Walter J. Blair v. Bill Armontrout, Walter J. Blair v. William Armontrout William Webster

HEANEY, Senior Circuit Judge,

concurring in part and dissenting in part.

Walter Blair’s conviction has been tainted by racial prejudice. Blair, a twenty-year-old black man, was charged with murdering a young white woman. Experience indicates that juries are especially likely to impose the death penalty under these cir*1143cumstances,1 so it was essential that the jury be fairly selected. The prosecutor, however, used his peremptory challenges to strike four qualified blacks from the petit jury panel in this racially charged case, leaving an all-white jury and a strong inference of discriminatory purpose. The prosecutor’s discriminatory intent was also plain in closing argument when he appealed to the prejudices of this all-white jury by asking them to consider what the “attractive” white victim thought “when she woke up ... staring into the muzzle of a gun held by this black man.”

In light of the prosecutor’s discriminatory behavior, we cannot say that Blair received a fair trial. Moreover, the record reveals that the prosecutor’s action in Blair’s case was part of a long pattern in Kansas City of striking black jurors in criminal cases with black defendants. Blair has presented more than sufficient evidence to support his claim under Swain v. Alabama. Accordingly, I dissent from part IV of the court’s opinion.

Merits of Blair’s Swain Claim

Under the law of our circuit, a defendant can establish a prima facie case of purposeful discrimination under Swain by proving that the prosecutor used his or h'er peremptory challenges (1) to exclude blacks from the jury for reasons unrelated to the outcome of the particular case on trial, or (2) to deny to blacks the same right and opportunity to participate in the administration of justice enjoyed by the white population. Walton v. Caspari, 916 F.2d 1352, 1360 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1337, 113 L.Ed.2d 268 (1991). One way to do this is to show that “the prosecution has systematically excluded blacks from petit juries over a- period of time.” Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987); United States v. Pollard, 483 F.2d 929, 930 (8th Cir.1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974). Although a pattern of exclusion over a few weeks might be insufficient, the petitioner “is not required to show that the prosecutor always struck every black venireman offered to him.” Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984). Here, Blair presented the district court with substantial evidence proving that the Jackson County prosecutor’s office has, over many years, used its peremptory strikes to systematically exclude black jurors from petit juries in that county. Having proved a prima facie Swain violation, Blair is entitled to a new trial regardless of the strength of the state’s case.2

To prove his Swain claim, Blair submitted (1) affidavits from nine attorneys who practiced criminal defense in Jackson County during the 1970s and 1980s; (2) 1985 and 1986 statistics from Jackson County criminal cases regarding the prosecution’s use of peremptory challenges against blacks; and (3) sworn testimony from Jackson County criminal defense lawyers regarding *1144specific cases in which the prosecutor in Blair’s case, Robert Dakopolis, struck black jurors. In addition, Blair emphasizes that we may infer racially discriminatory intent from the Jackson County prosecutor's remarks during the closing argument in Blair’s case.

The strongest evidence in support of Blair’s claim is from six of the affidavits of criminal defense lawyers who had practiced in Jackson County before, during, and immediately after Blair’s 1980 trial. According to these attorneys, the trial staff of the Jackson County prosecutor’s office consistently and systematically used peremptory challenges to exclude as many blacks as possible from petit juries in criminal cases, and did so until Batson was announced in 1986. I set forth below the contents of these six affidavits:

Charles Rogers affidavit. Rogers practiced criminal defense in Jackson County from 1976 to 1989. He tried more than 100 felony jury trials during that period against members of the Jackson County prosecuting attorney’s staff. According to Rogers, the prosecuting trial staff consistently and systematically used peremptory challenges to exclude as many blacks as possible, especially in cases where the defendant was black and the complaining witness or decedent was of European descent. According to Rogers’s personal observation, he believed that the prosecutors’ peremptory strikes were based solely on the race of the excluded veniremen. Veniremen of European descent who gave responses less favorable to the prosecution than those given by black veniremen were not peremptorily excluded if blacks remained on the venire. Rogers stated that based on his personal observation in cases where he was defense counsel or an observer, prosecutor Robert Dakopolis was “especially adamant” about using peremptory challenges to exclude black veniremen. Rogers could not recall a single instance where Dakopolis used a peremptory challenge to remove a venireman of European descent while a black remained on the venire.
James Fletcher affidavit. Fletcher, a criminal defense attorney for eighteen years, tried about ninety jury trials against the Jackson County prosecutor’s office. Fletcher was assistant public defender in Jackson County from 1974 to mid-1979 and was chief public defender from 1981 through 1984. Based on his personal observation, Fletcher stated that Jackson County prosecutors systematically excluded blacks from petit juries by using peremptory challenges exercised only on the basis of race, particularly when the defendant was black. According to Fletcher, the practice had the appearance of being a policy of the Jackson County prosecutor’s office because it happened regardless of which prosecutors were trying the case. On several occasions, assistant prosecuting attorneys told Fletcher that the reason they struck blacks from jury panels was because they did not want blacks on the juries, particularly when black defendants were charged with committing offenses against whites. Fletcher tried cases against Robert Dakopolis on numerous occasions. In those trials, Dak-opolis used his peremptory challenges to strike as many black members of the jury panel as he could. In his affidavit, Fletcher gave the names of three cases in which this happened.
Kevin Locke affidavit. Locke, an assistant public defender in Jackson County from 1977 to mid-1986, was involved in about forty to forty-five jury trials against the Jackson County prosecutor’s office during that time. According to Locke, in virtually every one of these cases, the prosecutors used their peremptory challenges to exclude blacks on the basis of their race. Locke believed the practice was a policy of the office because it happened regardless of who was trying the case.
Susan Chapman affidavit. Chapman was an assistant public defender in Jackson County from mid-1978 through mid-1981, and handled conflict cases for the Jackson County public defender from mid-1981 to 1985. From 1985 through 1987 Chapman tried cases in Jackson *1145County as a first assistant public defender. Chapman tried many felony cases in Jackson County during this period, and she observed the Jackson County prosecutor’s office systematically employ peremptory challenges to exclude blacks from petit jury panels, apparently solely because of their race. According to Chapman, one assistant prosecuting attorney used a racial epithet to describe black veniremen he had challenged.
William Lentz affidavit. Lentz was a criminal defense attorney in Jackson County from 1976 to 1986. During that time Lentz defended about forty jury trials against the Jackson County prosecutor’s office. Lentz believed that office systematically excluded blacks from petit juries by using peremptory challenges exercised solely on the basis of race, and that the practice continued until the Supreme Court decided Batson. Lentz also believed that the prosecutor’s office excluded blacks to facilitate convictions based on racial prejudice and to allow white petit jury members to comfortably express their racial prejudices among themselves.
John Kurtz affidavit. Kurtz was a public defender in Jackson County from 1979 to 1981 and was in private practice doing some criminal work until 1986. Kurtz had approximately ten jury trials against the Jackson County prosecutor’s office during that time. According to Kurtz, the Jackson County prosecutor’s office, with the exception of Fred Bellem-ere III, systematically excluded blacks from juries by use of peremptory challenges exercised solely on the basis of their race.

Such evidence cannot be disregarded as weak or irrelevant. Taken together, these affidavits establish a pattern of discriminatory behavior by the Jackson County prosecutor’s office during the period when Blair was convicted. Other courts have found similar evidence from as few as three local lawyers sufficient to establish a Swain violation. Love v. Jones, 923 F.2d 816, 818-20 (11th Cir.1991); see also Jones v. Davis, 835 F.2d 835, 838-40 (11th Cir.), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988) (evidence from six local lawyers). Nor do our prior cases state that this kind of evidence is insufficient to demonstrate a Swain violation. There simply is no basis for the court to dismiss these six affidavits as insufficient to support relief under Swain. One is left with the feeling that the court is not prepared to give affidavits from criminal defense lawyers any weight, and that the court would accept nothing less than a sworn statement from Robert Dakopolis admitting that he struck blacks in Blair’s case for a discriminatory purpose.

The majority criticizes Blair’s other evidence of discrimination, including sworn testimony from the Antwine case, statistics concerning the prosecutors’ jury strikes in 1985 and 1986, and three additional affidavits. It is true that this evidence relates to prosecutorial behavior after Blair’s trial, and thus would not be enough, without more, to support Blair’s Swain claim. Blair offers this evidence, however, merely as additional support for the very strong prima facie case he established with the six affidavits summarized above.

The sworn testimony from the Antwine case included examples from specific cases in which Robert Dakopolis used his peremptory challenges to eliminate all or most of the qualified black jurors from the petit jury. For example, in the case of Gary Lovelady, a black defendant, Dakopolis or his assistant used a disproportionate number of their challenges on blacks, striking five of the six qualified blacks remaining in the venire. In the case of Aaron Phillips, a black defendant, Dakopolis or his assistant struck all five qualified blacks from the jury venire. In the case of James McConnell, a white defendant, there were thirty qualified jurors, with each side having nine peremptory strikes. In McConnell’s first trial, which ended in a mistrial, Dakopolis or his assistant struck all six qualified blacks from the venire. At McConnell’s second trial, Dakopolis struck all three qualified blacks from the venire. These examples give lie to the notion that Dakop-*1146olis’s actions in Blair’s case was some kind of aberration.

Blair’s statistical proof is from the Jackson County public defender’s office. This evidence demonstrates that in cases involving black defendants in 1985, the Jackson County prosecutor’s office used over forty-eight percent of its available peremptory challenges to exclude black jurors even though the pool of qualified jurors was only nineteen percent black. Put another way, in cases involving black defendants in 1985, the prosecutor struck more than sixty percent of the qualified black jurors (49 of 78), but only about fifteen percent of the qualified nonblack jurors (48 of 329). The figures were similar for 1986.3 This evidence, along with the three affidavits covering the period after Blair's trial, further demonstrates the pervasiveness of the prosecutor’s discriminatory practices. Any weaknesses in the three affidavits, the statistical proof, and the sworn testimony does not detract from the strength of the six affidavits that describe with particularity the prosecutor’s practices during and before the time of Blair’s trial.

Finally, the prosecutor’s appeals to racial prejudice at closing argument demonstrate his discriminatory intent in Blair’s case. I discussed this issue extensively in my previous dissenting opinion. Blair, 916 F.2d at 1351-52. I continue to believe that the prosecutor exceeded the bounds of proper advocacy when he asked the all-white jury to consider what the “attractive” white victim thought “when she woke up ... staring into the muzzle of a gun held by this black man.” This statement cannot be justified.4 Race plays a far too influential role in capital sentencing for us to assume that such a blatant appeal to racial prejudice was harmless. Even if the prosecutor’s improper appeal to race does not furnish an independent ground for relief, it certainly supports Blair’s claim under Swain.

Procedural Obstacles to Swain Claim

Although the procedural obstacles erected by the Supreme Court in recent years have made it more difficult for petitioners to get a full and fair hearing in federal court, I believe that there are persuasive reasons for disregarding any procedural bars that might apply to Blair’s Swain claim.

First, Blair has not tried to sandbag the district court and this court with respect to his equal protection claim. Blair tried to raise the equal protection claim and other claims pro se in his original habeas proceeding. He filed pleadings with the district court and this court stating that his appointed counsel had abandoned claims that he wished to raise. If, as the record indicates, Blair’s previous appointed counsel filed the first habeas petition without Blair’s knowledge, consent, or authorization, the abuse of the writ doctrine is entirely inappropriate. We made precisely this point in Williams v. Lockhart, 862 F.2d 155, 160 (8th Cir.1988), where, as here, the petitioner’s attorney filed a habeas petition without the petitioner’s knowledge, consent, or authorization. Although counsel can be expected to winnow out weaker arguments on appeal, attorney misconduct cannot be considered a “winnowing” decision.5

Second, we may consider otherwise procedurally barred petitions if the petitioner can demonstrate a fundamental miscarriage of justice. Smith v. Murray, 477 *1147U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). Here, the prosecutor’s racial discrimination in the selection of jurors, along with his appeals to racial prejudice in closing argument, make it likely that Blair is actually innocent of capital murder. In Hamilton v. Jones, 789 F.Supp. 299 (E.D.Mo.1992), Judge Gunn considered the merits of a petitioner’s successive petition raising a Swain claim because

there is a probability of petitioner’s factual innocence because “racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process’ ... and places the fairness of a criminal proceeding in doubt.”

Id. at 301 (quoting Powers v. Ohio, — U.S. -, -, 111 S.Ct. 1364, 1371, 113 L.Ed.2d 411 (1991)). Nor is racial discrimination the only shadow over this case: there also was the prosecutor’s knowing use of perjured testimony and the trial court’s erroneous refusal to instruct the jury on felony murder. See infra at n. 6. Under these circumstances, Blair has demonstrated that he probably is innocent of capital murder, and thus is entitled to a full and fair hearing on the merits of his claim.

Finally, I believe that Blair’s failure to fully develop the record for his Swain claim in state court is excusable. The majority suggests that Blair must demonstrate cause and prejudice for his failure to fully develop the factual record in state court proceedings. Supra at 1141-42 (citing Keeney v. Tamayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1719-20, 118 L.Ed.2d 318 (1992)). If this were true, the proper course would be to remand the ease so that the district court can consider whether Blair can prove cause and prejudice for this failure. More importantly, the Missouri Supreme Court reached out and decided the Swain issue on Blair’s direct appeal even though Blair had not raised the issue at that point. The record does demonstrate, therefore, external cause for Blair’s failure to develop a Swain record in the Missouri courts.

Blair had the choice of raising his Swain claim either on direct appeal to the Missouri Supreme Court or in a post-conviction proceeding under Missouri Supreme Court Rule 27.26. See, e.g., Brown v. State, 470 S.W.2d 543, 544 (Mo.1971) (Swain claim raised in Rule 27.26 motion). There would have been good reason to raise the Swain claim in a post-conviction proceeding rather than direct appeal: a Swain claim requires exhaustive proof, proof that might not easily be marshalled under the tight deadlines of a direct appeal.

Thus, Blair’s attorney omitted the Swain claim on direct appeal, arguing only that the method of selecting jury venires in Jackson County from voter registration lists excluded qualified black jurors. The Missouri Supreme Court, however, reached out and decided the Swain claim sua sponte. That court’s conclusion — that Blair failed to establish the systematic exclusion of blacks through peremptory challenges — was correct only because Blair had not chosen to present evidence of such discrimination on direct appeal. The court’s gratuitous action precluded Blair from making any kind of record to support a Swain claim in a Missouri post-conviction hearing, because under Missouri law, “a matter decided on direct appeal may not be relitigated in post-conviction relief proceedings.” Schlup v. State, 758 S.W.2d 715, 716 (Mo.1988) (quoting Gilmore v. State, 731 S.W.2d 369, 371 (Mo.App.), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987)). It would have been futile for Blair to raise his Swain claim during post-conviction proceedings, and it is well settled that petitioners need not raise claims when it would be futile to do so. The Missouri Supreme Court’s action certainly is an “objective factor external to the defense,” thus constituting cause for Blair’s failure to develop the record regarding his Swain claim in the Missouri courts.

Other Claims

I concur in the majority’s decision to affirm the district court’s denial of Blair’s other claims, but a few additional words are in order. As the court explains, the panel majority in our previous opinion rejected two of Blair’s remaining claims, holding (1) that Blair had failed to prove *1148that the prosecution knowingly used perjured testimony from Ernest Jones, and that the perjured testimony could have affected the jury’s judgment; and (2) that the trial court’s failure to instruct the jury on felony murder did not violate the equal protection clause. Blair v. Armontrout, 916 F.2d 1310, 1316-20, 1325-30 (8th Cir.19 90). Although I continue to believe that our court wrongly decided these two issues,6 I do not believe that Blair has presented enough evidence to justify reopening them.

Conclusion

Although I disagree with the court, I can understand why it has ruled that Blair’s Swain claim is procedurally barred. The procedural issues in this case are complex and susceptible to more than one interpretation. I cannot understand, however, why the court holds that Blair presented insufficient evidence to support his Swain claim. The affidavits of experienced criminal defense attorneys in Jackson County present a picture of systematic racial exclusion condemned by the Supreme Court in Swain. Blair’s other evidence simply sharpens this picture.

The evidence to convict Blair of capital murder was far from overwhelming; in fact, Blair likely was innocent of that charge. He is entitled to a new trial free of the racial discrimination that the prosecutors deliberately injected into this case.

. See McCleskey v. Kemp, 481 U.S. 279, 286-87, 107 S.Ct. 1756, 1763-64, 95 L.Ed.2d 262 (1987) (study of over 2,000 murder convictions in • Georgia shows that the death penalty was assessed in twenty-two percent of the cases involving black defendants and white victims; eight percent of the cases involving white defendants and white victims; three percent of the cases involving white defendants and black victims; and one percent of the cases involving black defendants and black victims).

. The district court found that the "overwhelming evidence of guilt suggested that Blair would still have been convicted." What the district court did not say is whether Blair would have been convicted of felony murder or capital murder. Although there was strong evidence to support a felony murder conviction, the evidence to support a capital murder conviction was significantly wéaker. In either event, the district court was incorrect in applying a harmless error analysis. There is no requirement of prejudice in a Swain/Batson claim: if jury selection procedures violate the equal protection clause, a conviction must be reversed whether the case against the defendant was strong or weak. See Avery v. Georgia, 345 U.S. 559, 561, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953) (where jury selection procedures operated to discriminate on racial grounds, thus violating the equal protection clause, the conviction must be reversed "no matter how strong the evidence of petitioner’s guilt”); see also Vasquez v. Hillery, 474 U.S. 254, 260-61, 106 S.Ct. 617, 621-22, 88 L.Ed.2d 598 (1986) (same rule applied to grand jury proceedings).

. In cases involving black defendants in 1986, the Jackson County prosecutor's office used forty-four percent of its available peremptory challenges to exclude black jurors even though the pool of qualified jurors was only nineteen percent black. The prosecutor struck more than ■ fifty-seven percent of the qualified black jurors (99 of 173), but only about seventeen percent of the qualified nonblack jurors (127 of 732).

. It is argued that Blair’s race must have been "obvious to the jury,” see supra at 1136. This might be true, but it certainly does not excuse the prosecutor's ugly racial appeal to the jury.

.See also Blair v. Armontrout, 916 F.2d at 1335 n. 3 (Heaney, J., dissenting) (Blair requested first habeas counsel to raise all exhausted state claims. Counsel agreed, but did not raise those claims, thus lulling Blair into not presenting the omitted exhausted claims before the district court.)

. As I explained in my earlier dissent, there was ample evidence to show that Ernest Jones perjured himself at trial and that the prosecutor deliberately deceived the trial court and the defense to minimize the impeachment of Jones. We should have remanded the case to the district court to consider the materiality of the state’s knowing use of perjured testimony. Blair, 916 F.2d at 1335-41 (Heaney, J., dissenting). Moreover, the Missouri trial court's failure to give a felony murder instruction violated Blair’s right to both equal protection and due process. Id. at 1341-47. Certainly there was sufficient evidence to support a first-degree murder instruction in Blair’s case, and the Missouri Supreme Court inconsistently applied its own precedent when it held that first-degree murder was not a lesser included offense of capital murder when Blair was tried. As Justice Welliver of that court noted on this issue, the Missouri Supreme Court “treated similarly situated defendants differently in a transparent effort to avoid giving them new trials." State v. Holland, 653 S.W.2d 670, 680 (Mo.1983) (Welliver, J., dissenting).