Habeas Review – Batson Claim
The State’s pattern of peremptory strikes – at least 15, possibly 17, out of 20, directed at African-Americans – was so “disproportionate” as to “give rise to an inference of discrimination.” This is so, despite Harris limiting his challenges to 9 of these 17 strikes: “that does not make the pattern of strikes any less probative.” The strongly deferential nature of habeas review notwithstanding, the state court’s determination of non-discriminatory purpose was unreasonable, and habeas relief therefore required: “the state supreme court examined each challenged strike and each reason given for a strike individually and without giving weight to the overall picture that points to the conclusion that the prosecution acted with discriminatory intent in using peremptory challenges.”
To sum up, the state court’s credibility findings are clearly contradicted by the record and it was unreasonable for the court to credit the prosecutor’s race-neutral explanations for striking several African American prospective jurors. The pattern of strikes against African Americans gives rise to an inference of discrimination. The State proffered implausible and pretextual justifications for the strikes. And a comparative juror analysis shows that some of the Stat e’s proffered reasons for striking African Americans applied equally to similar non-African Americans whom the State accepted as jurors, which tends to prove purposeful discrimination.
We are aware that Snyder cautions that a retrospective comparative juror analysis based on an appellate record has the potential to be misleading when the alleged similarities were not asserted at trial because consideration of the alleged similarities may have shown that the jurors were not really comparable. 552 U.S. at 483. As our discussion above demonstrates, however, we have taken great care in drawing comparisons, still keeping in mind that prospective jurors need not be identical in all respects for a comparison to be probative. See Miller-El II, 545 U.S. at 247 n.6 (“potential jurors are not products of a set of cookie cutters”). And we note that respondent has not argued that Folan was an inappropriate comparator to Woodard, Stearn, and Pickett because they possessed traits that made her more desirable as a juror. See Appellee Br. 28 (asserting a side-by-side comparison of Woodard with Folan was inappropriate because the “State had no opportunity to strike Folan”), id. at 30 (arguing Folan was not a proper comparator to Stearn be cause “the Stat e had no opportunity to strike her”), id. at 31 (making the same argument with regard to Pickett). Furthermore, the comparative juror analysis is only one aspect of the totality of the circumstances that compels our conclusion that Harris has proved purposeful race discrimination in the jury selection.
- “Batson claims are evaluated under a now familiar three-step inquiry. First, the opponent of a peremptory challenge must make out a prima facie showing of race discrimination in selection of the venire. If this showing is made, the burden of production shifts to the proponent of the strike to offer a race-neutral explanation. Then the court must determine whether the opponent of the strike has proved purposeful discrimination. … At the second step, the explanation need not be “persuasive, or even plausible”; the issue is whether the explanation is non-discriminatory. … The persuasiveness of the justification becomes relevant at the third step, in which the court weighs the evidence and determines whether the race-neutral explanation is credible or a pretext for purposeful discrimination. …”
- “Credibility can be evaluated based on many factors, including ‘the [proponent’s ] demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ … Credibility can also be determined ‘by considering the offering party’s consistency in applying its non-discriminatory justification.’ … ‘[I]f a [party’s] proffered reason for striking [a prospective juror of one race] applies just as well to an otherwise-similar [juror of a different race] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.’ …
- “At least one circuit has held that in deciding a Batson claim, a state court’s failure to consider all available evidence, including a pattern of strikes against members of one race, was an unreasonable application of law. See McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252, 1261-66 (11th Cir. 2009). And another circuit has concluded that a court ’s failure to consider all the evidence in the re cord, specifically comparative evidence, when ruling on a Batson claim resulted in an unreasonable determination of facts. See Kesser v. Cambra, 465 F.3d 351, 358 (9th Cir. 2006) (en banc). For our part, we have said that in “incorrectly recount[ing] much of the record and fail[ing] to note material portions,” a district court misapplied Batson. Stephens, 514 F.3d at 713. As a result, we could not defer to the district court ’s decision finding intentional discrimination. Id. at 712 ….
- “Even more compelling, though, is the fact that the State’s proffered reasons are simply unbelievable in light of all the evidence presented in the State court proceeding, even when viewed under the highly deferential standard of review that constrains us here . Many of the justifications the prosecutor gave for striking African Americans simply do not hold up under scrutiny—the prosecutor misstated or mischaracterized the record. And this bears on the assessment of the plausibility of the other justifications given for a particular strike—reasons that might otherwise be deemed race-neutral. …”