Metropolitan News-Enterprise


Thursday, August 30, 2012


Page 1


Ninth Circuit Orders New Trial in San Diego Slayings


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered a new trial for a San Diego man sentenced to death for the 1985 execution-style slayings of three men in a garage.

A divided panel ruled that Hector Ayala’s constitutional rights were violated when the judge at his 1989 trial rejected his claim of racial discrimination in the exercise of peremptory challenges, after allowing prosecutors to explain their reasons in an in camera hearing from which the defendant and his counsel were excluded.

“We hold that this procedure violated the Constitution and, together with the state’s later loss of a large portion of the record, adversely affected Ayala’s substantial rights,” Judge Stephen Reinhardt wrote for the court.

Judge Kim M. Wardlaw concurred, while dissenting Judge Consuelo Callahan warned that the ruling will lead to wholesale reversals in cases where similar claims have been raised.

Three Murders

Ayala was sentenced to death for the murders of Ernesto Dominguez Mendez; his brother-in- law, Marco Zamora; and Jose Rositas. He was also convicted of the attempted murder of Pedro Castillo, the lone survivor of the “unbelievable carnage,” as a prosecutor described it in a newspaper interview.

Castillo was bound and gagged, as well as shot and stabbed, before police found him in the street. He said he had been shot in the back by Ronaldo Ayala, Hector Ayala’s brother, who was tried separately and is also under a death sentence.

The dead men were all gagged, bound, and shot twice in the back of the head. Hector Ayala’s attorney argued that Castillo was a drug dealer and was lying.

More than 200 potential jurors for Hector Ayala’s trial survived hardship screening and filled out questionnaires. A number were removed for cause, and prosecutors used 18 peremptory challenges.

Those removed from the panel included seven black or Hispanic venire members, leaving no blacks or Hispanics on the jury. The defense made three separate mistrial motions under People v. Wheeler, 22 Cal.3d 258 (1978), the California analogue to Batson v. Kentucky, 476 U.S. 79 (1986).

Motions Denied

San Diego Superior Court Judge Napoleon Jones denied the first two motions, finding that the defense failed to establish a prima facie claim of racial discrimination. On the third motion, the judge found a prima case of bias, but ruled that the prosecution’s explanations for the challenge established that the challenges were race-neutral.

After each motion, the judge followed the same “ex parte, in camera procedure,” over defense objection.

The conviction and sentence were upheld on direct appeal. The state Supreme Court was unanimous in condemning the closed-door procedure, but five justices found the error harmless beyond a reasonable doubt.

Since-retired Chief Justice Ronald M. George, joined in dissent by Justice Joyce L. Kennard,  condemned the majority’s “unprecedented conclusion that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless.”

A federal district judge denied relief on Ayala’s habeas corpus petition, but Reinhardt said George was correct.

The defense, Reinhardt said, was excluded from a critical portion of the proceedings. And the error was not harmless beyond a reasonable doubt, he concluded, because it is possible that the defense could have, if allowed to participate, persuaded the judge that one or more of the strikes was based on racial bias.

Callahan argued in her dissent that her colleagues were “creating an unreasonable standard for reviewing ancient alleged Batson violations, and refusing to give the California Supreme Court’s findings the deference that several recent United States Supreme Court opinions require.”

Under that standard, she argued, all Batson appeals would have to result in reversal, because prosecutors could never prove the absence of racial bias.

Reinhardt responded sharply:

“[T]his case is not an ordinary Batson challenge, and…the dissent’s approach is both inapplicable and wholly inappropriate. This, as the dissent consistently ignores, is a case in which the challenge is to the procedure employed by the trial court in conducting the  Batson inquiry — a procedure that resulted in the denial of a fair  Batson hearing to the defendant.”

The case is Ayala v. Wong, 09-99005.


Copyright 2012, Metropolitan News Company