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The Ninth Circuit U.S. Court of Appeals declined Wednesday to reconsider the death penalty appeal of Stanley “Tookie” Williams, who transformed himself while in prison from an ex-street gang leader to a Nobel Peace Prize nominee. Unless the U.S. Supreme Court intervenes or Gov. Arnold Schwarzenegger grants clemency, Williams, co-founder of the Crips gang in Los Angeles, could be executed as early as late summer, according to state Attorney General Bill Lockyer’s office. The decision in Williams’ case is the third time this year that the Ninth Circuit has green-lighted a California execution. In previous years, critics have complained that circuit judges were halting too many executions. Wednesday’s move denied en banc review of a unanimous panel decision in September. The three-judge panel found, among other things, that Williams’ claim of an unfair trial because prosecutors ousted all African-Americans from his jury was without merit. But Williams’ attorney, Rosen, Bien & Asaro partner Andrea Asaro, isn’t giving up. She said Wednesday that she plans to file a request for certiorari at the U.S. Supreme Court. She said she was encouraged because not only did nine judges sign a 25-page dissent to Wednesday’s order — just four judges short of the majority needed for a rehearing — but the Supreme Court has already accepted for review another case raising similar issues, Miller-El v. Dretke, 361 F.3d 849. “If the court is inclined to grant relief in Miller-El, that bodes well for this case,” Asaro said. The high court heard arguments in Miller-El in December but has not issued a decision. Williams, like the defendant in Miller-El, claims prosecutors ousted African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79. But Lockyer spokesman Nathan Barankin noted that the Supreme Court accepts relatively few of the Batson cert petitions it receives. “It’s perhaps premature for Williams’ counsel to express optimism or concern about what the Supreme Court will do before it acts on Miller-El,” Barankin said. Williams’ trial attorney did not challenge the exclusion of black jurors, nor did he present mitigating evidence during the penalty phase that Williams suffered head injuries and was a habitual drug user. Although Williams’ habeas case alleges a variety of problems with his state court trial, the dissenters to Wednesday’s Ninth Circuit order latched on to the Batson issue to the exclusion of his other claims. Williams, like Thomas Miller-El, is African-American. Williams was convicted by an all-white jury of four counts of murder committed in the course of two robberies in 1979. Ninth Circuit Judge Johnnie Rawlinson, an African-American appointed by President Clinton, wrote the dissent. She pointed out that the L.A. County prosecutor in the case, Robert Martin, was “publicly castigated by the Supreme Court of California for his pattern of racially motivated peremptory jury challenges.” Martin has denied challenging jurors on the basis of race. “If our judicial system is to inspire a sense of confidence among the populace, we must not, we cannot permit trials to proceed in the face of blatant, race-based jury selection practices,” Rawlinson wrote. Failure to allow Williams to appeal “sends an unmistakable message that the dictates of Batson may be disregarded with impunity. I cannot join that message.” Quoting Batson, Rawlinson said the panel decision “cleared the way for attorneys ‘who are of a mind to discriminate’” on the basis of race. She was joined by Judges Harry Pregerson, Stephen Reinhardt, Sidney Thomas, Kim Wardlaw, William Fletcher, Raymond Fisher, Richard Paez and Marsha Berzon. The panel decision, first issued in 2002 and amended last year, was written by Senior Judge Procter Hug Jr. and signed by Senior Judge Thomas Nelson and Judge Ronald Gould. In an unusual move, Hug suggested that Williams file a petition for clemency. Williams co-founded the Crips in the 1970s. But since incarceration he has renounced gang life and has even created a line of children’s books called “Tookie Speaks Out Against Gang Violence,” the proceeds from which go to charity. He also created the Internet Project for Street Peace. Williams’ efforts were rewarded in 2000 when a Swiss politician, Mario Fehr, nominated the San Quentin inmate for the Nobel Peace Prize. That move drew support from many organizations in the Western world that oppose the U.S. death penalty. The case is Williams v. Woodford, 05 C.D.O.S. 1005.

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