Looks like the 9th Circuit Court of Appeals is doing just fine without Liu anyway.
http://www.sacbee.com/2010/07/30/2924751/9th-circuit-panel-strikes-down.html#ixzz0vV48gcjK
9th Circuit panel strikes down rape conviction, citing race bias
May 20, 2011
A federal appeals court has struck down a conviction and life sentence of an African American man for a heinous rape eight years ago in Sacramento County, ruling that the prosecutor had no lawful reason to dismiss two African Americans from the jury pool.
Steven Frank Jackson was found guilty by a Superior Court jury of breaking into a 72-year-old white woman's apartment and repeatedly raping her and sexually assaulting her in a number of ways.
Saliva found on her breast yielded a positive match of Jackson's DNA, and the victim identified Jackson at the trial as her attacker in the early hours of April 29, 2002.
The jury pronounced him guilty of a multitude of sexual crimes and one count of burglary, and on Sept. 30, 2004, at age 39, Jackson was sentenced to a "three-strikes" prison term of 310 years to life. The verdict and sentence were affirmed by a state appellate court and the federal district court in Sacramento. The California Supreme Court declined review.
But both were overturned last week by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
The Sacramento County District Attorney's Office will ask the state attorney general's office, which handles criminal appeals from state trial courts, to seek review by an enlarged circuit panel.
If that request is denied, or if a larger panel affirms the three judges' ruling, it will be up to District Attorney Jan Scully whether to retry Jackson. Absent a retrial, he will go free.
In a 2 1/2-page memorandum the three judges state that the reasons the prosecutor gave for his peremptory challenges excusing the two prospective African American jurors "were not sufficient to counter the evidence of purposeful discrimination."
The 9th Circuit judges note with some indignation that "two out of three prospective African American jurors were stricken," and then declare that "the record reflected different treatment of comparably situated jurors."
"It is clearly established federal law that the equal protection clause (of the Constitution) prohibits the prosecutor from challenging prospective jurors solely on the basis of race," the panel states.
"The decision took us completely by surprise," said Sacramento County Chief Deputy District Attorney Cindy Besemer. She said Deputy District Attorney Scott Triplett had "excused two jurors for reasons other than race. The 9th Circuit's order doesn't cite any evidence which conflicts with the findings made by (two) lower courts."
The federal appellate ruling comes from 9th Circuit Judges Mary M. Schroeder and Johnnie B. Rawlinson, and U.S. District Judge Raner C. Collins of Arizona, on assignment to the circuit. No author is indicated.
Schroeder, one of the longest-serving judges on the 9th Circuit – the highest court in the Western states – was appointed by President Jimmy Carter in 1979. She is white. Rawlinson, an African American woman, was appointed to the circuit bench in 2000 by President Bill Clinton. Collins, also an African American, was appointed to the federal court in Arizona by Clinton in 1998.
Jackson attorney Laurence Smith claimed that during jury selection Triplett violated the law set out in a 1986 U.S. Supreme Court opinion and a 1978 California Supreme Court decision.
Responding to the trial judge's request for his reasons, Triplett recalled that the man he excused had said that he'd been stopped uncounted times over a 14-year period by mostly white officers because of his race and age. "I have a lot of baggage" with respect to law enforcement, he had said.
When Triplett asked whether he had reported the incidents, the prospective juror said, "Seemed like it would be a waste of time."
Triplett told the judge, "Whether or not he still harbors any animosity is not something I wanted to roll the dice with."
Jackson's lawyers have argued that a non-African American in the pool described negative experiences with law enforcement but was allowed to sit on the jury.
But a three-justice state appellate panel and a U.S. district judge in Sacramento concluded the two sets of experiences were not comparable.
The African American woman excused from the jury has a master's degree in social work and served an internship in the psychiatric ward at Sacramento County's branch jail in Elk Grove.
"I don't like to keep social workers," the prosecutor told the judge. "I don't have any other social workers up on the panel. And, if I had my choice, I wouldn't have any."
Smith did not object when Triplett excused the man but did object to both exclusions after the woman was excused.
Attorneys for the state contend Smith knew he had no grounds for an objection with respect to the man.
But attorney Mark Eibert, appointed counsel for Jackson before the circuit, argues it shows that Smith did not object until a "pattern" developed.
Each of the three lower courts concluded Triplett's reasons were acceptable when measured against legally established race-neutral standards. In addition, they all noted that one juror was African American.
