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Habeas Review, Batson Issue: Must Give Deference to State Court Determination

Felkner v. Steven Frank Jackson, USSC No. 10-797, 3/31/11

On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.

The prosecutor struck one juror because she had an MSW, and the prosecutor didn’t like having social workers on the jury; the other was struck because of past run-ins with the police. The state trial court rejected Jackson’s argument that these explanations were pretextual and therefore violated Batson v. Kentucky, 476 U.S. 79 (1986). The state court of appeal, applying “great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses,” affirmed. The 9th Circuit granted relief on habeas review, and the Supreme Court now reverses, in the process criticizing the 9th for failing to “discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson’s claim.” In a fairly remarkable slap that will probably attract commentary, the Court caustically observes: “That decision is as inexplicable as it is unexplained.”

Long and short of it: The Court reiterates that an “evaluation of credibility” not only lies at the heart of a Batson issue, but is entitled to “great deference” on direct appeal. Habeas review then imposes its own “highly deferential standard” for reviewing that evaluation. The 9th had “simply no basis” for its conclusion.

Of course, your options narrow considerably in the teeth of an adverse credibility determination; they always do. It would nonetheless be a mistake to overlook the methodology employed by the underlying argument – “a comparative juror analysis” as a test of the prosecutor’s motives – even if it didn’t alter the result on these particular facts. Ultimately, there just wasn’t much of an invidious comparison to be made. It’s not as if the prosecutor allowed a white social worker to remain on the jury. This decision doesn’t alter the principle of comparative analysis, which is illustrated by cases such as  Snyder v. Louisiana, 552 U.S. 472 (2008) (“The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.”) In other words, comparisons of similar variables of retained and struck jurors is highly relevant to Batson analysis, indeed, as a practical matter may in a given case be the only way to reveal discriminatory intent. (Recent such example, albeit foreign authority: Sharp v. State, AL Ct. Cr. App. No. CR-05-2371, 2/25/11 (“we find that the reasons for the State’s strikes of Jurors 27 and 11 were all pretextual and improper under Batson. As explained below, the strength of the prima facie case of discrimination, the evidence of disparate treatment, the lack of questioning, and the State’s reasons for its other strikes all leave this Court with no option but to conclude that the State struck Jurors 27 and 11 in violation of Batson.”) Also see, Henderson v. Briley, 354 F.3d 907, 910 (7th Cir. 2004) (ratifying idea of “comparative data showing similarities between rejected black jurors and empaneled white jurors in determining the merits of a Batson claim,” albeit rejecting relief on facts, given highly deferential nature of 2254 review).

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