Capital Voir Dire After Miller-El 2009

Posted: - March 26, 2009
CAPITAL
VOIR DIRE
AFTER MILLER-EL
2009

LOUISIANA JUDICIAL COLLEGE
CAPITAL LITIGATION TRAINING
MARCH 26, 2009

SCOTT J. CRICHTON
JUDGE, FIRST JUDICIAL DISTRICT COURT
501 TEXAS STREET, SUITE 300-D
SHREVEPORT, LA 71101
PHONE: (318) 226-6818
FAX: (318) 429-7604
jcrichton@firstdcla.org

TABLE OF CONTENTS
Introduction    2
I. United States Supreme Court Cases:    3
  1. 1.Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct.    3
1029, 154 L.Ed. 2d 931 (2003)(Miller-El I)
  1. 2.Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317,
162 L.Ed 2d 196 (2005) (Sup.Ct. 2005); (Miller-El II)   8
  3. Snyder v. Louisiana, 552 U.S.__, 128 S.Ct. 1203, 170  L.Ed.2d 175 (2008)   17
4. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163
  L.Ed. 2d 824 (2006)    20
5. Johnson v. California, 545 U.S. 162, 125 S.Ct.
2410, 162 L.Ed 2d 129 (2005)  22
II. Louisiana Supreme Court Cases   24
  1. 1.State v. Allen Snyder, 98-1078 (La. 9/6/06) 942
So.2d 484 (reversed by U.S. Supreme Court)   24
  2. State v. Robert Coleman, 06-0518 (La. 11/2/07),
     970 So.2d 511   31
3. State v. Darrell Draughn, 05-1825 (La. 1/17/07) 
  950 So.2d 583   34
III. Louisiana Capital Cases 2005 - 2009   39

INTRODUCTION
This paper focuses on five recent rulings from the United States Supreme Court impacting the Batson analysis in voir dire, particularly capital voir dire1.
Those U.S. Supreme Court cases are:
1) Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.
2d 931 (2003); (Miller-El I)
2) Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed
2d 196 (2005) (Sup.Ct. 2005); (Miller-El II)
3) Snyder v. Louisiana, 552 U.S.__, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)
4) Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.
2d 824 (2006)
5) Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410,162 L.Ed
     2d 129 (2005)
This paper also addresses and summarizes the following three opinions from the Louisiana Supreme Court involving the Batson/Miller-El issue.
1)  State v. Allen Snyder, 98-1078 (La. 9/6/06) 942 So.2d 484
  (reversed by U.S. Supreme Court)
2) State v. Robert Coleman, 06-0518 (La. 11/2/07), 970 So.2d 511
3)  State v. Darrell Draughn, 05-1825 (La. 1/17/07) 950 So.2d 583
I. UNITED STATES SUPREME COURT CASES
1. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed. 2d 931 (2003);
(Miller-El I)
Thomas Joe Miller-El sought federal habeas relief from his state court conviction for capital murder and death penalty imposition. The federal district court denied his petition and the U.S. Court of Appeals for the Fifth Circuit denied certificate of appealability (COA). Certiorari was granted, and the United States Supreme Court2 reversed and remanded holding that reasonable jurists could have debated whether the prosecution’s use of peremptory strikes against African Americans prospective jurors was the result of purposeful discrimination, and thus petition was entitled to COA.3
Miller-El, his wife Dorothy Miller-El, and one Kenneth Flowers robbed Holiday Inn clerks in Dallas, Texas. They emptied the cash drawers and ordered the two employees to lie on the floor. The employees were gagged and their hands and feet were bound. Miller-El asked Flowers if he was going to kill them. When Flowers hesitated or refused, Miller-El shot one of the victims twice in the back, thereby killing him, and shot the other employee in the side.
He was indicted for capital murder and his trial began in 1986. At the conclusion of jury selection, the defense counsel moved to strike the jury on grounds that the prosecution had violated the Equal Protection Clause of the Fourteenth Amendment by excluding African Americans by use of peremptory challenges.
It should be noted that Miller-El’s trial occurred before the decision in Batson. The case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was then the controlling precedent. 
As Swain required, the defendant sought to show that the prosecution’s conduct was part of a larger pattern of discrimination aimed at excluding African-Americans from jury service. In a pretrial hearing, he presented extensive evidence in support of his motion. The trial judge, however, found “no evidence…that indicated any systematic exclusion of blacks as a matter of policy by the District Attorney’s office; while it may have been done by individual prosecutors in individual cases.” The state court then denied petitioner’s motion to strike the jury. The jury found Miller-El guilty and he was sentenced to death.
Miller-El obtained no relief on this issue through the state system nor through federal habeas proceedings in the district and circuit courts; however, a record was made, of which the U.S. Supreme Court was obviously very concerned. A summary of the relevant facts are as follows:
Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African-American jurors remaining, however, all but one were excluded by peremptory strikes exercised by the prosecutors. On this basis, 91% of the eligible black jurors were removed by peremptory strikes. In contrast, the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to serve on petitioner’s jury.
More specifically, during voir dire, the prosecution questioned venire members as to their views concerning the death penalty and their willingness to serve on a capital case. Responses that disclosed reluctance or hesitation to impose capital punishment were cited as a justification for striking a potential juror for cause or by peremptory challenge. Under Wainwright v. Witt, the Court found from the record that the manner in which members of the venire were questioned varied by race. The Supreme Court observed “to the extent that a divergence in responses can be attributed to the racially disparate mode of examination, it is relevant to our inquiry.”
Most African-Americans (53%, or 8 out of 15) were first given a detailed description of the mechanics of an execution in Texas by prosecutors as follows:
[I]f those three [sentencing] questions are answered yes, at some point [,] Thomas Joe Miller-El will be taken to Huntsville, Texas. He will be placed on death row and at some time will be taken to the death house where he will be strapped on a gurney, an IV put into his arm and he will be injected with a substance that will cause his death…as the result of the verdict in this case if those three questions are answered yes.
Only then were these African-American venire members asked whether they could render a decision leading to a sentence of death. Very few prospective jurors (6%, or 3 out of 49) were given this preface prior to being asked for their views on capital punishment. Rather, all but three were questioned in vague terms:
Would you share with us… your personal feelings, if you could, in your own words how you do feel about the death penalty and capital punishment and secondly, do you feel you could serve on this type of a jury and death of the Defendant in this case based on evidence?
There was an even more pronounced difference on the apparent basis of race, in the manner the prosecutors questioned members of the venire about their willingness to impose the minimum sentence for murder. Under Texas law at the time of petitioner’s trial, an unwillingness to do so warranted removal for cause. The prosecutors first identified the statutory minimum sentence of five years’ imprisonment to 34 out of 36 (94%) white venire members, and only then asked: “If you hear a case, to your way of thinking [that] calls for and warrants and justifies five years, you’ll give it?” In contrast, only 1 out of 8 (12.5%) African-American prospective jurors were informed of the statutory minimum before being asked what minimum sentence they would impose. The typical questioning of the other seven black jurors was as follows:
Prosecutor : Now, the maximum sentence for [murder]… is life under the law. Can you give me an idea of just your personal feelings what you feel a minimum sentence should be for the offense of murder the way I’ve set it out for you? Juror: Well, to me that’s almost like it’s premeditated. But you said they don’t have a premeditated statute here in Texas.
Prosecutor: Again, we’re not talking about self-defense or accident or insanity or killing in the heat of passion or anything like that. We’re talking about the knowing --
Juror: I know you said the minimum. The minimum amount that I would say would be at least twenty years.
* * *
The Supreme Court found the pretrial Swain evidence of great concern. Petitioner subpoenaed a number of current and former Dallas County assistant district attorneys, judges, and others who had observed firsthand the prosecution’s conduct during jury selection over a number of years. Although most of the witnesses denied the existence of a systematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that when he had served in the district attorney’s office from the late-1950’s to early-1960’s, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries.
Of more importance, the defense presented evidence that the district attorney’s office had adopted a formal policy to exclude minorities from jury service (i.e. manuals and circulars which had remained in circulation until 1976 and were available to one of the prosecutors in the case).
Writing for the majority, Justice Kennedy observed as follows:
In this case, the statistical evidence alone raises some debate as to whether the prosecution acted with race-based reasons when striking prospective jurors. The prosecutors used their peremptory strikes to exclude 91% of the eligible African American venire members, and only one served on petitioner’s jury. In total, 10 of the prosecutors’ 14 peremptory strikes were used against African-Americans. Happenstance is unlikely to produce this disparity.
The case for debatability is not weakened when we examine the State’s defense of the disparate treatment. The Court of Appeals held that “[t]he presumption of correctness is especially strong, where, as here, the trial court and state habeas court are one and the same.” 261 F.3d, at 449. As we have noted, the trial court held its Batson hearing two years after the voir dire. While the prosecutors had proffered contemporaneous race-neutral justifications for many of their peremptory strikes, the state trial court had no occasion to judge the credibility of these explanations at that time because our equal protection jurisprudence then, dictated by Swain, did not require it. As a result, the evidence presented to the trial court at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time.
In this case, three of the State’s proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged and who did serve on the jury. The prosecutors explained that their peremptory challenges against six African-American potential jurors were based on ambivalence about the death penalty; hesitancy to vote to execute defendants capable of being rehabilitated; and the jurors’ own family history of criminality. In rebuttal of the prosecution’s explanation, petitioner identified two empaneled white jurors who expressed ambivalence about the death penalty in a manner similar to their African-American counterparts who were the subject of prosecutorial peremptory challenges. One indicated that capital punishment was not appropriate for a first offense, and another stated that it would be “difficult” to impose a death sentence. Similarly, two white jurors expressed hesitation in sentencing to death a defendant who might be rehabilitated; and four white jurors had family members with criminal histories. As a consequence, even though the prosecution’s reasons for striking African-American members of the venire appear race neutral, the application of these rationales to the venire might have been selective and based on racial considerations. Whether a comparative juror analysis would demonstrate the prosecutors’ rationales to have been pretexts for discrimination is an unnecessary determination at this stage, but the evidence does make debatable the District Court’s conclusion that no purposeful discrimination occurred.
We question the Court of Appeals’ and state trial court’s dismissive and strained interpretation of petitioner’s evidence of disparate questioning. 261 F.3d, at 452 (“The findings of the state court that there was no disparate questioning of the Batson jurors… [is] fully supported by the record”). Petitioner argues that the prosecutors’ sole purpose in using disparate questioning was to elicit responses from the African-American venire members that reflected an opposition to the death penalty or an unwillingness to impose a minimum sentence, either of which justified for-cause challenges by the prosecution under the then applicable state law. This is more than a remote possibility. Disparate questioning did occur. Petitioner submits that disparate questioning created the appearance of divergent opinions even though the venire members’ views on the relevant subject might have been same. It follows that, if the use of disparate questioning is determined by race at the outset, it is likely a justification for a strike based on the resulting divergent views would be pretextual. In this context the differences in the questions posed by the prosecutors are some evidence of purposeful discrimination. Batson, 476 U.S., at 97, 106 S.Ct. 1712 (“Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose”).
As a preface to questions about views the prospective jurors held on the death penalty, the prosecution in some instances gave an explicit account of the execution process. Of those prospective jurors who were asked their views on capital punishment, the preface was used for 53% of the African-Americans questioned on the issue but for just 6% of white persons. The State explains the disparity by asserting that a disproportionate number of African-American venire members expressed doubts as to the death penalty on their juror questionnaires. This cannot be accepted without further inquiry, however, for the State’s own evidence is inconsistent with that explanation. By the State’s calculations, 10 African-American and 10 white prospective jurors expressed some hesitation about the death penalty on their questionnaires; however, of that group, 7 out of 10 African-Americans and only 2 out of 10 whites were given the explicit description.
There is an even greater disparity along racial lines when we consider disparate questioning concerning minimum punishments. Ninety-four percent of whites were informed of the statutory minimum sentence, compared to only twelve and a half percent of African-Americans. No explanation is proffered for the statistical disparity.
* * *
It follows, in our view, that a fair interpretation of the record on this threshold examination in the COA analysis is that the prosecutors designed their questions to elicit responses that would justify the removal of African-Americans from the venire. Batson supra, at 93, 106 S.Ct. 1712 (“Circumstantial evidence of invidious intent may include proof of disproportionate impact…We have observed that under some circumstances proof of discriminatory impact ‘may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds’”). EMPHASIS SUPPLIED
In delivering a vigorous dissent, Justice Thomas wrote “[B]ecause petitioner has not shown, by clear and convincing evidence, that any peremptory strikes of black veniremen were exercised because of race, he does not merit a certificate of appealability…Quite simply, petitioner’s arguments rest on circumstantial evidence and speculation that does not hold up to a thorough review of the record.”
2. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed 2d 196 (2005) (Sup.Ct. 2005); (Miller-El II)
Justice Souter wrote the opinion of the majority, in which Justices Stevens, O’Connor, Kennedy, Ginsburg, and Breyer joined. Justice Breyer concurred and filed an opinion. Justice Thomas dissented and filed an opinion in which Chief Justice Rehnquist and Justice Scalia joined.
The underlying facts are the same as Miller-El I. Defendant and his accomplices bound and gagged two hotel employees during their robbery of a Holiday Inn in Dallas, Texas. Defendant then shot them, killing one and severely injuring the other. The prosecution used 10 peremptory strikes against black prospective jurors. The case initially came into the federal court system as an application for habeas relief that was denied by the Northern District of Texas and the U.S. Fifth Circuit. In Miller-El I, the Supreme Court granted certiorari to review whether the Fifth Circuit erred in denying a certificate of appealability. The Supreme Court ordered that an appeal be heard, and after a hearing, Fifth Circuit rejected defendant’s claim on the merits.4
The Court reviewed the history of the jurisprudence leading up to Batson, going back to Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880),5 through Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)6, up to the present. Justice Souter, writing for the majority, pointed out the deleterious effect of racial discrimination in jury selection upon defendants, the minorities themselves, and the perceived integrity of the judicial system. The Court then turned to the difficulty of identifying such discrimination and the complexity of determining upon what evidence to rely.
The Court pointed out that in Swain, the standard required a presumption that the prosecutor’s strikes were legitimate except in the face of a “longstanding pattern of discrimination”, when “giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge [were] being perverted.” 545 U.S. at 239, citing Swain, supra, 380 U.S. at 223-224. Batson was crafted to address the difficulty of proving a “continuity of discrimination over time”. Thus the relevant evidence for making a case of discrimination was broadened to “the totality of the relevant facts”, and the three part analysis of Batson was implemented.
The Court then went on and identified what it characterized as the “weakness” of Batson.
If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson's explanation that a defendant may rely on “all relevant circumstances” to raise an inference of purposeful discrimination. 545 U.S. at 240, citing 476 U.S., at 96-97, 106 S.Ct. 1712.
On that note, the Court turned to a review of the facts in Miller-El.
The Court first articulated the standard of review, pointing out that defendant was required to show that the Texas court’s conclusion was an “unreasonable determination of the facts in the light of the evidence presented in the State court proceeding”7, as required by the express language of 28 U.S.C. 2254, the Antiterrorism and Effective Death Penalty Act of 1996. Miller-El was required to rebut the presumption by clear and convincing evidence.
The Court began its review of the factual history of the case and proceedings in almost the same fashion as in Miller-El I, pointing out that
the numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were peremptorily struck by the prosecution. Id., at 331, 123 S.Ct. 1029. “The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members .... Happenstance is unlikely to produce this disparity.”
These “bare statistics”, however, were not enough. The Court then turned to a side-by-side comparison of some black prospective jurors who were excused to white panelists allowed to serve. The court pointed out
that 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. 545 U.S. at 241.
The Court focused upon two comparisons of prospective jurors.
The first juror summarized by the Court was a black male named Billy Jean Fields, who was excused by the prosecution.
On the questionnaire filled out by all panel members before individual examination on the stand, Fields said that he believed in capital punishment, and during questioning he disclosed his belief that the State acts on God's behalf when it imposes the death penalty. “ Therefore, if the State exacts death, then that's what it should be.” He testified that he had no religious or philosophical reservations about the death penalty and that the death penalty deterred crime. He twice averred, without apparent hesitation, that he could sit on Miller-El's jury and make a decision to impose this penalty.
Although at one point in the questioning, Fields indicated that the possibility of rehabilitation might be relevant to the likelihood that a defendant would commit future acts of violence, he responded to ensuing questions by saying that although he believed anyone could be rehabilitated, this belief would not stand in the way of a decision to impose the death penalty:
“[B]ased on what you [the prosecutor] said as far as the crime goes, there are only two things that could be rendered, death or life in prison. If for some reason the testimony didn't warrant death, then life imprisonment would give an individual an opportunity to rehabilitate. But, you know, you said that the jurors didn't have the opportunity to make a personal decision in the matter with reference to what I thought or felt, but it was just based on the questions according to the way the law has been handed down.” (alteration omitted).
Fields also noted on his questionnaire that his brother had a criminal history. During questioning, the prosecution went into this, too:
“Q Could you tell me a little bit about that?”
“A He was arrested and convicted on [a] number of occasions for possession of a controlled substance.”
“Q Was that here in Dallas?”
“A Yes.”
“Q Was he involved in any trials or anything like that?”
“A I suppose of sorts. I don't really know too much about it.”
“Q Was he ever convicted?”
“A Yeah, he served time.”
“Q Do you feel that that would in any way interfere with your service on this jury at all?”
“A No.”
It is unclear from the Court’s opinion if this represents the totality of Mr. Fields answers on the pertinent topics. The Court then turned to the prosecutor’s proffered race-neutral reasons.
The prosecutor justified the strike as follows:
“[W]e ... have concern with reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person could not be rehabilitated and he later made the comment that any person could be rehabilitated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case.” 545 U.S. at 243.
The Court continued with this commentary on those reasons.
Thus, Nelson simply mischaracterized Fields's testimony. He represented that Fields said he would not vote for death if rehabilitation was possible, whereas Fields unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields's outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.
The Court then contrasted Mr. Fields to Sandra Hearn, a white juror accepted by the prosecutor “with no evident reservations,” and other white jurors who expressed similar views.
Sandra Hearn said that she believed in the death penalty “if a criminal cannot be rehabilitated and continues to commit the same type of crime.” Hearn went so far as to express doubt that at the penalty phase of a capital case she could conclude that a convicted murderer “would probably commit some criminal acts of violence in the future. “People change,” she said, making it hard to assess the risk of someone's future dangerousness. “[T]he evidence would have to be awful strong.”. But the prosecution did not respond to Hearn the way it did to Fields, and without delving into her views about rehabilitation with any further question, it raised no objection to her serving on the jury. White panelist Mary Witt said she would take the possibility of rehabilitation into account in deciding at the penalty phase of the trial about a defendant's probability of future dangerousness, but the prosecutors asked her no further question about her views on reformation, and they accepted her as a juror.
* * *
In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror's belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform. 545 U.S. at 244-245.8
The Court then continues to parse the prosecutor’s reasoning with the following analysis:
The unlikelihood that his position on rehabilitation had anything to do with the peremptory strike of Fields is underscored by the prosecution's response after Miller-El's lawyer pointed out that the prosecutor had misrepresented Fields's responses on the subject. A moment earlier the prosecutor had finished his misdescription of Fields's views on potential rehabilitation with the words, “Those are our reasons for exercising our ... strike at this time.” When defense counsel called him on his misstatement, he neither defended what he said nor withdrew the strike.. Instead, he suddenly came up with Fields's brother's prior conviction as another reason for the strike.
It would be difficult to credit the State's new explanation, which reeks of afterthought. While the Court of Appeals tried to bolster it with the observation that no seated juror was in Fields's position with respect to his brother, the court's readiness to accept the State's substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible. Fields's testimony indicated he was not close to his brother, (“I don't really know too much about it”), and the prosecution asked nothing further about the influence his brother's history might have had on Fields, as it probably would have done if the family history had actually mattered. See, e.g., Ex parte Travis, 776 So.2d 874, 881 (Ala.2000) (“[T]he State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination”). There is no good reason to doubt that the State's afterthought about Fields's brother was anything but makeweight.
EMPHASIS SUPPLIED
The Court then critiqued the Court of Appeals analysis of the above, rejecting it as “unsupportable.”
The Court then turned to the striking of Joe Warren, another black prospective juror. The Court summarized his examination and the prosecution’s reasons.
“I don't know. It's really hard to say because I know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffering. You're taking the suffering away from him. So it's like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you're relieving personal punishment.”
The prosecution said nothing about these remarks when it struck Warren from the panel, but prosecutor Paul Macaluso referred to this answer as the first of his reasons when he testified at the later Batson hearing:
“I thought [Warren's statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think-I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more.” 545 U.S. at 247-248.
The Court then pointed out that several jurors acceptable to the State shared the belief that death was actually a lighter punishment than life in prison. The Court examined the prosecutor’s contention that strikes were being used more freely earlier in the voir dire process.
The suggestion of pretext is not, moreover, mitigated much by Macaluso's explanation that Warren was struck when the State had 10 peremptory challenges left and could afford to be liberal in using them. If that were the explanation for striking Warren and later accepting panel members who thought death would be too easy, the prosecutors should have struck Sandra Jenkins, whom they examined and accepted before Warren. Indeed, the disparate treatment is the more remarkable for the fact that the prosecutors repeatedly questioned Warren on his capacity and willingness to impose a sentence of death and elicited statements of his ability to do so if the evidence supported that result and the answer to each special question was yes, whereas the record before us discloses no attempt to determine whether Jenkins would be able to vote for death in spite of her view that it was easy on the convict. Yet the prosecutors accepted the white panel member Jenkins and struck the black venireman Warren. 545 U.S. 249.
The Court actually turned that argument against the prosecutor when examining the sole black juror, a Mr. Woods.
Macaluso's explanation that the prosecutors grew more sparing with peremptory challenges as the jury selection wore on does, however, weaken any suggestion that the State's acceptance of Woods, the one black juror, shows that race was not in play. Woods was the eighth juror, qualified in the fifth week of jury selection. When the State accepted him, 11 of its 15 peremptory strikes were gone, 7 of them used to strike black panel members. The juror questionnaires show that at least three members of the venire panel yet to be questioned on the stand were opposed to capital punishment, Janice Mackey, Paul Bailey, and Anna Keaton, With at least three remaining panel members highly undesirable to the State, the prosecutors had to exercise prudent restraint in using strikes. This late-stage decision to accept a black panel member willing to impose a death sentence does not, therefore, neutralize the early-stage decision to challenge a comparable venireman, Warren. In fact, if the prosecutors were going to accept any black juror to obscure the otherwise consistent pattern of opposition to seating one, the time to do so was getting late. 545 U.S. at 249-250.
The Court further rejected alternate bases offered by both the trial court and Court of Appeal.
If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals's and the dissent's substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions. 545 U.S. at 253.
Based on these comparisons, the court found that an “implausible light” was cast upon the prosecutor’s reasons, and that race was a significant factor in the exercise of peremptory challenges.
The Court then turned to “broader patterns of practice” during jury selection, beginning with the prosecutor’s exercise of the “jury shuffle”, a Texas practice that allows either side to rearrange the order of the prospective jurors. The prosecution exercised this right 3 times during jury selection, while the defense exercised it 5 times. The record was incomplete as to the composition of the jury except as to the exercise of the prosecution’s shuffles, which were exercised when a larger number of black venirepersons were seated near the front of the pool, and thus more likely to be questioned. The Court stated that since the prosecution never offered a race neutral reason for exercising this right, it was permissible to draw an inference that it was racially motivated.
The Court then turned to an analysis of the questions posed to jurors, contrasting those asked of white venire members with those asked of black venire persons. The Court examined the descriptions of the execution process given to white and black prospective jurors as it did in Miller-El I. The Court rejected the conclusions reached by Justice Thomas in his dissent in Miller-El I and adopted by the State and the Court of Appeals that there were race neutral reasons for the disparity. After a detailed review of portions of the record, the Court concluded that
The State's attempt at a race-neutral rationalization thus simply fails to explain what the prosecutors did. But if we posit instead that the prosecutors' first object was to use the graphic script to make a case for excluding black panel members opposed to or ambivalent about the death penalty, there is a much tighter fit of fact and explanation. 545 U.S. at 260.
The Court concluded that the reasonable inference was that race was the “major consideration” for the disparity.
The Court then examined another area of disparate questioning, which it characterized as “trickery”. This focused on questioning regarding the minimum sentence each juror would impose for murder. The Court repeated its description of the questioning from Miller-El I, and concluded that “once again, the implication of race in the prosecutors’ choice of questioning cannot be explained away.”
Finally, the Court revisits the same historical policy evidence that it discussed in Miller-El I. It points out that, among other things, one of the prosecutors had access to a 1968 manual on voir dire that contained an article on excluding minorities from jury service. It also notes that a former assistant district attorney testified that 8 years before the trial, he believed there was a policy of systematically excluding African-American jurors.
Ultimately, the Court held that the Court of Appeals’ conclusion unsupportable, and reiterated its characterization of the lowers courts’ interpretations of the evidence as “dismissive and strained.” The Court found that “the strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State.” 545 U.S. at 266. The Court’s conclusion is very brief when contrasted with the extensive and copiously footnoted examination of the minutiae of the lower court records.
Justice Breyer concurred, setting forth his belief that peremptory challenges should be abolished entirely. He points to England’s abolition of the practice in 1988 and cites extensive academic articles calling for the abolition of the practice. He characterizes the practice of peremptory challenges as “increasingly anomalous in our judicial system”, and points out that jury selection consultants often present litigators with demographic breakdowns of “ideal” jurors for a particular case. He finally points out that while equal protection rights are constitutionally protected, the practice of peremptory challenges shares no such protection.9
Justice Thomas dissented, as he did in Miller-El I, although this time he was joined by the Chief Justice and Justice Scalia. Justice Thomas pointed out that the Court went beyond the record permitted for review by the governing statute. Many of the documents relied upon by the Court were not before the State court at the time it made its decisions. Justice Thomas pointed out that the majority seemed to have shifted the burden of proof onto the prosecution, stating that, “In the end, the majority's opinion is its own best refutation: It strains to demonstrate what should instead be patently obvious.” 545 U.S. at 287.
Justice Thomas then proceeded to refute the fact-findings of the majority, pointing to numerous omissions in the majority characterization of the record. He parsed the record as exhaustively as the majority, pointing out that the “clear and convincing evidence” relied upon by the majority was subject to numerous interpretations.
3. Snyder v. Louisiana, 552 U.S. ___, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)
In this 7-2 opinion authored by Justice Alito10, the United States Supreme Court reversed the first degree murder conviction and remanded. For factual background and extensive procedural history see my analysis of the La. Supreme Court opinion on page 24 of this outline.
At the United States Supreme Court level, Allen Snyder centered his Batson claim on the prosecution’s strikes of two black jurors, Jeffrey Brooks and Elaine Scott. Citing Miller-El v. Dretke, finding merit to Snyder’s claim regarding juror Brooks and observing the jurisprudential rule that “[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose”, the Court concluded an Equal Protection violation and reversed the conviction.
Mr. Brooks, a college senior who was attempting to fulfill his student-teaching obligation, initially testified:
I’m a student at Southern University, New Orleans. This is my last semester. My major requires me to student teach, and today I’ve already missed a half a day. That is part of my – it’s required for me to graduate this semester.
He went on to describe that his regimen is 5 days per week, 8:30 – 3:00. The Court requested that his law clerk contact the university dean to determine Brooks’ availability, and the clerk reported on the record the dean’s response that week-long jury service would not be a problem, that he would “work with him” to make up the time. Upon hearing this, Brooks said “okay” and did not express any further concern about serving on the jury which was projected to last only a week. However, on the following day, the prosecutor issued a peremptory challenge stating:
I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.
The defense counsel disputed both explanations. The trial judge, Kernan Hand, ruled as follows:
All right. I’m going to allow the challenge. I’m going to allow the challenge.
In analyzing the first proferred reason, the Court observed that the nervousness issue was disputed by defense counsel and not corroborated by the trial judge. The Court wrote:
With respect to the first reason, the Louisiana Supreme Court was correct that “nervousness cannot be shown from a cold transcript, which is why the [trial] judge’s evaluation must be given much deference. As noted above, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks’ demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial judge may not have recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’ demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.
On the second proferred reason the Court considered (1) it was speculative to conclude that Brooks’ desire to hurry through the trial would result in a responsive verdict; it was equally plausible that he might vote guilty as charged; (2) the brevity of the trial as announced in voir dire; (3) the fact that the dean promised to “work with” Brooks to allow him to make up student teacher hours; (4) the fact that there was nothing in the record after the information about the dean to suggest that Brooks was troubled by the fact that he may be on a week long jury trial.
In light of Miller-El v. Dretke, the Court examined the entirety of the voir dire record which revealed that the prosecutor had accepted white jurors who disclosed conflicting obligations that appeared to have been at least as serious as Mr. Brooks’. For example, during voir dire, Roland Laws, a white juror explained that jury service was “bad timing” – a “self employed general contractor with two houses nearing completion, a wife who had just had a hysterectomy, the fact that he had to run the kids back and forth to school…”  Contrary to the examination of Brooks, the prosecutor tried to elicit assurances that Laws would be able to serve; and the prosecutor declined to issue a peremptory challenge as to Laws. The High Court noted another example with prospective juror Donnes in which he testified “I’d have to cancel too many things”. As with Laws, the prosecutor declined to issue a peremptory challenge on Donnes.
The Court concluded that the prosecutor’s proffered reasons for peremptorily striking Brooks were pretextual, which “naturally gives rise to an inference of discriminatory intent”.
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. And in light of the circumstances here – including absence of anything in the record showing that the trial judge credited the claim that Mr. Brooks was nervous, the prosecution’s description of both of its proffered explanations as “main concern[s],” and the adverse inference noted above the record does not show that the prosecution would have preemptively challenged Mr. Brooks based on his nervousness alone.
Thus, the proferred reason of schedule conflict is pretextual in light of the prosecutor’s treatment of two similarly situated white jurors and there was no judicial finding that Mr. Brooks was nervous.
4. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed. 2d 824 (2006).
Justice Kennedy wrote the opinion for a unanimous Court. Justice Breyer wrote a concurring opinion, in which Justice Souter joined. Habeas relief, not a direct appeal.
Defendant Steven Martell Collins was convicted by a jury of one count of possession of cocaine with the intent to distribute. Because of his criminal history, Collins was subject to the California “three strikes” rule for sentencing. Defendant brought a federal habeas corpus action on the grounds that the California courts erred in rejecting his objection that the prosecutor had peremptorily struck an African-American juror on the basis of her race.
The trial court had required the prosecutor to offer race-neutral reasons for excusing the juror in question, designated as juror 16.
The prosecutor said that Juror 16 had rolled her eyes in response to a question from the court; that Juror 16 was young and might be too tolerant of a drug crime; and that Juror 16 was single and lacked ties to the community. A further, more troubling part of the prosecutor's unorganized explanation was her reference to Juror 16's gender. The trial court, correctly, disallowed any reliance on that ground. The trial court, furthermore, which had the benefit of observing the prosecutor firsthand over the course of the proceedings, rejected Collins' challenge.
‘With regard to 016, the court, frankly, did not observe the demeanor of Ms. 016 that was complained of by the District Attorney; however, Ms. 016 was a youthful person, as was [a white male juror the prosecutor also dismissed by peremptory challenge]. And one or more prospective jurors also. The Court is prepared to give the District Attorney the benefit of the doubt as to Ms. 016.’ 126 S.Ct. at 973.
The California Court of Appeal accepted the trial court’s findings, and the state Supreme Court upheld the conviction without opinion.
The claim was brought on habeas petition to the Ninth Circuit, which found that the trial court made an “unreasonable factual determination” in accepting the prosecutor’s race-neutral reasons. 126 S.Ct. at 973. The Supreme Court noted that on direct appeal, the findings of the trial court are reviewed for “clear error”, while on habeas review they are examined for “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”, and the presumption of their correctness must be overcome by “clear and convincing evidence.” 126 S.Ct. at 974.
In concluding that no reasonable factfinder could have credited the prosecutor’s race-neutral reasons, the Ninth Circuit focused on three reasons, all of which were reviewed and rejected by the Supreme Court. The Ninth Circuit first pointed out that the prosecutor had erroneously referred to another juror, number 19, as young, although she was a grandmother. The Supreme Court pointed out that in context, the error was easily explained as the erroneous transposition of the reference number, and that such an issue was not relevant to the determination of the prosecutor’s motives.
Next, the Ninth Circuit focused on the fact that the prosecutor, a woman herself, made reference to the gender of Juror 16 during her articulation of race-neutral reasons. The trial court correctly pointed out that gender is an impermissible basis to excuse a prospective juror and did not consider it as an appropriate race-neutral reason. The Ninth Circuit found that this attempt to use gender should have caused the trial court to question the prosecutor’s credibility. The Supreme Court, in rejecting this criticism of the trial court, pointed out that the prosecutor also offered numerous plausible and permissible race-neutral reasons, and that the reference to gender did not require the conclusion that the prosecutor was lying about such reasons.
The Ninth Circuit panel rejected as unsupportable the prosecutor’s concern that Juror 16 was young, single, and had few ties to the community, and might therefore be overly tolerant of the defendant’s offense. The Ninth Circuit focused on the juror’s statements that she believed that the offense should be a crime and that she could be impartial. The Supreme Court pointed out that such assertions do not of themselves make the prosecutor’s concern unreasonable, and also noted that the prosecutor had excused a young white male on the same basis.
The Supreme Court ultimately held that while the trial court had reason to question the prosecutor’s credibility, this did not “compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral reasons.” 126 S.Ct. at 975. The fact that reasonable minds could differ was insufficient to supersede the trial court’s determination of credibility. The Court reversed the Ninth Circuit, thus denying the defendant’s application habeas review.
In the concurrence, Justice Breyer, joined by Justice Souter, agrees with the Court’s holding as consistent with the present legal framework, but reiterates his earlier position that “legal life without peremptories is no longer unthinkable.” 126 S.Ct. at 977. He agrees with Justice Thurgood Marshall’s observation that Batson would be inadequate to “ferret out” unconstitutional discrimination from jury selection.11
5. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410,162 L.Ed 2d 129 (2005)
Justice Stevens wrote majority opinion, joined by Chief Justice Rehnquist, and Justices O’Connor, Scalia, Souter, Ginsburg and Breyer. Justice Breyer concurred. Justice Thomas dissented.
Defendant was Jay Shawn Johnson, a black male. He was convicted of the second-degree murder of and assault upon a 19 month-old white child, the child of his white girlfriend. During jury selection, cause challenges left 43 eligible jurors, 3 of whom were black. The prosecutor challenged all 3 black jurors with 3 of his 12 peremptory challenges. The resulting jury was all white.
After the second challenge against a black juror, defense counsel challenged the prosecutor’s conduct on state and federal constitutional grounds. The Court did not require the prosecutor to offer race neutral reasons for his strikes, finding that no prima facie case had been made. Under the governing California state precedent, a person raising a Batson challenge had to show a “strong likelihood” that the exercise of peremptory challenges was based on the prospective juror’s race, rather than on an individual basis.12 Without such showing, the Court would not proceed to the next step of a Batson analysis and require race neutral reasons. The trial judge did, however, warn the prosecutor that “we are very close” to such a prima facie case.
The prosecutor subsequently excused the third and final black prospective juror, drawing another defense objection. The trial court ruled that her examination of the record convinced her that race-neutral reasons existed to justify the strikes. The judge’s ruling was based in part on her own review of the jurors’ written questionnaires, which contained “confused and equivocal” answers.
The California Court of Appeal set aside the conviction, finding that the requirement that defense counsel show a “strong likelihood” that strikes were based on race was unduly burdensome and inconsistent with Batson. The California Supreme Court reversed and reinstated the petitioner’s conviction, holding that Batson “left to state courts the task of establishing the standards used to evaluate the sufficiency of defendants’ prima facie cases.” The California Supreme Court did note that “it certainly looks suspicious” that all black jurors were excused, but rejected a “statistical disparity” as a basis for the prima facie showing.
The United States Supreme Court framed the question as “whether Batson permits California at step one [in the analysis] that ‘the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’” 545 U.S. at 168, citing 30 Cal.4th, at 1318, 1 Cal.Rptr.3d 1, 71 P.3d, at 280. The Court returned to Batson itself, pointing out the opinion contemplated a wide variety of evidence serving as the basis for a prima facie case, “SO LONG AS THE sum of the proffered facts gives ‘rise to an inference of discriminatory purpose.’” (emphasis in original) 545 U.S. at 169, citing 476 U.S., at 94, 106 S.Ct. 1712.
The Court conceded that Batson does ultimately place the burden of persuasion that a racially impermissible motive exists on the party raising the objection, but emphasized the third step in the Batson analysis as the point at which such a burden became relevant.
The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. See 476 U.S., at 97-98, and n. 20, 106 S.Ct. 1712. The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. 545 U.S. at 172.
The Court then cited the comments of both the trial court and reviewing court that the question was “close”, and determined that such comments evinced sufficient evidence for a prima facie case under Batson. The Court held that California’s requirement that a party make a “more likely than not” showing at step one of the Batson analysis was at odds with that case’s holding, and the conviction was reversed and the case remanded.
Justice Breyer’s concurrence merely adopted by reference his opinion in the Miller-El case, in which he advocated the elimination of peremptory challenges all together. Justice Thomas’ dissent points out that Batson did in fact afford state courts wide latitude to define the evidence for establishing the first step of a Batson violation, and argued that California’s solution was well within those boundaries.
The Court’s holding, as a practical matter, is essentially that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to draw an inference that discrimination has occurred.” 545 U.S. at 170. The Louisiana Supreme Court has already clarified this rule and its application, however, pointing out that the “mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence [in that case] to lead to an inference of purposeful discrimination.” State v. Draughn, ---So.2d---, 2007 WL 102732 (La. 1/17/2007), p. 26. The court pointed out that an overly broad interpretation of Johnson would eliminate entirely the first step of the Batson analysis, and pointed out that the defendant objecting still retains the burden of production of the evidence to support the inference of purposeful discrimination. (Emphasis in original)(State v. Draughn, id.)
II. LOUISIANA SUPREME COURT CASES
This case was reversed by the United States Supreme Court on March 19, 2008 (see page 17) The Louisiana Supreme Court opinion is analyzed for background.
1. State v. Allen Snyder, 98-1078 (La. 9/6/06) 942 So.2d 484. Jefferson Parish, Judge Kernan A. Hand.
The defendant was convicted of first degree murder and sentenced to death. On direct appeal, the La. Supreme Court affirmed defendant’s conviction and sentence. See State v. Snyder, 98-1078 (La. 4/14/99) 750 So.2d 832. The United States Supreme Court remanded the case back to the Louisiana Supreme Court directing that it again review the defendant’s Batson claims in light of Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Miller-El II). See Snyder v. Louisiana, 545 U.S. 1137, 125 S. Ct. 2956, 162 L.Ed. 2d 884 (2005).
The defendant is black. He was tried by an all-white jury, which found him guilty as charged and rendered the death penalty. Fourteen (14%) percent of the qualified jury pool were black (those who survived cause challenges). The State used five (5) of its peremptory challenges to strike 100% of the black prospective jurors.
One particularly problematic aspect in this case which ultimately became a factor in connection with the Miller-El-II analysis concerned a pretrial motion and hearing to determine whether the State would be permitted to introduce at trial evidence of five (5) incidents of domestic violence allegedly committed by defendant against his estranged wife to show defendant’s motive and intent. Apparently, during this pretrial hearing the prosecutor made reference to the O.J. Simpson case “where this very thing happened” to illustrate the relevance of such incidents. The judge ruled that evidence of the other crimes would be admissible at trial. Thereafter, defense counsel filed a motion in limine specifically requesting the State be precluded at trial from referring to or making comparisons with O. J. Simpson or his trial, as such references would serve no purpose other than to confuse and prejudice the jury. The prosecutor responded:
I think [the defense motion is] premature…I can assure the Court that I’m not going to get up in opening voir dire and say [that] “we’re here for the Jefferson Parish O.J. Simpson…case.” I have not intentions of doing that. I have no-perhaps in argument, I don’t know.
I have given the Court my word that I will not, at any time during the course of the taking of evidence or before the jury in this case, mention the O.J. Simpson case…I just ask [the court] not to grant this motion.
After the hearing, the trial court denied defendant’s motion based on the prosecutor’s representations.
Voir dire examination began against this backdrop; and, the prosecutor, at least arguably, broke his word inasmuch as he did make an indirect reference to O. J. Simpson during his rebuttal argument at the penalty phase of the trial.
The reference was preceded by the following argument of defense counsel:
[S]ome of the mitigating circumstances that we believe we’ve been able to demonstrate to you…[relate to] whether Mr. Snyder was under extreme emotional or mental influence at the time of this particular incident…I really didn’t have to do much to show facts that might suggest that, because the State, when they put on their case,…the officer from Kenner…said that when he found Allen Snyder a couple of hours or 12 hours or so after this incident, he was curled up in fetal position.
He was suicidal. He kept saying, “They’re coming to get me. They’re coming to get me.”…[T]here’s never been any indication that Mr. Snyder was somehow staging that particular incident in order to get himself a better situation or a better sentence or to help himself out in any way. The testimony of that officer was accurate and it was truthful. The other thing that he testified to was that that house was in shambles. The furniture was strewn all about. Furniture was put up…doors were barricaded. The furniture was being used as a barricade…I’ll ask you if that is not suggestive of some sort of [mental] disturbance.
The portion of the States’ rebuttal argument that the defendant now complains about was in direct response to the above quoted argument. Specifically, the prosecutor stated:
It’s been very clear, and this is the last thing I’m going to say about Allen Snyder, that the kind of person he is, as Mr. Olinde described him in his opening statement, he’s egocentric, and he has shown no remorse. More than that, as he stabbed his wife 15 times, put her through what Dr. Harkness described as a near-death experience, as she lay there gushing blood, as Mary Snyder sat in that seat right there, he left her there. He left her there to die. And when Detective Labat took the statement from him 12 hours later,…not a word at any time where you would have heard him, how’s my wife? Is she okay? Not a word. Is that because he’s depressed or because he’s got a far deeper problem?
Brief mention. Mr. Vasque tried to describe this man as being the man who-And it was 12 hours later when he called the Kenner Police Department, huddled up, claiming that he was suicidal, barricaded himself in the house. That made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you all are aware of.
At this point in the rebuttal argument, defense counsel voiced an objection, and both counsel approached the bench. The prosecutor argued the reference to the O.J. Simpson case was fair based on the similarities between what Snyder did and what Simpson did, specifically pretending to be suicidal. The trial court overruled the defense objection.
The most famous murder case…happened in California very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it. Ladies and Gentlemen, is it outside the realm of possibility that that’s not what that man was thinking about when he called in and claimed that he was going to kill himself?
The trial judge overruled the defense objection. The Supreme Court concluded that the remark should be considered in context; specifically, the statement during the motion in limine hearing referred to the fact that the Simpson trial involved alleged domestic violence; the remark during rebuttal referred to the fact that Simpson feigned suicidal intent. Neither remark referred to Simpson’s or Snyder’s race.
Because Miller-El II directs the reviewing court to cumulate all relevant items tending to point to racial discrimination and view them together when considering whether the trial court’s determination of the existence of discrimination, the O.J. Simpson references nevertheless became the focus of the court in light of the State’s peremptory challenges of three of the five black venire persons. Jeffrey Brooks, a black male, was tentatively accepted from the first panel of prospective jurors. Greg Scott, a black male, was in the second panel and was peremptorily excused by the State. Thomas Hawkins, Jr., a black male, was in the third panel and was also peremptorily excused by the State. Elaine Scott, a black female, was also in the third panel and was peremptorily excused by the State. Although defense counsel noted the race of the jurors, he apparently made the Batson challenge at the point of the peremptory challenge of Elaine Scott, yet, did not argue that there was at least the beginning of a pattern and did not argue for the inclusion of Greg Scott and Hawkins in his Batson challenge.
Because of the lack of a full contemporaneous objection, the Louisiana Supreme Court deemed it to be a “procedural default” of this aspect of the State’s jury selection. Later, the State issued a backstrike peremptory challenge of Jeffrey Brooks, which was the only black juror the State had accepted for service, leaving an all white jury. Even though the backstrike of Brooks followed the Batson-challenged peremptory strike of Ms. Scott, the trial judge, after listening to argument by the attorneys and the prosecutor’s proffered reasons, allowed the challenges without any explanation whatsoever.
The prosecutor’s reasons for striking Brooks were that he appeared “very nervous” throughout questioning and that he would be missing class, as a student teacher, if chosen to serve on the jury. The prosecutor stated, “He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Defense counsel responded by stating:
His main problem yesterday was the fact that he didn’t know if he would miss some teaching time as a student teacher. The clerk called the school and whoever it was and the Dean said that wouldn’t be a problem. He was told that this would go through the weekend, and he expressed that that was his only concern, that he didn’t have any other problems.
As far as him looking nervous, hell, everybody out here looks nervous. I’m nervous.
The court allowed the State to exercise a peremptory challenge on Brooks.
With respect to prospective juror Elaine Scott, the district attorney excused her, stating “I observed she was very weak on her ability to consider the imposition of the death penalty. Her words, exactly – I wrote it down, that she thinks she could, and that’s the reason for the challenge.” However, when asked again by the prosecution if she could impose the death penalty, she responded, “I could”. She also responded affirmatively when asked if she could listen to the evidence and consider whether to accept or reject the insanity defense.
The court further noted that Brooks had approached the bench prior to voir dire and raised his teaching obligations as a hardship excuse when consistent with the race neutral explanation supplied by the prosecutor. The court distinguished Brooks from two other men, Yeager and Samdras, who were accepted by the state, both men expressing concerns about their commitments and pre-existing obligations which would make jury service onerous. One noted difference was that Samdras and Yeager brought forth this information during defense examination while Brooks initially approached the bench.
The Supreme Court noted that Miller-El II requires a reviewing court to focus on the “particular reasons a prosecutor might give”, and that “sometimes a court” might have to look “beyond the case at hand”. The court wrote:
Miller-El, therefore, redirects attention to “Batson’s explanation that a defendant may rely on ‘all relevant circumstances’ to raise an inference of purposeful discrimination,” and to the trial judge’s duty under Batson “to assess the plausibility” of the prosecutor’s proffered reason for striking a potential juror “in light of all evidence with a bearing on it.
Thus, even though the La. Supreme Court found no indication that race was the underlying reason for backstriking Brooks, the court then examined the record for “all relevant circumstances” and “all evidence with a bearing” on the Batson issue – which led to the Brooks backstrike challenge by the state. The court then examined and analyzed the O.J. Simpson references and, with particular regard to the context of the rebuttal prosecution argument concluded that there was no evidence in the record to substantiate defendant’s claim of discriminatory use of peremptory challenges. The majority [Justices Weimer, Victory, Traylor and Sexton (Pro Tempore for Justice Knoll, recused)] affirmed the conviction and sentence:
We conclude defendant did not carry his ultimate burden of persuasion that the State exercised peremptory challenges in a purposefully discriminatory manner. We reiterate that Snyder’s ‘proof, when weighted against the prosecutor’s offered race-neutral reasons, was not sufficient to prove the existence of discriminatory intent’.
Justices Kimball, Calogero, and Johnson issued dissents. Justice Kimball wrote a scathing dissent concluding that the vigorous analysis mandated by Miller-El II leads to the conclusion that the state exercised peremptory challenges in a purposely discriminatory manner and she further chastised the trial judge for not being engaged in the voir dire and declining to supply any reasons for his denial of the Batson objection as to Mr. Brooks.
Considering this injection of racial issues, and the fact that the prejudicial arguments were made to an all-white jury, I believe it is only reasonable to conclude that Mr. Brooks was peremptorily challenged by the State on the basis of his race when the entirety of the facts is considered. This is especially true in light of the fact that the trial court did not articulate its reasons for overruling the Batson challenge. While one may infer that the trial court found the State’s reasons credible, this court, on appellate review, is not privy to the reasons for this credibility determination. One simply cannot tell whether it was something in the demeanor of the prosecution or in the behavior or attitude of Mr. Brooks that caused the trial court to believe the state’s race neutral reasons were not pretextual.
* * *
Without the independent assessment from the trial court verifying the accuracy of the State’s generalized and conclusory characterization, the record contains no objective support for the State’s demeanor-based justification. In the absence of the trial court’s independent and particularized assessment of Mr. Brook’s demeanor, a reviewing court can only look to the record, which seems to indicate a lack of nervousness and uncertainty on the part of Mr. Brooks. Consequently, the State’s proffered race-neutral reasons for striking Mr. Brooks are called into question.
The majority, relying on the Court’s admonition in Collins that reviewing courts should not improperly substitute their evaluations of the record for that of the trial court, concludes that “nervousness cannot be shown from a cold transcript, which is why only the trial judge can evaluate the demeanor of the juror and why the judge’s evaluation must be given much deference.” In this case, however, the trial judge allowed the State’s peremptory challenge of Mr. Brooks without any explanation whatsoever. In contrast, the trial court in Collins specifically stated:
With regard to 016 [the panelist at issue], the court, frankly, did not observe the demeanor of Ms. 016 that was complained of by the District Attorney; however, Ms. 016 was a youthful person, as was [a white male juror the prosecutor also dismissed by peremptory challenge]. And one or more prospective jurors also. The [c]ourt is prepared to give the District Attorney the benefit of the doubt as to Ms. 016.
Thus, the trial judge in Collins made particularized findings regarding the prosecutor’s proffered reasons. The trial judge in the instant case made no comment regarding Mr. Brooks’s demeanor or his opinion of the trustworthiness of the prosecutor’s explanations, even when the defendant immediately challenged the prosecutor’s characterization of Mr. Brooks’s demeanor. It is true that he allowed the peremptory challenge, but we are left with nothing but conjecture regarding his reasoning in the face of contrary characterizations of Mr. Brooks’s demeanor by the State and the defendant. In my view, it is the lack of particularized reasons under these circumstances that distinguishes this case from Collins.
EMPHASIS SUPPLIED
With regard to the problematic O.J. Simpson reference, Justice Kimball wrote:
Miller-El II directs that appellate courts cumulate all relevant items tending to point to purposeful discrimination and view them together when considering whether the trial court’s determination of the existence of purposeful discrimination is clearly erroneous. The record shows that issues of racial prejudice existed at the outset of this case when defendant attempted to foreclose the possibility of the State mentioning the O.J. Simpson trial during his own trial. Defendant was tried by an all-white jury after the State used five of its peremptory strikes to challenge 100 percent of the eligible African-American panelists. In the absence of the trial court’s independent and objective assessment on the record of Mr. Brooks’s demeanor and attitude, the record tends to belie the prosecutor’s stated race-neutral reasons for striking him. Rather than seeming uncertain and nervous, Mr. Brooks appears from a reading of the cold transcript to be engaged, forthcoming and communicative. Additionally, although the State offered the fact that Mr. Brooks might want to manipulate his deliberation to cut the trial short because of his stated concerns about missing his student teacher duties as a race-neutral reason for its strike, the State did not ask Mr. Brooks one question regarding this concern. Moreover, the State accepted without question on the issue at least two panelists who voiced similar concerns and might conceivably have the same motivation for cutting the trial short. Finally, we noted that the State injected race into the proceedings directly when it did, in fact, mention the O.J. Simpson case during its penalty phase argument over the defendant’s objection. 
When viewed in isolation, perhaps none of the factors above would constitute enough evidence to overturn the trial court’s determination in light of the great deference afforded its factual determinations. However, the totality of the evidence discussed herein, combined with the lack of the trial court’s active participation in voir dire and its failure to articulate particularized reasons for its determination that the State’s proffered reasons were not pretextual, leads to the conclusion that the trial court’s decision to allow the strike of Mr. Brooks was clearly erroneous. In my view, the cumulative evidence of pretext is compelling and too powerful to conclude anything but intentional racial discrimination motivated the State’s strike of Mr. Brook. Consequentially, I would reverse defendant’s conviction and sentence.
EMPHASIS SUPPLIED
In her dissent, Justice Johnson wrote:
I would have more confidence in the fairmindedness of this jury and the jury’s prenouncement of the death sentence, had the state not used its peremptory challenges to exclude every African American juror, resulting in an all white jury for this black defendant. In my view, this violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 90 l.Ed.2d69 (1986), coupled with the prosecutor’s inflammatory and prejudicial comparison of this case to the O. J. Simpson trial, require that we set aside the death sentence and remand the case for resentencing
* * *
The prosecutor’s discriminatory intent in excluding all African-Americans from the jury was evidenced by his reference to the O. J. Simpson trial during closing arguments.
2. State v. Robert Coleman, 06-0518 (La. 11/2/07), 970 So.2d 511 Caddo Parish, Judge Scott Crichton.
In this 4-3 decision rendered by the Louisiana Supreme Court, the capital murder conviction was reversed and the case remanded for new trial on the basis that the prosecutor’s proffered reason for its peremptory challenge as “not facially neutral”, thus in violation of the equal protection clause.
Robert Coleman was convicted of first degree murder of Reverend Julian Brandon in a home invasion armed robbery in which Brandon was brutally killed and his wife, shot in the head, was permanently and severely injured.
During voir dire Mason Miller, an African-American male, was tentatively accepted as a juror but subsequently dismissed when the State used its third peremptory challenge to back strike him. In defending its use of the peremptory challenge to exclude the prospective juror, the State offered:
The State did that because it needed to check information concerning Mr. Miller based on his employment. He advised he was a captain with the fire department in Bossier City. Mr. Miller has filed a lawsuit against the city alleging institutional discrimination. Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims. He said if he was 100 percent on the evidence, the death penalty was okay. With his body language, the State believes he is way passed (sic) where he self-described himself as a C but is actually a D or number four.
The opinion states:
After entertaining the State’s explanation, the trial court reiterated that the defendant had failed to satisfy the first step of the three-step Batson analysis, i.e., a prima facie showing of discrimination. However, the court then proceeded to rule on the State’s articulated reasons for the exclusion of this prospective juror13.
In addition to the above explanation, the prosecutor noted that his “body language” as he responded to questions probing his attitude toward capital punishment.
While the Court noted that as a general proposition, a prospective juror’s preoccupation with ongoing litigation has been deemed a race-neutral explanation supporting a peremptory strike, this comment by the prosecutor impermissibly injects race into its reasons for the challenge.
However, while Miller’s voir dire responses, amplified by the State’s perception of his body language, tended to favor life imprisonment over the death penalty, this explanation for striking Miller, when examined in the context of the State’s previous overt reference to race, cannot compensate for the specific racial reference. Once an inappropriate explanation invoking racial considerations is made, a subsequent, valid reason for exercising the peremptory challenge cannot purge the racial taint.
* * *
We find that the State consciously took race into account in its exclusion of Mr. Miller, thereby violating defendant’s constitutional right to equal protection. Striking a single juror can constitute an equal protection violation.
* * *
A juror is entitled to be evaluated for service on a jury without reference to race. That fundamental guarantee is violated when the State consciously takes race into account in excluding a juror from service.
In a dissenting opinion Justice Knoll, joined by Justices Kimball and Victory, wrote that the prosecutor’s mention of race in its explanation “tainted the State’s otherwise race-neutral reasons for the strike”. In particular Justice Knoll noted that (1) the defense counsel had brought up race “in a powerful way” with another juror in Miller’s panel (and thus, the context was that the prosecution was responding); (2) that the “mere mention of race” by the prosecutor was to illustrate its concern with the potential impartiality or neutrality of Mr. Miller; (3) Miller’s preoccupation with ongoing litigation would have been a race neutral explanation; (4) Miller’s testimony tended to favor life imprisonment over the death penalty.
Overall, Justice Knoll pointed out that neither Batson nor Miller-El require the State’s reasons to be perfect, just that they give a clear and reasonably specific explanation for exercising the challenge. She wrote, “I would defer to the district court’s sound judgment”.
It should be noted that at trial while there was a defense Batson objection at the end of the voir dire process, the 4 defense lawyers hardly argued the issue on Mr. Miller. More importantly, the defense brief to the Louisiana Supreme Court scantly addressed it (in less than one of twenty five pages) and most significantly it was not brought up by defense counsel or any of the justices during oral argument at the Louisiana Supreme Court. In her dissent, Justice Knoll wrote:
Moreover, even the defendant failed to raise the issue now raised by this Court, even though Miller was included in the general Batson claim, which further indicates to me the plausibility of the State’s reason.
3. State v. Darrell Draughn, 05-1825 (La. 1/17/07) 950 So.2d 583 Caddo Parish, Judge Leon Emanuel.
The defendant was convicted of first degree murder of a 64 year old lady, who was “stabbed or cut 61 times” during the commission of a robbery. In accordance with the recommendation of the jury, the trial judge sentenced the defendant to the death penalty. The defendant is black; the prosecution utilized four of its peremptory challenges against black venirepersons and three of its peremptory challenges against white venirepersons. The defense counsel entered a Batson challenge and requested that the prosecution be required to show race neutral reasons for the four peremptory challenges at issue. The trial judge informed the defense that “your facts are not accurate enough for the Court to consider that you have successfully presented a Batson motion.
The trial court asked the defense if it had further argument to present, but the defense declined to present anything further other than noting its objection to the ruling. After asking the State if it wished to respond, the trial court interrupted the prosecutor as he was about to make a record of which prospective jurors the state had struck. The trial court clarified his inquiry to the state as the question whether, notwithstanding the court’s determination that a Batson motion had not been properly presented, the State wished to respond to the motion. The State declined to present argument.
The court reiterated that it was “not persuaded you have factually established an allegation of Batson”.
Thus, although not artfully or completely expressed, the trial judge correctly determined that the defendant did not bear his burden of proving the first step of Batson, i.e., that a prima facie case of purposeful discrimination existed. Thus, the burden did not shift to the prosecution in the second step of the Batson analysis, requiring the state to provide a race-neutral explanation for the peremptory strike. The Supreme Court’s inquiry, then was whether the trial court erred in finding that the defendant failed to present a prima facie case of purposeful discrimination.
The Louisiana Supreme Court observed in accordance with the U.S. Supreme Court’s opinion in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006) that the proper reviewing process for a Batson claim is as follows:
A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”, so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered.
CITATIONS OMITTED
Further, the Louisiana Supreme Court observed that the U.S. Supreme Court clarified its Batson analysis with regard to Batson’s first step in Johnson v. California and its analysis of Batson’s third and final step in Miller-El v. Dretke.
Johnson reiterated that “a prima facie case of discrimination can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose’”. In Johnson, the Supreme Court quoted Batson’s explanation of what constitutes a prima facie case.
[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
The specific question in Johnson was whether Batson permitted the State of California to require at the first Batson step that the objector show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias. In holding that the California “more than likely than not” standard was an inappropriate indicator of the sufficiency of a prima facie case, the Supreme Court explained that the first step of Batson was not intended to require the defendant to present sufficient evidence to meet the third and final step’s analysis:
Thus, in describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated. We did not intend the first step to be so onerous that a defendant would have to persuade the judge-on the basis of all the facts, some of which are impossible for the defendant to know with certainty-that the challenge was more likely than not the product of purposeful discrimination.
Johnson, 545 U.S. at 170. “Instead, a defendant satisfies the requirements of Batson’s first step in producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id.
The Louisiana Supreme Court wrote as follows:
Our review of the entire voir dire convinces us that the mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence in this case to lead to an inference of purposeful discrimination. There is nothing in Batson, or indeed in Johnson, which would require such an automatic finding. Otherwise, there would be no need for the first Batson step in the trial of any defendant who was a member of a cognizable racial group whenever a peremptory challenge was raised to a prospective juror who was also a member of that racial group; the Supreme Court’s holding in Johnson did not collapse the first step in the Batson analysis. We do not believe that Batson or Johnson can be read so broadly.
Johnson makes clear that the burden of production in the first Batson step is squarely on the defendant. Without further argument or reasons presented by the defense under the circumstances of this case, the trial judge had nothing from which to draw an inference of purposeful discrimination. Instead, the trial court had several relevant circumstances which negated a finding of discriminatory intent on the part of the prosecution in exercising its peremptory challenge.
First, the nature of the case itself presented no overt racial overtones. Both the victim and the defendant were from the same cognizable racial group.
Second the trial court properly considered the timing of the defense objection. At the time the state entered its peremptory challenges to Lori Graham, Peggy Taylor and Loshun Jackson, the defense failed to raise a Batson objection. Several more panels were considered, and still no defense objection was raised. The jury was selected, and still no defense objection was made. Only after Wiley Shepherd was peremptorily challenged by the state as an alternate juror did the defense raise an objection. Although the objection was timely under our law in the sense that the entire jury had not yet been sworn together, the circumstance contrasts sharply with the situation in other cases where the defense attorney raises objection immediately after the prospective juror is challenged.
Third, the trial judge could take into consideration the tenor of the voir dire questioning. The prosecution used the same questions throughout its voir dire. There is no indication that any particular prospective jurors were “targeted” for more questioning in an attempt to provoke a certain response. Indeed, there was an unprecedented amount of cooperation between the state and defense counsel. All but five of the cause challenges were submitted as joint requests by the prosecutor and defense counsel.
Fourth, although the record itself does not designate the racial make-up of the prospective jurors, the Uniform Capital Sentence Report, which was completed by the trial judge pursuant to this court’s rule, shows that the jury which actually heard the defendant’s case consisted of 11 white jurors and one black juror. “Although the mere presence of African American jurors does not necessarily defeat a Batson claim, the unanimity requirement of a capital case sentencing recommendation may be considered. State v. Tart, 1993-0772 p. 18 (La. 2/9/96), 672 So.2d 116, 141, cert. Denied, 519 U.S. 934, 117 S. Ct. 310, 136 L.Ed.2d 227 (1996). The trial judge was aware that the state had several unused peremptory challenges and did not utilize them to remove the minority juror. Unlike Johnson, all of the prospective African American jurors were not stricken from the pool of prospective jurors.
Finally, the trial judge in Johnson thought the issue of the prosecutor’s possible discriminatory intent “very close”. Here, the trial judge indicated clearly he found no discriminatory intent whatsoever.
In making our determination, we note that the prosecution’s use of a peremptory challenge cannot be separated from the context in which the challenge arises, a context which the trial judge is in the best position to evaluate. The record shows that the trial judge, prosecutor and defense counsel were all actively engaged in a full and complete voir dire. An analysis of the voir dire as a whole convinces us that the trial judge was correct in his determination that no prima facie showing of purposeful racial discrimination was met by the defense in its Batson objection.
Although a trial judge does not make a determination of the credibility and persuasiveness of the prosecutor’s stated race-neutral reasons until the third and final step of a Batson analysis, which was not reached in the case here, we nevertheless gain comfort in the appropriateness of our decision by our review of the type of factors which would support the ultimate finding of purposeful discrimination denounced in Miller-El. The record in this case reveals no disparate questioning of any of the prospective jurors, as was found in Miller-El. There were no “trick” questions from which prosecutors could manufacture race-neutral reasons for removing jurors. There was no procedure by which juror placement on panels could be manipulated in order to reach non-minority prospective jurors before minority prospective jurors. Nor was there any evidence of a historical practice of racial discrimination in the selection of juries in Caddo Parish, as was present in Miller-El.
So, (1) the defendant failed to present a prima facie case of purposeful discrimination in the four peremptory challenges at issue; (2) the trial court properly found that sufficient evidence to support an inference of a prima facie showing of discriminatory intent was not produced by the defendant; (3) Since no discriminatory intent on the part of the prosecutor was shown or found, no further inquiry is required and the subsequent steps of the Batson analysis need not be performed.
III. LOUISIANA CAPITAL CASES 2005 – MARCH 2009
For your reading pleasure, the following is an illustrative though probably not exclusive listing of Louisiana Supreme Court capital cases between January 2005 and March 2009
State v. Holmes, __ So.2d ___, 2008 WL 5158222, 2006-2988 (La. 12/2/08), La. December 02, 2008 (No. 2006-KA-2988);
State v. Anderson, 996 So.2d 973, 2008 WL 4146364, 2006-2987 (La. 9/9/08), La. September 09, 2008 (No. 2006-KA-2987);
State v. Campbell, 983 So.2d 810, 2008 WL 2150946, 2006-0286 (La. 5/21/08), La. May 21, 2008 (No. 2006-KA-0286);
State v. Dunn, 974 So.2d 658, 2008 WL 204214, 2007-0878 (La. 1/25/08), La. January 25, 2008 (No. 2007-KK-0878;
State v. Lee, 976 So.2d 109, 2008 WL 343031, 2005-2098 (La. 1/16/08), La. January 16, 2008 (No. 2005-KA-2098);
State v. Montejo, 974 So.2d 1238, 2008 WL 398508, 2006-1807 (La. 1/16/08), La. January 16, 2008 (No. 2006-KA-1807);
State v. Coleman, 970 So.2d 511, 2007 WL 3226870, 2006-0518 (La. 11/2/07), La. November 02, 2007 (No. 2006-KA-0518);
State v. Harris, 966 So.2d 1038, 2007 WL 2752381, 2007-1735 (La. 9/21/07), La. September 21, 2007 (No. 2007-KD-1735);
State v. Miller, 964 So.2d 911, 2007 WL 1866753, 2005-1826 (La. 6/29/07), La. June 29,2007 (No. 2005-KA-1826);
State v. Frank, 957 So.2d 724, 2007 WL 1471964, 1999-0553 (La. 5/22/07), La. May 22, 2007 (No. 1999-KA-0553);
State v. Langley, 958 So.2d 1160, 2007 WL 1471967, 2006-1041 (La. 5/22/07), La. May 22, 2007 (No. 06-KK-1041);
State v. Darrell Draughn, 05-1825 (La. 1/17/07) 950 So.2d 583;
State v. Snyder, 98-1078 (La. 9/6/06) 942 So.2d 484;
State v. Turner, 05-2425 (La. 7/10/06) 936 So.2d 89;
State v. Leger, 05-0011 (La. 7/10/06) 936 So.2d 108;
State v. Weary, 03-3067 (La. 4/24/06) 931 So.2d 297;
State v. Crandell, 05-1060 (La. 3/10/06) 924 So.2d 122;
State v. Williams, 05-1556 (La. 2/17/06) 921 So.2d 105;
State v. Scott, 04-1312 (La. 1/19/06) 921 So.2d 904;
State v. Allen, 03-2418 (La. 6/29/05) 913 So.2d 788;
State v. Juniors, 03-2425 (La. 6/29/05) 915 So.2d 291;
State v. Jacobs, 04-2738 (La. 6/17/05) 904 So.2d 712;
State v. Brown, 03-0897 (La. 4/12/05) 907 So.2d 1
State v. Higgins, 03-1980 (La. 4/1/05) 898 So.2d 1219;
State v. Harris, 01-2730 (La. 1/19/05) 892 So.2d 1238;
State v. Rideau, 04-3223 (La. 1/4/05) 898 So.2d 568.
THE END
1Brady O’Callaghan, a Caddo Parish assistant district attorney (graduate of Yale University, B.A., 1995 and LSU Law Center, J.D., 1999) prepared the case summaries of Miller-El II, Riceand Johnson. Scott Crichton expresses gratitude to this highly skilled and talented prosecutor for his valuable contribution.
2Miller-El Iwas a 7-2 decision authored by Justice Kennedy with a concurring opinion by Justice Scalia and a vigorous dissent by Justice Thomas.
3It is submitted by this writer that the federal procedural status is somewhat confusing and need not be the focus of this case summary. From the perspective of a district court judge, the obvious significance of the opinion is the Supreme Court’s treatment of the issue of use of peremptory challenges against a particular race and under what circumstances it results in purposeful discrimination under Batson.
4Although the procedural history is not directly relevant, it does reveal that while the Court remanded the matter in the first instance for a more intensive scrutiny of the facts by the lower courts, it ultimately rejected the conclusions reached by those courts.
5“It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.” Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880)
6This is the case in which Justice Goldberg’s dissent is so often quoted by Justice Breyer in his anti-peremptory challenge opinions.
7As Justice Thomas points out in his dissent, the Court did not, in fact, confine itself to the State court record.
8The Court concedes in a footnote that the prosecution did also excuse nonblack jurors who expressed views similar to those of Witt and others.
9Justice Breyer AGAIN cites Justice Goldberg’s dissent in Swain, written while Justice Breyer was his law clerk.
10Justices Thomas and Scalia issued dissenting opinions.
11Justice Breyer, it must be remembered, clerked for Justice Goldberg, who first noted that “Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former” Swain v. Alabama, 380 U.S. 202, 244, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting. Justice Breyer was Justice Goldberg’s clerk for the 1964-65 term. Based on his career path, it is unlikely that Justice Breyer ever selected a jury.
12The controlling case in California was People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978).
13See comments at end of this anaylsis.
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