A New York Times editorial points out that lawyers and courts are ignoring the landmark case of Batson v. Kentucky. In Batson the Supreme Court held that peremptory challenges to jurors could not be based upon race.

Yet, according to the Times, prosecutors often challenge African American jurors in death penalty cases who are less likely to vote for the death penalty. In Jefferson Parish, Louisiana African Americans are challenged three times as often as Whites. In Houston County, Alabama 80 percent of the African Americans placed on jury panels in capital cases are subject to peremptory challenges.

If opposing counsel can make a prima facia case to show race-based peremptory challenges the lawyer, and it is not only prosecutors, must give a race-neutral
explanation of the peremptory challenge. One Alabama prosecutor who challenged eleven of fourteen African Americans on a panel gave excuses such as one African American panel member was arrogant and another was not sophisticated enough.

The editorial is based on an excellent report by the Equal Justice Initiative, (EJI) a Montgomery, Alabama based private organization which represents indigent defendants, which reviews the enforcement of Batson in eight Southern states. Among the EJI findings is that the appellate courts in Tennessee have never reversed a conviction for Batson error and that some District Attorney’s teach their deputies how to select jurors based on race and avoid sanctions. Among the recommendations are that courts and bar associations be more vigilant in enforcing Batson and that increased diversity be required among prosecutors, court personnel and defense attorneys.

Justice Thurgood Marshall who wrote a concurring opinion in Batson predicted that prosecutors would come up with excuses and he suggested that we abolish peremptory challenges. By taking the first twelve jurors we would not only abolish race-based challenges but we would speed up trials considerably. Not a bad idea.

The question in Thaler v. Haynes is not whether a judge can deny a Batson motion based upon a juror’s demeanor, not viewed by the judge, but rather whether a Federal Court can grant a writ of habeas corpus when a state court judge denied a Batson motion, based upon demeanor, when the judge had not been present to view the prospective juror’s demeanor.

A Batson motion claims that the opposing party is making peremptory challenges based upon race. Each party at a trial is allowed to make a certain number of challenges to perspective jurors without giving a reason. The challenged can be for almost any reason except race. When a party thinks that the opposing party is making a peremptory challenge base on race it make a motion to have the opposing party justify its challenge but the party making the motion must make a prima facie showing first. Then the judge asks the party challenging the juror to justify its challenge.

But when the matter comes up in a Federal habeas as all matters that come up when state court convictions are challenged in a Federal court by a writ of habeas corpus the defendant has not only got to prove that he/she is right, but more importantly he/she must prove that the state court violated a Federal law that is “clearly established.” Under Supreme Court precedent a Federal law is only “clearly established” if the Supreme Court has previously unequivocally ruled on the matter. Thus the state court could be wrong but the Federal courts will uphold the state court decision if the there is not a Supreme Court decision unequivocally opposed to the state court ruling.

Anthony Cardell Haynes was convicted in Texas state court for the murder of a police officer. Two different judges presided over different parts of his trial. One presided over the selection o the jury and another presided over the Batson motion. The defense counsel made the necessary prima facie showing that the prosecution’s peremptory challenge was base on race. The prosecutor justified the challenge by claiming that the juror’s demeanor showed that she was not serious about being a juror. The judge denied the motion even though the judge had not been present when the peremptory challenge was not made and the judge had not seen the juror’s demeanor.

The question before the Federal Courts on habeas was not whether the trial court was right in denying the defense Batson motion, but rather whether when the court denied the motion it was violating a clearly established Supreme Court ruling. The Supreme Court found no clear prior ruling was violated and therefore it reversed the lower court grant of habeas corpus.

The Third Circuit refused to find incompetence of counsel where trial counsel failed to make a Batson claim. In Batson v. Kentucky the Supreme Court ruled that the Fourteenth Amendment’s guarantee of equal protection mandates that jurors not be selected by race.

James Douglas Clausell was convicted of murder in New Jersey state courts. His trial counsel failed to raise a Batson motion despite the prosecutor’s use of peremptory challenges on five of the eight African American and Hispanic jurors in the venire.

In Clausell v. Sherrer he appeals the denial of his writ of habeas corpus to
the Third Circuit Court of Appeals on the Batson issue as well as on incompetence of counsel grounds for his attorney’s failure to raise the Batson issue in the trial court.

There are three steps to a Batson challenge. First, the defense must raise the issue and make a prima facie case. Second the prosecutor must show that he/she had legitimate not-racial reasons for the use of the peremptory challenge. Finally, the court must decide whether or not there was purposeful discrimination.

The Third Circuit denied the Batson claim. The Court ruled that since Clausell did not make a Batson claim in the trial court he waived the issue on appeal. Therefore he has to rely on his incompetence of counsel claim.

At the time of his trial, New Jersey followed a rule that to show a prima facie case you had to show that there was a “substantial likelihood” that the peremptory was based on race. Later the United States Supreme Court made it clear that Batson mandated that the initial showing only had to be enough to allow the trial judge to draw an inference of discrimination. Yet the majority opinion in Clausell found that there was insufficient evidence to meet the “substantial likelihood” test. Therefore, Clausell’s trial counsel was not incompetent in failing to raise the Batson issue. The concurring opinion by Judge Ambro points out that the majority uses the wrong standard by using the substantial likelihood test instead of the inference test but it claims that Clausell cannot even meet the inference test.

Thus Clausell’s incompetence of counsel claim is denied even though he may have had a legitimate Batson claim. His counsel, not only, did not make the claim but did not preserve a record upon which the appellate court could determine if there was sufficient information for the Batson claim. But it was his attorney’s job to preserve a record allowing for a Batson claim. Is it not incompetence not to investigate the claim?