Thursday, February 26, 2026
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Ninth Circuit:
Racist Comments to All-White Jury in Trial of Black Man Do Not Justify Habeas Relief
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of a petition for a writ of habeas corpus, holding that although racial remarks should not have been uttered to an all-white jury by a prosecutor, the state Court of Appeal justifiably determined that a reversal of the conviction of a Black man for the second-degree murder of a police officer was not warranted.
Denial of the relief sought by Deshawn Campbell came in a memorandum opinion signed by Circuit Judges Mark J. Bennett and Jacqueline H. Nguyen, joined by District Court Judge Kiyo A. Matsumoto of the Eastern District of New York, sitting by designation.
The prosecution contended that Campbell fatally shot rookie officer Jeffrey Fontana to avoid an arrest, during a traffic stop, on outstanding warrants. The defendant was said to have admitted the shooting to various persons, while Campbell insisted that what he said was that one Rodney McNary was the killer.
Comments to Jurors
Santa Clara County Deputy District Attorney Lane Liroff told jurors:
“Now, Campbell’s defense, I’m going lo suggest to you...consists of fear-mongering. They put up a booking photograph of Rodney McNary, and they play him as the boogeyman. He’s a mean-looking black man, and they ‘re trying to intimidate you with that. And whenever a defense witness is cornered, they resort to the company line again: They’re afraid of the boogeyman.
“But when you look at these two men, Campbell and McNary, I suggest to you there’s little difference between them. Both of them are violent criminals. Both of them are convicted of multiple felonies. And, according to this evidence, both of them are validated members of Seven Trees Crips.”
Liroff went on to say that if Campbell’s letter to his brother is examined, “you sit there and read it aloud, you laugh or you feel dismayed at—at the—I don’t know what they call it nowadays.”
He continued:
“Ebonics? I remember about ten years ago they were calling it that. And some of that stuff is—is the type of stuff that people in the ‘hood just write that way or speak that way.”
Appellant’s Brief
Those words and other statements by the prosecutor, Campbell argued in his Ninth Circuit brief, “were flat-out racist,” adding:
“There was no legitimate reason to interject race into the case - it had absolutely no bearing on any issue - but the prosecutor did it, nonetheless. Why?”
He answered:
“The prosecutors implicit, inescapable messaging was that Campbell, merely because of his racial characteristics, was fundamentally different from “us,” that is, the white police officer who was murdered, the white prosecutor, and the all-white jury….”
Ninth Circuit’s Opinion
The Ninth Circuit disagreed. Under the U.S. Supreme Court’s 1986 decision in Darden v. Wainwright, the judges said, the closing argument was not so egregious as to render the trial fundamentally unfair.
They declared that Liroff’s “race-based comments undoubtedly were improper,” but quoted Darden as saying that it “is not enough that the prosecutor[‘s] rem arks were undesirable or even universally condemned.” Bennett, Nguyen and Matsumoto continued:
“The extensive and outrageous misconduct that the Supreme Court held insufficient in Darden is worse than the prosecutor’s comments here….And we agree with the Court of Appeal that ‘[t]he evidence that [Campbell] was the person who shot Officer Fontana was very strong, notwithstanding [Campbell’s] testimony that he was not the shooter.’ Given the strength of the evidence against Campbell and the trial court’s jury instructions, we cannot say that the prosecutor’s remarks ‘so infected the trial with unfairness’ as to deny Campbell due process.”
Other arguments were also rejected.
The case is Campbell v. Jones, 23-1917.
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