The Eleventh Circuit Court of Appeals remanded the death sentence conviction of Vernon Madison to the Alabama courts for a proper determination of his Batson objection. Madison who is African American has had three trials for the murder of a White police officer. The first trial was reversed for Batson error. In Batson v. Kentucky the Supreme Court set a three step procedure to deal with claims of using race as a determinate in jury selection. First the party making the claim must make a prima facie case that the opposing party used race in making peremptory strikes. Second the other party must give a race neutral explanation of the strikes. Finally the objecting party must prove purposeful racial discrimination.

In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

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?