[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15602 MARCH 4 , 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00042 CV-KD-M
EARL J. MCGAHEE,
Petitioner-Appellant,
versus
ALABAMA DEPARTMENT OF CORRECTIONS,
RICHARD ALLEN,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 4, 2009)
Before TJOFLAT, MARCUS, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
Defendant Earl Jerome McGahee was convicted of capital murder and
sentenced to death by the State of Alabama. McGahee appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for the writ of habeas corpus challenging his
conviction. We hold that the Alabama state courts unreasonably applied clearly
established federal law as determined by the Supreme Court. We further hold that
the State violated McGahee’s Fourteenth Amendment equal protection rights under
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by using its peremptory
strikes in a discriminatory manner. Accordingly, we reverse the district court’s
ruling and direct the court to issue a writ of habeas corpus conditioned on the
State’s right to retry the petitioner.
I. PROCEDURAL HISTORY
On September 12, 1986, McGahee was convicted of two counts of capital
murder for the deaths of Connie Brown and Cassandra Lee.1 The jury returned an
11-1 verdict recommending a death sentence, which the trial court subsequently
imposed. McGahee v. State, 554 So. 2d 454, 456 (Ala. Crim. App. 1989).
McGahee directly appealed his conviction and sentence to the Alabama
1
The details of the crime are laid out in full at McGahee v. State, 554 So. 2d 454,
456-59. McGahee was convicted of violating Ala. Code § 13A-5-40(a)(8), “[m]urder by the
defendant during sexual abuse in the first or second degree or an attempt thereof committed by
the defendant,” and Ala. Code § 13A-5-40(a)(10), “[m]urder wherein two or more persons are
murdered by the defendant by one act or pursuant to one scheme or course of conduct.”
2
Court of Criminal Appeals, raising his Batson claim, among others, in that appeal.
Although the Court of Criminal Appeals overturned McGahee’s death sentence
based on the improper introduction of victim impact testimony at the sentencing
phase of his trial, the Court of Criminal Appeals denied McGahee’s Batson
challenge. McGahee v. State, 554 So. 2d at 459-62, aff’d, Ex parte McGahee, 554
So. 2d 472 (Ala. 1989). After a second penalty phase hearing, a new jury returned
a 10-2 verdict sentencing McGahee to life imprisonment without the possibility of
parole. McGahee v. State, 632 So. 2d 976, 978 (Ala. Crim. App. 1993). The trial
judge rejected the jury’s verdict and sentenced McGahee to death. Id. McGahee’s
second death sentence was affirmed on direct appeal. Id., aff’d, Ex parte McGahee,
632 So. 2d 981 (Ala. 1993), cert. denied, McGahee v. Alabama, 513 U.S. 1189,
115 S. Ct. 1251 (1995).
McGahee filed a petition for relief from judgment and sentence pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. The trial court held a
hearing on some of McGahee’s claims, and denied McGahee’s Rule 32 petition.
The Alabama Court of Criminal Appeals affirmed. McGahee v. State, 885 So. 2d
191 (Ala. Crim. App. 2003), cert. denied, Ex parte McGahee, 885 So. 2d 230 (Ala.
2004).
McGahee filed a petition for the writ of habeas corpus in the United States
3
District Court for the Southern District of Alabama in 2005. He alleged numerous
grounds for relief, including the Batson claim from his first direct appeal. The
district court barred a portion of McGahee’s Batson claim as unexhausted.2 The
district court issued an order denying McGahee’s remaining Batson claims and
other claims on the merits on October 15, 2007. McGahee v. Campbell, No. 05-
0042, 2007 WL 3037451 (S.D. Ala. Oct. 15, 2007). McGahee filed a notice of
appeal. The district court granted a Certificate of Appealability on one issue:
whether the prosecutor used his peremptory strikes in a racially discriminatory
manner to remove all of the African-American jurors from McGahee’s venire.
II. STANDARD OF REVIEW
Because McGahee filed his federal habeas petition after April 24, 1996, this
case is governed by 28 U.S.C. § 2254 as modified by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320,
326, 117 S. Ct. 2059, 2063 (1997). AEDPA “establishes a highly deferential
standard for reviewing state court judgments.” Parker v. Sec’y for Dep’t. of Corr.,
331 F.3d 764, 768 (11th Cir. 2003). Under AEDPA, a federal court may only grant
2
The district court held that McGahee’s Batson challenge was barred with respect
to three jurors. Our opinion today relies on McGahee’s challenge to two other jurors, a challenge
which is clearly not procedurally barred because the State’s last reasoned decision, that of the
Alabama Court of Criminal Appeals, 554 So. 2d at 459-62, addressed such challenges on the
merits. The Alabama Supreme Court’s decision on this issue was summary. Ex parte McGahee,
554 So. 2d at 475-76.
4
the writ of habeas corpus if the state court’s determination of a federal claim was
“(1) . . . contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2) . . .
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
The evaluation of a prosecutor’s race-neutral explanations under Batson is a
“pure issue of fact . . . peculiarly within a trial judge’s province.” McNair v.
Campbell, 416 F.3d 1291, 1310 (11th Cir. 2005). Therefore, a Batson claim at
habeas is often analyzed under AEDPA § 2254(d)(2), and is only granted “if it was
unreasonable to credit the prosecutor’s race-neutral explanations.” Rice v. Collins,
546 U.S. 333, 338, 126 S. Ct. 969, 974 (2006) (applying AEDPA, 28 U.S.C. §
2254(d)(2), to a Batson claim). See also Miller-El v. Dretke, 545 U.S. 231, 240,
125 S. Ct. 2317, 2325 (2005) (analyzing Miller-El’s Batson claim under §
2254(d)(2)).
In this case, the district court reviewed McGahee’s claims under §
2254(d)(2). McGahee, however, primarily argues that the Alabama courts failed to
follow Batson’s three-step analysis. Where the concern is that a state court failed
to follow Batson’s three steps, the analysis should be under AEDPA § 2254(d)(1),
which requires the federal court find that the state court rendered a decision that
5
was “contrary to, or involved an unreasonable application of, clearly established
Federal law.” AEDPA, 28 U.S.C. § 2254(d)(1).
“Under the ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from
this Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523
(2000) (O’Connor, J., writing for the majority). “A federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120
S. Ct. at 1522. With these principles in mind, we review the decisions of the
Alabama state courts in this case.
III. DISCUSSION
The Supreme Court issued its opinion in Batson on April 30, 1986, before
the trial of this case in September 1986. Thus, Batson clearly established the
relevant federal law. Batson requires a court to undertake a three-step analysis to
evaluate equal protection challenges to a prosecutor’s use of peremptory
challenges. Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723. In Miller-El v. Cockrell,
537 U.S. 322, 123 S. Ct. 1029 (2003), the Supreme Court paraphrased Batson and
6
summarized its three-step analysis:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. 476 U.S., at 96-97,
106 S. Ct. 1712. Second, if that showing has been made, the prosecution
must offer a race-neutral basis for striking the juror in question. Id., at
97-98, 106 S. Ct. 1712. Third, in light of the parties’ submissions, the
trial court must determine whether the defendant has shown purposeful
discrimination. Id., at 98, 106 S. Ct. 1712.
Miller-El v. Cockrell, 537 U.S. at 328-29, 123 S. Ct. at 1035 (citing Batson, 476
U.S. at 96-98, 106 S. Ct. at 1722-24). The Alabama trial court probably engaged in
an unreasonable application of Batson, but we need not rely thereon because it is
clear that the Alabama Court of Criminal Appeals unreasonably applied Batson
when it failed to follow Batson’s three-step analysis. We review each court’s
decision in turn.
A. Trial Judge’s Application of Batson
McGahee made his Batson challenge at the end of jury selection, after the
prosecution had removed all of the African-American jurors from the venire panel
through challenges for cause and peremptory challenges. Because the trial court
denied McGahee’s Batson motion based only upon the State’s proffer of
generalized reasons for its peremptory challenges, and because the trial court failed
to make any ruling following the State’s proffer of individualized reasons for its
peremptory challenges, the trial court unreasonably applied Batson to this case.
7
1. Jury Selection
As noted above, Batson was the “clearly established Federal law” at the time
of McGahee’s trial. AEDPA, 28 U.S.C. § 2254(d)(1).3 Jury selection proceeded in
this case in the following manner. On September 8, 1986, jury selection began.
The court first granted deferrals for hardship, inconvenience, or necessity. The
court, prosecution, and defense each questioned the entire jury panel, and then the
court allowed the attorneys to voir dire the venire in panels to ask about previous
media exposure. Following the individual examination of all the jurors, juror Dr.
Willis Wright approached the bench and asked for a deferral because of an out-of-
town obligation beginning the next day. The court denied his request.
The judge then entertained challenges for cause. At this point, sixty-six
potential jurors remained after deferrals for hardship and other dismissals by the
3
Indeed, the defense brought Batson to the trial court’s attention before the start of
jury selection. In the summer before McGahee’s trial, defense counsel filed a Motion To Enjoin
The Prosecutor From Utilizing His Peremptory Challenges To Systematically Exclude Blacks
From The Jury Panel. In support of this motion, defense counsel alleged that “the prosecutor in
this county routinely utilizes his peremptory challanges [sic] to systematically exclude blacks
from the jury panel in all significant cases where the defendant is black and the alleged victim
white.” The defense counsel withdrew this motion on July 22, 1986. In withdrawing the motion,
the defense counsel referenced Batson, stating “the motion that I’ve done is going to the District
Attorney’s Office using as peremptory challenges to strike blacks from the jury. I would
withdraw that one in light of the recent U.S. Supreme Court decision and I feel at this point that
would sort of be redundant.” Thus, the possibility of discriminatory peremptory challenges and
the applicability of Batson were raised before the trial judge before jury selection began.
8
court.4 Twenty-four members of the venire were African-American.5 The State
made its challenges for cause first. The State moved to dismiss nine jurors for
cause. All nine were African-American. Eight were challenged for being
“unalterably opposed to the penalty of death,” and one was challenged for being
“too ill to serve.” The defense objected to the grounds for striking all nine, and the
defense noted that all nine were African-American. The defense counsel stated:
I would like to introduce one of these [juror lists] into the record, Your
Honor, which would reflect the racial makeup of these persons that the
State has numbered and we feel that because they all are members of the
black race, that that would seriously impair the Defendant’s opportunity
to get a jury of his peers as it concerns – he’s a member of the black race,
and if there be no objection, I would like to introduce this.6
The State stipulated that its challenges were all to African-American jurors. The
court denied the State’s challenge to the juror challenged for being “too ill,” and
the court accepted the State’s eight other challenges for cause.
4
We calculate this number from the record’s reflection that 12 jurors were
ultimately chosen to serve, 21 were peremptorily struck by the defense, 22 were peremptorily
struck by the prosecution, 3 were struck for cause by the defense, and 8 were struck for cause by
the prosecution. Adding these together, we know that 66 jurors were available when the
attorneys began their challenges for cause.
5
We calculate this number from the record’s reflection that the prosecution struck 8
African-American jurors for cause and 16 African-American jurors through peremptory strikes.
The defense struck no African-American jurors. No African-Americans served on the jury.
6
It does not appear, however, that the juror list referred to by defense counsel was
entered into evidence. Although a juror list is present in the record, it does not reflect the race of
the jurors, nor which jurors were struck.
9
All of the defense’s challenges for cause were against white jurors, and the
judge allowed three of them. After the challenges for cause, the court recessed for
the day. Thus, at the end of the first day of jury selection, the State had struck eight
African-American jurors for cause, and the defense had struck three white jurors
for cause.
Court began the next day out of the presence of the jury. We infer from the
judge’s opening statement on the record that the peremptory challenge process was
completed before the start of the record on September 9, 1986. The record does not
indicate when or in what order the State and the defense exercised their peremptory
challenges. After beginning the record for the day, the judge stated that one more
motion was pending. At that time, the defense made its Batson challenge.
The defense moved to strike the jury and requested a mistrial because “the
State, rather, attorney, in exercising his twenty-two strikes, systematically excluded
blacks from the jury.” The defense stated:
We particularly present this to the Court in light of a previous objection
of the defense that in the Defendant’s qualifying challenges, that the
State was granted its challenges resulting in a substantial number of
blacks being reduced from the jury panel and reducing the number of
blacks that the black Defendant had to possibly choose from and
hopefully result in them being on this jury.
The trial judge asked for a response by the State.
10
In response, the State proffered only general explanations, other than a
specific reason given for striking Dr. Willis Wright. The State first generally
asserted that it did not systematically strike African-Americans but rather struck
those “jurors that it felt had reasons that would be detrimental to the interests of the
State in this particular case.” The State gave general reasons for striking groups of
jurors, without identifying any jurors by number or name. The State said that it
struck Dr. Willis Wright because he had asked to be excused and “we felt he would
at this point, not be a very happy juror and felt it was necessary to strike him.” At
the end of the proffer of general, non-specific reasons, the State reasserted: “[W]e
deny that there’s any such attempt to systematically exclude any group of people
from this jury other than individuals who the State did not feel would be beneficial
to their view and purpose to the case.” The State then offered to put its
individualized reasons for its peremptory strikes on the record, stating:
We would be happy to, at the proper time, go down each of the strikes of
the jurors one by one and put it in the record. We can do it this morning
if the Court wants to wait. We finished last night about 7 or 7:30, and I
haven’t had a chance to compile this roster of notes I have here, so that
it would make sense. Now we would ask permission to do that for the
record.
The defense attorney agreed to that offer, stating “[y]our Honor, that would be fine
for me.” The defense also reiterated the Batson claim, stating:
11
For the record, I would like for the record to reflect that the petit jury, that
the petit jury that is going to try this case consists of all white persons and
the one alternate offered by the State is a black person. . . .
At this point the State had removed all of the twenty-four African-American
potential jurors from the venire. The State used challenges for cause to remove
eight African-American jurors and sixteen of twenty-two peremptory challenges to
remove all of the remaining African-American jurors. In response to the
defendant’s Batson motion, the State had given only an affirmation of good faith
and general explanations, other than the specific explanation given for the strike of
Dr. Willis Wright. Furthermore, before jury selection was finalized, the defense
had made its Batson objection. With all of this before it, and without responding to
the offer of the State to put its individualized reasons on the record, the court stated
simply “[y]our motion is denied.” The jury was called and sworn in, and the trial
commenced.
The trial court’s ruling at this point of the proceedings was an unreasonable
application of clearly established federal law because it was based only upon the
State’s proffer of general explanations and protestations of good faith. The defense
moved to strike the jury because the State had removed all of the potential African-
American jurors from the jury. The court began to apply Batson by asking for a
12
response from the State.7 But when the State asked for time to get its notes in order
to proffer specific reasons for the peremptory strikes, the court ignored that offer
and ruled with only the State’s general assertions before it. The Supreme Court
clearly held in Batson that mere “general assertions” are insufficient, and that the
State may not “rebut the defendant’s case merely by denying that he had a
discriminatory motive or affirming his good faith in making individual selections.”
Batson, 476 U.S. at 98, 106 S. Ct. at 1723-24. Furthermore, the Court stated that
the State must be “clear and reasonably specific” in explaining the “legitimate
reasons” for exercising the peremptory challenges. Batson, 476 U.S. at 98 n.20,
106 S. Ct. at 1724 n.20. See also United States v. Horsley, 864 F.2d 1543, 1546
(11th Cir. 1989) (“[T]he prosecutor must nevertheless give a clear and reasonably
specific explanation of his legitimate reasons for exercising the challenges.”).
Therefore, although the trial court may have correctly identified Batson as the
controlling legal principle, the court applied Batson unreasonably to the facts of
this case by ruling based only upon the State’s general explanations and affirmation
7
Although the trial judge did not explicitly find that the defendant had made out a
prima facie case of discrimination, we follow the Alabama Court of Criminal Appeals’ rule that
“[w]here the trial court requires the prosecution to explain its peremptory challenges without first
finding the existence of a prima facie showing of discrimination, we may fairly conclude that the
inquiry implied such a finding, and shifted the burden of justification to the prosecutor.”
McGahee v. State, 554 So. 2d at 459-60 (quoting Williams v. State, 548 So. 2d 501, 504 (Ala.
Crim. App. 1988)).
13
of good faith.
2. Post-Trial
After the trial court denied the defendant’s Batson challenge, the trial
proceeded through the guilt and penalty phases without further mention of the
Batson challenge. On September 13, 1986, four days after the trial court’s denial
of McGahee’s Batson challenge, the guilt and penalty phases of the trial concluded,
the jury was discharged, and the court recessed. Directly following the court’s
order of recess, the State gave the individualized, specific reasons for its
peremptory strikes.8 After the State’s proffer, the trial court asked only “[i]s that all
you wish to put into the record?” The State responded “[t]hat’s all.” The court
asked the defense counsel “[a]nd you, Mr. Boynton?” He responded “[y]es,
ma’am, that’s all.” The court concluded “[a]ll right.” The State did not request and
the trial court did not make a ruling with respect to the credibility or the adequacy
of the State’s explanations. Of course, because the case had already been tried to
the jury as then composed, and because the jury had already been discharged,
deficiencies in the prosecutor’s strikes could no longer be cured in any event
without starting over. The record then closed.
8
We note that the State never proffered a reason for its strike of juror Cleophus
Polnitz, an African-American juror.
14
The trial judge’s failure to make any ruling following the State’s proffer of
specific reasons for its peremptory strikes was an unreasonable application of
clearly established federal law. The Supreme Court held in Batson that after a
prosecutor has made his proffer of specific explanations, the trial court must make
a determination of whether the defendant has established purposeful
discrimination. “The prosecutor therefore must articulate a neutral explanation
related to the particular case to be tried. The trial court then will have the duty to
determine if the defendant has established purposeful discrimination.” Batson, 476
U.S. at 98, 106 S. Ct. at 1724.9 The trial court did not react to the proffer of
specific explanations. The trial court gave no indication that it determined whether
the defendant had “established purposeful discrimination.” Id. Thus, the trial
judge’s decision denying McGahee’s Batson motion was an unreasonable
application of clearly established federal law. The Batson issue was discussed
again briefly, among numerous other issues, at a hearing on McGahee’s motion for
new trial, and the trial court denied all grounds of the motion with a single
comment: “Your Motion for New Trial is denied.” However, the trial court never
9
See also Miller-El v. Dretke, 545 U.S. at 251-52, 125 S. Ct. at 2331 (“As for law,
the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the
juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with
a bearing on it.”); Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71 (1995) (“If a
race neutral explanation is tendered, the trial court must then decide (step three) whether the
opponent of the strike has proved purposeful discrimination.”).
15
assessed the plausibility of the prosecutor’s reasons, and indeed never addressed
any particular juror or the several reasons given for any particular strike. In a
similar situation, the Supreme Court found itself unable to tell which of the several
reasons asserted by the prosecutor were relied on by the trial court; thus the Court
was unable to credit any particular assertion by the prosecutor. See Snyder v.
Louisiana, ____ U.S. ____, 128 S. Ct. 1203, 1209 (2008) (“For these reasons, we
cannot presume that the trial court credited the prosecutor’s assertion that Mr.
Brooks [the juror] was nervous.”). Thus, the trial court’s earlier unreasonable
applications of the law are probably not cured by the trial court’s consideration at
the new trial hearing, a decision we need not address for the reasons indicated in
the next paragraph.
Although the trial court’s rulings with respect to the Batson challenge are
unreasonable applications of the law as clearly established by Batson (and are
probably not cured at the new trial hearing), we need not rely thereon because the
Alabama Court of Criminal Appeals addressed the merits10 of McGahee’s Batson
challenge in a manner that also constituted an unreasonable application of Batson,
10
As noted above, although McGahee’s Batson challenge may be procedurally
barred with respect to some jurors, it clearly is not with respect to the six jurors addressed on the
merits by the Alabama Court of Criminal Appeals. The State invokes no procedural bar in this
regard. Our decision relies on two of those six.
16
as explained below.11
B. Court of Criminal Appeals’ Decision
Our holding is based on our conclusion that the decision of the Alabama
Court of Criminal Appeals, McGahee v. State, 554 So. 2d at 459-62, was an
unreasonable application of clearly established federal law.12 After a defendant has
made out his “prima facie case of purposeful discrimination by showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose,”
11
Because McGahee’s unreasonable application challenge to the decision of the
Court of Criminal Appeals is clearly not subject to any procedural bar, we also need not decide
whether the failures of the trial court are subject to any procedural bars or waivers. Although
McGahee has clearly and vigorously argued unreasonable application of clearly established
Federal law as determined by the Supreme Court in Batson, his focus has been on the Alabama
Court of Criminal Appeals’ decision.
12
We focus here on the decision by the Alabama Court of Criminal Appeals,
McGahee v. State, 554 So. 2d 454, because it is the “last reasoned decision” of the state courts on
this issue. The Alabama Supreme Court summarily rejected McGahee’s Batson claim, along
with several other claims. Ex parte McGahee, 554 So. 2d at 476. We have previously held that,
in discerning whether a state court opinion rests on federal grounds or state procedural grounds,
we “look through” a summary decision to the “last reasoned decision” on the issue. Sweet v.
Sec’y, Dep’t. of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006). We adopted this approach from the
Supreme Court’s decision in Ylst v. Nunnemaker, 501 U.S. 797, 802-04, 111 S. Ct. 2590, 1594-
95 (1991). Although the context here is different from the procedural bar context of Ylst and
Sweet, the principle of “looking through” to the last reasoned state court decision has been
applied in the context of AEDPA review by the Sixth Circuit in Joseph v. Coyle, 469 F.3d 441,
450 (6th Cir. 2006); accord Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008); Franklin v.
Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002). Furthermore, no circuit court has held that a
federal court should not look through to the last reasoned decision of a state court in the context
of AEDPA review. By analogy from Ylst and Sweet, and following the Sixth Circuit in Joseph
v. Coyle, we look through the summary decision to the “last reasoned decision” of the Alabama
courts. Accordingly, we review the decision of the Alabama Court of Criminal Appeals as the
last reasoned decision on the Batson issue.
17
Batson, 476 U.S. at 93-94, 106 S. Ct. at 1721, and after the State has come forward
with its neutral explanations, the “trial court then will have the duty to determine if
the defendant has established purposeful discrimination,” id. at 98, 106 S. Ct. at
1724. The Alabama Court of Criminal Appeals’ decision was an unreasonable
application of clearly established law because that court failed to follow clearly
established law in the third step of Batson when it did not consider “all relevant
circumstances” in its analysis of the trial court’s ruling. The Batson decision is
quite clear that “[i]n deciding whether the defendant has made the requisite
showing, the trial court should consider all relevant circumstances.” Batson, 476
U.S. at 96, 106 S. Ct. at 1723 (emphasis added). Because courts must weigh the
defendant’s evidence against the prosecutor’s articulation of a “neutral
explanation,” courts are directed by Batson to consider “all relevant circumstances”
in the third step of the Batson analysis.13 The Alabama Court of Criminal Appeals’
13
The Supreme Court has repeated this point in later opinions applying Batson.
Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. 1203, 1208 (“[I]n considering a Batson objection,
or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the
issue of racial animosity must be consulted.”); Miller-El v. Dretke, 545 U.S. at 251-52, 125 S. Ct.
at 2331-32 (“[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for
striking the juror, and it requires the judge to assess the plausibility of that reason in light of all
evidence with a bearing on it.”); Hernandez v. New York, 500 U.S. 352, 363, 111 S. Ct. 1859,
1868 (1991) (“An invidious discriminatory purpose may often be inferred from the totality of the
relevant facts.”) (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2048-49
(1976)). Of course, these cases were not “clearly established Federal law” at the time of
McGahee’s trial and direct appeal, but the opinions confirm our reading of what Batson required.
In Batson, the Court pointed out that “[i]n deciding if the defendant has carried his burden of
persuasion [of proving purposeful discrimination in the selection of the venire], a court must
18
failure to consider “all relevant circumstances” as required by Batson was an
unreasonable application of law. In Williams v. Taylor, the Supreme Court held
that the state court’s failure to evaluate all available evidence was an unreasonable
application of law under AEDPA, 28 U.S.C. § 2254(d), where the applicable legal
standard required a weighing of all mitigation evidence.14 529 U.S. at 397-98, 120
S. Ct. at 1515 (Stevens, J., writing for the majority). The Court noted that the state
court’s opinion discussed the mitigation evidence developed at the state post-
conviction hearing, “[b]ut the state court failed even to mention the sole argument
in mitigation that trial counsel did advance.”15 Id. at 398, 120 S. Ct. at 1515. In the
concurring portion of her opinion, Justice O’Connor agreed that:
The Virginia Supreme Court’s decision reveals an obvious failure to
consider the totality of the omitted mitigation evidence. . . . For that
reason, and the remaining factors discussed in the Court’s opinion, I
believe that the Virginia Supreme Court’s decision “involved an
undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be
available.” Batson, 476 U.S. at 93, 106 S. Ct. at 1721.
14
The applicable legal standard was Clemons v. Mississippi, 494 U.S. 738, 110 S.
Ct. 1441 (1990), which reaffirmed that courts in a “weighing State” must “give defendants the
individualized treatment that would result from actual reweighing of the mix of mitigating
factors and aggravating circumstances.” Id. at 751-52, 110 S. Ct. at 1450.
15
Although the Court does not use the full language of “unreasonable application of
clearly established Federal law” from § 2254(d)(1), it is clear that Justice Stevens meant that the
Virginia court’s opinion was an unreasonable application of law under § 2254(d)(1), rather than
an unreasonable determination of facts under § 2254(d)(2) because earlier in the opinion he
stated that § 2254(d)(2) was not before the Court. Taylor, 529 U.S. at 386, 120 S. Ct. at 1509
(Stevens, J., concurring).
19
unreasonable application of . . . clearly established Federal law, as
determined by the Supreme Court of the United States.”
Taylor, 529 U.S. at 417, 120 S. Ct. at 1525 (O’Connor, J., concurring) (quoting
AEDPA, 28 U.S.C. § 2254(d)(1)). This Circuit applied the same analysis in
Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008), and found that a state court
decision was unreasonable because “the court failed to evaluate the totality of the
available mitigation evidence.” Id. at 1344 (internal quotation omitted).16
Therefore, where a legal standard requires a state court to review all of the relevant
evidence to a claim, the state court’s failure to do so is an unreasonable application
of law under AEDPA.17
The Alabama Court of Criminal Appeals decision was structured in the
following way. For step one of the Batson inquiry, the court held that the trial
16
The legal standard at issue in Williams v. Allen was Strickland v. Washington,
466 U.S. 668 (1984). The Court articulated the standard as requiring a review of “the totality of
the evidence.” Allen, 542 F.3d at 1342.
17
At least one other circuit has already analyzed the failure of a state court to
consider all evidence in a Batson analysis. See Kesser v. Cambra, 465 F.3d 351, 358-59 (9th Cir.
2006) (finding a court of appeal decision denying Batson an unreasonable determination of facts
under AEDPA because the court of appeals failed to consider evidence in the record outside of
the prosecutor’s testimony, and stating that “[t]he court must evaluate the record and consider
each explanation within the context of the trial as a whole because an invidious discriminatory
purpose may often be inferred from the totality of the relevant facts”) (internal quotations
omitted). Other circuits have also found a state court’s failure to consider facts in the record to
be unreasonable under AEDPA. See Abu-Jamal v. Horn, 520 F.3d 272, 303 (3d Cir. 2008)
(under a Mills and Boyde analysis); A.M. v. Butler, 360 F.3d 787, 799 (7th Cir. 2004) (under a
Miranda analysis); Bailey v. Rae, 339 F.3d 1107, 1118-19 (9th Cir. 2003) (under a Brady
analysis).
20
court had implicitly found a prima facie case of discrimination when it asked the
prosecutor to respond to McGahee’s Batson challenge. McGahee, 554 So. 2d at
459-60. Thus, while the court found a prima facie case of discrimination, it did not
review any of the evidence from the record to make that determination. For step
two of the Batson inquiry, the court limited its review to the six African-American
jurors whom the court thought McGahee had challenged as being struck on racial
grounds. The court quoted the State’s explanation regarding the reasons for
striking each of those jurors. For step three of the Batson inquiry, the court then
purported to analyze all of the quoted reasons in turn. The court found at least one
valid, race-neutral reason for striking each of the jurors, and found that “[a]fter
reviewing the State’s reasons for the use of its peremptory strikes (including those
not specifically challenged by the appellant) ‘individually and collectively’, [sic]
we conclude that the trial judge correctly denied this appellant’s motion to quash
the jury.” McGahee, 554 So. 2d at 462 (internal citation omitted). Because the
court omitted from step three of its analysis crucial facts which McGahee raised in
his brief to that court, we find that the Court of Criminal Appeals did not review
“all relevant circumstances” as required by Batson. 476 U.S. at 96, 106 S. Ct. at
1723.
First, the reasons given by the State for striking juror Lemuel Jones, number
21
106, contain perhaps the clearest indication that the Court of Criminal Appeals
failed to consider all relevant circumstances as required by Batson. The State
struck Lemuel Jones during the peremptory challenge phase of jury selection.
During the proffer of specific explanations for the peremptory strikes after trial, the
prosecutor made the following statement regarding Lemuel Jones.
Juror number 106, Lemuel Jones, is a black male juror. We left him as
an alternate at one point in the striking process prior to Dr. Wright’s
pronouncement. He was sought as perhaps a juror to be left on the entire
panel. However, with Dr. Wright leaving, we felt we did not want to
leave him individually. We were concerned about the fact that he was a
teacher and we simply did not have any further information on Mr. Jones
other than he was a teacher and that he seemed to know Dr. Wright. We
did attempt and ask for a recess during the period to locate further
information about Mr. Jones, attempting to make some emergency type
phone calls, but were unsuccessful. We felt we had other choices which
we did have clear information on and left him as an alternate.
The Court of Criminal Appeals repeated this statement in full in its opinion,
McGahee, 554 So. 2d at 461, and reviewed the statement with the following
analysis.
Lemuel Jones was struck because he was a teacher and because the State
did not have a lot of information on him. The State’s assertion that it
strikes teachers as a general rule because of “their [teachers’] social
approach to dealing with people” is totally insufficient to establish why
a teacher, specifically Jones, would be biased against the State in this
particular case. In fact, under the circumstances of this case (the murders
took place in a school classroom), teachers would be just as likely to be
biased in favor of the State. The State’s other explanation for striking
Jones is somewhat weak but we find it to be sufficient because the State
22
struck a white juror for the same reason. This fact indicates that the
State’s explanation was legitimate and the decision to strike Jones was
not racially motivated.
McGahee, 554 So.2d at 462 (internal citations omitted). As we understand the
Alabama court’s analysis, it read the record as providing two reasons for the strike
of Lemuel Jones: (1) he was a teacher and (2) the State did not have a lot of
information on him. The court clearly limited its review to only these two reasons
and did not implicitly review any other reasons. “Lemuel Jones was struck because
he was a teacher and because the State did not have a lot of information on him.”
Id. at 462. The court then held that the explanation that Jones was a teacher was
“totally insufficient,” but that “[t]he State’s other explanation is somewhat weak.”
Id. (emphasis added). Although weak, the court held that reason was sufficient.
This analysis is an unreasonable application of law under Batson because the court
failed to review the third reason given by the prosecutor. The court’s failure to
include this third reason in its analysis is surprising because McGahee specifically
raised this argument in his brief to the Court of Criminal Appeals. The State’s third
reason for striking Jones was that “with Dr. Wright leaving, we felt that we did not
want to leave him individually.” McGahee argued to the Alabama Court of
Criminal Appeals and to this Court that the statement that the State “did not want to
leave him individually” can be read only to mean that the State did not want to
23
leave Jones as the sole black juror on the panel.18 We are forced to agree that the
record reflects no similarity between Dr. Wright and Lemuel Jones other than their
race and the fact they are teachers, and that the statement “we did not want to leave
him individually” indicates that the State did not want to leave a sole black juror
whom they did not know on the jury panel. We have been unable to imagine
another non-racial interpretation of this statement. Although pressed at oral
argument for a non-racial interpretation, the State has not provided one. The
failure by the Court of Criminal Appeals to consider the State’s articulation of an
explicitly racial reason for striking Jones is an unreasonable application of Batson.
Certainly, a statement by the prosecutor that a juror was struck because of his race
is a “relevant circumstance” in determining whether Batson has been violated.
Because the Court of Criminal Appeals did not consider the fact that the State
proffered an explicitly racial reason for striking Lemuel Jones, we find that the
Court of Criminal Appeals did not consider “all relevant circumstances” during the
third step of Batson’s analysis. Its review of the trial court’s decision was,
therefore, an unreasonable application of clearly established federal law.
18
In McGahee’s brief to the Alabama Court of Criminal Appeals, he argued that the
State violated Batson in striking juror Jones, because the State “did not want to leave him on the
jury as the sole black regular juror.” The State’s brief invoked no procedural bar, and the Court
of Criminal Appeals addressed the merits of the challenge to juror Jones, but ignored the State’s
explicit reliance on race and McGahee’s argument with respect thereto.
24
Furthermore, the Court of Criminal Appeals’ decision also failed to consider
two additional crucial facts in its Batson analysis, both of which were raised by
McGahee in his brief to that court. First, the court failed to consider the fact that
100% of the African-American potential jurors were removed from the jury by the
State. While the Court of Criminal Appeals initially noted that “[t]he State used
sixteen of its twenty-two strikes to exclude all of the black venire members from
the jury,” McGahee, 554 So. 2d at 459, the court never discussed the fact that all of
the black venire members had been removed by the prosecution through the
challenges for cause and peremptory challenges, and never discussed this pattern or
the significance thereof. In discussing the sort of evidence that should be
considered by a court during a Batson challenge, the Supreme Court stated that
“[f]or example, a ‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.” Batson, 476 U.S. at 97,
106 S. Ct. at 1723. There can be no clearer “pattern” than the total removal of all
African-American jurors from the venire by the State. As Batson explained:
“[t]otal or seriously disproportionate exclusion of Negroes from jury venires is
itself such an unequal application of the law . . . as to show intentional
discrimination.” Id. at 93, 106 S. Ct. at 1721 (internal quotations and citation
omitted). The failure of the Court of Criminal Appeals to consider this crucial fact
25
was an unreasonable application of Batson.
Second, the court failed to consider the fact that the State had proffered as an
explanation that it removed multiple African-American jurors because of their “low
intelligence” when the intelligence of the jurors was unsupported by any evidence
in the record. Of the six juror strikes that the Alabama court specifically
considered in its decision, Edith Ferguson and Irene Lesure were struck, among
other reasons, for “low intelligence.”19 Despite the fact that McGahee argued on
appeal that there was no support in the record for finding any of the African-
American jurors had “low intelligence,” the Alabama court failed to consider this
explanation entirely in its discussion of the Batson claim and in its analysis of Irene
Lesure’s and Edith Ferguson’s strikes. The State’s proffer of the same unsupported
reason to explain several of its strikes against African-American jurors is certainly
a relevant fact that should have been considered by the Alabama court.
Furthermore, the State’s claim that several African-Americans were of “low
intelligence” is a particularly suspicious explanation given the role that the claim of
“low intelligence” has played in the history of racial discrimination from juries.
19
The prosecutor stated about Irene Lesure, “we struck [her] because of the
recommendation of our expert based on his investigation of her general intelligence level.”
McGahee, 554 So. 2d at 460. About Edith Ferguson, the prosecutor stated that “[o]ur expert
recommended that she be struck based on his examination of her from the various points I have
already made reference to.” Id.
26
The fact that one of the State’s proffered reasons for striking multiple African-
American jurors is unsupported by the record and historically tied to racism should
have been included in the third step of Batson, where all relevant circumstances
must be examined to determine whether the State has struck any of the jurors based
on their race.
Because the Alabama Court of Criminal Appeals omitted these highly
relevant facts from its Batson analysis, the court did not undertake a review of “all
relevant circumstances” as required by the third step of Batson. Because the court
did not review “all relevant circumstances,” we hold that the decision was an
unreasonable application of clearly established federal law as determined by the
Supreme Court.
C. De novo Review
Where we have determined that a state court decision is an unreasonable
application of federal law under 28 U.S.C. § 2254(d), we are unconstrained by §
2254’s deference and must undertake a de novo review of the record.20 We now
20
In Williams v. Taylor, Justice O’Connor, writing for the majority, defined the two
prongs of the “contrary to” clause of § 2254(d)(1) and held that “in either of these two scenarios,
a federal court will be unconstrained by § 2254(d)(1) because the state-court decision falls within
that provision’s ‘contrary to’ clause.” 529 U.S. at 406, 120 S. Ct. at 1520 (emphasis added).
Confirming this statement that the federal court is unconstrained by § 2254(d)(1), Justice
O’Connor joins Parts III and IV of Justice Stevens’ opinion for the Court, which Parts are
expressly referred to as being “independent review,” id. at 389, 120 S. Ct. at 1511, and which
Parts clearly constitute an independent or de novo review. Id. at 389-98, 120 S. Ct. at 1511-16.
27
review the record below to determine if there was a Batson violation by the State.
Our review of the record reveals an astonishing set of facts involved in the
State’s use of peremptory challenges. At the time McGahee was tried, Dallas
County, Alabama was fifty-five percent African-American. As discussed earlier,
supra footnote 3, McGahee’s attorney raised the issue of the prosecutor’s history of
systematic exclusion of African-Americans from juries prior to trial. In addition,
the possibility of discriminatory peremptory challenges and the applicability of
Batson were raised before jury selection began.
As described above, at the end of jury voir dire, the attorneys each made
their challenges for cause. The State made all nine of its challenges for cause
See also Williams v. Allen, 542 F.3d 1326, 1343-45.
Although Williams v. Taylor indicates that a habeas court’s review should be de novo, we
acknowledge that the issue that was independently reviewed in Williams v. Taylor was
ineffective assistance of counsel, a legal issue and not a factual one. By contrast, the ultimate
issue before us is an issue of fact. However, there can be no deference to any finding of fact by
the state trial court, because after the prosecutor’s post-trial listing of his reasons, the trial court
made no finding of fact at all. Moreover, to the extent that a finding was made by the Alabama
Court of Criminal Appeals with respect to jurors Jones and Carpenter, that court completely
ignored the most relevant fact. Thus, in this case there is no finding of fact to which we could
defer, even if we assume that the law would ordinarily require deference to untainted state fact
findings in the context of an unreasonable application of law by the state court. See, e.g., Miller-
El, 545 U.S. at 266, 125 S. Ct. at 2340 (in the context of a state court decision which was an
unreasonable determination of fact under § 2254(d)(2), the Court’s finding of a Batson violation
was that the evidence pointed thereto “to a clear and convincing degree.”). Because the record in
this case is so compelling, we can assume arguendo, but need not decide, that the law would
require a federal habeas court in the strange posture of this case to conclude that any finding
other than a Batson violation with respect to juror Jones would have been contrary to the clear
and convincing evidence. For the reasons set out below, we do conclude that on this record any
finding other than that the strike of juror Jones resulted from intentional discrimination in
violation of Batson would be contrary to the clear and convincing evidence.
28
against African-American jurors. Over the defense objections, eight of those
challenges were allowed. Thus, at the end of the challenges for cause, the
prosecution had struck eight African-American jurors, and no white jurors.
The next day, the State used sixteen of twenty-two peremptory challenges to
remove all of the remaining African-American jurors from the venire. This is an
astounding fact, especially considering the above-mentioned fact that the county in
which the trial was taking place was fifty-five percent African-American. As the
Supreme Court said in Batson, total or seriously disproportionate exclusion of
African-Americans “is itself such an unequal application of the law . . . as to show
intentional discrimination.” 476 U.S. at 93, 106 S. Ct. at 1721 (internal quotation
omitted). See also Miller-El v. Dretke, 545 U.S. at 241, 125 S. Ct. at 2325
(“Happenstance is unlikely to produce this disparity.”).
In response to the defendant’s Batson motion, the prosecution then proffered
only protestations of good faith and general reasons for the strikes. Among the
general reasons proffered was an assertion that “low intelligence” had featured in
the selection criteria. The prosecutor stated:
The first series of strikes dealt with individuals who predominately, in
consultation with our assistant that we had in the course of trying to
determine relative intelligence level of individuals, were basically,
relatively low in I.Q., and the recommendation to us from our assistant,
we could have in selecting and reviewing the jury, were basically low in
29
intelligence levels. That also goes for at least two of the whites we
struck and the group of blacks that we originally struck to start with.
A review of the voir dire record reveals the pretextual nature of this explanation.
Nowhere in the record is there any evidence supporting a finding of intelligence.
The voir dire in this case was brief, and no questions were asked regarding
educational level or intelligence. The ability of a subjective rationale such as
intelligence to serve as a pretext to cover discriminatory strikes is why the
intelligence explanation has been found suspect by other courts. See Turner v.
Fouche, 396 U.S. 346, 359-60, 90 S. Ct. 532 (1970) (finding a prima facie case of
discrimination where 171 of the 178 citizens excluded from a jury venire for “lack
of ‘intelligence’ or ‘moral uprightness’” were African-American); Hillery v. Pulley,
563 F. Supp. 1228, 1248 (E.D. Cal. 1983) (“Intelligence, moral ‘uprightness,’
‘better types,’ and ‘proper’ jurors provide no standards at all, but inevitably are
merely the subjective judgment of the selector.”); State v. Washington, 375 So. 2d
1162, 1164 (La. 1979) (“[I]t is not unfair to characterize the prosecutor’s basis for
an almost automatic peremptory challenge to blacks to an assumption that many of
them might not possess the intelligence and education requisite to sit on the case.”).
The foregoing constitutes a strong prima facie case of intentional
discrimination. Indeed, Batson itself noted the significance of the total exclusion
30
of African-Americans. 476 U.S. at 93, 106 S. Ct. at 1721. Combining its strikes
for cause and peremptory, the prosecution had struck twenty-four African-
American jurors, leaving an all-white jury in a county which was fifty-five percent
African-American. As the Supreme Court stated in Miller-El, “[h]appenstance is
unlikely to produce this disparity.” 545 U.S. at 241, 125 S. Ct. at 2325.
Next we review the State’s proffer of specific explanations after the trial to
see whether its explanations overcome the very strong prima facie case of
discrimination. We review “all relevant circumstances.” See Miller-El v. Dretke,
545 U.S. at 251-52, 125 S. Ct. at 2331-32 (“[T]he rule in Batson provides an
opportunity to the prosecutor to give the reason for striking the juror, and it
requires the judge to assess the plausibility of that reason in light of all evidence
with a bearing on it.”).
After the trial, the prosecutor proffered specific explanations for all of the
peremptory challenges. While McGahee has challenged almost all of those
explanations in his appeal to this Court, we need not decide whether every
peremptory strike of an African-American juror in this case was racially motivated.
As this Court has stated, “under Batson, the striking of one black juror for a racial
reason violates the Equal Protection Clause, even where other black jurors are
seated, and even when valid reasons for the striking of some black jurors are
31
shown.” United States v. David, 803 F.2d 1567, 1571 (11th. Cir. 1986). See also
Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. at 1208 (“Because we find that the
trial court committed clear error in overruling petitioner’s Batson objection with
respect to [one juror], we have no need to consider petitioner’s claim regarding [a
second juror]”). We focus, therefore, on two strikes in particular, in which
McGahee claims the prosecution explicitly relied on racial reasons. Because we
find that the State’s explanations for striking these two jurors contain such a clear
indication that race was, in fact, a basis for their strikes, we harbor no doubt in
holding that the State violated McGahee’s equal protection rights as defined by
Batson.
1. Lemuel Jones
We discussed the most troubling aspect of the strike of Lemuel Jones above.
See supra. As we described before, we can think of no other explanation for the
statement “we did not want to leave him individually” than that the State did not
want to leave Lemuel Jones on the jury as the sole black juror. Our conviction that
Jones was struck based on his race is strengthened by the fact that the Court of
Criminal Appeals found, and we agree, that the other two reasons given by the
prosecution for striking Jones were “invalid” and “somewhat weak” respectively.
McGahee, 554 So. 2d at 462. Further, as we mentioned above, the State has
32
provided no alternative explanation of the statement, although McGahee
challenged it on direct appeal and to this Court. Indeed, we believe that the State
can offer no other explanation.
2. Mollerose Carpenter
Our interpretation of the State’s reasons for striking Lemuel Jones is further
supported by the fact that the State gave a similar reason for striking another
African-American juror, Mollerose Carpenter. In full, the State claimed that:
We struck juror number 17, Mollerose Carpenter, black female, who was
a service representative at the Telephone Company. She was an
individual who we had very little information on other than the fact that
she was working at the Telephone Company. What we observed during
the course of examination was reported to us at one point in time that she
appeared to be upset or glaring at the parties from the District Attorney’s
Office and asking questions. She was divorced. There was some
concern on our part about maintaining her as a juror, but not having any
further information, recommended that level of striking, especially after
Dr. Wright was struck, juror number 99. We felt we would be required
to strike her.
McGahee, 554 So. 2d at 462. We are most concerned with the last reason the State
gave for striking Carpenter. “There was some concern on our part about
maintaining her as a juror, but not having any further information, recommended
that level of striking, especially after Dr. Wright was struck, juror number 99. We
felt we would be required to strike her.” Id. When read in the context of the
33
State’s striking Lemuel Jones, it is evident that the State was concerned by the
prospect of having Mollerose Carpenter serve as an African-American juror
without Dr. Wright on the jury. As with Lemuel Jones, the only significant
connection Dr. Wright shared with Carpenter was that both were African-
American. As with Lemuel Jones, the State expressed concern that it had “very
little information” on Carpenter. And as with Lemuel Jones, the State claimed that
it considered having Carpenter serve until Dr. Wright was struck. The only
plausible reading of this statement is that once the State had removed Dr. Wright
from the jury, it removed the other two African-Americans it had considered
keeping, Jones and Carpenter, because they were African-American. The State did
not know much about them, and the State did not want African-Americans to serve
on the jury without the presence of Dr. Wright, an African-American whom the
prosecutor repeatedly said was known to the State.
Also similarly to Jones, the other reasons given by the State for striking
Carpenter are unsupported by the record. They are that (1) the State had little
information on her; (2) she appeared to be glaring at the prosecution; and (3) she
was divorced. The State tied the first reason to Carpenter’s race when it stated that
it struck her because it did not have a lot of information on her and so felt it had to
strike her after Dr. Wright was struck.
34
The State’s explanation that Carpenter was glaring at the State’s attorneys is
unsupported by the record. While it is possible that Carpenter was glaring, we
have no way of determining the accuracy of that claim because the trial court did
not respond to it. In Snyder v. Louisiana, the Supreme Court explained that “the
trial court must evaluate . . . whether the juror’s demeanor can credibly be said to
have exhibited the basis for the strike attributed to the juror by the prosecutor . . .
we have stated that in the absence of exceptional circumstances, we would defer to
the trial court.” Snyder, ___ U.S. ___, 128 S. Ct. at 1208. Having stated that
deference, the Supreme Court declined in that case to credit the prosecutor’s claim
that the juror in question was struck because he was nervous, because “[h]ere,
however, the record does not show that the trial judge actually made a
determination concerning [the juror]’s demeanor.” Id. at 1209. Accordingly, the
Court could not credit the demeanor explanation sufficiently to overcome the fact
that the other asserted reason was pretextual. Id. at 1212. Similarly, in this case
the State asserted Carpenter’s demeanor as a reason for its strike. McGahee, 554
So. 2d at 462. However, similarly to Snyder, the trial court made no response to
the State’s assertion of this reason, and we have no way of knowing whether the
State’s assertion that Carpenter was glaring was credible or not. Thus, this is weak
support for the State’s effort to rebut the significance of its apparently race-based
35
reason for striking Carpenter.
Finally, the Court of Criminal Appeals stated that “the State’s assertions that
Mollerose Carpenter was struck . . . because she was divorced (as was this
appellant and his divorce from one of the victims in this case played a major role in
this case) provided legitimate race-neutral reasons.” McGahee, 554 So. 2d at 462.
The State never offered such a full explanation for its strike of Carpenter. Instead,
the State said only, “[s]he was divorced.” McGahee, 554 So. 2d at 460. While it is
true that the defendant, McGahee, was divorced, it is also true that the victim was a
divorced woman, thus creating an equal (or probably greater) likelihood that
Carpenter, a divorced woman, would have been prone to identify with the victim, a
divorced woman. “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.” Miller-El v. Dretke, 545 U.S. at 252, 125
S. Ct. at 2332. The State asserted no reason why Carpenter’s divorce would have
made her more sympathetic to the defendant than to the State’s case. The Court of
Criminal Appeals’ reasoning does not substitute for the State’s lack of explanation.
Thus, the State provided one apparently race-based reason for striking
Carpenter, and its other reasons for striking Carpenter were weak. We need not
decide whether the strike of Carpenter constituted a separate and additional
36
violation of Batson; the fact that the State was concerned about leaving Carpenter,
as well as Jones, as the sole African-American on the jury bolsters our conviction
that Jones was removed from the jury as a result of intentional discrimination.
Finally, we mention that the prosecutor made the following statement in his
introduction to his post-trial proffer of explanations. “First of all, we used
information gathered from the jury list concerning ages, employment, race and
general information gathered from that.” While the State asserted that the
prosecutor meant to refer in this statement only to the sort of facts which appear on
the jury list,21 this fact bolsters somewhat the foregoing strong evidence that the
prosecutor did believe that race was a significant factor.
In reviewing “all relevant circumstances” in this record, including the
astonishing pattern resulting from the total exclusion of African-Americans in this
county in which they comprised fifty-five percent and the strong evidence of race-
based decision-making both generally and especially with respect to jurors Jones
and Carpenter, we find that it “blinks reality” to deny that the State struck Jones,
and perhaps Carpenter, because they were African-American. Miller-El v. Dretke,
545 U.S. at 266, 125 S. Ct. at 2340. The record in this case compels a finding that
21
The defense attorney also stated at trial that such a juror list, which identified the
race of potential jurors, existed. It does not appear to be in the record, and the jury list which is
in the record does not identify the potential juror’s race or age.
37
the State’s use of a peremptory strike in this case to dismiss Jones constituted
intentional discrimination, and violated McGahee’s rights under the Equal
Protection Clause and the clearly established law as determined by the Supreme
Court in Batson.22
Accordingly, the district court’s order denying McGahee’s federal habeas
petition is REVERSED, and the case is REMANDED to the district court with
instructions to issue the writ of habeas corpus conditioned upon the right of the
State to retry McGahee.
REVERSED and REMANDED
22
We conclude that any contrary finding would be inconsistent with the clear and
convincing evidence.
38