Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW LOREN COOK,  No. 08-15894

Petitioner-Appellant, D.C. No.

v.  2:02-CV-02240-

LKK-GGH ANTHONY LAMARQUE,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted

May 4, 2009—San Francisco, California

Filed January 7, 2010

Before: Procter Hug, Jr., Michael Daly Hawkins, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman;

Partial Concurrence and Partial Dissent by Judge Hawkins

515
COUNSEL

Allison Claire (argued), Federal Public Defender’s Office,

Sacramento, California, for petitioner-appellant Matthew L.

Cook.

Ward A. Campbell (argued), Eric L. Christoffersen, Office of

the California Attorney General, Sacramento, California, for

respondent-appellee Anthony LaMarque.

OPINION

TALLMAN, Circuit Judge:

Matthew Cook was convicted by a Sacramento County,

California, jury of murder, attempted murder, conspiracy to

commit assault with a firearm, and burglary. In his petition for

a writ of habeas corpus, he argues the prosecutor’s use of

peremptory challenges to strike African American jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. He also alleges prejudice based on jury

misconduct in violation of the Sixth Amendment. The district

court denied the petition. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, and we affirm.

COOK v. LAMARQUE 519
I

On October 16, 1995, Cook and three accomplices broke

into the apartment of Jimmie Fonseca and Carl Kato. They

had plotted revenge after Fonseca “pistol-whipped” Cook in

an earlier incident, and for other offenses against Cook and

his friends. Cook and his accomplices entered the apartment

wearing ski masks and carrying handguns and shot Fonseca

and Kato. Fonseca died and Kato was seriously wounded.

Cook was charged on a four-count information and tried

together with co-defendants Lozo and Gains. 

The Sacramento County Superior Court jury pool consisted

of 195 people. During the selection process, the assistant district attorney used twenty-five of his forty permitted peremptory challenges. Seven of these challenges struck African

American prospective jurors: Watkins, Reynolds, Singleton,

Parker, Tillman, Livingston-Blanks, and Maxey. Three African Americans remained and the prosecutor explicitly noted

his preference that two of these people serve. The defense

used peremptory challenges to strike these two. One African

American was ultimately seated on the jury.

The defendants challenged the prosecutor’s seven strikes

against African Americans and moved for mistrial under Batson v. Kentucky, 476 U.S. 79 (1986), and its California analog, People v. Wheeler, 22 Cal. 3d 258 (1978). The trial judge

held a hearing and discussed the factors bearing on his analysis, including the prosecutor’s credibility. The judge concluded the prosecutor had “used reasonable, acceptable

criteria. They are not pretext, and they are not systematic.”

The case proceeded to trial and Cook was convicted on all

counts.

Cook raised his Batson challenge again on direct appeal.

The California Court of Appeal considered the jurors individually. It noted the reasons given to justify each challenge, and

concluded the given reasons were race-neutral, but did not

520 COOK v. LAMARQUE
provide any discussion or reasoning for why it credited the

prosecutor’s justifications. It did not engage in comparative

juror analysis because, at the time, California law prohibited

an appellate court from performing such analysis for the first

time on appeal. See Ali v. Hickman, 584 F.3d 1174, 1179 (9th

Cir. 2009). The California Supreme Court denied review.

Cook filed a federal habeas petition and the matter was initially referred to a magistrate judge. The magistrate engaged

in an extensive analysis, including comparative juror analysis.

Though he considered the strikes against Jurors Parker, Tillman, and Watkins to be “close cases,” he found no Batson

violation and recommended denial of the petition. The district

court adopted the magistrate’s findings, but, drawing on precedent from other circuits, employed a mixed-motives

approach to resolving the Batson claim. The district court

concluded the prosecutor was motivated by both legitimate

and illegitimate reasons in challenging Juror Watkins, and

explicitly noted that without the mixed-motives analysis, it

would have granted the petition. It concluded the other six

strikes were valid even without mixed-motives analysis. Cook

timely appeals.

II

A

A Batson challenge has three steps: first, “the defendant

must make a prima facie showing that a challenge was based

on race;” second, the prosecution must offer a race-neutral

basis for the challenge; and third, the court must determine

whether the defendant has shown “purposeful discrimination.” Ali, 584 F.3d at 1180; see Batson, 476 U.S. at 96-8. The

only dispute here is whether the state courts reasonably

applied Batson’s third step. To make this determination, we

must consider the “totality of the relevant facts” to decide

“whether counsel’s race-neutral explanation for a peremptory

challenge should be believed.” Kesser v. Cambra, 465 F.3d

COOK v. LAMARQUE 521
351, 359 (9th Cir. 2006) (en banc) (quoting Hernandez v. New

York, 500 U.S. 352, 363, 365 (1991)).

We review de novo a district court’s denial of a habeas corpus petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir.

2005) (en banc).

B

[1] We first consider whether to adopt the mixed-motives

approach employed by the district court. Under mixedmotives analysis, the court’s inquiry does not end with the

evaluation of the prosecutor’s motives at Batson’s third step.

[W]here both race-based and race-neutral reasons

have motivated a challenged decision, a supplementary analysis applies. In these situations, the Court

allows those accused of unlawful discrimination to

prevail, despite clear evidence of racially discriminatory motivation, if they can show that the challenged

decision would have been made even absent the

impermissible motivation, or, put another way, that

the discriminatory motivation was not a “but for”

cause of the challenged decision. 

Kesser, 465 F.3d at 372 (Wardlaw, J., concurring). 

The district court grudgingly adopted the mixed-motives

approach “based on the weight of existing federal precedent.”

See Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002);

Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996)

(per curiam); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir.

1995); United States v. Darden, 70 F.3d 1507, 1530-32 (8th

Cir. 1995); Howard v. Senkowski, 986 F.2d 24, 27-30 (2d Cir.

1993). However, we decline to follow our sister circuits.

Though the mixed-motives approach has obvious utility,

adopting it here would be contrary to the weight of Ninth Circuit and Supreme Court precedent. 

522 COOK v. LAMARQUE
[2] In Kesser, our en banc panel declined to adopt the

mixed-motives approach, despite an extensive concurring

opinion advocating its adoption. 465 F.3d at 371. Shortly after

we decided Kesser, the Supreme Court revisited its Batson

jurisprudence in Snyder v. Louisiana, 128 S. Ct. 1203 (2008).

The Court in Snyder followed its existing approach, declining

to adopt mixed-motives analysis for Batson cases: 

In other circumstances, we have held that, once it is

shown that a discriminatory intent was a substantial

or motivating factor in an action taken by a state

actor, the burden shifts to the party defending the

action to show that this factor was not determinative.

See Hunter v. Underwood, 471 U.S. 222, 228 (1985).

We have not previously applied this rule in a Batson

case, and we need not decide here whether that standard governs in this context. For present purposes, it

is enough to recognize that a peremptory strike

shown to have been motivated in substantial part by

discriminatory intent could not be sustained based

on any lesser showing by the prosecution. 

Id. at 1212 (emphasis added). The Court also alluded to the

difficulty of determining on collateral review which of the

prosecutor’s motives were “but for” causes. Id. (“Nor is there

any realistic possibility that this subtle question of causation

could be profitably explored further on remand at this late

date, more than a decade after petitioner’s trial.”).

[3] Though adopting the mixed-motives approach would

set us in the company of five sister circuits, we and the

Supreme Court have declined to do so. Therefore, we reject

the district court’s mixed-motives analysis, and limit our

inquiry to whether the prosecutor was “motivated in substantial part by discriminatory intent.” Id.

C

[4] To determine whether race was a substantial motivating

factor—that is, whether the defendant has shown “purposeful

COOK v. LAMARQUE 523
discrimination” at Batson’s third step—the trier of fact must

evaluate “the persuasiveness of the justification[s]” offered by

the prosecutor. Purkett v. Elem, 514 U.S. 765, 768 (1995). “In

deciding if the defendant has carried his burden of persuasion,

a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”

Batson, 476 U.S. at 93 (internal quotation marks and citation

omitted). This inquiry includes “side-by-side comparisons” of

the African American panelists who were struck and white

panelists who were allowed to serve. “If a prosecutor’s proffered reason for striking a black panelist applies just as well

to an otherwise-similar nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimination to

be considered at Batson’s third step.” Miller-El v. Dretke, 545

U.S. 231, 241 (2005).

Here, the California Court of Appeal failed to undertake

any meaningful inquiry into direct or circumstantial evidence

of the prosecutor’s intent in striking the jurors.1 The court

merely “reiterat[ed] the prosecutor’s stated reasons, and then

[found] they were race-neutral.” Green v. Lamarque, 532 F.3d

1028, 1031 (9th Cir. 2008). However, the trial court did consider the prosecutor’s proffered justifications and the relevant

facts. The judge discussed the justifications and indicated that

he found them persuasive. By concluding that the stated

criteria were “not pretext,” and “not systematic,” the trial

court made the finding required at Batson’s third step. This

factual finding is entitled to appropriate deference. See

Batson, 476 U.S. at 98 n.21. In particular, we must defer to

the trial judge’s findings regarding the demeanor of the individuals in the courtroom. Hernandez, 500 U.S. at 365 (“As

with the state of mind of a juror, evaluation of the prosecu1Though Batson did not explicitly require a judge to describe his analysis on the record, the Court in Miller-El, 545 U.S. at 241, “presumed the

trial court and state appellate court did not undertake [such] analysis

because [it] was not detailed in their opinions.” Green v. Lamarque, 532

F.3d 1028, 1030 n.2 (9th Cir. 2008). 

524 COOK v. LAMARQUE
tor’s state of mind based on demeanor and credibility lies

‘peculiarly within a trial judge’s province.’ ”) (citations omitted).

We review the state court’s finding that the prosecutor did

not engage in purposeful discrimination under the deferential

standard of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”).2 28 U.S.C. § 2254(d)(2); see Ali, 584 F.3d at

1181 (according deference despite California courts’ failure to

employ comparative juror analysis). Under § 2254(d)(2),3 we

must defer to the California trial court’s conclusion that there

was no discrimination unless that finding “was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

1. Juror Watkins

The prosecutor gave six reasons for challenging Juror Watkins: (1) she reported that her brother had been a victim of a

crime, though in reality he had been convicted of a shooting

following an unsuccessful self-defense claim; (2) she indicated she believed there were problems with the criminal justice system but was “not sure” what they were; (3) she had

worked as an accounting clerk in a law firm; (4) some of her

2The dissent argues that “where a state court fails to apply comparative

juror analysis in making its factual determination regarding pretext, no

AEDPA deference is due . . . .” Dissent Op. at 553. Assuming for the sake

of argument that this statement was correct prior to our opinion in Ali, it

is no longer accurate. See 584 F.3d at 1181. Our decision in Ali clarified

that even if the trial court and the California Court of Appeal “did not

engage in comparative juror analysis,” id. at 1179, where 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, . . .

[s]ection 2254(d)(2) . . . applies,” id. at 1181 n.4. 

3We apply § 2254(d)(2) instead of § 2254(e)(1) because our review of

the state court’s factual determination is based entirely on information that

was contained in the state court record. See Kesser, 465 F.3d at 358 n.1.

As in Kesser, the juror questionnaires and transcripts of voir dire in this

case were before the California courts. 

COOK v. LAMARQUE 525
acquaintances smoked marijuana; (5) she indicated bias in her

evaluation of law enforcement; and (6) she mentioned that

missing work for a long trial would be problematic. The magistrate judge concluded the prosecutor’s strike was permissible, but the district court reached the same result only after

applying mixed-motives analysis.

[5] The prosecutor noted that the first justification was his

primary motivation for the strike. We conclude this concern

was sincere and well-founded. The jury questionnaire asked

whether the juror knew anyone who had been a victim of a

crime. In response to this question, Watkins reported that her

brother “shot someone in self-defense.” In reality, Watkins’

brother had been the perpetrator; self-defense was an unsuccessful defense to prosecution. The brother was convicted and

served seven years, and Watkins said her family felt the result

had been unfair. The prosecutor surmised that Watkins’ statements about her brother’s conviction made her feel “the government is treating an African American person differently,”

or that an “inward” bias had resulted. He went on to say that

“the whole scenario” excluded her from jury service. 

[6] Though the prosecutor mentioned race in stating his

concern with Watkins and her brother’s conviction, the record

reveals that his primary concern was the effect of this incident

on Watkins’ perception of the criminal justice system. He

focused on the conviction and Watkins’ description of the circumstances, rather than her race, and challenged her for cause

on that basis. The trial court apparently understood it that

way. When the defense responded to the prosecutor’s justifications, the trial court noted:

Don’t you concede that’s a pretty significant event in

someone’s life that . . . potentially brings somebody

into a jury who is going to be hyper vigilant, or possibly or likely require a powerfully convincing form

of proof before they [sic] could convict someone

because they [sic] have seen the court system,

526 COOK v. LAMARQUE
through whatever facilities it may be, whether it be

in the form of racial prejudice or just inefficiency,

and/or police chicanery, they [sic] have seen the

court system fail in a very painful way . . . . If you

can’t consider that as an important factor in gauging

someone’s attitude towards [sic] the criminal justice

system and the trial process, I don’t know what you

can consider . . . .

The defense acknowledged that the judge’s comment indicated “[the judge] would think that’s a pretty genuine reason

for excluding a juror.”

[7] Comparative juror analysis also supports the prosecutor’s justification. Cook points to two seated jurors who had

nominally comparable circumstances, but upon close review,

the parallels are weak. Juror 1 reported her cousin had been

arrested 15 years earlier for shooting the cousin’s brother-inlaw. The cousin was released because the investigation

proved it was self-defense. It does not appear the cousin was

ever actually charged with a crime. Juror 1 appears to have

been completely candid with the court and accurately characterized the events. Similarly, Alternate 3 (labeled Juror 15 in

the record) reported that her father had been arrested for murder, but he was not charged. Again, it appears that she was

candid with the court and accurately characterized the events.

[8] These differences are significant. Unlike Watkins, neither of the seated jurors’ relatives were ever actually charged,

let alone convicted. Unlike Watkins, both jurors accurately

described the events, reporting them on the questionnaire as

prior arrests or charges, not as victimization. Unlike Watkins,

neither juror indicated she felt her relative had been treated

unfairly. Because no similarly situated white jurors were permitted to serve, the evidence indicates this justification was

legitimate and not pretextual.

COOK v. LAMARQUE 527
[9] The prosecutor’s second justification—Watkins’ answer

that she perceived problems with the criminal justice system,

but was “not sure” what they were—is closely related to the

first. This answer compounded the prosecutor’s concern that,

in light of her prior contact with the criminal justice system,

Watkins would be an unreliable juror in a criminal case. By

comparison, Jurors 1 and 15, whose relatives had been

arrested, both said there were no problems with the criminal

justice system. Only Juror 6 gave the same answer as Watkins, indicating that problems exist but he did not know what

they were.4 However, Juror 6 shared none of Watkins’ other

troubling characteristics. He is not an “otherwise-similar”

juror, see Miller-El, 545 U.S. at 241, which nullifies any comparative value. The remaining jurors either indicated that

there were no problems with the system, or indicated there

were problems but gave concrete examples of those problems.

Based on our review of Watkins’ statements about her brother

and their experience with the criminal justice system, we conclude the prosecutor’s second justification is also persuasive.

The prosecutor’s third justification is weak, but not clearly

pretextual. The prosecutor mentioned that Watkins worked in

a law firm, where she was an accounting clerk, though he

stated this was not a “controlling” factor. We question

whether an administrative role in a law firm would significantly affect a juror’s views of the legal process, and the prosecutor did not expound on his reasoning. However, it is

plausible that daily contact with lawyers would shape a person’s perception of a trial, and a juror’s occupation is generally a legitimate reason for a peremptory challenge. See

United States v. De Gross, 960 F.2d 1433, 1438 n.8 (9th Cir.

1992). Comparative juror analysis supports this justification:

no seated juror had ever worked in a law firm. There is no

evidence from the questionnaires that this reason was pretextual. 

4

Juror 6 identified himself as Pacific Islander. 

528 COOK v. LAMARQUE
The prosecutor’s fourth justification is also weak, but nonetheless supported by a comparative review of the questionnaires. The prosecutor mentioned that Watkins had

acquaintances who smoked pot, which might indicate that she

condoned such activity. Jurors 5 and 7 indicated that they

used marijuana in the distant past. Jurors 9 and 11 indicated

a relative had used pot in prior years. However, no nonAfrican American juror said that his or her acquaintances

used drugs in the present.5 Juror 2 indicated his or her niece

had a drug problem, which at first glance might support an

inference of pretext. However, Juror 2 is also African American and therefore provides a weak basis for comparison. See

Miller-El, 545 U.S. at 241 (“If a prosecutor’s proffered reason

for striking a black panelist applies just as well to an

otherwise-similar nonblack who is permitted to serve . . . .”

(emphasis added)). The presence of another African American

with a similar characteristic supports the conclusion that the

prosecutor was sincere when he said he was most concerned

with Watkins’ answers regarding her brother’s conviction.

Therefore, the questionnaire comparison supports this justification.

The prosecutor’s remaining justifications are unpersuasive.

The prosecutor’s fifth justification was Watkins’ answer to

the question on the truthfulness of police testimony. The prosecutor stated he was concerned that Watkins did not believe

5This is an essential factual distinction. The dissent argues that comparative juror analysis between Watkins, an African American juror who had

acquaintances who used drugs contemporaneously with the trial, and

Jurors 5 and 7, non-African Americans who themselves used marijuana

“many years ago” or “16 years ago,” can only lead to one conclusion: “the

prosecutor’s asserted concern about condoning drug use was not his actual

reason for striking Watkins.” Dissent Op. at 565. However, based on the

distinction between prior drug use and contemporaneous drug use, another

conclusion can be made: the prosecutor was concerned that a juror with

acquaintances currently using drugs, and currently breaking laws, would

be more likely to condone a violation of the law than jurors who had used

drugs several years ago. 

COOK v. LAMARQUE 529
police witnesses were always truthful. What she actually said

was, “I don’t believe police officers are always truthful, but

I don’t believe the civilian would be either.” This mischaracterization of Watkins’ answer is evidence of discriminatory

pretext. See Miller-El, 545 U.S. at 244; Ali, 584 F.3d at 1190.

Moreover, seated Jurors 1, 5, 6, and 10 gave similar answers,

supporting the inference of pretext. See Miller-El, 545 U.S. at

241. Similarly, the justification that Watkins faced “work

pressures” resulting from “too long of a case” is unpersuasive.

Many, if not most, jurors would feel some hesitation about

missing work for an extended period of time. Jurors 6 and 10

gave similar answers. These comparisons undermine the prosecutor’s reliance on this justification and provide evidence of

pretext. Id.

[10] In sum, the prosecutor gave four legitimate and two

illegitimate grounds for striking Juror Watkins. The prosecutor’s two primary motivations are quite persuasive and are

unrefuted by the record. Had he stopped talking after giving

his first two justifications, this strike would be exceptionally

easy to review. Because of the weaker and implausible justifications, however, each of the reviewing courts has concluded

that Juror Watkins presents a difficult question. Careful

review of the record ultimately supports the conclusion that

the prosecutor was sincerely and justifiably concerned with

Watkins’ views of, and her brother’s experience with, the

criminal justice system. The state court’s conclusion that valid

grounds, and not race, motivated the strike, was not objectively unreasonable.

2. Juror Reynolds

The prosecutor gave four justifications for challenging

Juror Reynolds: (1) Reynolds’ skepticism regarding circumstantial evidence; (2) his weird appearance; (3) his excessive

eagerness to serve and focus on race; and (4) his views on the

O.J. Simpson case.

530 COOK v. LAMARQUE
[11] The prosecutor expressly stated that he relied “primarily” on Reynolds’ answers about circumstantial evidence.

Reynolds indicated on his questionnaire, even after being

given the typical instruction on the valid uses of circumstantial evidence, that he had some “quarrel with this rule of law,”

and that he would not follow the rule that circumstantial evidence could be relied upon. After the judge explained the concept to the prospective jurors, Reynolds still expressed

hesitation about relying on circumstantial evidence. The prosecutor challenged Juror Reynolds for cause, and his concern

with Reynolds’ ability to follow the law appears sincere. As

the magistrate noted, “[a]ny reasonable prosecutor would

challenge this juror” because of his statement that he would

not follow the law. Comparative juror analysis indicates this

justification was sincere. No seated juror expressed hesitation

about relying on circumstantial evidence. We therefore find

the prosecutor’s primary reason persuasive.

The prosecutor’s remaining justifications relate largely to

Reynolds’ demeanor. He first stated Reynolds was “weird in

appearance” and improperly groomed because he was wearing a t-shirt. Second, when asked why he wanted to be a juror,

Reynolds responded: “I have never been a juror, and I think

that being a black person, a lot of people have died for me to

get this right of all colors, not just black people, so I’m honored to be here.” Finally, in discussing the O.J. Simpson case,

he stated, “it pays to have wealth.” 

[12] Taken individually, these factors might seem so innocuous they would not support a peremptory challenge. However, considered together, it is plausible that an unbiased

prosecutor would be concerned by the juror’s overall demeanor. See Snyder, 128 S.Ct. at 1208 (“In addition, race-neutral

reasons for peremptory challenges often invoke a juror’s

demeanor (e.g., nervousness, inattention), making the trial

court’s first-hand observations of even greater importance.”);

Williams v. Rhoades, 354 F.3d 1101, 1109 (9th Cir. 2004)

(citing Burks v. Borg, 27 F.3d 1424, 1429 & n.3 (9th Cir.

COOK v. LAMARQUE 531
1994) for the proposition that “[a] prosecutor’s evaluation of

a juror’s demeanor, tone, and facial expressions may lead to

a ‘hunch’ or ‘suspicion’ that the juror might be biased, and

that a peremptory challenge based on this reason would be

legitimate”). Though the questionnaire elicited the jurors’

views on race, Reynolds’ statement, “a lot of people have died

for me to get this right of all colors, not just black people,”

is strangely and strongly phrased. Similarly, though many

jurors commented on the O.J. Simpson case, Reynolds’ reaction is uniquely cynical and could plausibly indicate bias in

favor of defendants who do not have wealth. None of the

seated jurors gave similar statements about being a juror or

their views of the O.J. Simpson case. Therefore, the state

court reasonably concluded that the prosecutor’s reasons were

not pretext for racial bias.

3. Juror Singleton

The prosecutor gave five reasons for striking Juror Singleton: (1) Singleton stated that he had three grown children but

did not know their ages or whereabouts; (2) his statement that

law-enforcement testimony could be “self-serving;” (3) his

statement that he had been a victim of racism; (4) Singleton

didn’t want to serve and had some medical problems; and (5)

he had been court-martialed for driving under the influence

and domestic problems.

[13] Here, the prosecutor’s main rationales related incidentally to race, but it appears he was ultimately concerned with

the effect prior experiences of racism would have on Singleton’s attitude toward the trial. The prosecutor cited the courtmartial as the “most troubling,” followed by Singleton’s

description that he “was arrested once for something only

because [he] was with a woman of another race.” Singleton

listed both incidents as “bad experience[s]” with law enforcement. The prosecutor claimed Singleton’s response 

places the Government in this case, who has to produce law enforcement officers, and seeks credibility,

532 COOK v. LAMARQUE
that places me in a situation where he may be

inclined to be sympathetic and leaning toward the

defense in this case in light of the race of two of the

defendants . . . and it seemed to me he was very

emotional when he responded to the court. When

you asked him about that, he was emphatic about

that, certainly he was troubled by that . . . . 

Moreover, Singleton answered “Yes” to the question, “Do

you think this experience might cause you to be unfair to

either side in this case?”

6

Juror Singleton’s answer, “I’m a black man in America,” to

a question about prejudice also troubled the prosecutor. The

prosecutor compared Singleton to Jurors Green, Gilbert, and

Barnes—three African Americans the prosecutor would have

permitted to serve. He noted these three other prospective

jurors had experienced racial prejudice, but their comments

demonstrated they did not feel victimized. He was concerned

that Singleton saw himself as a victim, which might translate

into sympathy for the African American defendants, and that

his attitude against law enforcement officers was a problem.

Our comparative analysis supports this justification. Juror 2,

the only African American to serve on the jury, also grew up

in the deep South during the Jim Crow era. However, Juror

2 did not think his experiences would affect his impartiality,

and did not give any strongly worded answers about race or

racism.

The prosecutor gave two secondary supporting justifications. First, he mentioned that Singleton did not know the

ages or whereabouts of his children. He expressed concern

that this reflected poorly on his personal relationships and

connection to the community. Though not a dispositive issue,

6During the hearing, Singleton changed his answer and said it wouldn’t

affect him. However, the prosecutor was consistent in giving more weight

to questionnaire answers than those stated in open court. 

COOK v. LAMARQUE 533
it does bear on the prosecutor’s overall impression of this

juror. Similarly, the prosecutor was concerned that Singleton

said law enforcement witnesses could be “self-serving.”

Unlike Juror Watkins’ balanced and fair evaluation of police

witnesses, Singleton’s response reflects outright bias against

law enforcement witnesses. A prosecutor who planned to call

several law enforcement witnesses would be justifiably concerned with this view. No seated juror shared either of these

characteristics, which supports the conclusion that these justifications, though secondary, are legitimate.

The prosecutor’s last remaining justification is unpersuasive. He noted that Singleton did not want to serve. As noted

above, this is true for many prospective jurors. Indeed, comparative analysis reveals Jurors 3 and 12 gave similar answers

but were permitted to serve anyway. However, neither of

these jurors shared any of Singleton’s other troubling characteristics. We cannot conclude that, even if this reason was

mere pretext, the prosecutor’s primary motivation was race.

Though Juror Singleton presents a close case because of the

prosecutor’s reference to race, we ultimately agree with the

district court that the stated reasons were not pretextual. We

cannot say that the state court was objectively unreasonable

in concluding that attitude, and not race, was the motivating

factor. 

4. Juror Parker

The prosecutor stated that he challenged Juror Parker

because: (1) she lacked interpersonal experience, including

the fact that she had never worked outside the home; (2) she

stated she was unwilling to determine a person’s state of mind

from circumstantial evidence; and (3) she disapproved of

accomplice testimony. 

[14] There is no evidence in the record that these reasons

were pretextual. Though the prosecutor’s conviction that

534 COOK v. LAMARQUE
homemakers have insufficient social skills to be good jurors

strikes us as outdated, that justification has previously been

validated. See Stubbs v. Gomez, 189 F.3d 1099, 1106-07 (9th

Cir. 1999). In this case, it appears sincere, especially in light

of Parker’s other traits. The prosecutor also mentioned that

Parker was “very quiet,” and had answered she was “unsure”

whether she could judge the believability of witnesses based

on her own life experiences and knowledge of people. Both

of these observations support the conclusion that Parker could

have been a weak juror. Finally, in examining the members of

the empaneled jury, we find that no other homemakers were

permitted to serve. 

The record also bears out the prosecutor’s second justification. Parker stated on her questionnaire that she did not

believe it was possible to determine mental state from facts

and circumstances. The prosecutor called this belief “very disconcerting.” Given the nature of the evidence presented in this

case, we agree with the prosecutor’s assessment. No seated

juror gave such an answer or otherwise disapproved of the use

of circumstantial evidence. The comparison therefore supports the inference that this reason was not pretextual.

Third, the prosecutor was concerned that Parker disapproved of accomplice testimony and bargaining for lesser

charges in exchange for testimony. Parker left the question

about accomplice testimony blank, and later said she disapproved of its use. Though these actions would generally be

valid grounds for a strike, comparative juror analysis undermines this justification here. Other jurors gave comparable

answers. Juror 5 wrote, “Neither approve or disapprove. In

some cases a person’s version of the truth may be swayed by

an offer of leniency.” Juror 6 also checked “disapprove.”

Juror 8 wrote, “I would approve as long as the witness is held

accountable for his part in the crime.” Juror 14 checked “disapprove” and wrote, “I feel that if you helped someone commit a crime, that you are just as responsible.” Like Parker, all

of these jurors indicated they would not reject any accomplice

COOK v. LAMARQUE 535
testimony introduced at trial. Because four seated jurors questioned the use of accomplice testimony, this justification is

suspect. However, none of these jurors shared any of Parker’s

other detracting characteristics, so we do not believe they are

“otherwise-similar” for purposes of ascertaining pretext. See

Miller-El, 545 U.S. at 241.

Finally, the prosecutor mentioned race in giving his justifications. He noted Parker left the question describing ethnic

background blank, and questioned whether that meant she

found the question offensive or had a “racial slant.” However,

he stated this was not “overly significant,” and no seated juror

omitted this answer. Therefore, we cannot conclude that Parker’s omission of this answer was a substantial motivating

factor in the prosecutor’s decision to strike. 

The state court reasonably concluded the motivating factor

was Parker’s disapproval of accomplice testimony and her

lack of life experience. Both reasons are valid and not pretextual.

5. Juror Livingston-Blanks

The prosecutor stated that he challenged Juror LivingstonBlanks because: (1) her brother was a murder victim and she

hesitated in her response to the court when questioned on the

issue; (2) she stated she was the victim of domestic violence

and false arrest, but further investigation showed that she was

the offender in two domestic violence citations, rather than

the victim; (3) she had worked for the County’s Health and

Human Services and Child Protective Services departments,

which might indicate a liberal viewpoint and sympathy with

the defendants; and (4) she listed the false arrest and domestic

violence incidents as instances where she had a bad experience with law enforcement. 

[15] The prosecutor indicated the first two reasons were the

most important reasons for the strike. First was the murder of

536 COOK v. LAMARQUE
Livingston-Blanks’ brother. The prosecutor was concerned

with “the same type of crime, the same nature of crime, how

it might affect her ability here. I couldn’t articulate—it’s one

of those feelings . . . she seemed to somewhat hesitate in

responses to [the court] on that issue.” Our review of the cold

appellate record indicates Livingston-Blanks responded in a

straightforward manner to the court’s questions about her

brother’s murder. However, the prosecutor twice mentioned

that she was hesitant in her answers, and neither the judge nor

defense counsel disputed that characterization. The mere fact

of the murder provides a legitimate justification for the strike.

The fact that Livingston-Blanks was hesitant in her answers

makes the justification even more persuasive. It also distinguishes her from seated Juror 6, whose brother-in-law was

murdered.

The second stated justification, also very important to the

prosecutor, was Livingston-Blanks’ misleading statements to

the court. She reported on her questionnaire that she was the

victim of domestic violence and false arrest. The prosecutor’s

independent investigation showed that she had actually been

the offender in two domestic violence citations. Cook claims

this juror’s questionnaire answer was ambiguous. However,

the questionnaire clearly asks whether “you or anyone close

to you [had] ever been the victim of a crime.” She reported on

the questionnaire that she had been falsely arrested and wrote

“spousal abuse charge.” She did not disclose that she had

entered a guilty plea as the perpetrator of the spousal abuse.

To the extent that Livingston-Blanks meant that her boyfriend

had been a victim of her own actions, she could have indicated that in the next question, “have you . . . ever been

arrested or charged of [sic] a crime . . . ?” She dishonestly

checked “No” under that question. This lack of candor with

the court, combined with the fact that she listed these domestic violence and false arrest incidents as bad experiences with

law enforcement, provide ample, non-racial justification for

the strike.

COOK v. LAMARQUE 537
With respect to her work experience, the prosecutor

explained why experience in those agencies might make

Livingston-Blanks sympathetic to defendants. Though the

prosecutor’s logic in this respect is weak, the record on this

factor pales in comparison to Livingston-Blanks’ misrepresentations to the court. For the same reason, we reject Cook’s

attempts to compare Livingston-Blanks to Alternate 3, who

was a licensed social worker, nurse, and nun; and Juror 6,

whose brother-in-law had been murdered. Neither of these

jurors misrepresented the salient facts of their criminal experiences to the court. The magistrate noted, “[n]o reasonable

prosecutor would fail to strike a juror who arguably misled

the court as to the facts of her personal criminal experience.”

The state court reasonably concluded the stated reasons were

not pretext, and race was not a substantial or motivating factor

for the strike. 

6. Juror Tillman

The prosecutor gave five reasons for challenging Juror Tillman: (1) he did not disclose to the court that he had been

arrested for a DUI and that his girlfriend had recently

assaulted him; (2) he stated in the questionnaire that law

enforcement is not always truthful; (3) his response to a question about witness believability indicated an inability to discern lying under oath; (4) he might be inflexible as a juror

because he said he could make up his own mind about what

a “picture” represented; and (5) his aunt had been arrested for

drug use. 

[16] We agree with the magistrate judge that Juror Tillman

presents a close case, but the evidence ultimately supports the

prosecutor’s strike. Here, the primary reason for the challenge

was Tillman’s failure to report his DUI and his girlfriend’s

assault. As we noted above, misrepresentations to the court

regarding criminal experience are an extremely persuasive

reason for using a peremptory challenge. Our review of Till538 COOK v. LAMARQUE
man’s questionnaire indicates he did, in fact, mislead the

court about his experience with the criminal justice system.

The remainder of the prosecutor’s stated reasons are unpersuasive. In response to the question, “Do you feel that a police

officer’s testimony will necessarily be more truthful or more

accurate than that of a civilian witness?” Tillman responded,

“No—they are still human.” This answer indicates fairness,

rather than bias against police officers. Moreover, Jurors 1

and 10 gave very similar answers, which supports an inference this reason was mere pretext.

Similarly, the prosecutor questioned Tillman’s statements

on truthfulness. Yet Tillman’s answer simply restates the

legal incentive created by perjury law: “Being that perjury is

a crime, it does not allow a person to lie and feel they would

not be caught.” He indicated that even people with whom he

personally disagreed could tell the truth. No seated juror gave

a similar answer, but the prosecutor’s justification still makes

little sense.

The prosecutor’s reference to inflexibility also strains credibility. He believed Tillman might be inflexible because he

had answered he could look at a “picture” and make up his

own mind about what the “picture” represented. However, he

also answered that, “If I can really see their view,” he would

change his vote if his fellow jurors persuaded him his initial

view had been incorrect. This, as the magistrate judge noted,

is “the antithesis of inflexibility.” 

Finally, the fact that Tillman’s aunt had used crank and had

a drug problem is weak ground for a challenge. Non-black

Jurors 9 and 11 also had relatives who had used drugs, though

both noted the drug use was in the distant past. Only Juror 2,

who is black, gave a comparable answer: his niece had a drug

problem. Because the prosecutor passed on this African

American juror with the same characteristic, we may take the

prosecutor at his word that this factor was merely cumulative

COOK v. LAMARQUE 539
in his decision to strike Tillman. Therefore, this factor does

not weigh heavily on our analysis.

Tillman’s misrepresentations to the court regarding his

criminal experience would be more than adequate grounds for

any prosecutor to use a peremptory challenge. Though the

unpersuasive justifications are greater in number, the valid

reason is overwhelming in substance, and we must consider

the “totality of the relevant facts.” Kesser, 465 F.3d at 359.

Any bias betrayed by the prosecutor’s subsequent strained and

rambling reasons could not have been a substantial or motivating factor in the strike.

7. Juror Maxey

The prosecutor gave three reasons for challenging Juror

Maxey: (1) she made a hardship request; (2) she was “addicted” to the O.J. Simpson case and CourtTV; and, (3) she noted

two incidents she believed involved the use of excessive force

by the police.

[17] Like many jurors, Maxey expressed reluctance about

serving on the jury due to time constraints at work. However,

she considered it significant enough to submit a hardship

request because she was transferring jobs and serving would

require her to work evenings and weekends, which still would

not permit her to complete all of her pending work. The prosecutor considered her to be sufficiently reluctant that she

might not be a diligent, attentive juror. No seated juror made

a formal hardship request, so comparative analysis supports

this justification.

Though many jurors stated that they had followed the O.J.

Simpson case, Maxey admitted that it actually affected her

perception of the legal process. She stated, “I suppose the

exposure to the Simpson trial & CourtTV enlightened me that

all are not honest.” The prosecutor was concerned that she

would form such a strong opinion based on TV. He made the

540 COOK v. LAMARQUE
reasonable argument that judgments made in light of media

coverage might not “bode well” for the prosecution. As mentioned above, no seated juror expressed strong views on the

O.J. Simpson case. The Simpson case and the media’s coverage were controversial topics nationwide. We conclude the

prosecutor’s concern was sincere, and our juror comparisons

support this view.

Finally, Maxey had witnessed an officer use excessive

force, but said it would not cause her to be unfair to either

side in this case. She treated the issue as fairly minor during

the hearing: “I believe I remember calling to try to report it,

but I don’t remember, it’s been awhile ago. I don’t think anything ever came of it.” The prosecutor was nonetheless concerned that this would make her distrustful of law

enforcement, the District Attorney’s office, and the prosecution witnesses. Though Maxey treated it as a minor matter, the

prosecutor noted that she cared enough to report it to the

authorities. It seems quite plausible that the incident would

affect her perception of law enforcement. Comparative juror

analysis bears out this conclusion; no juror who was permitted

to serve had witnessed any incidents of officers using excessive force.

The state court concluded these reasons were not pretextual. We agree, and therefore conclude race was not a significant motivating factor in the strike.

8. Cumulative Evidence

The prosecutor struck seven black jurors. This unquestionably calls for a searching inquiry. On the other hand, he

passed on three black jurors, two of whom were later struck

by the defense, and gave clear reasons why he had affirmatively wished to have those jurors seated. These reasons were

directly related to many of the reasons for which he had

stricken the other jurors. For instance, the prosecutor passed

on Juror Green, who, like Jurors Reynolds and Singleton,

COOK v. LAMARQUE 541
indicated that she had been the victim of racial prejudice. The

prosecutor expressed the same concern that such experiences

might lead to a pro-defense tendency, but believed her other

attributes—including her profession, raising a family, and

having previously served on a jury—would make her a good

juror.

Similarly, the prosecutor passed on Juror Gilbert, who, like

Juror Parker, watched law-related TV shows. Gilbert, however, indicated that she put the shows in perspective and was

not influenced by what she watched. Gilbert, like Watkins,

had a close relative who had been convicted of a crime, but

the prosecutor liked her “strong, no hesitation” responses that

the relative had been treated fairly and was not a victim of the

system. The prosecutor noted that Jurors Gilbert and Burns

approved of accomplice testimony, making them favorable

jurors for the prosecution, unlike Juror Parker. These comparisons indicate that the prosecutor was sincerely trying to evaluate each juror’s attitude and characteristics based on his or

her questionnaire responses, regardless of the person’s race.

One of the defense lawyers noted, “I think it bodes well for

[the prosecutor] with regard to the pass issue.”

The prosecutor also seems to have been consistent in his

questioning of prospective jurors. He noted at the beginning

of the Batson hearing that he placed more weight on the questionnaire responses, and preferred not to ask too many questions in voir dire. The judge commented that he had noticed

the prosecutor’s behavior in that respect; there was no indication that the judge believed the prosecutor had asked a greater

or lesser number of questions of the jurors he struck. This

consistency contrasts with Miller-El, where the prosecutor

had questioned African American jurors more closely than

white jurors on subjects equally applicable to both. Disparate

questioning based on race supported the Court’s conclusion

that the prosecutor’s stated justifications were mere pretext.

545 U.S. at 255-63. That was not the case here.

542 COOK v. LAMARQUE
The prosecutor here also appears to have been consistent in

his investigations of the jurors. He conducted an independent

police records check on Tillman and Livingston-Blanks,

which alerted him that they had not been honest about their

criminal history. Responding to defense counsel’s allegation

that he had only investigated the African Americans, the prosecutor noted that he had also investigated a white juror on the

basis of an odd questionnaire answer. His search turned up a

criminal report, and he excluded her for cause. He said he

would have conducted similar searches on other white prospective jurors if he had reason to do so.

Neither the trial court nor the California Court of Appeal

made an explicit credibility finding, but the trial court’s comments clearly bear on this inquiry. See Snyder, 128 S. Ct. at

1208 (“Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility and ‘the best evidence [of

discriminatory intent] often will be the demeanor of the attorney who exercises the challenge.’ ”) (quoting Hernandez, 500

U.S. at 365). In ruling on the Batson motion, the court noted,

[The prosecutor] has to try the case to a jury of

twelve persons who are reasonably receptive to the

prosecution’s side of the case, and regardless of what

someone’s animosity to the police is based on,

whether it’s based on, in fact, injustice in the past,

still that person very likely brings into the jury box

some hostilities to the police process, and the prosecutorial process, so there can be, and in this case

there is justification for the exclusion of [the challenged jurors.] 

This, and the trial court’s other statements, show the court

was receptive to the prosecutor’s stated justifications. The

court apparently deemed the prosecutor credible when he

stated that he had excused these jurors for reasons related to

their views, experiences, and attitudes, rather than race itself.

COOK v. LAMARQUE 543
[18] In sum, our review of the record in total indicates that

the prosecutor gave both persuasive and unpersuasive justifications for his strikes. Even assuming the unpersuasive

grounds were actually pretext, we cannot conclude his strikes

were ultimately motivated in substantial part by race. 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 nonracial grounds,” we must conclude that

his “actual and only reason for striking [the juror] was her

race.” 465 F.3d at 360. Our review of the record reveals some

of the prosecutor’s reasons were unpersuasive, but the most

significant justifications in each instance were entirely sound.

It does not appear that race was the “only reason” for the

strikes, or even that the prosecutor’s actions were “motivated

in substantial part by discriminatory intent.” Snyder, 128 S.

Ct. at 1212. Under AEDPA’s deferential standard of review,

we cannot conclude that the state court’s finding that there

was no discrimination was objectively unreasonable.

III

Finally, we consider whether Cook suffered a violation of

his Sixth Amendment right to an impartial jury. On the third

day of deliberations, Juror 12 informed the judge that she had

overheard a conversation between co-defendant Gomez and

his attorney about two weeks earlier. Juror 12 believed the

statements indicated the defendants were all present at the

scene, which, if true, would seriously undermine their alibi

defense. 

Under the Sixth Amendment, Cook has a constitutional

right to an impartial jury, the right to confront those who testify against him, and the right to conduct cross-examination.

See Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); Turner v. Louisiana,

379 U.S. 466, 472-73 (1965). The California Court of Appeal

found, and the state does not dispute, that the incident here

constituted jury misconduct. The Court of Appeal presumed

544 COOK v. LAMARQUE
prejudice but concluded the error was harmless because the

prejudice was “sufficiently dissipated by several factors.” 

We review this finding de novo as a mixed question of law

and fact. See Sassounian v. Roe, 230 F.3d 1097, 1108 (9th

Cir. 2000). Cook is entitled to habeas relief only if the error

had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993). In making this determination, we consider

the following factors:

(1) whether the extrinsic material was actually

received, and if so, how; (2) the length of time it was

available to the jury; (3) the extent to which the jury

discussed and considered it; (4) whether the material

was introduced before a verdict was reached, and if

so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on

the issue of . . . whether the introduction of extrinsic

material [substantially and injuriously] affected the

verdict. 

Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (alterations

in original) (quoting Bayramoglu v. Estelle, 806 F.2d 880,

887 (9th Cir. 1986)). Within the fifth factor, we look to other

considerations that “might nonetheless suggest that the potential prejudice of the extrinsic information was diminished in

a particular case.” Sassounian, 230 F.3d at 1109 (quoting Jeffries v. Wood, 114 F.3d 1484, 1491 (9th Cir. 1997) (en banc),

overruled on other grounds by Lindh v. Murphy, 521 U.S. 320

(1997)). These considerations may include:

(1) whether the prejudicial statement was ambiguously phrased; (2) whether the extraneous information was otherwise admissible or merely cumulative

of other evidence adduced at trial; (3) whether a

curative instruction was given or some other step

taken to ameliorate the prejudice; (4) the trial context; and (5) whether the statement was insufficiently

prejudicial given the issues and evidence in the case.

COOK v. LAMARQUE 545
Id.

There is no question that the information was actually

received before the jury reached a verdict. However, the other

factors support the conclusion that the misconduct was not

prejudicial. Juror 12 told the other jurors about the incident at

3:45 p.m. on Friday. The foreperson immediately told the

other jurors to disregard the information and told Juror 12 that

she was wrong to share it. The jury stopped deliberating ten

minutes later. Juror 12 left a message for the trial judge the

same day, and he addressed it first thing on Monday morning.

More importantly, the trial judge conducted a full hearing

and questioned each juror individually. “[T]he Supreme Court

has stressed that the remedy for allegations of jury bias is a

hearing, in which the trial court determines the circumstances

of what transpired, the impact on the jurors, and whether or

not it was prejudicial.” United States v. Dutkel, 192 F.3d 893,

899 (9th Cir. 1999) (internal quotation marks omitted). Each

juror, including Juror 12, indicated he or she could disregard

the statement. Out of an abundance of caution, the trial court

dismissed Juror 12. The hearing revealed that the jurors perceived the comment as minor in light of the entire body of

trial evidence. As Juror 4 noted, “There’s certainly a lot of

evidence to consider in this trial without considering or giving

any wait [sic] to that comment.” 

[19] Finally, the jury was instructed to base its decision on

the facts and the law as stated by the judge, and admonished

to disregard the extrinsic information. We presume that jurors

follow the instructions given, Weeks v. Angelone, 528 U.S.

225, 234 (2000), and there is no evidence in the record that

the jury failed to do so here. The district court correctly concluded that Juror 12’s misconduct did not have a substantial

or injurious effect on the jury’s verdict.

IV

We conclude Cook did not suffer any violation of his rights

under the Fourteenth or Sixth Amendments. 

AFFIRMED.

546 COOK v. LAMARQUE
Volume 2 of 2

COOK v. LAMARQUE 547
HAWKINS, Circuit Judge, Concurring in part and Dissenting

in part:

I agree with and applaud the majority’s adoption of the

“substantial or motivating factor” test to determine challenges

under Batson v. Kentucky, 476 U.S. 79 (1986). In recent Batson cases, the Supreme Court has specifically declined to

adopt the “but for” causation requirement. See Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (declining to require “but

for” causation and explicitly noting that the Court had never

previously applied such a requirement); Miller-El v. Dretke,

545 U.S. 231 (2005) (“Miller-El II”) ; Miller-El v. Cockrell,

537 U.S. 322, 346 (2003) (“Miller-El I”) (“Even though the

practice of jury shuffling might not be denominated as a Batson claim because it does not involve a peremptory challenge,

the use of the practice here tends to erode the credibility of the

prosecution’s assertion that race was not a motivating factor

in the jury selection.”) (emphasis added). 

Moreover, although the initial three-step framework of Batson does derive from Title VII jurisprudence, the “but for”

causation requirement that has been applied in those contexts,

see, e.g., Costa v. Desert Palace, 539 U.S. 90, 94-95 (2003);

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 287 (1977), is not appropriate in the distinct Batson context. The difficult task of “ferreting out discrimination” would

be made nearly impossible by a “but for” causation requirement, which would require a court to engage in counterfactual

reasoning, often with only a sparse record to guide it. See

Kesser v. Cambra, 465 F.3d 351, 376-77 (9th Cir. 2006) (en

banc) (Berzon, J. concurring).

Jury selection is a brief process in which peremptory challenges are based on a prosecutor’s judgments or feelings alone,1

with little, if any, recorded discussion. See Miller-El II, 545

1The attempt of the prosecutor in the present case to explain his rationale for one strike as “one of those feelings” is illustrative. 

548 COOK v. LAMARQUE
U.S. at 239 (noting the “practical difficulty of ferreting out

discrimination in selections discretionary by nature, and

choices subject to myriad legitimate influences, whatever the

race of the individuals on the panel from which jurors are

selected”). Permitting blatant instances of discrimination to go

undeterred in such circumstances, however, would be contrary to Batson’s purpose, eviscerate its protections in many

cases, and erode public confidence in the neutrality of the

criminal justice system. See Miller-El II, 545 U.S. at 238

(stating that “the very integrity of the courts is jeopardized

when a prosecutor’s discrimination invites cynicism respecting the jury’s neutrality, and undermines public confidence in

adjudication”) (internal quotation marks and citation omitted);

Powers v. Ohio, 499 U.S. 400, 411 (1991) (“[R]acial discrimination in the selection of jurors ‘casts doubt on the integrity

of the judicial process.’ ”) (quoting Rose v. Mitchell, 443 U.S.

545, 556 (1979); see also Wilkerson v. Texas, 493 U.S. 924,

928 (1989) (Marshall, J., dissenting from denial of certiorari)

(stating that racial discrimination in jury selection is “perhaps

the greatest embarrassment in the administration of our criminal justice system”). 

Where I part company with the majority is in its application

of the “substantial or motivating factor” standard to the challenge Matthew Cook (“Cook”) makes here. For me, the

proper application of that test would, as the district court

stated, lead to a grant of Cook’s habeas petition. I reach this

conclusion because the prosecutor’s treatment of AfricanAmericans contrasts starkly with his far different treatment of

non-African-Americans. Any fair comparison of the seven

strikes he exercised and those he declined to strike demonstrates that his conduct violated Cook’s rights under Batson

and its progeny. 

When the dust settled from jury selection, the prosecutor

had struck seven out of nine African-American venirepersons

(77%) while striking only twenty-three out of ninety nonAfrican-American venirepersons (26%), using 23% of his

COOK v. LAMARQUE 549
challenges against African-Americans even though they comprised only approximately 11% of the jury pool. 

Finding that the defense had established a prima facie case,

the trial court required the prosecutor to state his reasons for

exercising the seven peremptory challenges. Although there

was a general analysis of the credibility of these explanations,

the trial court did not consider each strike individually. It

found that the prosecutor had “used reasonable, acceptable

criteria” that were not pretextual or a “systematic . . . effort

to exclude black persons from this jury.” The case went to

trial before a fifteen-person jury with one African-American,2

and Cook was convicted on all counts. 

Prior to voir dire, prospective jurors completed a questionnaire,3

 which the prosecutor claims to have heavily relied

2The jurors self-identified their “ethnic background[s]” as follows:

seven “white” or “Caucasian,” one “Asian,” one “black,” one “Croatian,”

one “Irish,” one “Italian American,” one “Mexican American,” and one

“Pacific Islander” (Juror 11’s background is unclear from the record).

“[T]he presence of one African-American on the jury does not preclude

a Batson challenge,” United States v. Torres-Ramos, 536 F.3d 542, 558

(6th Cir. 2008), because the “more powerful” comparison is between

“black venire panelists who were struck and white panelists allowed to

serve.” Miller-El II, 545 U.S. at 241; see also Turner v. Marshall, 63 F.3d

807, 814 (9th Cir. 1995) (“In denying a Batson motion . . . a trial court

may not rely solely on the fact that some African-Americans remain on the

jury.”), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685

(9th Cir. 1999). 

3The questionnaire included the following questions, among others: 

• “How would you describe your ethnic background?”; 

• “How closely did you follow the O.J. Simpson trial?”; 

• “How, if at all, did the O.J. Simpson trial affect your view of

the courts and the criminal justice system?”; 

• “Some people think that everyone is biased to some degree.

What do you think of that statement?”; 

• “Would you say that you were raised in an atmosphere free

of prejudice?” 

550 COOK v. LAMARQUE
upon in deciding to exercise strikes.4

 In response to the defendants’ Batson/Wheeler motion, the prosecutor explained his

strikes against each of the seven venirepersons. 

On direct appeal, the California Court of Appeal concluded

the reasons given for each peremptory challenge were reasonable and race neutral. However, in affirming the trial court’s

denial of the defendant’s motion, the court gave no indication

why it credited the prosecutor’s justifications. Faced with a

Batson challenge, a court has a “duty to determine whether

the defendant . . . established purposeful discrimination.”

Lewis v. Lewis, 321 F.3d 824, 834 (9th Cir. 2003). The Court

of Appeal instead erroneously required only one of the prosecutor’s stated reasons to appear valid on its face in order to

sustain each peremptory challenge. 

Noting an absence of binding Ninth Circuit authority on the

appropriate standard for adjudicating pretext in Batson claims,

the district court relied on precedent from other circuits and

reluctantly adopted the “but for” approach borrowed from

employment discrimination “mixed-motives” cases. Cook v.

La Marque, No. CIV S-02-2240 LKK GGH P, 2008 WL

1701690, at *1 (E.D. Cal. Apr. 9, 2008) (“[T]he court adopts

mixed motives analysis based on the weight of existing federal precedent . . . If the court were to decide the matter in the

first instance, however, it would likely come to a different

Additionally, the questionnaire asked venirepersons to indicate their

level of concurrence with statements regarding minority stereotypes and

difficulties faced by minorities as well as questions regarding legal concepts, including the credibility of witnesses, expert opinions, circumstantial evidence, and accomplice liability. 

4During the Batson/Wheeler proceeding, the prosecutor stated: “I have

found that jurors are more frank within their responses in the questionnaire, and I believe that they are easily influenced in rehabilitation . . . so

I put a lot of deference to the questionnaire. . . . I don’t ask a lot of followup questions in voir dire, because I believe the questions are more specific

than I could restate them in court.” 

COOK v. LAMARQUE 551
conclusion . . . Whatever the merits of mixed motives analysis

at the trial court level, it is ill-suited for collateral and direct

review.”) (citations omitted). 

The district court noted that if it had not applied the “but

for” standard, it would have concluded that “the discriminatory reason tainted the peremptory strike [of Watkins] and

grant[ed] habeas relief on that basis” because “legitimate and

illegitimate reasons both independently motivated the strike.”

The court further found that the prosecution’s surmise that

Watkins “believe[d] that African-Americans were treated differently in the criminal justice system, even though Ms. Watkins had never expressed such a belief,” was a

“discriminatory reason that also motivated the strike.” The

court nevertheless denied the petition because it concluded

that the discriminatory reason, while a substantial motivation

for the strike, was not necessarily its “but for” cause. 

Denials of habeas petitions are reviewed de novo. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc).

Factual findings by the district court are reviewed for clear

error. Stankewitz v. Woodford, 365 F.3d 706, 714 (9th Cir.

2004). 

Our review of the state appellate court’s finding that the

prosecutor did not engage in purposeful discrimination is governed by the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), dictated by 28 U.S.C. § 2254(d)(2). Where, as

here, our review of a state court’s factual determination is

based entirely on information that was contained in the state

court record, we would ordinarily defer to the last reasoned

state court opinion’s factual findings unless they were “based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Ali v. Hickman, 584 F.3d 1174, 1181 (9th Cir. 2009); 28 U.S.C.

§ 2254(d)(2); see also Kesser, 465 F.3d at 358 n.1 (citing Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). The AEDPA

standard of review is “demanding but not insatiable” and

552 COOK v. LAMARQUE
“deference does not by definition preclude relief.” Miller-El

II, 545 U.S. at 240. 

However, where a state court fails to apply comparative

juror analysis in making its factual determination regarding

pretext, no AEDPA deference is due because its failure to

compare seated jurors with excused jurors in conducting its

analysis is contrary to federal law. See Kesser, 465 F.3d at

358. Here, the state court failed to determine whether the

prosecutor’s non-racial motives were pretextual by employing

comparative juror analysis and evaluating “the persuasiveness

of the justification” and “whether counsel’s race-neutral

explanation for a peremptory challenge should be believed.”

Id. at 358-61 (internal quotation marks and citations omitted);

see also People v. Lenix, 44 Cal. 4th 636, 658 (2008)

(“[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if

relied upon by defendant and the record is adequate to permit

the urged comparisons.”). Because the California Court of

Appeal employed the incorrect legal standard, this court may

examine petitioner’s Batson claim de novo. See Panetti v.

Quarterman, 551 U.S. 930, 953 (2007) (when a state court’s

adjudication of a claim “is dependent on an antecedent unreasonable application of federal law,” a federal court must “resolve the claim without the deference AEDPA otherwise

requires”).

As the majority notes, Cook having established a prima

facie case of discrimination and the prosecution having stated

reasons for its strikes, the only remaining issue concerns the

third step in the Batson analysis: purposeful discrimination.

At this stage, the court must “determine if the defendant has

established purposeful discrimination” by evaluating the prosecutor’s proffered reasons. Batson, 476 U.S. at 98. “While

subjective factors may play a legitimate role in the exercise of

challenges, reliance on such factors alone cannot overcome

strong objective indicia of discrimination.” Kesser, 465 F.3d

at 359 (quoting Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.

COOK v. LAMARQUE 553
1994)); see also Miller-El II, 545 U.S. at 252. As the Supreme

Court noted in Miller-El II, while the exercise of peremptory

challenges are often a matter of instinct and it can sometimes

be hard to say what the reason is, when illegitimate grounds

like race are at issue, a prosecutor must state the reasons for

each challenge, which will stand or fall on the plausibility of

the reasons given. A Batson challenge does not call for a mere

exercise in “thinking up any rational basis.” 545 U.S. at 252.

To determine whether a defendant has shown “purposeful

discrimination,” the trier of fact must evaluate “the persuasiveness of the justifications” offered by the prosecutor to

determine whether race was a substantial or motivating factor.

Kesser, 465 F.3d at 359 (citing Purkett v. Elem, 514 U.S. 765,

768 (1995)). As the Supreme Court has stated:

[T]he critical question in determining whether a prisoner has proved purposeful discrimination . . . is the

persuasiveness of the prosecutor’s justification for

his peremptory strike. At this stage, “implausible or

fantastic justifications may (and probably will) be

found to be pretexts for purposeful discrimination.”

In that instance the issue comes down to whether the

trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured

by, among other factors, the prosecutor’s demeanor;

by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has

some basis in accepted trial strategy . . . Deference

[to the trial court] is necessary because a reviewing

court, which analyzes only the transcripts from voir

dire, is not as well positioned as the trial court is to

make credibility determinations. 

Miller-El I, 537 U.S. at 338-39 (quoting Purkett, 514 U.S. at

768). Here, however, the state trial court failed to evaluate the

“totality of the relevant facts” to decide “whether counsel’s

554 COOK v. LAMARQUE
race-neutral explanation for a peremptory challenge should be

believed.” Kesser, 465 F.3d at 359. 

While determining motive in this area is difficult, side-byside comparisons (potential jurors who were struck versus

those who were not) can be critical in establishing purposeful

discrimination. Miller-El II, 545 U.S. at 241 (“More powerful

than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and

white panelists allowed to serve.”); id. at 252 (“The whole of

the voir dire testimony subject to consideration casts the prosecution’s reasons for striking [the struck venireperson] in an

implausible light. Comparing his strike with the treatment of

panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not.”).5

Once an inference of race-based strikes has been established, the court need not blindly accept just any non-racial

excuse. Kesser, 465 F.3d at 358 (citing Johnson v. Vasquez,

3 F.3d 1327, 1331 (9th Cir. 1993) ). The court must evaluate

the record and consider each explanation within the context of

the trial as a whole because “[a]n invidious discriminatory

purpose may often be inferred from the totality of the relevant

facts.” Hernandez v. New York, 500 U.S. 352, 363 (1991)

(plurality opinion) (quoting Washington v. Davis, 426 U.S.

229, 242 (1976)); Kesser, 465 F.3d at 359. “If a prosecutor’s

5

See also Batson, 476 U.S. at 93 (courts should consider “such circumstantial and direct evidence of intent as may be available”); Lewis, 321

F.3d at 830-33 (employing a comparative analysis of the struck juror with

empaneled jurors); McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir.

2000) (noting that the “prosecutor’s motives may be revealed as pretextual

where a given explanation is equally applicable to a juror of a different

race who was not stricken by the exercise of a peremptory challenge”);

Turner v. Marshall, 121 F.3d 1248 1251-52 (9th Cir. 1997) (“A comparative analysis of jurors struck and those remaining is a well-established tool

for exploring the possibility that facially race-neutral reasons are a pretext

for discrimination.”). 

COOK v. LAMARQUE 555
proffered reason for striking a black panelist applies just as

well to an otherwise-similar nonblack who is permitted to

serve, that is evidence tending to prove purposeful discrimination.” Miller-El II, 545 U.S. at 241. “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.”

Id. at 248. 

As in Kesser, where the state court failed to consider any

“evidence outside of the prosecutor’s own self-serving Batson

testimony,” 465 F.3d at 358-61, this case is well-suited for

appellate application of comparative juror analysis because of

the prosecutor’s contemporaneous, recorded justifications for

the strikes and the timing of the Batson/Wheeler hearing,

which was conducted before the original trial was completed

and soon after voir dire and the allegation of misconduct. 

Finally, if impermissible biases are shown to be a “motivating factor” in the peremptory challenges, the Batson motion

should be granted. See Snyder, 128 S. Ct. at 1212.

Potential Juror Watkins

The prosecutor gave a litany of reasons for striking Watkins,6

6He explained his decision to strike Watkins as follows: (1) she “believes her brother was unjustly prosecuted . . . and he went to prison for

7 years, she believes it was in self-defense, the inference being he was

wrongly convicted” which could affect her perception of the criminal justice system; (2) she may think “the government is treating an AfricanAmerican person differently” and thus might have “an inward bias”; (3)

“she doesn’t believe police officers are always truthful”; (4) she might

have “a hidden agenda, whether or not she would be a nullification vote”;

(5) she stated she “saw problems with the criminal justice system” but was

“not sure” what those problems were, which “[left] a void somewhere” for

the prosecutor; (6) she indicated “she would not be able to give her full

attention to the trial because of work pressures”; (7) she “works as an

accounting clerk in a law firm . . . people that work in the legal field somewhat have a difficult time with issues”; (8) her answer that she was “not

556 COOK v. LAMARQUE
a 37-year-old married African-American woman, who was a

college graduate working as an accounting clerk at a law firm.

Although some of the proffered explanations may appear

plausible at first blush, when read in context and in comparison with seated jurors, they appear pretextual. See Miller-El

II, 545 U.S. at 241 (side-by-side comparisons serve as “evidence tending to prove purposeful discrimination”). Without

evaluating each of these justifications individually or performing comparative juror analysis, the California Court of

Appeal upheld the trial court’s determination as long as one

legitimate race-neutral explanation existed for the strike. The

Court of Appeal stopped at the second step of the Batson

analysis, where the facial validity of the prosecutor’s reasons

were determined, and failed to consider whether any of the

proffered reasons were pretextual.

As in another recent Ninth Circuit Batson case, the record

pertaining to venireperson Watkins convinces me “that each

of the prosecutor’s justifications is logically implausible,

undermined by a comparative juror analysis, and otherwise

unsupported by the record.” Ali, 584 F.3d at 1182. Because

“an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor’s nonracial grounds,” I conclude that his “actual and only

reason for striking [the venireperson] was her race.” Kesser,

465 F.3d at 360.

First, the prosecutor claimed that Watkins “believes her

brother was unjustly prosecuted” and “was wrongly convicted,” which could affect her perception of the criminal justice

sure” whether she would change her vote “if she was persuaded her initial

view was right” indicated to the prosecutor that she “is inflexible”; (9)

“she indicated that she has friends that use marijuana. One can draw an

inference from that, that she condones the use of marijuana, thus, that

would be violating the law. She may find certain laws of such a nature that

she personally feels she can disregard them, or is morally disinclined to

follow them.” 

COOK v. LAMARQUE 557
system. See supra note 6. On her questionnaire, Watkins

reported that twenty years earlier her brother was convicted of

a shooting that her parents had told her was “in self defense.”

In response to questions during voir dire, Watkins stated that

her brother’s conviction, which occurred when she was only

seventeen years old and lived in Alabama, would not affect

her at trial and did not engender any ill feeling toward the

police or prosecutors in Sacramento County. 

Despite Watkins’s statements that her brother’s conviction

would not affect her judgment in this case, the prosecutor provided the first reason for striking Watkins:

She may . . . perceive that . . . the government is

treating an African-American person differently. She

may see, there may be an inward bias. I’m not saying

there is, that might be the driving force. That’s a

concern, just not that fact, but the whole scenario

excludes her, from our point of view.

The district court found, “the prosecutor’s inferential presumption that because Watkins thought her brother wrongly

convicted, it might mean that she would be race conscious in

her deliberations if chosen to be a juror.” Such a presumption

is highly problematic and suggests that the “prosecutor exercised challenges in part with a discriminatory mindset.”

Indeed, because the prosecutor never asked her, it is not even

certain that Watkins thought her brother was wrongly convicted.7

 In response to the court’s questions, she testified that

her brother’s trial occurred when she was a minor, that all of

her information about it came from her parents, and that her

brother was convicted and served seven years in prison for the

shooting. Watkins told the court, as she had stated on the

questionnaire, that the incident would not affect her judgment

in the case or her feelings toward police. 

7Although she described her brother as having acted in “self-defense,”

she may have been using the term colloquially rather than in its legal

sense; she never indicated whether she herself believed he was innocent.

558 COOK v. LAMARQUE
Additionally, Watkins never stated, or even implied, that

she believed the government “treats African-Americans differently.” The prosecutor’s attribution was based solely on

Watkins’s lack of reply to the question whether she had experienced prejudice. On the questionnaire, Watkins did not mark

either “Yes” or “No” in response to the question, “Would you

say you were raised in an atmosphere free of prejudice?”

Instead, she commented, “There are many forms of prejudice,

so I can’t accurately answer that.” With respect to both of

these alleged statements by Watkins, as in Miller-El II,

“[p]erhaps [the prosecutor] misunderstood, but unless he had

an ulterior reason for keeping [the struck venireperson] off the

jury we think he would have proceeded differently.” 545 U.S.

at 244. Similarly, “we expect the prosecutor would have

cleared up any misunderstanding by asking further questions

before getting to the point of exercising a strike.” Id. “The

failure to ask undermines the persuasiveness of the claimed

concern.” Id. at 250 n.8. As the voir dire transcript shows,

Watkins testified that she had no reservations about her brother’s conviction influencing her in the trial, and the prosecutor

never challenged her on that assertion. 

Moreover, the prosecutor’s explanation is undermined by

his treatment of three non-African-American jurors, two of

whom also had relatives who had been charged with homicides, and one of whom was unsure of a family member’s past

problems with the law. Juror 1’s cousin shot and killed his

brother-in-law and Juror 14’s father was arrested for murder,

but the prosecutor allowed both to be seated. Additionally, the

prosecutor also did not strike Juror 5, who only vaguely

related information about his brother’s arrest or charge

regarding “[s]omething about cocaine” around 1977, about

which he “[n]ever did find out the details.” 

Although no seated juror was precisely identical to Watkins

in every respect, the law does not require such a finding.

Miller-El II, 545 U.S. at 247 n.6 (“A per se rule that a defendant cannot win a Batson claim unless there is an exactly

COOK v. LAMARQUE 559
identical white juror would leave Batson inoperable.”); see

also Kesser, 465 F.3d at 366. The prosecutor’s unquestioning

acceptance of similar non-African-American jurors, and rejection of Watkins based on his concern about the conviction of

her brother creating bias against the criminal system, smacks

of pretext. The Supreme Court has found that a prosecutor’s

reliance on crime in an African-American juror’s family to

justify a strike where the relative’s “criminal history was

comparable to those of relatives of other panel members not

struck by prosecutors” suggests pretext. Miller-El II, 545 U.S.

at 250 n.8. 

Second, the prosecutor’s assertion that he excused Watkins

because “she might not believe our officers here, or that they

start off not with equal standing as some of the other witnesses, including defendants’ witnesses, we suspect, in this

case,” is unpersuasive in light of comparative juror analysis.

Although the prosecutor claims he struck Watkins because

she stated she did not think “police officers are always truthful, but [did not] think the civilian would be either,” he failed

to strike several non-African-American seated jurors who

expressed equal or greater skepticism about police officers’

credibility.8 The “distrust of law enforcement” rationale for

the strike is “severely undercut by the prosecution’s failure to

object to other panel members who expressed views much

like [the dismissed venireperson].” Miller-El II, 545 U.S. at

248. 

Furthermore, contrary to the prosecutor’s contention that

Watkins might be more likely to credit testimony by defense

8

Juror 1 (on his questionnaire): “[p]olice officers are human and can

make mistakes like anyone.” Juror 5: “[t]ruthfulness is a personal issue

with very little relevance to profession.” Juror 6: “[e]ither party would

have to be proven not credible or dishonest.” Juror 10: police officers “are

humans w/ feelings, & their own agendas.” Juror 14: a police officer “is

just as human as a civilian and is capable of lieing [sic] just as easy.” 

560 COOK v. LAMARQUE
witnesses, her statement clearly indicates equal skepticism of

civilian witnesses: “I don’t [think] police officers are always

truthful, but I don’t think the civilian would be either.” There

is simply no evidence in the record to support the prosecutor’s

suspicions of bias. As the magistrate correctly noted, “because

Watkins thought both law enforcement and non-law enforcement could be untruthful, the [prosecutor’s assertion that] she

therefore disfavored law enforcement is a non-sequitur and

strained.” 

Third, the prosecutor’s alleged concern that Watkins might

have had a “hidden agenda” to act against the prosecution

through a nullification vote is equally implausible. On her

questionnaire, Watkins indicated that she saw problems with

the criminal justice system, but did not identify any specifics,

stating “I’m not sure.” A comparison of Watkins to two

empaneled non-African-American jurors, who the prosecutor

failed to strike, is instructive. Juror 6 stated she was “Not

sure” about what the problems were with the criminal justice

system. Juror 5 indicated there were problems with the criminal justice system, generally stating that “Nothing is perfect,”

but did not elaborate. The prosecutor’s failure to strike either

non-African-American juror also suggests that the “hidden

agenda” rationale was pretextual. 

The prosecutor also failed to ask Watkins any clarifying

questions on voir dire that might confirm or refute his inference. See Miller-El II, 545 U.S. at 244. During the Batson

hearing, he stated that Watkins’s answer that she was “not

sure” about problems with the criminal justice system “[left]

a void somewhere. Not sure in what sense? Not sure because

of the O.J. Simpson case? What sense?” However, Watkins’s

questionnaire bears no indication that she closely followed the

Simpson trial; she stated she watched “[j]ust enough to see

how it was going” and that “it did not affect [her] view [of the

courts and the criminal justice system] at all.” Contrary to the

requirements of Batson, the prosecutor’s justification provided no “clear and reasonably specific explanation of [the]

COOK v. LAMARQUE 561
legitimate reasons for exercising the challenges.” Batson, 476

U.S. at 98 n.20 (internal quotation marks omitted). 

Moreover, the prosecutor allowed several jurors to be

seated who expressed an interest in the O.J. Simpson case to

a far greater degree than Watkins. Juror 1 stated he “watched

whenever [he] could on Court T.V.” Juror 3 stated he followed the Simpson case “fairly closely” and found the trial

“disappointing.” Indeed, most of the seated jurors followed

news of the Simpson case to some degree,9 and none stated in

their questionnaire that they did not follow it at all. The prosecutor’s claimed concern with Watkins’s interest in the Simpson trial is simply not credible.

Fourth, the prosecutor’s proffered justification that he

struck Watkins because “she would not like to sit as a juror”

and “indicate[d] she would not be able to give her full attention to the trial because of work pressures” is again undermined by comparative juror analysis. In response to the

questionnaire’s inquiry of whether there would be “any

adverse effects from your service on this jury, such as loss of

money, work pressures, or health that might prevent you from

giving your full attention to this trial,” Watkins marked “Yes”

and wrote “Work pressures.” Although the prosecutor claimed

that this statement contributed to his decision to strike Watkins, he failed to strike seated Jurors 3, 6, 10, and 12, who

responded to the question in stronger or more concrete terms.

Juror 3 stated that he would “prefer not to be a juror”; Juror

6 expressed her desire not to serve, stating “loss of wage” and

“the length of time” as potential problems; Juror 10 noted

“[t]ime w/o pay” as an adverse effect of serving on the jury;

and Juror 12 indicated that it was not convenient because of

the “long drive and . . . traffic.” The prosecutor’s differential

9

Juror 13 “saw what was on news on television and [she] listened for

the verdict.” Jurors 4, 8, and 15 “occasionally” followed the trial. Juror 7

followed it “every now and then.” Juror 11 followed it for “maybe 2 or

3 weeks.” 

562 COOK v. LAMARQUE
treatment of these non-African-American jurors again suggests pretext. See Snyder, 128 S. Ct. at 1211 (finding it particularly problematic that the prosecutor “attempted to elicit

assurances that [the non-African-American juror] would be

able to serve despite his work and family obligations,” while

choosing not to question the African-American juror more

deeply about the matter).

Fifth, the prosecutor stated that, although not controlling,

he was also concerned with Watkins’s employment as an

account clerk at a law firm: “We find people that work in the

legal field somewhat have a difficult time with issues. I’m not

sure what comments she may have expressed about lawyers

in that firm.” This rationale falls short of Batson’s mandate

for a “clear and reasonably specific explanation of [the] legitimate reasons for exercising the challenges.” Batson, 476 U.S.

at 98 n.20 (internal quotation marks omitted). The prosecutor

also failed to explore Watkins’s opinion of attorneys. 

Sixth, one of the issues with which the prosecutor specifically noted a concern was Watkins’s initial uncertainty in her

questionnaire responses about the deliberative process. The

prosecutor stated, “I can’t take a chance with a juror . . . who

will not change her vote, is inflexible even if the others, even

if she is persuaded [by the other jurors]. This is not someone

that either party would want as a juror.” Contrary to this characterization, Watkins initially appeared to suggest a great

degree of flexibility, prompting the court to clarify whether

she would too easily relinquish her views in the interests of

unanimity.

A comparative analysis of Watkins with Jurors 6 and 7

again reveals that the prosecutor allowed several jurors to sit

with questionnaire responses more troubling than Watkins’s.

When asked if she would change her vote after discussion if

she still thought she was right, Juror 6 handwrote “Unsure” on

her questionnaire. Juror 7 stated that he would not change his

COOK v. LAMARQUE 563
initial view, even if he was persuaded that he was wrong.10

The prosecutor struck neither, undermining his alleged concern with Watkins’s inflexibility as a juror.

Finally, on her questionnaire, Watkins stated that neither

she nor anyone close to her used illegal drugs, but commented

that she has “friends that use [them].” The prosecutor claimed

that this answer supported his strike: 

One can draw an inference from that, that she condones the use of marijuana, thus, that would be violating the law. 

She may find certain laws of such a nature that she

personally feels she can disregard them, or is morally disinclined to follow them. She may reach such

a conclusion during the consideration of this trial.

She may not like a particular law, may not feel she

has a requirement to follow it. 

I’m not saying that’s what her position is. One

could draw that inference from this response.

It’s another issue that leaves me uncomfortable

that would support a challenge for cause. 

Although the prosecutor cited Watkins’s condoning of

drugs as a basis for his strike, he offered no explanation for

why Watkins’s personal views on marijuana would bear on

the case. See Batson, 476 U.S. at 98 n.20. He also declined to

strike six non-African-American jurors who had close friends

or relatives who used drugs in the past, four of whom

described the relatives’ drug use as problematic. Additionally,

the prosecutor allowed two jurors to sit who admitted to using

10Juror 7 marked “No” in response to the question, “If after discussion

with your fellow jurors you became persuaded that your initial view had

been wrong, would you change your vote?” 

564 COOK v. LAMARQUE
drugs themselves when they were younger,11 behavior that is

certainly more indicative of a “disregard” for the law than

Watkins’s association with individuals who use drugs.

The majority explains the prosecutor’s justification, which

it concedes is “weak,” as a distinction between present and

past attitudes regarding drug use. In the prosecutor’s words,

however, the issue of drug use was relevant due to his concern

that a juror might reach a conclusion because “she personally

feels she can disregard” particular laws or be “morally disinclined to follow them.” This concern applies more, or certainly just as much, to individuals who have themselves used

drugs, even if in the past, than with those potential jurors who

have made the decision to personally abstain from drug use

but happen to know other people who have not. Comparative

juror analysis thus leads to only one reasonable conclusion:

the prosecutor’s asserted concern about condoning drug use

was not his actual reason for striking Watkins. 

The analysis of the “totality of relevant facts,” including

comparative juror analysis, refutes the prosecutor’s proffered

reasons for striking Watkins. “The fact that [a given] reason

also applied to these other panel members, most of them

white, none of them struck, is evidence of pretext.” Miller-El

II, 545 U.S. at 248. The evidence on the record “is open to

judgment calls, but when this evidence on the issues raised is

viewed cumulatively its direction is too powerful to conclude

anything but discrimination.” Id. at 265. It leads me to conclude that the prosecutor’s actual and only reason for striking

Watkins was her race. See 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 motivations, unreasonably accepted

his nonracial motives as genuine.” Id. at 358. In so doing, the

California appellate court reached a conclusion regarding the

11Juror 5: “Many, many years ago I tried marijuana a few times.” Juror

7: “I have [used illegal drugs] in high school 16 years ago.” 

COOK v. LAMARQUE 565
prosecutor’s intent that was not only incorrect, but unreasonable. See Miller-El II, 545 U.S. at 266.

Other Challenged Venirepersons

Because a single racial peremptory challenge calls for a

retrial, we need not determine whether there was any genuine

non-racial reason for striking each of the other potential

African-American jurors. See Snyder, 128 S. Ct at 1208; see

also United States v. Clemons, 843 F.2d 741, 747 (3d Cir.

1988) (“Striking a single black juror could constitute a prima

facie case even when blacks ultimately sit on the panel and

even when valid reasons exist for striking other blacks.”);

United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.

1994) (“[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.”). Although the

strikes exercised against African-American venirepersons

Isaac Tillman (“Tillman”), Norman Reynolds (“Reynolds”),

James Singleton (“Singleton”), Ruby Parker (“Parker”),

Chandra Livingston-Blanks (“Livingston-Blanks”), and Barbara Maxey (“Maxey”) are not as clear cut as that of Watkins,

an examination of the explanations for these strikes further

undermines the prosecutor’s credibility and lends additional

support to the conclusion that the strike of Watkins was

racially motivated. See Ali, 584 F.3d at 1193; Vasquez-Lopez,

22 F.3d at 902 (The prosecutor’s “willingness to make up

nonracial reasons . . . make[s] it even harder to believe his

reasons for striking [the minority juror in question] were raceneutral.”).

First, the prosecutor’s professed concern with a venireperson’s disregard for the law as measured by their alleged “condoning” of marijuana use appeared to wax or wane depending

on whether the venireperson under consideration was AfricanAmerican. The prosecutor characterized Livingston-Blanks

and Maxey, both African-American, as “condoning” the use

of the illegal substances during the Batson/Wheeler hearing

and argued on that basis that he believed they possessed a

566 COOK v. LAMARQUE
more general “disregard for the law.” However, the prosecutor expressed no such concerns about the non-AfricanAmerican jurors with similar or stronger ties to drug use and

allowed them to be seated.

The prosecutor expressed concern with Maxey’s exhusband’s marijuana use and Livingston-Blanks’s admission

that “casual friends at social functions” used illegal drugs, and

her ex-boyfriend “was a drug and alcohol abuser.” The prosecutor claimed that these associations clearly reflected “a mental state that is very suspect to us as a juror,” and indicated

“some social acceptance of this type of activity” that could

lead to an unwillingness to follow the law as jurors, or “some

negative feelings towards the government because of the fact

that it’s illegal to use that product.” This professed concern

with drug use by friends of potential jurors is undermined by

his willingness to seat six jurors who had close friends or relatives who used drugs in the past. Moreover, two jurors were

allowed to sit who admitted to using drugs themselves when

they were younger.12 The prosecutor’s failure to strike these

non African-American jurors—or to even inquire at voir dire

as to their willingness to follow the law—strongly suggests

that these concerns were merely pretextual and makes drug

use a dubious basis for the prosecutor’s strikes against

Livingston-Blanks and Maxey. 

Second, the prosecutor’s supposed concern with venireperson Watkins’s reluctance to serve, see supra p. 14706-07, was

duplicated with respect to two other African-American

venirepersons—Singleton and Maxey—but again failed to

manifest itself with respect to non-African-American members of the venire. Venireperson Maxey, a 41-year-old,

college-educated, married African-American woman who was

employed as an Associate Personnel Analyst, made a hardship

request because she was due to transfer to another state

agency and was unsure if she would be able to complete her

12See supra note 11. 

COOK v. LAMARQUE 567
work if asked to serve on the jury. The court denied her

request after questioning, and the record does not reflect that

Maxey protested the denial. Venireperson Singleton, an

African-American college graduate and U.S. Air Force veteran, did express concern about his high blood pressure and

medication, which might require frequent bathroom visits;

however, the court made arrangements to ensure Singleton

could sit on the jury, allowing him a corner seat and the

opportunity to take breaks when needed. 

The prosecutor claimed to take all hardship requests “seriously in terms of looking at whether a juror wants to sit, or

not, whether or not a juror is going to give us their attention,”

and to factor in the requests when “considering whether or not

to peremptorily challenge a juror.” This was based on a belief

that a juror with a hardship request “would not make a good

juror for [the prosecution and] might be inclined to hurry

through the process.” However, hardship requests were only

used as justification for the prosecutor’s decision to strike

African-American venirepersons; similar hardship requests

did not prompt him to strike Jurors 3, 6, 10, and 12. 

The prosecutor’s alleged concern about unwillingness to

serve is further discredited by his strike of venireperson Reynolds for being “too overly eager to serve.” In justifying this

strike, the prosecutor focused on a racial aspect of Reynolds’s

comments about jury duty:

He appeared to be focused on a race issue by making a comment in reference to a statement he made

in the questionnaire that, you know, black people

have died for this opportunity, for me to sit there [in

the jury].

That concerned me. I have never heard anybody

quite put it that way before, in terms of wanting to

be a juror, and it concerned me that he may be overly

focused on the issue of race.

568 COOK v. LAMARQUE
That immediately raised my senses that he might

be sympathetic to and relate to two of the defendants

that are African-American here.

The prosecutor inferred from Reynolds’s statement that

Reynolds would be sympathetic to African-American defendants because they were of the same race. There is simply no

basis for an inference that African-Americans who appreciate

the progress in civil rights of the past century are, on that

basis, unable to participate in trials involving other AfricanAmericans. This rationale is so broad that it could exclude

nearly all African-Americans from the jury and cannot form

a legitimate basis for a peremptory strike. See Johnson v. California, 545 U.S. 162, 168 (2005).

The prosecutor’s strike for both alleged reluctance and

overeagerness to serve on the jury, and his failure to strike

similar non-African-American venirepersons, cast doubt on

the legitimacy of this proffered reason for striking venirepersons Maxey, Singleton, and Reynolds. A prosecutor truly concerned that Maxey and Singleton would “be inclined to hurry

through the process” would also have struck other potential

jurors who expressed similar concerns. A prosecutor unmotivated by race would not have considered Reynolds’s positive

attitude about serving on a jury a troubling factor weighing in

favor of a strike. The inconsistent application of the proffered

rationale and the lax treatment of seated jurors on the issue,

as with the others discussed above, reinforces the impression

that race was a substantial or motivating factor in jury selection. See Miller El II, 545 U.S. at 252 (“The whole of the voir

dire testimony subject to consideration casts the prosecution’s

reasons for striking [the struck venireperson] in an implausible light. Comparing his strike with the treatment of panel

members who expressed similar views supports a conclusion

that race was significant in determining who was challenged

and who was not.”).

Third, as the district court found in the case of Watkins,

“the prosecutor’s inferential presumption that . . . [AfricanCOOK v. LAMARQUE 569
American venirepersons] would be race conscious in [their]

deliberations if chosen to be a juror” is highly problematic

and suggests that the “prosecutor exercised challenges in part

with a discriminatory mindset.” The prosecutor struck

Livingston-Blanks, a 36-year-old, divorced African-American

woman, because her employment in “human services” might

indicate “a liberal viewpoint, or [that she would be] more

inclined to be sympathetic, especially given the age of these

defendants.” He based this on her temporary employment in

clerical roles with the Sacramento County Department of

Human Services and Child Protective Services. However, the

prosecutor did not strike Juror 15, a registered clinical social

worker and nurse.

If Livingston-Blanks’s clerical position truly indicated a

“liberal” viewpoint sufficient to support a strike, Juror 15’s

direct experience as a social worker should also have supported a strike. The prosecutor’s failure to treat Juror 15 similarly substantially undermines his proffered reason and raises

serious doubts about the legitimacy of his strike. “If a prosecutor’s proffered reason for striking a black panelist applies

just as well to an otherwise-similar nonblack who is permitted

to serve, that is evidence tending to prove purposeful discrimination.” Miller-El II, 545 U.S. at 241; see also McClain v.

Prunty, 217 F.3d 1209, 1220 (9th Cir. 2000) (noting that the

“prosecutor’s motives may be revealed as pretextual where a

given explanation is equally applicable to a juror of a different

race who was not stricken by the exercise of a peremptory

challenge”).

Overall, the validity of the prosecutor’s decision to strike

Tillman, Reynolds, Singleton, Parker, Livingston-Blanks, and

Maxey is a close question. However, in light of the strike of

Watkins, the prosecutor’s proffer of these questionable explanations for the strikes of the African-American venirepersons,

as in Ali, “take on a significance that they otherwise might

lack.” 584 F.3d at 1195; see also Lewis, 321 F.3d at 831

(“The proffer of various faulty reasons and only one or two

570 COOK v. LAMARQUE
otherwise adequate reasons, may undermine the prosecutor’s

credibility to such an extent that the court should sustain a

Batson challenge.”). At a minimum, these dubious explanations reaffirm our conclusion that impermissible biases were

a “substantial or motivating factor” in the peremptory challenges and, therefore, the Batson motion should have been

granted. See Snyder, 128 S. Ct. at 1212. Even if considered

under AEDPA’s deferential standard, the California courts

erred by failing to consider comparative evidence in the

record that contradicted the prosecutor’s purported motivations, leading them to render “an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2).

The district court believed that the Batson issue turned on

whether a “substantial or motivating factor” test or a “but for”

causation requirement is applied. Although the district court

found the prosecutor’s “discriminatory reason tainted the

peremptory strike” of venireperson Watkins and would therefore satisfy the “substantial or motivating factor” test, it nevertheless denied petitioner’s habeas petition, feeling bound to

apply the “but for” causation requirement as well. Cook, No.

CIV S-02-2240 LKK GGH P, 2008 WL 1701690, at *1.13

What we should be doing here is remanding to the district

court to apply the proper standard. Instead, the majority substitutes its own judgment for that of the district court.

CONCLUSION

Following Supreme Court and Ninth Circuit precedent, the

proper inquiry in Batson cases is whether the race of at least

one potential juror was a “substantial or motivating factor”

contributing to a prosecutor’s exercise of peremptory challenges. Id.; Miller-El I, 537 U.S. at 346; Kesser, 465 F.3d at

13Had the district court not stated its view that relief would have been

granted if a less stringent standard applied, I would have remanded for the

application of the “substantial or motivating factor” test. 

COOK v. LAMARQUE 571
360. Applying that standard, I would reverse the denial of

habeas relief.

572 COOK v. LAMARQUE