Ayala v. Wong

Excluding defense counsel during a proceeding to determine whether a peremptory challenge is racially motivated, absent compelling reasons, violates the Constitution because the defense is unable to respond to the prosecution’s justifications and preserve any errors on the record.

Following the fatal shooting of three men, a fourth wounded man identified Hector Juan Ayala and two others as the shooters. During the three month jury selection process, the prosecution used seven peremptory challenges to dismiss prospective black or Hispanic jurors. Ayala objected and brought three motions under Batson v. Kentucky, claiming racial discrimination in the jury selection. After each motion, the judge reviewed the prosecution’s reasoning for the dismissals in camera, without Ayala or his counsel present. Even though the judge found a prima facie showing of racial discrimination by the third motion, he concluded the prosecutor provided race-neutral reasons for the dismissals. The jury convicted Ayala and sentenced him to death. During the trial, questionnaires completed by all but the sitting and alternate jurors were lost. The California Supreme Court held that the trial court erred in excluding defense counsel, but found the error harmless. In determining the standard of review, the Ninth Circuit found the state court did not consider the federal claim after finding a state law violation, thus de novo review was appropriate. The panel held Ayala’s exclusion from the Batson proceedings was a federal constitutional error because he was unable to provide counterarguments and preserve any errors on the record. The panel found the prosecutor’s justifications for dismissal could also apply to seated white jurors, but lacked crucial information to evaluate the prosecutor’s challenges due to the missing questionnaires. The panel thus held Ayala suffered prejudice, and his substantial rights were affected by the exclusion of defense counsel and exacerbated by the missing questionnaires. The panel finally held Ayala’s claims are not barred because at the time his conviction became final, it was established law that defense counsel cannot be excluded from Batson proceedings absent some “compelling justification” for the exclusion. REVERSED and REMANDED.