of putting aside personal experience; 8 were dismissed.
One of the dismissed jurors noted that she did not understand the admonishment: “[S]he told the judge that she could set aside her personal experience with sexual assault if the charge did not have elements of sexual of assault, but that she would have ‘a greater difficulty of putting aside just my everyday experience, because I think that’s what my common sense is based on, is my everyday experience. So I would be hard-pressed to put that aside and still have my common sense.’”
So the trial court clarified:
Your everyday experience, like knowing that the sun comes up in the west and sets in the east — comes up in the east and sets in the west, whatever it does, and those kinds of things, that nightfall is the end of the day, that’s pretty common sense; that if you throw things up in the air, they’ll fall down to the ground, that’s what we’re talking about, common sense, the kind of judgment that we make. Prejudice and judgments have kind of the same root.
Prospective Juror D: Oh, Okay.
The trial court continued:
That all people with blue eyes act in this particular way, all people with black skin act in that particular way, those are the kind of judgments that you leave in the box outside my courtroom.
So how does one do this? How does a prospective juror divorce his/her common sense (presuming they have it in the first place) from the life experience that it was built upon to acquire it? What then is common sense? (besides Thomas Paine’s January 10, 1776 pamphlet).
And this is where Circuit Judge Noonan’s opinion turns:
The instruction was an unqualified directive that each juror disregard his or her own life experience. The instruction included a reference to “your biases and your prejudices” but perversely or paradoxically stated that the jurors’ experiences were what “we call your biases or your prejudices.” Sweepingly, the instruction asked the prospective jurors to deposit all their experience in the judge’s disposal box.
The judge’s colloquies with individual prospective jurors showed that the judge was not joking. The responses of individuals in the voir dire show them taking the judge’s instruction equally seriously. The judge’s only attempt to explain what he meant consisted in the statements that a juror could use her experience to know what nightfall was and where the sun rose or set. Nightfall and sunrise are universal facts, not experiences that may be particular to an individual juror. Nothing in this explanation permitted a juror to draw on the personal experiences that make up human life.
For context: Since this case is a habeas petition (previously CA trial court, appeal to CA Court of Appeal – Third District, summarily affirmed Supreme Court of California), the Ninth Circuit is bound by federal statute to affirm unless the decision is “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.§ 2254(d)(1).”
Consequently, the Ninth Circuit concluded that the California Supreme Court’s decision affirming the prospective juror admonishment ” unreasonably applied a series of holdings concerning the nature of trial by jury under the Sixth Amendment. Ultimately, Taylor v. Sisto stands for the following proposition regarding the very nature of the Sixth Amendment’s trial by jury: “The requirement of representativeness explicitly connects the right to trial by an impartial jury to the varied and unique experiences that Americans of different backgrounds bring to the jury box. Therefore, having instructed the prospective jurors to leave their personal experiences in “the box” at the door and proceed to hear and decide the case without them, the guarantee of an impartial jury was essentially denied.
Is this the end for this case?
Circuit Judge Ikuta’s dissent reads as an invitation for a rehearing en banc or a reversal by SCOTUS. At its core, Judge Ikuta’s dissent challenges that none of the cases cited by the majority “squarely address” the issue “whether the voir dire instruction at issue here violates the Sixth Amendment” or “announces a principle clearly applicable to this case.” (internal citations omitted). Judge Ikuta: “Under AEDPA’s ‘highly deferential standard for evaluating state-court rulings’, we cannot reverse a state court’s ruling for being an unreasonable application of inferences drawn from such isolated phrases.” (internal citations omitted). And, Judge Ikuta follows the conclusion that “habeas relief is unauthorized” in this case with the prediction that the majority’s opinion is headed for reversal by the Supreme Court, like the included laundry list of AEDPA cases already reversed.