John Washington Hightower v. Derrick Schofield

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
April 12, 2004
No. 00-15807 THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 96-00097-3:CV-DF

JOHN WASHINGTON HIGHTOWER,

Petitioner-Appellant,

versus

DERRICK SCHOFIELD,

Respondent-Appellee.

____________

Appeal from the United States District Court
for the Middle District of Georgia
____________

(April 12, 2004)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge.

Petitioner John Washington Hightower, a Georgia prisoner, seeks a writ of

habeas corpus setting aside his 1988 convictions and sentences for capital murder.

The district court denied his petition. We affirm.

I.

The Supreme Court of Georgia summarized the facts of this case as follows:

The defendant was married to Dorothy Hightower. Her brother stopped by
their home early in the morning of July 12, 1987, to pick up his daughter.
Dorothy Hightower’s car was gone. The brother entered the home and found
that Dorothy Hightower and her two daughters, Evelyn and Sandra Reaves,
had been shot. Evelyn Reaves was still alive, but died two days later.
Sandra Reaves and Dorothy Hightower were dead. The brother’s daughter
was unharmed.

Two and one-half hours later, the defendant was arrested driving his wife’s
car. Inside the car was a bloody handgun. He confessed later that morning.
He told police that he and his wife had been having marital problems, and he
had purchased the murder weapon the day before. He hid it under his pillow
until 3:00 a.m., when he shot his wife. He then went to the bedroom
occupied by his stepdaughter Sandra Reaves. She got out of bed, but then
lay back down. He shot her in the head. Evelyn Reaves tried to leave the
house, but the defendant caught her and shot her three times.

Hightower v. State, 386 S.E.2d 509, 510 (Ga. 1989).

After a trial held from April 28, 1988, to May 4, 1988, a jury in Morgan

County, Georgia,1 convicted Hightower of three counts of murder. In the penalty

1
Hightower was indicted in Baldwin County on July 14, 1987. At a hearing on January
15, 1988, the superior court granted Hightower’s motion for a change of venue, and ordered that

2
phase, the jury found an aggravating circumstance as to each murder, namely, that

Hightower had committed each murder in the course of the commission of another

murder.2 The jury recommended death sentences on each of the three counts of

murder. The trial court entered these sentences as required by Georgia law.3

Hightower sought, but was denied, a new trial. The Georgia Supreme Court

affirmed Hightower’s convictions on direct appeal, Hightower v. State, 386 S.E.2d

509 (Ga. 1989), and denied his motion for reconsideration. The Supreme Court of

the United States denied Hightower’s petition for a writ of certiorari, Hightower v.

Georgia, 498 U.S. 882, 111 S. Ct. 230, 112 L. Ed. 2d 184 (1990), and his petition

venue be changed to Morgan County for trial. On February 25, 1988, the court quashed the
indictment on the ground that African-Americans were underrepresented on the venire from
which the grand jury had been drawn. A new indictment was returned on March 18, 1988, and
Hightower was arraigned on April 15, 1988. On April 20, 1988, the superior court issued an
order nunc pro tunc January 15, 1988, incorporating into the record of the new case all motions,
orders, and rulings from the earlier case.
2
O.C.G.A. § 17-10-31 requires that a death sentence be supported by “a finding of at least
one statutory aggravating circumstance.” One sufficient aggravating circumstance for murder is
that it “was committed while the offender was engaged in the commission of another capital
felony or aggravated battery.” O.C.G.A. § 17-10-30. Hightower’s jury found that (1) the murder
of Dorothy Hightower was committed while Hightower was engaged the commission of the
murder of Evelyn Reaves, (2) the murder of Sandra Reaves was committed while Hightower was
engaged in the commission of the murder of Dorothy Hightower, and (3) the murder of Evelyn
Reaves was committed while Hightower was engaged in the commission of the murder of Sandra
Reaves.
3
O.C.G.A. § 17-10-31 provides that “[w]here a statutory aggravating circumstance is
found and a recommendation of death is made, the court shall sentence the defendant to death.”

3
for rehearing, Hightower v. Georgia, 498 U.S. 995, 111 S. Ct. 549, 112 L. Ed. 2d

557 (1990).

Hightower then petitioned the Superior Court of Butts County, Georgia, for a

writ of habeas corpus.4 After an evidentiary hearing, the court denied his petition.

The Georgia Supreme Court denied Hightower’s application for probable cause to

appeal and his subsequent motion for reconsideration. The Supreme Court of the

United States denied Hightower’s petition for a writ of certiorari, Hightower v.

Thomas, 515 U.S. 1162, 115 S. Ct. 2618, 132 L. Ed. 2d 860 (1995), and his petition

for rehearing, Hightower v. Thomas, 515 U.S. 1183, 116 S. Ct. 30, 132 L. Ed. 2d

912 (1995).

Having pursued all state court avenues of relief, Hightower sought habeas

corpus relief in the United States District Court for the Middle District of Georgia.

The district court denied his petition, concluding on the basis of the records of the

state court proceedings that none of his claims had merit.5 The district court

thereafter granted Hightower’s application for a certificate of appealability

pursuant to 28 U.S.C. § 2253(c), concluding that he had made a “substantial

showing of the denial of a constitutional right” with respect to each of his claims.

4
Hightower petitioned that court because he was incarcerated in Butts County.
5
The court also denied Hightower’s Federal Rule of Civil Procedure 59(e) motion to alter
and amend the judgment.

4
In this appeal, however, Hightower challenges the district court’s disposition only

of a portion of his claims.6 He contends that the state trial court committed

constitutional error by (1) failing to provide him with the assistance of a qualified

psychiatrist as required by Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.

Ed. 2d 53 (1985), and by neglecting to conduct hearings on his Ake requests ex

parte; (2) allowing the prosecutor peremptorily to strike African-Americans from

the jury, in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90

L. Ed. 2d 69 (1986); and (3) permitting jurors unconstitutionally biased in favor of

the death penalty to serve on his jury. He also claims that his two court-appointed

lawyers provided constitutionally ineffective assistance under Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

6
Hightower has abandoned the following claims by not including them in his brief: (1) the
prosecutor engaged in various forms of misconduct before and during the trial, depriving him of
his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to a fair trial and a reliable
sentencing proceeding; (2) the trial court violated his rights under the Fifth and Fourteenth
Amendments by failing to have all proceedings against him transcribed and made part of the
record; (3) the State obtained his confession and used it against him at trial in contravention of
the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) the trial court violated his rights under
the Eighth and Fourteenth Amendments by providing misleading and incomplete instructions to
the jury during the penalty phase of his trial; (5) the trial court violated his Fourteenth
Amendment due process rights by allowing the prosecutor to introduce allegedly inflammatory
victim impact evidence; and (6) his attorneys were constitutionally ineffective in numerous ways
beyond those cited in his brief to us.

5
 II.

On April 24, 1996, President Clinton signed into law the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,

which amended the federal habeas corpus provisions of 28 U.S.C. § 2254. Because

Hightower filed his habeas petition after the AEDPA’s effective date, that law’s

provisions apply. Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 1918, 150

L. Ed. 2d 9 (2001).

As amended by AEDPA, 28 U.S.C. § 2254 states:

(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

As the Supreme Court has held,

[u]nder the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas

6
 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, 412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d

389 (2000). The phrase “clearly established Federal law,” as that term appears in

section 2254(d)(1), “refers to the holdings, as opposed to the dicta, of [the Supreme

Court’s] decisions as of the time of the relevant state court decision.” Id. at 412,

120 S. Ct. at 1523. Furthermore, a habeas petitioner can overcome a state court’s

“presumption of correctness” on factual determinations only by coming forth with

“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

As a general rule, in reviewing a district court’s grant or denial of a habeas

petition, we review the district court’s findings of fact for clear error, and review de

novo both questions of law and mixed questions of law and fact. Nyland v. Moore,

216 F.3d 1264, 1266 (11th Cir. 2000). In this case, because the district court

“neither held an evidentiary hearing nor made any independent findings of fact,”

we review its holdings de novo, mindful that “we (like the district court) are

reviewing, in essence, [the] decision[s] of the courts of Georgia.” Putman v. Head,

268 F.3d 1223, 1240 (11th Cir. 2001).

7
 III.

Hightower raises two separate claims under Ake v. Oklahoma, 470 U.S. 68,

105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). We address these in turn.

A.

Hightower first claims that he was denied his rights under Ake to the

assistance of a competent psychiatrist. Hightower unsuccessfully raised this claim

on direct appeal to the Georgia Supreme Court.7 Hightower v. State, 386 S.E.2d

509, 511 (Ga. 1989). Thus, under 28 U.S.C. § 2254(d), for Hightower to prevail on

this claim, the decision of the Georgia Supreme Court must have been “contrary to,

or . . . an unreasonable application of, clearly established” United States Supreme

Court precedent, or “based on an unreasonable determination of the facts in light of

the evidence.” We hold that it was not. Because Hightower failed to make the

threshold showing required to trigger his rights under Ake, and received defense

funds that he could have used for a psychiatric expert, his claim fails.

7
Hightower later brought this claim before the Superior Court of Butts County. That
court refused to review the claim, citing Gunter v. Hickman, 348 S.E.2d 644 (Ga. 1986). Gunter
held that an “issue . . . actually litigated, i.e., raised and decided [on] direct appeal . . . cannot be
reasserted in habeas corpus proceedings” in Georgia state courts. Id. at 644-45 (citations
omitted).

8
 1.

The Supreme Court in Ake considered the constitutional right of indigent

criminal defendants to psychiatric assistance. In that case, Ake, the defendant,

notified the trial court during a pretrial conference of his intention to raise an

insanity defense, and requested the appointment of, or funds to hire, a psychiatrist.

Ake, 470 U.S. at 72, 105 S. Ct. at 1090. The court denied the request. Id. at 72,

105 S. Ct. at 1090-91. At the guilt phase of Ake’s trial, “there was no expert

testimony for either side on Ake’s sanity at the time of the offense,” even though

“his sole defense was insanity.” Id. at 72, 105 S. Ct. at 1091 (emphasis omitted).

The jury found him guilty. Id. at 73, 105 S. Ct. at 1091. At the sentencing phase,

Ake, without a psychiatric expert, could not rebut the testimony of state

psychiatrists who claimed he was “dangerous to society,” and could not “introduce

on his behalf [psychiatric] evidence in mitigation of his punishment.” Id. at 72,

105 S. Ct. at 1091. The jury returned a death sentence. Id.

The Supreme Court ruled in Ake’s favor, holding under the Due Process

Clause of the Fourteenth Amendment

that when a defendant demonstrates to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense.

9
470 U.S. at 83, 105 S. Ct. at 1096. The Court found that the trial court was

adequately “on notice” that “Ake’s mental state at the time of the offense was a

substantial factor in his defense,” id. at 86, 105 S. Ct. at 1097, due in large part to

the following facts: (1) Ake’s sole defense was insanity; (2) the trial court, sua

sponte, had ordered that Ake be examined by a psychiatrist to determine the cause

of his “bizarre” behavior at arraignment; (3) a state psychiatrist later found Ake

incompetent to stand trial; (4) Ake was deemed competent “only on the condition

that he be sedated” with medication during the trial; and (5) psychiatrists who

examined Ake for competency did so within six months of the offense, and opined

that his “mental illness might have begun many years earlier.” Id. at 86, 105 S. Ct.

at 1098.

Because “[a] defendant’s mental condition is not necessarily at issue in every

criminal proceeding,” id. at 82, 105 S. Ct. at 1096, the right to psychiatric

assistance is not automatic. Rather, this right hinges upon the sufficiency of the

defendant’s preliminary showing to the trial court that there is a “substantial basis

for the defense” that the expert will assist in presenting. Moore v. Kemp, 809 F.2d

702, 712 (11th Cir. 1987) (en banc). While defense counsel “cannot be expected to

provide the court with a detailed analysis of the assistance an appointed expert

might provide,” he is nonetheless “obligated to inform himself about the specific

10
scientific area in question and to provide the court with as much information as

possible concerning the usefulness of the requested expert” to the defense. Id. The

trial court must then examine the evidence before it, make all necessary inferences,

and determine whether the provision of psychiatric assistance is warranted.

In reviewing an Ake claim like Hightower’s, we look to

the reasonableness of the trial judge’s action at the time he took it.
This assessment necessarily turns on the sufficiency of the petitioner’s
explanation as to why he needed an expert. That is, having heard
petitioner’s explanation, should the trial judge have concluded that
unless he granted his request petitioner would likely be denied an
adequate opportunity fairly to confront the State’s case and to present
his defense?

Id. at 710. The sources available to the trial court in considering Hightower’s

request for psychiatric assistance included (1) written motions and exhibits, (2)

defense counsel’s representations at pretrial proceedings, and (3) Hightower’s

behavior at pretrial proceedings. We “[place] ourselves in the shoes of the trial

judge [and] analyze the information he received as it was brought before him.”

Messer v. Kemp, 831 F.2d 946, 961 (11th Cir. 1987) (en banc). In so doing, we

conclude that Hightower failed to satisfy his preliminary burden under Ake, and

was therefore not entitled to the services of a psychiatrist.

11
 a.

Hightower’s attorneys first notified the trial court of their desire for expert

psychiatric assistance in a written motion dated August 6, 1987. The full text of

the motion reads as follows:

Motion for Funds to Hire Independent Psychiatrists

1. The defendant, John Hightower, was arrested on July 10, 1987, and
charged with three counts of Murder.

2. The said Defendant was indicted by the Baldwin County Grand Jury
on July 14, 1987, for said offenses.

3. The District Attorney of Baldwin County, Georgia, Mr. Joseph
Briley, has announced that he intends to seek the death penalty in the
prosecution of said case.

4. Counsel for Defendant feel that the defendant’s mental state,
together with the presence or absence of any mental disorder or
disease, may be of importance in the defense of said action.

5. Defense counsel were appointed by this Honorable Court to
represent the Defendant, the said Defendant having been found
previously indigent by this Court.

6. Defendant is without sufficient funds of any kind with which to hire
independent psychiatric or psychological experts, and feels that the
same would be needed in order to insure him all of his due process
rights under the Georgia and the United States Constitutions.

7. Defendant believes that independent psychiatric and/or
psychological evaluations need to be accomplished in order to assure
that any and all defenses can be properly presented at trial.

12
 Wherefore, Defendant prays that funds be provided to his counsel of
record for the purpose of employing independent psychiatric and/or
psychological experts in the defense of his case.

This 6th day of August, 1987.

/s/ Hulane E. George, Attorney for Defendant
B. Carl Buice, Attorney for Defendant

The court heard arguments on this and other motions at a hearing on August

31, 1987. At the hearing, the court asked defense counsel whether they intended to

“make a motion for an examination at Central State Hospital.” They answered in

the negative, and asked that the court consider instead their motion for funds to hire

an independent psychiatrist. The court, pursuant to Ake, ordered counsel to make a

preliminary showing that Hightower’s sanity at the time of the offense was likely to

be a significant factor at trial. Carl Buice, one of Hightower’s two attorneys,8

offered the following:

May it please the Court. Where we are at this point in this issue is at a
very preliminary threshold because if we were not there we would get
into a very circuitous situation. Obviously in order to determine
clearly what we are going to need in the way of psychiatric testimony
we need the help of a psychiatrist. It is not possible to evaluate fully
the mental condition of the defendant without professional assistance
to assist us in doing that and if the Court would note, the Ake decision

8
The court initially appointed Alan Thrower to represent Hightower. On July 17, 1987, 5
days after the murders, the court granted Thrower’s motion to be relieved as counsel due to a
conflict of interest. Four days after granting the motion, the court appointed Hulane E. George
and B. Carl Buice to represent Hightower. George and Buice were a married couple who were
also law partners. They served as Hightower’s counsel both at trial and on direct appeal.

13
does not just have to do with the defense of insanity, but goes on to
talk about whether the mental condition of the defendant is going to be
a factor at the trial of the case which has to do not only with the
guilt/innocence phase or any plea of not guilty or of guilty but insane
or not guilty for reasons of insanity, but also in the area of litigation
and extenuation in terms of whether there are any characteristics of the
defendant which would be mitigating of the circumstances in the event
that he was convicted. Now, the only thing we can present to the
Court at this point in the absence of having expert testimony is that
which is already apparent in the record. That is, that we have here a
man who is charged with three murders, the murder of his wife and
two stepdaughters. This comes in a situation in a life history in which
there has been no previous violence. We have a situation where a
person of no demonstrated erratic behavior performs an act which is in
and of itself according to the charge of the district attorney, stunningly
abhorrent. The event itself, the facts themselves raise the question of
the mental state of the defendant and the circumstances which would
lead up to such an event, not just in terms of insanity which, of course,
is a legal term and not a mental health term, but in terms of all the
factors in the defendant’s psyche which might relate to this event and
be important in the defense of his case, not only in the defense in the
guilt and innocence phase, but in any phase of the trial in extenuation
and mitigation. So, what we are asking for at this point in regard to
this particular thing is some preliminary funds for a psychiatric
evaluation on the part of a psychiatrist who is a part of the defense
team who has— to whom we have access and with whom we can
consult in the building of our defense of this man so that we can know
what further issue we may need to raise in terms of psychiatric
evaluation, what defenses we need to file in terms of this man’s
condition, whether we have defenses which are defenses in the
guilt/innocence phase or are just issues in the extenuation or
sentencing phase. All of these are matters that we cannot determine
without having the benefit of counsel from a competent psychiatrist,
someone trained in the mental health field who can help us know what
to look for in terms of this man’s personality. This is no small issue in
a case of this nature. The mental state of the defendant is going to be a
key factor all the way through and if we are to provide him with an

14
 adequate defense, if we are to be able to raise the issues which need to
be raised in this case or at least consider the issues which may need to
be raised, we need that expert assistance ab initio from the very
beginning. To make us— to require us to make a showing in terms of
some professional evidence in the case where we have no authority to
get a professional to develop the evidence and have no resource to a
professional to determine what sort of issues may be available to us,
denies us of access to that whole area of defense from the very
beginning.

In response to this statement, the court asked Buice how much money they

needed for a psychiatric expert. He said they needed $750 “[o]n a preliminary

basis, reserving the right to ask for an additional amount in terms of what we may

find as we go forward.” The court granted the motion and “authorize[d] [counsel]

to expend up to” $750. The court also left open the possibility of granting more

funds in the future, but only after another hearing.

At this point, the prosecutor moved that Hightower be admitted to Central

State Hospital for a “psychological evaluation,” so that the State could rebut any

“claim as to mental incompetency” that the defense might raise at either phase of

the trial. Defense counsel opposed the motion, stating that they would have

Hightower evaluated by his own psychiatrist. The court asked when counsel

intended to have Hightower examined by their psychiatrist. They said they planned

to have him examined that very week. Buice, presumably referring to a psychiatric

15
expert he had already contacted, added: “He has already done some preliminary

interviews. He is in the process.”

In response to the prosecutor’s protests that the defense was merely seeking

to “sandbag” the State by preventing it the opportunity to examine Hightower, the

court purported to grant the prosecutor’s motion. But given defense counsel’s

representation that Hightower would soon be evaluated by his own expert, the

court delayed his transportation to Central State Hospital for two weeks.

We now place ourselves in the position of the trial court and evaluate the

evidence as it was submitted. In doing so, we make several observations. First,

defense counsel made no issue of Hightower’s “present sanity,” i.e., his

competency to stand trial.9 They opposed the prosecutor’s attempt to have

Hightower evaluated by a state psychiatrist, and from the record, it does not appear

that the State ever had him evaluated. Second, by the time of the hearing, his

lawyers had engaged the services of an unnamed mental health expert, and this

expert had already done some unspecified “preliminary” work on the case. Third,

presumably because they had already chosen their own expert, counsel requested

only that the trial court grant them funds. They never raised the option of an

9
Nothing in the record indicates that Hightower’s behavior at this hearing was in any way
peculiar. Indeed, Hightower’s competency to stand trial does not appear ever to have been at
issue, a point that Hightower himself makes in his brief.

16
appointed psychiatrist. Fourth, unlike in Ake, in which the trial court was so

concerned about the defendant’s peculiar behavior that he ordered a psychiatric

examination sua sponte, neither the court, the prosecutor, nor defense counsel ever

made an issue of Hightower’s behavior at the hearing.10 Fifth, defense counsel

failed to offer any fact bearing upon Hightower’s mental status apart from the mere

occurrence of the crime itself. At the hearing, they merely pointed out that

Hightower was accused of three “abhorrent” murders even though his behavior had

never before been violent or “erratic.”

Based upon these observations, we conclude that Hightower had at this stage

failed to satisfy his preliminary burden under Ake. The trial court had no evidence

upon which to conclude that his “sanity at the time of the offense [was] to be a

significant factor at trial.” Ake, 470 U.S. at 83, 105 S. Ct. at 1096. Despite this,

the court gave his attorneys precisely the sum they requested for a psychiatric

expert. No constitutional error had yet occurred.

10
Nor has Hightower argued to us on appeal that his behavior should have given the trial
court pause.

17
 b.

As far as the record discloses, it was not until some three months later that

the trial court dealt in any way with defense counsel’s requests for expert

psychiatric assistance. In an order dated November 25, 1987, the court, citing its

authorization of $750 for the payment of a psychiatric expert, ordered the county to

pay $440 to Dr. N. Archer Moore. Attached to the order is an itemized billing

record detailing services Dr. Moore rendered in Hightower’s case, which were as

follows: (1) a one-hour interview with Hightower on August 25, 1987; (2) a two-

hour interview with Hightower on August 28, 1987; (3) a two-hour interview with

Hightower on August 31, 1987; (4) a one-hour interview with Hightower on

November 16, 1987; and (5) a two-hour conference with Hightower’s attorneys on

November 17, 1987.

At this point, the court could discern the following. First, defense counsel

had taken a portion of the funds they had received and used it to employ an expert

of their choice, Dr. Moore. Second, Dr. Moore was a psychologist, not a

psychiatrist.11 Third, Dr. Moore had taken the opportunity to evaluate Hightower

11
The November 25 order does not identify this fact, though Dr. Moore’s attached billing
statement (1) recited his professional name as “N. Archer Moore, Ph.D.,” (2) gave no indication
that Dr. Moore possessed a medical degree in addition to his Ph.D., and (3) listed a single
professional affiliation, the American Board of Psychology. The court from these facts alone
could have assumed that Dr. Moore was a psychologist.

18
on four separate occasions for a total of six hours. Fourth, defense counsel had not

yet exhausted the $750 that they had received for the specific purpose of hiring a

psychiatric expert.

No additional funds were requested at this stage, and no error had yet

occurred.

c.

Another three months passed before defense counsel presented the trial court

with any additional information regarding a need for expert psychiatric assistance.

On February 8, 1988, they filed a motion, which reads as follows:

Motion for Additional Funds to Hire Psychiatrist

1. On August 31, 1987, this Court granted the Defendant the sum of
Seven Hundred Fifty ($750.00) [sic] to hire a psychologist and/or
psychiatrist to evaluate the Defendant herein.

2. Defendant’s counsels retained Dr. Archer Moore, of Macon,
Georgia, to evaluate the Defendant. On the advise [sic] of Dr. Moore,
Defendant’s counsels were advised to seek a psychologist or
psychiatrist who had extensive experience in dealing with family
violence to evaluate the Defendant.

3. Dr. Emanuel Tanay, M.D., has been contacted by Defendant’s
counsel and has advised us that he would be able to provide forensic
psychiatric services to Defendant. A copy of a letter from Dr. Tanay
and a copy of his vitae is attached hereto as Exhibit “A” and is made a
part hereof by reference.

19
 4. Defendant requires the services of Dr. Tanay, if he is to adequately
present not only his defense but to assist Defense counsel in the
preparation of Defendant’s case in the guilt/innocence phase as well as
in the sentencing phase. To deny these services is to violate
Defendant’s constitutional rights under the Constitutions of the United
States and the State of Georgia.

WHEREFORE, Defendant herein moves that this Court order that Dr.
Tanay [sic] services be ordered and that this Court sign an order
providing that his services would be reimbursed up to Six Thousand
($6,000.00) Dollars.

This 8th Day of February, 1988.
/s/ Hulane E. George

B. Carl Buice

The first attachment to the motion was a letter to defense counsel from Dr.

Emanuel Tanay, M.D., dated February 1, 1988. In this letter, Dr. Tanay, writing in

response to an “extensive telephone conference” with defense counsel, expressed

his willingness “to provide forensic psychiatric services” for Hightower at a

reduced rate of $150.00 per hour plus expenses. Dr. Tanay estimated that his

evaluation of Hightower would take at least twenty hours, and said that he required

a court order to guarantee that he would be paid on an hourly basis for his

testimony. In closing, Dr. Tanay stated that he could not evaluate Hightower

before April 11, 1988.12

12
Although it does not appear that a trial date had yet been set, the court and the parties
seemed at that point to have contemplated a trial in mid- to late-April 1988.

20
 The second attachment to the motion was Dr. Tanay’s curriculum vitae. It

showed, among other things, that Dr. Tanay was a psychiatrist licensed in

Michigan, Ohio, and Georgia, and that he was certified by the American Board of

Psychiatry and Neurology and by the American Board of Forensic Psychiatry. In

addition, the curriculum vitae listed Dr. Tanay’s numerous publications, some of

which appeared by their titles to address legal issues related to insanity, mental

illness, forensic psychiatry, and psychic trauma.

The trial court held a hearing on defense counsel’s motion on February 9,

1988. At the hearing, counsel informed the court of the following:

We have had Mr. Hightower evaluated by our psychiatrist, Dr. Archer
Moore, and he advised us that we really needed someone who was an
expert in family violence. And we have combed the United States,
and we have been advised that this man—if you will look at his eight
page vitae which is just a part of his vitae, you can see he is very well
qualified. I spoke to Dr. Tanay and as he said in his letter, he could
not evaluate Mr. Hightower until April the 11th of 1988, and he states
that he will reduce his regular fee to $150 per hour plus expenses. His
expenses includes [sic] coming from Detroit to Atlanta and renting a
car. I figure probably somewhere around $6,000 for total expenses for
Dr. Tanay. We desperately need his input in this case. We need it not
only in the guilt-innocent phase but we need it in the sentencing phase.
We need someone to evaluate Mr. Hightower and to give us some
clues as to the causes of this tragedy. And he seems—according to
everyone that we can talk to—is just about the only one in the United
States that is available.

21
 The prosecutor responded that the court had “bent over backwards already”

in meeting Hightower’s requests for psychiatric assistance, and had “gone further

than Ake” required in this regard. Defense counsel answered:

We are not asking or dealing with the issue of minimum requirement
of the appellate courts. We’re asking for substantial justice on the part
of Mr. Hightower. To use just an ordinary psychologist in a case of
this sort where the issues of domestic violence, a very specialized
field, are at stake is rather analagous [sic] to using a general
practitioner for brain surgery. If any accused person in Mr.
Hightower’s situation, who had the funds to do so, were in his place,
certainly a specialist of this sort would be used. The only reason for
not using a specialist of this sort in this sort of case would be a lack of
funds. And if Mr. Hightower is therefore refused —denied the access
to this sort of specialist simply because of lack of funds, we submit
that it would be tantamount to a failure of due process.

The court then asked counsel if they could cite any authority that required

the provision of additional funds. They could not. Instead, they reminded the court

that they had received $750 at the last hearing, and that, as they understood it, they

were entitled to come to the court again “if [they] needed more.” The court then

asked counsel how much money it had given them “to spend at [their] discretion.”

Counsel answered:

We have $5,000—$5,750. And we’ve divided that into Dr. Moore’s
bill which was I think $450 which has been paid. We had —we have
hired a jury specialist and we have hired a special investigator and that
will wipe out all of that money.

22
Without further argument, the court denied the motion for additional funds.13

We pause once again to consider whether the court committed error at this

stage. We evaluate the additional evidence now available to the court and discern

how it should have affected its actions. Several things are worth noting.

First, the court knew nothing of Dr. Moore’s evaluation of Hightower save

the dates and durations of the interviews. It was unclear at this point as to (1)

whether Dr. Moore had been able to diagnose Hightower, (2) why Dr. Moore had

“advised” defense counsel to seek an expert in “family violence,” and (3) whether

and in what phase defense counsel intended that Dr. Moore testify at trial.

Second, the court knew nothing about the probable value of Dr. Tanay’s

assistance. It knew only that (1) Dr. Tanay, unlike Dr. Moore, was a psychiatrist,

and (2) defense counsel perceived Dr. Tanay to be an expert in the unexplained

field of “family violence.” Defense counsel made no issue of the former

distinction,14 but instead grasped upon the latter distinction without explaining its

significance. The most the court could glean from counsel’s representations was

that “family violence” was a “specialty” of psychology or psychiatry dealing with

13
Again, we note that the record bears no indication that Hightower’s behavior at this
hearing was in any way peculiar.
14
Because we hold that Hightower had no right to an expert under Ake, we need not
decide the question of whether a criminal defendant’s Ake rights are satisfied by the provision of
a psychologist rather than a psychiatrist.

23
violent behavior in the context of family relationships. While a specialist of this

kind might have been useful to Hightower, his attorneys essentially conceded at the

hearing that their own notions of “justice,” rather than the requirements of law,

demanded the provision of such an expert.

Third, defense counsel provided no additional facts upon which to make an

issue of Hightower’s mental state. Indeed, although Dr. Moore had evaluated

Hightower months beforehand, counsel still did not indicate that they would offer

an insanity defense at trial.

Fourth, Hightower had not behaved peculiarly at any proceeding.

Based upon these observations, we conclude that Hightower still had not

satisfied his preliminary burden under Ake. Months after they made their initial

request for funds for a psychiatric expert, defense counsel still had not shown the

court that Hightower’s sanity was likely to be an issue at trial. That they had

received expert funds in spite of this deficiency did not entitle them to more. No

error had yet occurred.

d.

The issue next arose in the context of Hightower’s motion for a continuance,

filed March 2, 1988. This motion contained no additional requests for funds for

24
psychiatric assistance. Instead, in support of the request for a continuance, the

motion offered the following information:

Defendant has requested Dr. Emanuel Tanay to evaluate him as
regards his defense and in the sentencing phase of this trial. Dr. Tanay
has indicated to this Court that the first time he would evaluate
Defendant would be on the week of April 18, 1988. Dr. Tanay would
need time then to prepare his evaluation and discuss same with the
defense counsel. There would not be enough time to accomplish this
prior to the scheduled trial date. Dr. Tanay’s testimony will be vital to
Defendant’s case in chief and to the sentencing phase.

On March 9, 1988, the court heard arguments on Hightower’s motion. At

the hearing, defense counsel told the court that they had sought Dr. Tanay’s help,

but that Hightower’s family was “unable to come up with the money” to pay him.

Counsel represented that Dr. Tanay “[had] to have at least $7,000 in his hand” and

that he “[had] to have it, you know, like yesterday.”15 Counsel did not at this point

request additional funds. Rather, they offered this information in support of their

request for a continuance.

In opposing the motion for a continuance, the prosecutor argued that (1) the

court had already given defense counsel a “lump sum of money . . . a blanket

amount that could be used for anything they wanted to use it for,” including expert

15
In the February 8, 1988, Motion for Additional Funds to Hire Psychiatrist, as well as at
the hearing on the same motion, defense counsel had requested $6,000.00. It is unclear from the
record as to why counsel at the March 9, 1988, hearing increased to $7,000.00 their estimate of
the costs of Dr. Tanay’s services.

25
psychiatric assistance; (2) defense counsel had not made any showing to the trial

court that Hightower was “psychiatrically deprived”; and (3) as a result, defense

counsel must have wanted a psychiatric expert for mitigation purposes. In any

case, the prosecutor argued, defense counsel had already received “ample time” in

which to secure the services of a psychiatrist.

The court denied the motion for a continuance, but said it would reconsider it

if circumstances later made it appear that the trial could not proceed as scheduled.

We distill the record to its essence to determine what additional evidence the

court received at this stage regarding Hightower’s need for a psychiatric expert.

First, counsel still tentatively planned to retain Dr. Tanay, though they were

uncertain as to how they would pay him. Second, they offered no additional facts

bearing upon the issue of Hightower’s mental state. Third, Hightower’s behavior at

the pretrial proceedings remained normal. Fourth, except in contending that Dr.

Tanay’s testimony would be “vital” to both the guilt and sentencing phases of

trial,16 counsel had said nothing about a possible insanity defense.

Defense counsel did not at this stage request any additional funds for a

psychiatric expert, and the trial court had not erred.

16
The court could have looked upon this contention dubiously, as Dr. Tanay had not yet
evaluated Hightower.

26
 e.

On April 15, 1988, the court held a hearing on various matters. In support of

a renewed motion for a continuance, defense counsel told the court that they had

“secured a psychologist who [would] be working with [them] in the preparation of

[the] defense,” and that this psychologist’s involvement in a murder trial elsewhere

in the state might cause him to miss Hightower’s trial. The court denied the motion

nevertheless.

Defense counsel then made a lengthy oral statement in support of their view

that the court’s rulings on their requests for funds for experts had rendered their

assistance to Hightower ineffective as a matter of law. As for their requests for

funds for psychiatric assistance, counsel stated that they had been unable to hire Dr.

Tanay because of the court’s denial of their February 2, 1988, motion for additional

funds. In response, the prosecutor stated:

But, Your Honor, there has been absolutely no indication on counsel’s
part that they intend to use insanity, a special plea of insanity, not
guilty by reason of insanity or any of the other accepted defenses in
this case which would even trigger the necessity of the Court
appointing psychiatrists or rendering money to the defendants for a
psychiatric review in this case. It is my understanding that what
counsel is relying on in this case based on their statement is the
mitigating circumstance testimony by a psychiatrist or a psychologist
and counsel says that has been arranged.

27
 At the end of the prosecutor’s remarks, the court said that it would “adhere to

all . . . former rulings” on the issues that defense counsel had raised. The parties

then addressed other pretrial matters. As far as the record discloses, Hightower’s

behavior at the hearing was unremarkable.

Once again, we evaluate the evidence put before the trial court. First,

defense counsel had abandoned the idea of hiring Dr. Tanay, and had instead

engaged the services of another psychologist in addition to Dr. Moore. Second,

counsel offered no additional facts bearing upon Hightower’s mental state.

Although the case was now proceeding under the new indictment,17 and in spite of

the fact that trial was set to begin in only two weeks,18 defense counsel still had

said nothing about relying on an insanity defense. Third, because they had not

expressed an intention to present an insanity defense, the court could infer that at

least one of the two psychologists that counsel had engaged would testify during

the sentencing phase. Fourth, nothing suggested that Hightower might be

incompetent to stand trial.

17
See supra note 1.
18
By letter of February 29, 1988, the court set the case for trial beginning April 28, 1988.
Throughout the remainder of the pretrial stages, the court was unwilling to reconsider this trial
date, even though Hightower’s new indictment did not issue until March 18, 1988. In fact, trial
proceedings began as scheduled on April 28, 1988, with voir dire of the jury venire. Hightower
does not presently allege that the court erred in refusing to continue the trial.

28
 The court had not yet received any indication that Hightower’s sanity at the

time of the offense would be an issue at trial, and had not erred.

f.

We have surveyed all pretrial proceedings at which Hightower presented the

trial court with information bearing upon his need for a psychiatric expert. He has

failed to identify any point in those proceedings at which the court, given the

evidence then available, acted contrary to the requirements of federal law.

We are not unconcerned about putting the proverbial cart before the horse in

cases of this kind. Without question, defense counsel may be unable fully to

understand and explain his client’s mental state until an evaluation is performed.

But Ake does not require defense counsel to guide the trial court through the

depths of the defendant’s psyche; all it requires is a minimum threshold showing

that the defendant’s sanity at the time of the offense is likely to matter at trial. No

such showing was made in this case.

2.

Even if we assume that Hightower made the showing Ake requires, we hold

that the trial court met its constitutional obligation under Ake by providing

Hightower with defense funds that could have been spent on the services of a

psychiatric expert.

29
 In addition to the $750 it granted specifically for a psychiatric expert, the

court gave Hightower a lump sum of $5,000 for defense expenses. In Hightower’s

view, it would have been improper under the circumstances for his lawyers to use

any portion of this lump sum for a psychiatric expert. The Georgia Supreme Court

decided to the contrary on direct appeal, finding instead that Hightower could have

used this lump sum “for a special investigator or other such expert assistance as

[he] might choose.” Hightower v. State, 386 S.E.2d 509, 511 (11th Cir. 1989).

This finding of fact is entitled to a presumption of correctness, one that Hightower

can rebut only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

The thrust of Hightower’s argument before us is that the court awarded the

lump sum specifically in response to counsel’s requests for funds for

nonpsychiatric experts, i.e., demographers, jury specialists, and special

investigators. Hightower points to the following exchange that took place between

defense counsel and the court at the pretrial hearing on August 31, 1987:

THE COURT: All right. How much money are you asking for
insofar as the special investigator is concerned?

MS. [sic] BUICE: Your Honor, I think that what we would like to
have would be a sum of $5,000 to be able to
proportion this between an investigator as well as a
jury specialist. I had contacted a jury specialist and
they have not called me back at this point. I

30
 believe the last information I got their fee was
somewhere around $2,500, $1,500 to $2,500.

THE COURT: Well, I am going to deny your motion for a jury
selection specialist. I am going to deny your
motion for a demographer. What else did you ask
for?

MS. GEORGE: Special Investigator.

THE COURT: I am going to grant your motion for a special
investigator and authorize you to expend up to
$5,000. Now, I am not going to require you to—if
you want to spend your $5,000, part of it on a jury
selection specialist, that’s up to you. I’m just not
going to provide any further compensation beyond
the $5,000 without an additional hearing.

According to Hightower, this dialog definitively establishes an

understanding between his attorneys and the court that the $5,000 lump sum could

be used for an investigator and a jury consultant, but not for any other purpose.19

We disagree. Whatever one might conclude from reading this dialog in isolation,

the record taken as a whole amply supports the supreme court’s finding. First, at

the hearings on February 9, 1988, March 9, 1988, and April 15, 1988, counsel

referred to their defense funds as discretionary.20 Second, Hulane George testified

19
Unfortunately, the parties have not cited, and we cannot find, any written embodiment
of the court’s order regarding the $5,000 lump sum.
20
At the hearing on February 9, 1988, when defense counsel requested additional funds
for a psychiatric expert, the court asked for a reminder of the sum it had already granted counsel
“to spend at [their] discretion.” They answered: “We have $5,000—$5,750. And we’ve divided

31
before the Butts County Superior Court that she and Buice “could [have]

allocate[d] [the $5,000] however [they] wanted.”

Third, the record shows that counsel actually used a portion of the $5,000

lump sum to pay for the services of a psychologist who testified on Hightower’s

behalf at trial. Dr. Howard Albrecht, Ph.D., testified for the defense during the

sentencing phase of the trial.21 After the trial concluded, George prepared,22 and

the court signed, an order for payment of Dr. Albrecht’s services, which we

reproduce here:

that into Dr. Moore’s bill which was I think $450 which has been paid. We had—we have hired
a jury specialist and we have hired a special investigator and that will wipe out all of that
money.” At the March 9, 1988 hearing, counsel told the court that it had given them “$5,000 to
spend any way [they] wanted to and $750 for a psychiatric evaluation.” At the April 15, 1988
hearing, counsel said that the court had given them “$5,000 for [a special investigator] and all
other experts [they] wished to hire to assist [them].”
21
Throughout the record, confusion abounds as to the correct spelling of Dr. Albrecht’s
name. The index of the trial transcript, which includes the names of all testifying witnesses, lists
him as “Dr. Harold Allbright.” According to the transcript of his direct testimony, on the other
hand, he at trial stated his name as “Howard Edward Allbright.” Finally, the “Order for Payment
of Psychological Evaluation” of May 17, 1988, matches how his name is printed on his attached
letterhead invoice: “Howard E. Albrecht.” We find the letterhead and accompanying motion
most likely to be accurate and adopt his name as it is spelled there.
Lest we be concerned that there were 2 different psychologists with strikingly similar
names (an unlikely scenario that would nonetheless wreak havoc with our reasoning regarding
the May 17, 1988 order), we note that Dr. Albrecht’s letterhead invoice, as well as the transcript
of his trial testimony, both reflect the same practice location (Decatur, Georgia) and Georgia
license number (748).
22
The bottom left corner of the motion actually bears the mark of defense counsel’s law
firm: “Waddell, Emerson, George & Buice, Attorneys at Law, P.O. Drawer 630, Milledgeville,
Georgia, 31061.”

32
 ORDER FOR PAYMENT OF PSYCHOLOGICAL EVALUATION

This Court having found the above-named Defendant indigent, and,

HAVING ORDERED on August 31, 1987, the payment of Five
Thousand ($5,000.00) Dollars for costs incurred in the defense of the
above-styled case and the attached invoice in the amount of One
Thousand ($1,000.00) Dollars being received from Dr. Howard
Albrecht, Ph.D.;

IT IS HEREBY ORDERED that the County Commissioners of
Baldwin County, Georgia pay over to said Dr. Howard Albrecht the
sum of One Thousand ($1000.00) Dollars on the behalf of John
Hightower, indigent.

This 17th Day of May, 1988.

/s/ William A. Prior, Jr., Judge
Baldwin County Superior Court

This Order prepared by:

Hulane E. George
MILLEDGEVILLE, GEORGIA 31061

Attached to the order is Dr. Albrecht’s “Invoice for Professional Services,”

addressed to defense counsel and dated May 18, 1988.23 Without itemizing costs,

the invoice merely recites a balance due of $1000 for “Forensic Psychological

Consultation on the John Hightower case.” Thus, defense counsel not only

understood that they could use the $5,000 lump sum for a psychiatric expert—they

23
We cannot tell why the order predated by 1 day the invoice that it purported to pay.

33
actually did in the case of Dr. Albrecht, a psychologist who, like Dr. Moore, they

had chosen themselves.24

The record is therefore replete with evidence showing that defense counsel

could, and in fact did, pay for a psychiatric expert out of the $5000 lump sum the

trial court granted for defense expenses.

Ake makes clear that no criminal defendant “has a constitutional right to

choose a psychiatrist of his personal liking or to receive funds to hire his own.”

470 U.S. at 83, 105 S. Ct. at 1096. To the extent that Hightower claims the trial

court should have granted him funds sufficient to hire Dr. Tanay, therefore, he is

mistaken. In giving Hightower $5,750 in discretionary defense funds, the court

went further than Ake requires. There was no error.

B.

24
The Georgia Supreme Court in its opinion on direct appeal stated: “[T]he defendant
retained the services of a psychologist who testified at trial. The court authorized an additional
$1,000 to pay for the services of this psychologist.” Hightower v. State, 386 S.E. 2d 509, 511
(Ga. 1989). This statement mischaracterizes the record. In fact, 2 psychologists testified at trial:
Dr. Moore (during the guilt phase) and Dr. Albrecht (during the penalty phase). Dr. Moore was
paid $440 by order of November 25, 1987, out of the $750 the judge granted at the hearing on
August 31, 1987. Dr. Albrecht, on the other hand, was paid $1,000 by order of May 17, 1988,
out of the $5,000 lump sum.

34
 Hightower also claims that the trial court violated his due process rights

under Ake by permitting the prosecutor to attend and participate in hearings on his

requests for funds for psychiatric experts. In Hightower’s view, Ake demands that

such hearings be conducted ex parte. Because Hightower raised this claim

unsuccessfully on direct appeal to the Georgia Supreme Court, our review is once

again limited by 28 U.S.C. § 2254(d).25

This issue first arose at the hearing on August 31, 1987, when defense

counsel argued their August 6, 1987 “Motion for Funds to Hire Independent

Psychiatrists.” Citing Ake, they argued that they were entitled to present this

motion “without either the presence or participation of the [prosecutor].” The court

rejected this interpretation of Ake and permitted the prosecutor’s presence at this

and every subsequent hearing at which counsel requested funds for a

psychiatric expert.26

25
Although the Georgia Supreme Court disposed of this claim without extended
discussion, Hightower v. State, 386 S.E.2d 509, 511 (1989) (“The defendant has not shown any
harm from the denial of an ex parte hearing on the funds issue.”), we agree with the district court
that this claim was “adjudicated on the merits in State court proceedings” so as to trigger the
provisions of 28 U.S.C. § 2254(d).
Hightower also raised this claim before the state habeas court, but that court did not
address it.
26
Upon considering defense counsel’s Ake arguments at this hearing, the judge stated:
“Well, I don’t think—I don’t think the word ‘ex parte’ necessarily means the district attorney
can’t physically be present. I think it just simply means he can’t participate.” Hightower claims

35
 In support of his claim, Hightower points to the following language in Ake:

“When the defendant is able to make an ex parte threshold showing to the trial

court that his sanity is likely to be a significant factor in his defense, the need for

the assistance of a psychiatrist is readily apparent.” 470 U.S. at 82-83, 105 S. Ct. at

1096. Hightower has expended substantial effort in seeking to convince us that the

Supreme Court, through this single sentence, incorporated the ex parte requirement

into Ake’s central holding. This effort is misdirected. Since Hightower raised this

claim on direct appeal, we focus upon how the Georgia Supreme Court disposed of

it, rather than how we would dispose of it on first impression.

The supreme court held simply that Hightower “[had] not shown any harm

from the denial of an ex parte hearing on the funds issue.” Hightower v. State, 386

S.E.2d 509, 511 (Ga. 1989). Thus, the court, which cited no authority in support of

its holding, did not in this case pass directly on the question of whether Ake

that the court, in spite of this interpretation, permitted the prosecutor to “participate actively” at
this and every hearing at which his attorneys requested funds for a psychiatric expert. While this
may be true, we do not view the presence/participation distinction as controlling in this particular
case. Hightower does not merely claim that the court misapplied the correct standard, i.e., that
his rights would have been adequately protected had the prosecutor been permitted to attend
these hearings without participating. Rather, the thrust of Hightower’s argument to us is that the
prosecutor’s mere presence at these hearings prejudiced his right to prepare his defense in secret.
Although defense counsel raised their ex parte objection at the August 31, 1987 hearing,
it does not appear from the record that they raised the objection at any later hearing. No court to
date has addressed whether Hightower thereby waives for purposes of appeal any errors
occurring at these later hearings. We reject his claim on the merits without deciding this issue.

36
requires ex parte hearings.27 Instead, the court, in our understanding, held that even

if Hightower had a right to be heard ex parte, he suffered no prejudice from the

denial of this right. It is implicit in this reasoning that the right that Hightower

claims, if it even exists, is subject to a harmless error analysis. Viewed in this light,

his ex parte claim fails both in principle and in application.

First, Hightower has not shown that the supreme court committed legal error

in implicitly holding that the denial of ex parte hearings can be harmless. We

express no opinion as to whether this holding is correct.28 Our review is instead

limited to whether this holding was contrary to or an unreasonable application of

the clearly established precedent of the Supreme Court of the United States. We

27
Interestingly, 1 month before rendering its judgment in Hightower’s case, the supreme
court held in Brooks v. State, 385 S.E.2d 81, 84 (Ga. 1989), that an indigent criminal defendant’s
requests for funds for expert assistance should be heard ex parte. But the court did not base its
holding upon the language of Ake. On the contrary, it stated that “[t]he Ake holding does not
clearly mandate that [such] hearing[s] be ex parte.” Id. at 83. Hightower cries foul from the fact
that the supreme court did not refer to Brooks when it addressed his ex parte claim. But Brooks
is unhelpful to Hightower at this stage, as the plain language of that opinion states that Ake does
not require ex parte hearings. Whatever the reason for the court’s failure to apply Brooks to
Hightower’s case, we are unconcerned in a federal habeas proceeding with errors of state law.
As we go on to discuss, the supreme court did not run afoul of federal law in disposing of
Hightower’s ex parte claim.
28
We recently decided in Hicks v. Head, 333 F.3d 1280, 1287 (11th Cir. 2003), that Ake
errors are subject to harmless error analysis. Our opinion dealt with the trial court’s denial of
psychiatric assistance, rather than with its failure to conduct ex parte hearings on requests for
such assistance. We need not decide whether our opinion in Hicks applies with equal force to the
latter issue. Rather, we need only determine whether the Georgia Supreme Court failed to
conform to clear United States Supreme Court precedent existing at the time of its decision.

37
hold that it was not. Hightower does not cite, and we cannot find, any clear

Supreme Court precedent stating that the denial of ex parte hearings on requests for

expert psychiatric assistance is beyond harmless error analysis.

Second, Hightower has not shown that the Georgia Supreme Court erred on

the question of prejudice. He contends that, as a result of the trial judge’s refusal to

conduct ex parte hearings on his requests for expert psychiatric assistance, the

prosecutor became privy to defense strategies and to potential weaknesses in the

defense’s case.29 Specifically, he asserts that his attorneys were forced to disclose

that Dr. Moore had “declared himself unqualified” to offer a diagnosis, and were

required to “provide an accounting” of the funds they had spent in his defense. The

record betrays these assertions. Counsel never revealed that Dr. Moore was

“unqualified”; they merely told the court at the February 9, 1988 hearing that Dr.

Moore “advised [them] that [they] really needed someone who was an expert in

family violence.” This mirrors the representation they made in their motion of

29
Hightower also notes that, because the trial judge failed to conduct ex parte hearings,
the prosecutor gained the ability to contest his attorneys’ requests for funds for a psychiatric
expert. To the extent he contends that he was in this way prejudiced, we disagree. The trial
judge is ultimately responsible for the decision of whether to award expert funds. The
prosecutor’s arguments only matter insofar as the court accepts them. We address in Part III.A
the question of whether the judge erred in refusing to grant Hightower’s requests for funds.

38
February 8, 1988, which they served upon the prosecutor.30 Furthermore, the court

never demanded at these hearings that the attorneys provide an “accounting” of the

funds they had spent. Instead, in support of their requests for additional funds

counsel merely volunteered that they had already earmarked their existingfunds.31

We cannot say that Hightower suffered prejudice as a result of this disclosure.

30
The relevant part of this motion, styled “Motion for Additional Funds to Hire
Psychiatrist,” reads as follows:

Defendant’s counsels [sic] retained Dr. Archer Moore, of Macon, Georgia, to
evaluate the Defendant. On the advise [sic] of Dr. Moore, Defendant’s counsels
were advised to seek a psychologist or psychiatrist who had extensive experience
in dealing with family violence to evaluate the Defendant.
31
At the close of the February 9, 1988 hearing, the judge asked, “How much money did I
give you to start to spend at your discretion?” Defense counsel answered:

We have $5000—$5750. And we’ve divided that into Dr. Moore’s bill which was
I think $450 which has been paid. We had—we have hired a jury specialist and
we have hired a special investigator and that will wipe out all of that money.

Without further argument from either party, the court denied the motion for additional
funds. Thus, the court at this hearing merely asked for a reminder of the total sum it had already
granted to the defense, rather than an accounting of how the money had been spent. Defense
counsel of their own accord stated that they had already committed all of their funds, but they did
not itemize their commitments.
At the March 9, 1988 hearing, defense counsel, in presenting their motion for a
continuance, told the court that they had spent $450 of the $750 it had granted them for a
psychiatric expert. (In fact, counsel had spent $440, not $450.) This disclosure revealed nothing
more than what was stated in the court’s order of November 25, 1987, which authorized payment
for Dr. Moore’s services.
At the April 15, 1988 hearing, defense counsel, in their lengthy oral statement to the
court, noted that they had received defense funds totaling $5,750. They did not discuss how they
had spent that money. Although the clear implication was that they would certainly exhaust this
sum, counsel had already said as much at the February 9 hearing. More important, counsel
offered this statement at their own behest. The court made no request that they account for the
funds they had spent.

39
 To maintain absolute secrecy, Hightower’s attorneys could have filed their

Ake motions under seal and requested that they be reviewed in camera.32 But as

the matter stands before us, given our narrow scope of review under 28 U.S.C.

§ 2254(d), there is no basis upon which to upset the decision of the Georgia

Supreme Court. We therefore proceed to a discussion of Hightower’s remaining

claims.

IV.

Hightower next claims that the prosecutor used his peremptory strikes during

jury selection in a racially discriminatory manner, in contravention of Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Georgia

Supreme Court rejected each of his Batson claims on direct appeal. Hightower v.

State, 386 S.E.2d 506, 512 (Ga. 1989). Thus, our review is again limited by 28

U.S.C. § 2254(d). We find this claim to be without merit.

A.

We begin our analysis of this claim by describing the process by which the

jury was selected. Voir dire was conducted on Thursday, April 28, and Friday,

April 29, 1988. The court summoned a total of seventy-three venirepersons for

Hightower’s case, but had them appear in three groups: one on Thursday morning,

32
Hightower does not contend that his attorneys were ineffective for failing to do so.

40
one on Thursday afternoon, and one on Friday morning. The court began the voir

dire process by first assembling each group in the courtroom en masse. After it

made introductory remarks to the group, the court gave some preliminary

instructions and administered oaths.33 The court then delegated to the prosecutor

the duty of propounding the “statutory voir dire” questions specified by Georgia

law.34 After ensuring that the entire group was statutorily qualified, the court

directed the clerk to call the venirepersons to the jury box twelve at a time for

33
The oaths obligated the venirepersons to tell the truth under penalty of perjury to the
questions put to them.
34
O.C.G.A. § 15-12-164 requires that all venirepersons be asked 4 specific questions.
These are: (1) “Have you, for any reason, formed or expressed any opinion in regard to the guilt
or innocence of the accused?”; (2) “Have you any prejudice or bias resting on your mind either
for or against the accused?”; (3) Is your mind perfectly impartial between the state and the
accused?”; and (4) “Are you conscientiously opposed to capital punishment?”. The prosecutor
asked a form of these questions to each group en masse, rather than to each individual
venireperson. Under Georgia law, the trial judge may give the prosecutor the duty of asking the
statutory voir dire questions. Hicks v. State, 207 S.E.2d 30, 35-36 (Ga. 1974). It was altogether
proper under Georgia law to ask these questions to each group of venirepersons en masse, rather
than individually or in panels of twelve. Ivester v. State, 313 S.E.2d 674, 676 (Ga. 1984).

41
further questioning by the parties.35 They were called in the same order as they

were called when the clerk took the roll after they had reported for jury duty.36

Before the parties examined those in the jury box, the court asked them to

state their names, addresses, workplaces, and their spouses’ names and workplaces.

The prosecutor and defense counsel then proceeded with their questioning. After

counsel finished, the court permitted the parties to question individually and out of

the presence of all other venirepersons anyone whose views on the death penalty

appeared (to the parties) to be constitutionally problematic.37 This process was

35
O.C.G.A. § 15-12-131 provides that “it shall be the duty of the court, upon the request
of either party, to place the jurors in the jury box in panels of 12 at a time, so as to facilitate their
examination by counsel.” This enables counsel to make an informed decision in exercising
peremptory challenges and in obtaining grounds for a challenge for cause. O.C.G.A. § 15-12-133
provides that “[i]n all criminal cases[,] both the state and the defendant shall have the right to an
individual examination of each juror from which the jury is to be selected prior to interposing a
challenge.”
36
Since the venirepersons were called into the jury box in panels of 12, there always
remained a group of venirepersons left over from the larger group assembled en masse. It
appears that those left over remained in the courtroom and observed the parties’ voir dire of the
12-person panels.
37
Under Georgia law, “[t]he [trial] court has discretion in determining whether or not
sequestered examination should be granted in a particular case.” Ivester, 313 S.E.2d at 675. At a
hearing held on the eve of trial, April 27, defense counsel presented evidence in support of a
motion for individual and sequestered voir dire. The court denied this motion as to the venire as
a whole, but said that it would permit individual and sequestered voir dire of those who (1)
expressed views on the death penalty sufficient to raise a question as to their qualification for
service on the petit jury, or (2) stated that they had previously heard about the case.
Before counsel conducted their individual, sequestered void dire of a panel member, the
court cleared the courtroom of the rest of the venire, including those on the panel whom the
parties expressed no desire to question individually and under sequestration.

42
repeated throughout the day on Thursday and through the early afternoon on

Friday. In the end, the parties examined on voir dire six panels, five consisting of

twelve persons, and one consisting of thirteen.38

The court entertained challenges for cause in two ways. The court heard

challenges to those who were questioned individually and out of the presence of all

other venirepersons immediately after each was examined. The prosecutor

challenged four, and the court excused them. Defense counsel challenged one

venireperson, to no avail. The court handled the remaining challenges for cause

following the parties’ examination of the respective twelve-person panels. The

court did so in open court and in the presence of the entire venire, while the panel

was in the jury box. Those excused promptly left the courtroom.

Fifty-nine venirepersons were qualified for service on the petit jury.39 These

qualified jurors assembled in the courtroom on Friday, April 29, at 4 P.M. The

court informed them that the parties would choose the petit jury the following

38
The court sat 13 venirepersons on the sixth panel to accommodate all venirepersons
who remained at that point.
39
O.C.G.A. § 15-12-160 provides that “in any case in which the state announces its
intention to seek the death penalty, the court shall have impaneled 42 jurors from which the
defense and state may strike jurors.” Thus, more jurors were qualified in this case than Georgia
law requires.

43
Monday, May 2, at 9 A.M. It asked them all to return to the courtroom at that time,

prepared to serve on the petit jury for up to three days, if necessary.40

On Monday, May 2, the parties selected the petit jury from the fifty-nine

qualified jurors. Defense counsel had twenty peremptory strikes, and the

prosecutor ten.41 The clerk called the names of the jurors individually, in the order

in which they had been called (and ushered into the jury box in the panels of

twelve) during voir dire. Each prospective juror was first placed upon the

prosecutor, who either excused (by means of a peremptory strike) or accepted him.

Jurors accepted by the prosecutor were placed upon defense counsel, and if

accepted by them, were empaneled.42 This process continued until the full petit

jury of twelve was chosen.43

40
Once selected, the jury was sequestered for the duration of the trial.
41
O.C.G.A. § 15-12-165 provides that “in any case in which the state announces its
intention to seek the death penalty, the person indicted for the crime may peremptorily challenge
20 jurors and the state shall be allowed one-half the number of peremptory challenges allowed to
the accused.”
42
O.C.G.A. § 15-12-166 provides that “[i]f a juror is found competent and is not
challenged peremptorily by the state, he shall be put upon the accused. Unless he is challenged
peremptorily by the accused, the juror shall be sworn to try the case.”
43
Of the 12 jurors who were empaneled, 9 were white and 3 were black.

44
 The parties then selected two alternate jurors.44 As to these, defense counsel

had four peremptory strikes, and the prosecutor had two.45 The clerk called the

prospective alternate jurors from the same list as before, beginning with qualified

juror number forty-three.

In the selection of the jury of twelve, the prosecutor used seven of his ten

peremptory strikes, six against African-Americans. In the selection of the

alternates, he used both of his strikes, one against an African-American.

Immediately after each African-American was struck, defense counsel noted the

juror’s race for the record and informed the court that they wished to lodge a

Batson objection. The court stated that it would consider counsel’s objection after

the parties had exercised their peremptory challenges and a jury of twelve and two

alternates had been selected (but not sworn). When this was done, the court sent

the jurors to the jury room, instructing them not to discuss the case, and directed

the remaining qualified jurors to sit in the hallway outside of the courtroom.

44
O.C.G.A. § 15-12-168 permits a trial court to seat “one or more” alternate jurors in any
felony trial that “is likely to be a protracted one.”
45
O.C.G.A. § 15-12-169 provides that “[t]he state shall be entitled to as many peremptory
challenges to alternate jurors as there are alternate jurors called,” and that “[t]he defendant shall
be entitled to additional peremptory challenges in an amount twice greater than the additional
peremptory challenges of the state.”

45
 Defense counsel then made their objections. Noting that Hightower was

African-American, they contended that they had established a prima facie Batson

violation because the prosecutor had purposefully struck members of Hightower’s

race on account of their race. In support of their claim that the prosecutor’s

conduct gave rise to an inference of racial discrimination, counsel advanced two

lines of argument. First, they pointed out that in selecting the jury of twelve, the

prosecutor used six of his seven strikes to exclude African-Americans. Second,

they represented that the prosecutor had “in the past shown a bent and scheme to

keep down the low number of blacks on either the grand jury or regular panels.”

Counsel presented a newspaper article about State v. Amadeo, a case which, they

claimed, “arose out of a memo which has been attributed to Mr. Briley,” the

prosecutor, and which detailed “a purpose and a plan” to limit the number of

46
African-Americans serving on grand juries.46 Taken as a whole, counsel claimed,

these facts were sufficient proof that the prosecutor had discriminated.

The prosecutor denied any attempt to “stack the jury” racially. The court

nonetheless required him to give a reason for each of his strikes of African-

Americans.47 We recount his responses here.

Ricky Thomas. The prosecutor stated that Mr. Thomas’s father had been

convicted for killing Mr. Thomas’s mother, but had later returned home to raise his

children. The prosecutor feared that Mr. Thomas would “identify” the instant case

with his father’s. Specifically, the prosecutor felt that Mr. Thomas would give

46
Roughly 1 month after Hightower’s trial, the Supreme Court handed down its decision
in Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988). The Court held
that the petitioner in that case had “established cause for his failure to raise in the state trial court
a constitutional challenge to the composition” of his grand and petit juries. Id. at 216-17, 108 S.
Ct. at 1774. Specifically, the Court noted that while the petitioner was pursuing a direct appeal
in state court, an “independent civil action in federal court [had] brought to light a scheme”
initiated by the Putnam County District Attorney to “underrepresent black people and women on
the master jury lists.” Id. at 217, 108 S. Ct. at 1774. The Court in its opinion did not provide the
names of the individuals in the DA’s office who were responsible for creating the memorandum
that expressed this scheme. But some 3 years later, in Horton v. Zant, 941 F.2d 1449, 1455-56
(11th Cir. 1991), we noted that Hightower’s prosecutor, Joseph Briley, had admitted to being the
author of the memorandum.
47
The court required the prosecutor to explain why he struck an African-American in
selecting the 2 alternate jurors even though defense counsel, in articulating their Batson
objections, said nothing about the prosecutor’s exercise of that strike. In Hightower’s brief to us,
the prosecutor’s striking of this proposed alternate juror does not appear to be part of
Hightower’s Batson claim.

47
undue thought to “what his father has meant to him since he [came] home,” and

would presumably be lenient with Hightower as a result.

Lucious Boswell. The prosecutor stated that Mr. Boswell (1) was the brother

of the wife of Walter Davis, whom the State had prosecuted for cocaine trafficking

and RICO violations, and (2) had indicated that a convicted murderer should “work

[his punishment] out in prison,” rather than suffer a death sentence.

Mattie Pearl Harris. The prosecutor stated that Ms. Harris (1) “expressed

uncertainty” about her willingness to vote for a death sentence, (2) had a son who

had been imprisoned frequently, (3) had a daughter who had served a drug-related

prison sentence, and (4) had been forced to care for her daughter’s children during

the latter’s prison sentence.

Norman Jonathan Mack. The prosecutor stated that Mr. Mack had

“contradicted himself on the death penalty” during voir dire, once stating that he

was “conscientiously opposed,” and later softening that stance. The prosecutor felt

he could not determine with sufficient certainty the scenarios in which Mr. Mack

would be inclined to vote for a death sentence.

Thelma Butler. The prosecutor stated that Ms. Butler was the sister of the

wife of Gerald Veasley, whom he had prosecuted to a conviction for aggravated

battery.

48
 Emerson Davis, Jr. The prosecutor stated that Mr. Davis had appeared

“somewhat [more] opposed to the death penalty” than other prospective jurors.

Lynette Davis (prospective alternate). The prosecutor stated that Ms. Davis

(1) had an uncle whom the prosecutor’s office had recently convicted for burglary,

and (2) was lukewarm on the death penalty.

After this, the court ruled. First, it declined to admit into evidence the

newspaper article that defense counsel had submitted in support of their motion.

Second, the court ruled that counsel had failed to make a prima facie case of

discrimination, and alternatively, that the prosecutor had “presented an articulable,

nonrace related reason for striking” each prospective black juror, thereby defeating

the claim of discrimination.

B.

In Batson, the Supreme Court held that the State, in the person of the

prosecutor, violates the Equal Protection Clause of the Fourteenth Amendment by

striking jurors peremptorily on account of their race. 476 U.S. at 89, 106 S. Ct. at

1719. The Court established the mechanism for proving such violations. To make

a prima facie case of discrimination,

the defendant first must show that he is a member of a cognizable
racial group, and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant’s race.

49
 Second, the defendant is entitled to rely on the fact, as to which there
can be no dispute, that peremptory challenges constitute a jury
selection practice that permits those to discriminate who are of a mind
to discriminate. Finally, the defendant must show that these facts and
any other relevant circumstances raise an inference that the prosecutor
used that practice to exclude the veniremen from the petit jury on
account of their race.

Id. at 96, 106 S. Ct. at 1723 (citation and marks omitted). The trial judge “should

consider all relevant circumstances” in deciding whether the defendant has made a

prima facie case. Id. at 96-97, 106 S. Ct. at 1723.

After the defendant has made a prima facie case, the state must “come

forward with a neutral explanation for challenging black jurors.” Id. at 97, 106 S.

Ct. at 1723. The Court has not stated with specificity what sort of explanation will

suffice. While the prosecutor may not strike a juror simply on the assumption that

“jurors of the defendant’s race . . . would be partial to the defendant because of

their shared race,” he is not required to give an explanation that “rise[s] to the level

justifying exercise of a challenge for cause.” Id. Finally, the judge must decide

whether the prosecutor purposefully discriminated against jurors on account of

their race through the use of peremptory strikes. Id. at 98, 106 S. Ct. at 1724. The

defendant carries the ultimate burden of persuasion on this issue. Purkett v. Elem,

514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995).

50
 With these principles as background, the Georgia Supreme Court on direct

appeal rejected Hightower’s Batson claim. “Even assuming [that Hightower] made

out a prima facie case” of discrimination, the court held, the trial judge “was not

clearly erroneous” in finding “that the prosecutor had articulated legitimate non-

racial reasons for his challenges,” and that the prosecutor had not in fact

discriminated. Hightower v. State, 386 S.E.2d 509, 512 (Ga. 1989). Given our

constraints under 28 U.S.C. § 2254, we find no basis upon which to disturb the

supreme court’s judgment.

We will assume for purposes of argument (as the supreme court did) that

Hightower established a prima facie case of discrimination, thereby satisfying

Batson’s first step.48 We proceed to the second step of the Batson analysis to

consider whether the prosecutor met his burden of production. The Supreme Court

48
We note that the courts that have decided this question have taken different approaches.
The trial court, as we state in Part IV.A, held that Hightower failed to make a prima facie case,
but that in any event, the prosecutor’s race-neutral explanations for his strikes were sufficient to
prevent Hightower from carrying his ultimate burden of persuasion. On direct appeal, the
supreme court assumed without deciding that Hightower had made a prima facie case, but found
no error in the trial judge’s ultimate findings that the prosecutor (1) stated legitimate reasons for
his strikes, and (2) had not discriminated. Hightower v. State, 386 S.E.2d 509, 512 (1989). The
district court agreed with the trial judge that Hightower had failed to establish a prima facie case,
and thus disposed of the claim without discussing the second or third steps of the Batson
analysis. The district court’s approach therefore differed from that taken by the supreme court.
Mindful of our role in habeas proceedings, we focus our analysis upon the correctness of
the supreme court’s judgment. That court assumed that Hightower had made out a prima facie
case, but denied his claim nonetheless. Our task is to consider whether this judgment “was
contrary to, or an unreasonable application of, clearly established Federal law,” or “was based on
an unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d).

51
has held that Batson’s “second step . . . does not demand an explanation that is

persuasive, or even plausible. At this second step of the inquiry, the issue is the

facial validity of the prosecutor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will be deemed race

neutral.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (citation, marks and brackets

omitted). Based upon our review of the record, we cannot say that the Georgia

courts erred in finding that the prosecutor satisfied this minimal burden of

production. The prosecutor gave specific, nonracial reasons for each of his strikes

of African-Americans: some struck jurors were related to persons he had

prosecuted or convicted, while others appeared to him to be uncomfortable with

rendering a death sentence. Such explanations fall well within the boundaries set

by Batson and its progeny. Compare Purkett, 514 U.S. at 769, 115 S. Ct. at 1771

(holding that the prosecutor satisfied his burden of production merely by

expressing his discomfort with the struck black juror’s long, unkempt hair,

mustache, and beard), with United States v. Horsley, 864 F.2d 1543, 1546 (11th

Cir. 1989) (holding that the prosecutor failed to satisfy his burden of production

when he stated that he struck a black juror because he “just got a feeling about

him”).

52
 Proceeding to the third and final step of the Batson analysis, we accept the

finding of the Georgia courts that Hightower failed to “establish[] purposeful

discrimination.” Batson, 476 U.S. at 98, 106 S. Ct. at 1724. Our judgment is

informed in great part by our recognition of the trial court’s superior position to

observe the prosecutor’s “credibility” and “demeanor,” factors that bear strongly

upon the ultimate question of whether the prosecutor discriminated. Miller-El v.

Cockrell, 537 U.S. 322, 338-39, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003);

see Eagle v. Linahan, 279 F.3d 926, 941 (11th Cir. 2001) (“[R]eviewing [a Batson]

claim . . . require[s] us to look over the trial court’s shoulder, reconstructing the

circumstances surrounding the voir dire of the venire persons and the Batson

hearing from the cold record, to decide whether the court correctly determined that

the defendant had not raised an inference that the prosecution used its peremptory

challenges to remove jurors on account of their race.”). The Batson Court itself

acknowledged that a trial court’s findings on the question of discrimination “turn

on evaluation of credibility,” and require “great deference” on review. 476 U.S. at

98 n.21, 106 S. Ct. at 1724 n.21.

Hightower urges us to give minimal deference to the trial judge’s findings.

According to Hightower, (1) the prosecutor failed to offer any evidence to support

his bare assertions that he had prosecuted the relatives of the black jurors he struck;

53
(2) the trial judge failed to demand that the prosecutor go back and question the

black jurors he had struck to see if they could be impartial in spite of their

relatives’ criminal backgrounds; and (3) the prosecutor did not strike white jurors

who were as lukewarm on the death penalty as the black jurors he struck. We

dismiss the first two contentions out of hand. The prosecutor satisfied his burden

of production merely by stating nonracial reasons for his strikes. As the Supreme

Court has recognized, “[i]t is not until the third step that the persuasiveness of the

[prosecutor’s stated reasons] becomes relevant—the step in which the trial court

determines whether the opponent of the strike has carried his burden of proving

purposeful discrimination.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (second

emphasis added). Hightower never provided the court with any evidence tending

to discredit the persuasiveness of the prosecutor’s stated reasons for striking black

jurors. The judge was therefore free to accept the prosecutor’s stated reasons at

face value. Furthermore, he had no duty compel the prosecutor to verify by means

of extended voir dire that the black jurors he struck would indeed have been partial

to Hightower because of their relatives’ criminal backgrounds. Cf. Batson, 476

U.S. at 97, 106 S. Ct. at 1723 (“[T]he prosecutor’s explanation [for striking black

jurors] need not rise to the level justifying exercise of a challenge for cause.”).

54
 Hightower’s third contention is also fruitless. It is extraordinarily difficult

upon the basis of the cold record to compare different jurors’ predispositions

toward the death penalty. Because such determinations turn largely on observable

“credibility,” Wainwright v. Witt, 469 U.S. 412, 429, 105 S. Ct. 844, 855, 83 L. Ed.

2d 841 (1985), the trial court’s judgment is entitled to great deference. See id.

(holding that a finding of juror bias is a factual matter, reviewed as such under 28

U.S.C. § 2254); United States v. Alston, 895 F.2d 1362, 1367 n.5 (11th Cir. 1990)

(“It is of course true that comparing the attributes of the black and white

venirepersons will aid the trier of fact and a reviewing court in determining

whether the asserted reasons are pretextual or not. The attributes relied upon by the

prosecutor in striking potential jurors are not always easily compared, however,

and often require an evaluation of the degree to which the prospective juror

manifests the stated attribute.”). Given our narrow scope of review, we cannot say

that the trial judge committed constitutional error in this regard.

In the end, the court was under a duty to weigh all evidence placed before it

on the question of whether the prosecutor discriminated. Defense counsel rested

their claim upon two main evidentiary bases. First, of the seven strikes the

prosecutor used, six were against African-Americans. Second, although the

Supreme Court had not yet issued its ruling in Amadeo, and we had not yet issued

55
ours in Horton, controversy existed over the prosecutor’s alleged role in a scheme

to minimize the representation of minorities on local juries. On the other hand,

militating against a finding of discrimination were the prosecutor’s uncontested,

specific, and race-neutral reasons for striking each black juror. It appears from the

record that the court considered both sides of the question and found that the

prosecutor had sufficiently rebutted Hightower’s allegation of discrimination.

Thus, the Batson mechanism, which is necessary deferential to trial court findings,

operated properly in this case. See Miller-El, 537 U.S. at 339, 123 S. Ct. at 1040

(“[T]he issue comes down to whether the trial court finds the prosecutor’s race-

neutral explanations to be credible.”).

We are mindful of the harshness with which we criticized Briley in Horton

for his past discriminatory practices. We recognize that these past practices are

relevant to his discriminatory intent in the case at hand. See Horton, 941 F.2d at

1455. But our task is to determine, in consideration of “all relevant

circumstances,” Batson, 476 U.S. at 96, 106 S. Ct. at 1723 (emphasis added), and

given our constraints under 28 U.S.C. § 2254, whether the state court judgment in

this case runs afoul of federal law. We cannot say that it does.

56
 V.

Hightower contends that the trial judge violated his federal constitutional

right to an impartial jury by allowing jurors to serve who were impermissibly

predisposed toward a death sentence. We find this claim to be procedurally

defaulted.49

In Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 1777, 20 L.

Ed. 2d 776 (1968), the Supreme Court held that a death sentence “cannot be carried

out if the jury that imposed or recommended it was chosen by excluding veniremen

for cause simply because they voiced general objections to the death penalty or

49
The district court also found procedural default. Our reasoning differs, however. In his
present appeal, in the district court, and in the state habeas court, Hightower has framed this
claim in essentially the same way. As we discuss in the text, he has argued that the trial judge
used the wrong legal standard for excusing jurors for cause based upon their death penalty
views—in other words, that the judge used the obsolete Witherspoon “automatic” standard,
rather than the proper Adams-Witt “substantial impairment” standard. Hightower has
furthermore contended that he was prejudiced by this recurring error, as it resulted in the seating
of death-biased jurors Paul Jensen and Rufus Little.
The district court held that Hightower’s claim, so stated, was materially different from the
one he raised on direct appeal to the Georgia Supreme Court. According to the district court,
Hightower claimed on direct appeal that the trial judge erred under Witherspoon by failing to
excuse Jensen and Little. Put another way, Hightower claimed a Witherspoon error on direct
appeal, but claimed at all subsequent proceedings that Witherspoon wasn’t the proper standard to
use in the first place. The district court essentially found that Hightower procedurally defaulted
his present claim by failing to have framed it in the same way on direct appeal.
We part company with the district court’s opinion in 2 respects. First, the district court
was incorrect in stating that Hightower raised claims on direct appeal regarding Jensen and
Little—in fact, as we go on to explain, he did not. Second, the district court paid undue attention
to the misguided way in which Hightower has presented his claim. The crux of Hightower’s
claim must simply be that jurors Jensen and Little were unconstitutionally permitted to serve. As
we discuss in the text, the relevant cases, Witherspoon, Adams, and Witt, merely provide the
standard under which juror-specific claims of Hightower’s type are examined.

57
expressed conscientious or religious scruples against its infliction.”50 Later, in

Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980),

the Court refined this standard, holding that “a juror may not be challenged for

cause based on his views about capital punishment unless those views would

prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” The Court’s opinion in Wainwright

v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985), made

clear that the Adams “substantial impairment” test displaced Witherspoon as

governing law.

Hightower now claims that two persons who served on his jury, Paul Jensen

and Rufus Little, were unqualified to serve under the Adams-Witt standard. This

50
In Witherspoon, the petitioner claimed that the trial court unconstitutionally excluded
jurors opposed to a death sentence. Hightower, on the other hand, claims that the trial court
unconstitutionally failed to exclude jurors predisposed toward a death sentence. The test
announced in Adams and Witt appears to emasculate any legal distinction between these 2 types
of cases. See discussion infra; Ross v. Oklahoma, 487 U.S. 81, 85-86, 108 S. Ct. 2273, 2276-77,
101 L. Ed. 2d 80 (1988) (accepting under the Witt framework the state’s concession that the trial
court should have excused a juror for cause because of his bias in favor of a death sentence, but
holding that such error was harmless because the petitioner had eliminated this juror with a
peremptory challenge). Nonetheless, claims of Hightower’s type are still often described as
“reverse-Witherspoon” claims, perhaps owing to language the Supreme Court has itself
employed. See, e.g., Morgan v. Illinois, 504 U.S. 719, 731, 112 S. Ct. 2222, 2230-31, 119 L. Ed.
2d 492 (1992) (“We have also come to recognize that the principles first propounded in
Witherspoon v. Illinois, the reverse of which are at issue here, demand inquiry into whether the
views of prospective jurors on the death penalty would disqualify them from sitting.”) (emphasis
added) (citation omitted)). Purely for conceptual purposes, we too use the terms “Witherspoon”
and “reverse-Witherspoon” in referring to Hightower’s claims.

58
claim differs materially from the one he raised on direct appeal to the Georgia

Supreme Court. Before that court, Hightower in his brief enumerated the following

relevant errors:

16. The trial court erred in refusing to excuse for cause juror Chilton,
who stated unequivocally that if a person was convicted of killing
three (3) people, a life sentence was not severe enough and “he ought
to get the death penalty.”

17. The trial court erred in refusing to excuse for cause juror
Thompson who stated that a life sentence would not be adequate
penalty if the accused was convicted of voluntary manslaughter.

18. The trial court erred in excusing for cause juror Ponder on the
ground that she was opposed to the death penalty in that said juror
testified that she would consider the death penalty.

19. The trial court erred in excusing for cause jurors Ponder, Stewart,
and Bailey in that to automatically excuse all jurors opposed to the
death penalty denied Defendant his constitutional right to be tried by a
jury of his peers.

20. The trial court erred in refusing to excuse for cause juror Sheila
Allgood who stated unequivocally that she would automatically vote
for the death penalty if Defendant were convicted of three murders.

21. The trial court erred in refusing to excuse for cause juror Ruth
Allgood on the ground that she was opposed to the death penalty in
that said juror testified that she would consider the death penalty.

Thus, Hightower on direct appeal raised numerous Witherspoon and reverse-

Witherspoon claims, but none as to jurors Jensen or Little, those whom he

presently contends were unqualified to serve. The relevance of this omission is

59
manifest. Witherspoon claims, dependent as they are upon individual

predispositions, are juror-specific. Having failed to present claims on direct appeal

as to Jensen and Little, Hightower procedurally defaulted such claims as a matter of

state law.51 See Black v. Hardin, 336 S.E.2d 754, 755 (Ga. 1985) (holding that “a

failure to make timely objection to any alleged error or deficiency or to pursue the

same on appeal ordinarily will preclude review by writ of habeas corpus,” absent a

showing of cause and prejudice or “a miscarriage of justice where there has been a

substantial denial of constitutional rights”). Because he has not shown cause for

the default and prejudice resulting therefrom,52 Wainwright v. Sykes, 433 U.S. 72,

87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977), or that a fundamental

miscarriage of justice would otherwise result, Murray v. Carrier, 477 U.S. 478, 106

S. Ct. 2639, 91 L. Ed. 2d 397 (1986), Hightower’s Witherspoon claims fail.

VI.

51
Before the state habeas court, Hightower presented the same Witherspoon claims (those
regarding Jensen and Little) as he presents now. The state habeas court did not address these
specific claims in its order denying Hightower’s petition, however. Instead, that court addressed
a distinct Witherspoon-type claim that is not before us—it held that Hightower procedurally
defaulted his claim that the trial judge erred by permitting the prosecutor to question the
members of the venire on their death penalty views.
In the brief supporting his application for a certificate of probable cause to appeal to the
Georgia Supreme Court, Hightower claimed that the habeas court erred by failing to address his
Witherspoon claims as to Jensen and Little. The supreme court, evidently unmoved, summarily
denied the application.
52
Although Hightower presents a Witherspoon-based claim of ineffective assistance of
counsel, we reject it in Part VI.

60
 We turn finally to Hightower’s claims of ineffective assistance of counsel.53

Hightower contends that his attorneys committed various errors at both phases of

his trial and on direct appeal.

The governing standard is that of Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984):

A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable.

Counsel’s performance is constitutionally “deficient” when it “[falls] below

an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. We must

avoid all temptation to “second-guess” counsel’s decisions as to trial strategy. Id.

at 689, 104 S. Ct. at 2065. Instead, we are to examine “the facts of the particular

case, viewed as of the time of counsel’s conduct.” Id. at 690, 104 S. Ct. at 2066.

53
We affirm without further discussion the district court’s rejection of the following 2
claims of ineffective assistance: (1) that trial counsel failed fully to investigate Hightower’s case,
develop mitigating evidence, and seek correct jury instructions; (2) that trial counsel distanced
themselves from Hightower in front of the jury.

61
 To establish prejudice, Hightower “ must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. Put another

way, he must establish that counsel’s errors “undermine confidence in the

outcome” of the case.54 Id.

Ineffectiveness of counsel is a mixed question of law and fact. Id. at 698,

104 S. Ct. at 2070. Thus, we review these claims de novo. Chandler v. United

States, 218 F.3d 1305, 1312 (11th Cir. 2000).

54
The Strickland Court articulated different standards for challenges to convictions and
sentences:

When a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent [counsel’s] errors, the factfinder would have
had a reasonable doubt respecting guilt. When a defendant challenges a death
sentence . . . the question is whether there is a reasonable probability that, absent
the errors, the sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.

466 U.S. at 695, 104 S. Ct. at 2068-69. Although Hightower claims that his attorneys were
ineffective at both phases of his trial and on direct appeal, he does not clearly differentiate
between errors that affected the guilt determinations and errors that affected the sentences. This
differentiation is of no consequence, as we reject each of Hightower’s claims of ineffective
assistance as to both phases of his trial and as to his direct appeal.

62
 A.

Hightower first argues that his counsel failed to maintain a coherent defense

theory.55 We find no basis upon which to grant relief here.

Counsel testified at the hearing before the state habeas court that their

strategy was to save Hightower’s life, rather than to seek an acquittal. This was a

reasonable strategic choice, given that Hightower confessed to the murders on the

same day they occurred. Counsel only pursued this sentence-focused strategy after

discussing it with Hightower and gaining his approval. Hightower has failed to

55
Relatedly, Hightower claims that trial counsel were ineffective for failing to present the
testimony of a “competent” psychiatrist.
In Part III, we hold that Hightower was not entitled under Ake to the assistance of a
psychiatrist, but that in the alternative, even if he was so entitled, trial counsel received funds
they could have used for a psychiatric expert. Hightower’s ineffective assistance claim depends
upon the second alternative. He states the issue succinctly in a footnote in his brief: “If the funds
provided by the state court were adequate, then trial counsel should have spent them to hire the
qualified psychiatrist they knew was crucial to their defense.” Essentially, Hightower challenges
the way in which counsel spent the $5,750 in defense funds the court granted.
We conclude that Hightower has failed to establish Strickland deficiency in counsel’s
performance. Apart from blanket assertions that counsel should have spent some money on a
psychiatrist, he gives no specific indication as to how they should have acted differently. He
does not specify, for example, (1) how much counsel should have used for a “competent”
psychiatrist; (2) whose services counsel should have declined to employ in order to retain a
“competent” psychiatrist, e.g., the investigator, the jury specialist, or Dr. Albrecht, all of whom
were paid out of the provided funds; or (3) whether counsel should have hired a psychiatrist in
addition to, or instead of, Drs. Moore and Albrecht, the psychologists who testified at trial.
Because he has failed to demonstrate with specificity how counsel erred in spending the funds,
Hightower essentially asks us, in direct contravention of Strickland, to apply the benefit of
hindsight to scrutinize counsel’s spending decisions. 466 U.S. at 689, 104 S. Ct. at 2065. This
we will not do.

63
articulate any concrete attorney error that prejudiced his defense.56 This claim must

therefore fail.

B.

Hightower next claims that his attorneys were ineffective at trial for failing

to challenge for cause or peremptorily strike two jurors who, in his view, appeared

predisposed toward a death sentence.57 He also contends that defense counsel were

56
Hightower contends that his attorneys prejudicially altered their theory of defense
during the course of the trial. He points to the fact that counsel accepted a “guilty, but mentally
ill” instruction at the guilt phase charge conference after initially opposing such an instruction.
But we cannot see how Hightower suffered prejudice in this regard. Reasonably believing that a
“not guilty” verdict was unlikely, counsel evidently felt that it was to Hightower’s benefit for the
jury to have an alternative to straight “guilty” verdicts. That the jury did not select this
alternative is immaterial to a claim of ineffective assistance of counsel.
We must clarify that this ineffective assistance claim is wholly separate from a claim that
Hightower raised in the state habeas court and the district court. Before those courts, he claimed
that the trial judge erred by failing to give to the jury the complete “guilty, but mentally ill”
instruction required by O.C.G.A. § 17-7-131(b)(3)(B). Both courts found this claim procedurally
defaulted. The question before us is merely whether trial counsel were ineffective in not
objecting to a “guilty, but mentally ill” instruction in the first instance. We conclude that they
were not. As to the next question, i.e., whether the trial judge erred in giving an improper
“guilty, but mentally ill” instruction, Hightower has not presented the question to us, and we
therefore do not address it.
57
Hightower also contends that counsel were ineffective at trial and on direct appeal
because of their ignorance of the correct standard, i.e., Adams-Witt instead of Wainwright. See
Part V. So stated, this claim misses the mark. Hightower cannot prevail on a claim of
ineffective assistance without showing that he suffered prejudice. As to a reverse-Witherspoon-
based claim of ineffective assistance, Hightower must show that counsel’s ignorance of the
correct standard resulted in the seating of jurors who were unconstitutionally biased in favor of
death. Practically speaking, Hightower must show that because of their ignorance, defense
counsel failed properly to deal with these unacceptable jurors, whether by neglecting to (1)
challenge them for cause, (2) strike them peremptorily, or (3) claim on direct appeal that the trial
judge erred by seating them. As with Hightower’s main Witherspoon claims, we examine this
ineffective assistance claim in a juror-specific manner.

64
ineffective on direct appeal for failing to enumerate as error the court’s seating of

these jurors. The district court found that even though counsel may have been

deficient, Hightower failed to establish prejudice resulting therefrom. We agree.

We first consider his claim as to juror Paul Jensen. The relevant portion of

defense counsel’s voir dire of Jensen, i.e., that which revealed his attitude toward a

death sentence, reads as follows:

MR. BUICE: Mr. Jensen? Where are you on that? Would the
fact that three people died . . . ?

MR. JENSEN: He’s convicted of three murders?

MR. BUICE: Yes.

MR. JENSEN: It would be very—it would determine—it [sic]
would have to determine the case—the case would
have to determine how I’d feel exactly, but it would
be very hard for me not to vote for the death
penalty because of three murders.

MR. BUICE: Well, would the fact of three murders, then, tend to
close your mind to other considerations?

MR. JENSEN: Right now it would, but it would have to be
determined by the severity of the case and what
was involved in determining of the three murders.

Counsel challenged Jensen for cause on the grounds that (1) he was a college

student whose worry about missed coursework would divert his attention, and (2)

65
he appeared to favor a death sentence if drugs or alcohol had contributed to the

commission of the crime. The court rejected the challenge.

We conclude that this brief voir dire exchange provides no basis for relief.58

Although Jensen suggested that he would favor a death sentence if three murders

were established, he also indicated that he could not form an opinion on the

sentences until he heard the evidence. Given the difficulty of reviewing such

equivocal answers from the cold record, years after they were uttered, it is obvious

why we accord great deference to trial judge determinations of juror bias. See, e.g.,

Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 855, 83 L. Ed. 2d 841

(1985) (holding that a trial court’s determination of juror bias is a matter of fact, to

be reviewed as such under 28 U.S.C. § 2254). The trial judge, in a superior

position to observe Jensen’s credibility and demeanor, refused to excuse Jensen for

bias. We cannot say that Hightower suffered prejudice from counsel’s failure to

strike Jensen peremptorily or to allege on direct appeal that the court erred in

seating him.

We next consider Hightower’s claim as to juror Rufus Little. Defense

counsel’s voir dire of Little proceeded as follows:

58
In support of his claim, Hightower offers no evidence beyond the excerpted portion of
Jensen’s responses that we reproduce here.

66
MS. GEORGE: . . . I am going to again ask the same question and I
am going to say this with two questions. If a
person has been convicted of murder and the
murder of three people, are you strongly in favor,
somewhat in favor, or somewhat opposed to the
death penalty? . . . Okay, Mr. Little?

MR. LITTLE: Strongly for it if it has been proven.

MS. GEORGE: If it’s been proven?

MR. LITTLE: Yes.

...

MS. GEORGE: If there were a conviction of three deaths [sic],
three people involved, three people had died, could
you vote for a life imprisonment, would that be
severe enough punishment for you? . . . How about
you, Mr. Little?

MR. LITTLE: I would have to hear the case. Three murders, you
know, that’s cruel, but there may be something out
of it to prove without a doubt, well then a life
would—I’d have to hear the case.

...

MS. GEORGE: All right. How about you, Mr. Little? Would you
automatically vote for the death penalty if there
was a conviction of three people?

MR. LITTLE: If they proved without a doubt he did it.

MS. GEORGE: You would automatically do it?

67
 MR. LITTLE: If they proved without any doubt, based on the
circumstances, I would. But it’s hard to say until I
hear the whole case.

MS. GEORGE: But you did say if the person was convicted beyond
a reasonable doubt, you would automatically vote
for the death penalty?
MR. LITTLE: Automatically—like I say I would
automatically—like I say I would have to hear the
case. Like I say I would automatically vote for the
...

MS. GEORGE: That’s all I have Your Honor.

Counsel did not (1) challenge Little for cause, (2) exercise a peremptory

strike against him, or (3) claim on direct appeal that it was error to seat him. Again

forced to review the cold record to detect bias,59 we decline to grant relief. In our

view, Little’s statements during voir dire, in their totality, do not reflect a pro-death

sentiment sufficient to establish prejudice. Even as defense counsel sought to pin

down his bias, Little continually expressed that he would need to hear the whole

case before deciding on the proper punishment. We agree with the district court

that Hightower failed to show that Little’s views on the death penalty “would

prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” Id. at 424, 105 S. Ct. at 852.

59
Hightower produces no evidence as to Little beyond this excerpt of his examination.

68
 VII.

We have considered Hightower’s claims and find them to be without merit.

The judgment of the district court is, accordingly,

AFFIRMED.

69
WILSON, Circuit Judge, concurring:

I agree with our ultimate conclusion that Hightower has not been successful

in presenting a claim under Batson. In this case, we are obliged – and perhaps

constrained – to defer to the state courts. This principle, coupled with the fact that

the trial court did not have before it any real evidence of Briley’s consistent pattern

of discriminatory conduct,1 supports our conclusion today.

However, I am quite concerned with the manner in which the state courts

have applied Batson in this case. It appears that they have inappropriately

condensed Batson’s three-part inquiry into two, thereby risking a serious

constitutional error. I write separately to address my concerns, and to stress the

importance of adherence to Batson’s requirements.

I first repeat the procedure that Batson mandates. First, the defendant must

establish a prima facie case of discriminatory intent on the part of the prosecution.

1
Our opinion notes supra “the harshness with which we criticized Briley in [Horton v.
Zant, 941 F.2d 1449 (11th Cir. 1991)] for his past discriminatory practices.” Supra at ----.
Specifically, in Horton, we noted that Briley penned a memorandum (also mentioned in footnote
46, supra) that directed a clerk of court to limit the number of blacks, women, and young people
on juries. See Horton, 941 F.2d at 1455. We also discussed in Horton a statistician’s finding
that in capital cases in eight Georgia counties involving black defendants over several years,
Briley used 89.9% of his strikes against black venire members. See id. at 1458. In capital cases
involving black defendants and white victims, that number jumped to 94.1%. See id. The case
discussed a number of other similarly shocking statistical and mathematical findings. See
generally id. at 1457-59. We found that under such odds, “courts cannot make a blind leap of
faith that there exists some set of legitimate factors which correlates one-to-one with the race of
the venire members.” See id. at 1458.

70
See Batson, 476 U.S. at 96. Once a court has determined that a defendant has

established a prima facie case, “the burden shifts to the State to come forward with

a neutral explanation for challenging black jurors.” See id. at 97. If the state clears

this hurdle, the trial court then has the responsibility to determine whether the

defendant has established purposeful discrimination. See id. at 98; Purkett v. Elem,

514 U.S. 765, 767-68 (1995) (per curiam). An analysis of the state courts’ opinions

in this case raises the question of whether they properly applied Batson’s third step.

The Georgia Supreme Court’s discussion as to the Batson issue is so brief

that it is unclear whether that court even reached and resolved Batson’s third step at

all. The Georgia Supreme Court’s entire discussion of Hightower’s Batson claim is

as follows:

The defendant contends the prosecution was guilty of racial
discrimination . . . . The prosecutor used only seven of his authorized
10 peremptory strikes. He used six of those seven strikes against
black prospective jurors. The record shows that at least two black
prospective jurors were struck by the defendant after having been
accepted by the prosecutor. The prosecutor explained his peremptory
challenges. Four of the challenged prospective jurors were closely
related to persons convicted of serious felonies. The other two were
conscientiously opposed to the death penalty, although not to the
extent they were excused for cause. The trial court found that the
prosecutor had articulated legitimate non-racial reasons for his
challenges. Even assuming the defendant made out a prima facie case,
. . . the trial court's determination is not clearly erroneous.

71
Hightower v. State, 386 S.E.2d 509, 512 (Ga. 1989) (citations omitted). The

language in the final two sentences quoted above seems to suggest that once a

prosecutor has articulated reasons for his challenges, a court’s finding that those

reasons are race-neutral is sufficient to end the Batson inquiry.2 However, such a

finding only triggers the third step in the analysis; we regard each step of Batson’s

inquiry as a prerequisite to the next. Cf. Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder

Realty Co., 236 F.3d 629, 636 (11th Cir. 2000) (“As [Batson’s] framework makes

clear, the establishment of a prima facie case is an absolute precondition to further

inquiry into the motivation behind the challenged strike.”).

Once Hightower established a prima facie case of discrimination (or, once

the Georgia Supreme Court assumed that Hightower established a prima facie case

of discrimination), the burden shifted to the state to come forward with a neutral

explanation for challenging black jurors. See Bui v. Haley, 321 F.3d 1304, 1313-14

2
This interpretation of the Georgia Supreme Court’s opinion is buttressed by the fact that
the trial court only made explicit determinations with regard to the first two steps. After hearing
and approving each of the reasons for the prosecution’s strikes, the court stated “I find that the
defendants have failed to establish a prima facie case of discrimination on the part of the district
attorney. I further find that as to each individual strike, the State has presented an articulable,
nonrace related reason for striking the prospective juror.” Tr. at 626. As I discuss infra, the trial
court’s threshold finding that Hightower failed to establish a prima facie case was questionable.
Further, it is unclear what the trial court’s approach to Batson actually was. After
improperly failing to find that a prima facie case had been established, the trial court proceeded
to Batson’s second step – a step that it technically needn’t have reached. Then, once it attempted
to engage in Batson’s full inquiry, it failed by stopping short of Batson’s third step.

72
(11th Cir. 2003). Once the state cleared that hurdle, the court then had the

responsibility to determine whether Hightower had established purposeful

discrimination. Id. at 1314. The Georgia Supreme Court appears to have been

evaluating not whether Hightower had met his burden of establishing purposeful

discrimination, but merely whether the prosecution’s proffered reasons for the

strikes were race-neutral. The approach taken could inappropriately turn Batson

into a test of the sufficiency of the prosecution’s reasons for its strikes. An entire

additional step, in which the strength of Hightower’s case was weighed against the

persuasiveness of the state’s proffered reasons for the strikes, appears to be missing

from this case.

Moreover, the Georgia Supreme Court’s conclusion is questionable in that it

found as not clearly erroneous a trial court finding that plainly ran contrary to

Supreme Court precedent. The trial court’s primary error was in failing to find that

Hightower had established a prima facie case of discrimination. The burden on a

defendant seeking to establish a prima facie case is not high; he must merely show

that “‘he is a member of a cognizable racial group’” and that the ‘relevant

circumstances raise an inference’ that [the prosecution] has ‘exercised peremptory

challenges to remove from the venire members of [his] race.’” Fludd v. Dykes, 863

F.2d 822, 829 (11th Cir. 1989) (quoting Batson, 476 U.S. at 96).

73
 Obviously, Hightower demonstrated his being a member of a cognizable

racial group, and his counsel’s argument at trial, coupled with the long odds of six

of seven black jurors being struck from the jury, together were sufficient to raise at

least an inference of improper conduct. It is difficult to determine what else the

trial court could have required of Hightower for the presentation of his prima facie

case. In short, the trial court raised the standard set by the Supreme Court. See

Holloway v. Horn, 355 F.3d 707, 728 (3d Cir. 2004) (“The defendant generally

meets [his] burden if there is a pattern of strikes or if the prosecutor’s questions and

statements during voir dire support an inference of discriminatory purpose.”).

However, our obligation to defer is great, and while it appears that the

Georgia Supreme Court could have engaged in a more thorough inquiry as to

Hightower’s Batson claim, it has not affirmatively misstated federal law. Our task

at this stage is to review a state court’s decision, and not its rationale. See Wright

v. Sec’y for the Dep’t of Corrs., 278 F.3d 1245, 1255 (11th Cir. 2002). Although a

state court opinion containing a “conspicuous misapplication of Supreme Court

precedent” is not entitled to deference under the AEDPA, “[w]e will not presume

that a state court misapplied federal law, and absent indication to the contrary will

assume that state courts do understand ‘clearly established Federal law ... as

determined by the Supreme Court of the United States.’” Id. at 1256 n.3 (quoting

74
28 U.S.C. § 2254(d)(1)). No such great deviation from federal precedent is present

in this case.

Moreover, even if the Georgia Supreme Court had engaged in all three of

Batson’s required steps, it is incredibly unlikely that the result in this case would

have been any different. The burden of persuasion regarding purposeful

discrimination never shifted from Hightower. The case he presented on this issue

was not particularly strong and was met by ostensibly race-neutral reasons for the

state’s strikes. We now know quite well of Briley’s shameful history of

discriminatory conduct, and I question what a better defense could have exposed in

this case.3 Still, after consideration of the record, I am constrained to join in

today’s decision.

A trial judge’s stewardship over the jury selection process is not to be taken

lightly. As Justice Powell wrote, “[e]xclusion of black citizens from service as

jurors constitutes a primary example of the evil the Fourteenth Amendment was

designed to cure.” Batson, 476 U.S. at 85. With this in mind, I stress the singular

importance of the trial court’s role in Batson’s third step. By appearing to evaluate

only the race-neutrality of the prosecution’s reasons for its strikes and not clearly

3
I note, however, that Hightower’s Batson claim was not presented in the context of his
ineffective assistance of counsel claim.

75
making a determination as to the entire record, a court runs the risk of virtually

guaranteeing victory for the prosecution in every case. Trial judges must be

vigilant to ensure that Batson’s test does not become a vehicle simply for

approving the sufficiency of the prosecution’s reasons for its strikes. The potential

consequences of anything less are far too great.

76