Metropolitan News-Enterprise


Tuesday, September 12, 2006


Page 1


Court Tosses Convictions, Says Indians Wrongly Kept Off Jury

Ninth Circuit, in 6-5 Decision, Brands Prosecutor’s Motives in Murder Case Illegitimate




A sharply divided Ninth U.S. Circuit Court of Appeals en banc panel yesterday threw out the first degree murder conviction of a Native American man, saying minority members were improperly excluded from the jury at his Humboldt Superior Court trial.

Prosecutor Worth Dikeman used “blatant racial and cultural stereotypes” in striking Native American women from the jury that convicted Richard Kesser and  Jennifer Leahy of murdering Kesser’s ex-wife, Judge Jay Bybee wrote for the court in a 6-5 decision.

Comparing voir dire responses by white and non-white panelists, an approach mandated by last year’s ruling in  Miller-El v. Dretke, 545 U.S. 231, leads to the conclusion that state courts and a U.S. district judge were wrong when they ruled that Dikeman had legitimate reasons for striking the women, Bybee said.

Life Sentences

Kesser and Leahy, along with alleged triggerman Stephen Chiara, are serving life sentences without the possibility of parole for the murder, which prosecutors said was intended to secure insurance proceeds for Kesser and Leahy. The case, tried over a decade ago, took on political overtones this year when tribal leaders branded Dikeman a racist during his election challenge to District Attorney Paul Gallegos.

Gallegos was reelected in June by a vote of 53 percent to 47 percent for Dikeman.

Bybee was joined by Chief Judge Mary M. Schroeder and Judges Alex Kozinski, Kim M. Wardlaw, Richard A. Paez, and Marsha Berzon. Judge Pamela Ann Rymer authored a dissent joined by Judges Diarmuid F. O’Scannlain, Andrew Kleinfeld, Consuelo Callahan, and Carlos T. Bea.

Dikeman struck the only Native American on the regular juror panel—the other stricken venire members were on the alternate panel—saying her outlook was likely skewed by the fact that she worked for a tribe.

“My experience is that Native Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system,” Dikeman explained to the judge, “and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.”

In striking the potential Native American alternates, Dikeman expressed fears that they would be unwilling to hold a fellow Indian criminally responsible.

The prosecutor cited cases in which an expert had testified that, in Dikeman’s words, “child molesting is okay in certain Native American cultures, and we can’t treat Native American child molesters the same way we treat other child molesters, and have to treat them through the Indian culture center and there are a whole bunch of people that violate our laws that are Native Americans and they go much more often through the Native American system than the criminal system.”

Comparative analysis of the venire members’ responses to questionnaires and questions asked on voir dire “undeniably contradicted the prosecutor’s purported motivations,” Bybee wrote, adding that the law “is not toothless in the face of such blatant race-based strikes.”

Excusal Request

As an example, Bybee cited Dikeman’s statement that he struck potential juror Linda Rindels because her unsuccessful request to be excused in order to complete work on a tribal grant application showed her to be “pretentious...and self-important with the thought that only she could complete the necessary paperwork.”

Bybee noted that several unchallenged panelists “protested, as Rindels did, that they could not leave their work to others.”

Rymer argued in dissent that the Court of Appeal made a reasonable determination that Dikeman’s motives for striking the minority panelists were at least partially legitimate, and that habeas corpus relief was thus inappropriate under the Antiterrorism and Effective Death Penalty Act.

The case is Kesser v. Cambra, 02-15475.


Copyright 2006, Metropolitan News Company