[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 00-15807 August 8, 2006
_____________ THOMAS K. KAHN
CLERK
D.C. Docket No. 96-00097-3-CV-DF
JOHN WASHINGTON HIGHTOWER,
Petitioner-Appellant,
versus
WILLIAM TERRY,
Respondent-Appellee.
______________
Appeal from the United States District Court
for the Middle District of Georgia
_____________
(August 8, 2006)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
Petitioner John Washington Hightower is a Georgia prison inmate awaiting
execution for murder.1 On August 6, 1999, the United States District Court for the
Middle District of Georgia denied his application for writ of habeas corpus under
28 U.S.C. § 2254, and, on April 12, 2004, we affirmed its decision. Hightower v.
Schofield, 365 F.3d 1008 (11th Cir. 2005).2 Hightower thereafter petitioned the
Supreme Court for certiorari review. One of the issues his petition raised was
whether the state trial court erred in rejecting his claim that the prosecutor’s
peremptory challenges of black jurors violated the Batson rule. See Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).3 The Court
granted Hightower’s petition, vacated our judgment, and remanded the case “for
further consideration in light of” Miller-El v. Dretke, 545 U.S. U.S. ___, 125 S.
1
Hightower was convicted in 1988 of murdering his wife and two step-daughters the
year before. He was sentenced to death for each killing.
2
Our opinion in Hightower describes Hightower’s criminal acts and the procedural
history of the case – in state and federal court.
3
In Batson, the Supreme Court held that the Equal Protection Clause of the 14th
Amendment forbad the State from exercising peremptory strikes in a racially discriminatory
manner during jury selection in a criminal prosecution. The Court established a three-part
mechanism for establishing such discrimination, which the Court has summarized as follows:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has
made out a prima facie case of racial discrimination (step one), the burden of
production shifts to the proponent of the strike to come forward with a raceneutral
explanation (step two). If a raceneutral explanation is tendered, the trial court
must then decide (step three) whether the opponent of the strike has proved
purposeful discrimination.
Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d 834 (1995).
2
Ct. 2317, 162 L. Ed. 2d 196 (2005). Hightower v. Schofield, 125 S. Ct. 2929,
2929-30, 162 L. Ed. 2d 863 (2005). We conclude that Miller-El does not counsel
a decision contrary the one we reached in Hightower v. Schofield, and therefore
adhere to that decision.
Why Miller-El does not control our decision becomes clear when one
considers how Miller-El reached the Supreme Court and how Hightower v.
Schofield came to us. In Miller-El, after the Texas Court of Criminal Appeals
affirmed the trial court’s determination that the prosecutor’s peremptory
challenges of black jurors were not racially motivated, Miller-El petitioned the
United States District Court for the Southern District of Texas for habeas relief –
to review the court of criminal appeals’ Batson decision.4 Miller-El, 125 S. Ct. at
2323. Instead of requesting the district court to review that decision on the basis
of the record created before the Texas trial judge, Miller-El asked the court to
augment that record to consider other evidence, including juror questionnaires and
juror information cards. Id. at 2334 n.15. The State had no objection; the district
court5 therefore convened an evidentiary hearing to consider the additional
4
Miller-El’s petition sought relief on other constitutional claims as well. Miller-El, 125
S. Ct. at 2323. None are relevant here.
5
The district court referred Miller-El’s petition to a magistrate judge. After hearing the
petitioner’s claims, the magistrate judge issued a report and recommendation, recommending that
the district court deny relief. Miller-El v. Johnson, No. Civ. 3:96-CV-1992-H, slip. op. at 1
3
evidence. Id. The court rejected Miller-El’s Batson claim, choosing to defer to
“the experience of the trial court judge in evaluating the demeanor of each juror
and the prosecutor in determining purposeful discrimination.” Miller-El v.
Johnson, No. Civ. 3:96-CV-1992-H, slip. op. at 2 (N.D. Tex. 2000) (mem.)
(unpublished). Miller-El appealed, and the Fifth Circuit affirmed. Miller-El v.
Dretke, 361 F.3d 849, 862 (5th Cir. 2004). Of relevance to the case before us, the
court of appeals rejected the petitioner’s arguments that “the . . . similarity
between non-black venire members who were not struck by the prosecution and
six blacks who were” and the prosecutor’s “disparate questioning with respect to
venire members’ views on the death penalty and their ability to impose the
minimum punishment” constituted circumstantial evidence of the prosecutor’s
intent to discriminate against the black members on account of their race. Id. at
854-55.
The Supreme Court disagreed with the Fifth Circuit’s assessment of the
evidence contained in the record, i.e., the record before the Texas trial judge and
the evidence Miller-El presented to the district judge with the State’s consent; the
Court concluded that “when the evidence on the issues [the petitioner] raised is
(N.D. Tex. 2000) (mem.) (unpublished). The court adopted the magistrate judge’s
recommendations and findings, with modifications not relevant here. Id. at 2.
4
viewed cumulatively its direction is too powerful to conclude anything but [racial]
discrimination.” Miller-El, 125 S. Ct. at 2339.
In the case at hand, we did not decide Hightower’s Batson claim on the
basis of an augmented record, as the district court, the court of appeals, and the
Supreme Court did in Miller-El; rather, we were, and are post-Miller-El, limited to
the evidentiary record developed in the state trial court during jury selection and
the trial court’s ruling,6 Hightower’s and the State’s briefs to the Supreme Court of
Georgia (with respect to the Batson claim), and that court’s opinion (again, with
respect to the Batson claim).
The procedural history of this case is illustrative. After the Georgia
Supreme Court affirmed his convictions and death sentences, Hightower
petitioned the state superior court for a writ of habeas corpus. Among his claims
was the Batson claim he had presented to the supreme court in appealing his
convictions. The superior court declined to entertain the Batson claim, citing
Gunter v. Hickman, 256 Ga. 315, 348 S.E. 2d 644 (Ga. 1986), which held that
issues raised in a defendant’s direct appeal of his conviction cannot be relitigated
6
In Miller-El, the Court, addressing the propriety – under 28 U.S.C. § 2254(d)(2) – of
considering evidence not presented to the trial judge when ruling on the petitioner’s Batson
objection, stated that it was reaching no decision about whether the limitation on evidence in §
2254(d)(2) is waiveable. Miller-El, 125 S. Ct. at 2334 n.15. Section 2254(d)(2) instructs federal
habeas courts to consider only “the evidence presented in the State court proceeding,” i.e., the
proceeding in which the Batson objection is raised.
5
on collateral attack, in a habeas corpus proceeding, see Gunter 256 Ga. at 316, 348
S.E. 2d at 644. After the superior court denied relief (on all of the petition’s
claims), the Georgia Supreme Court denied Hightower’s application for probable
cause to appeal, and the Supreme Court denied his petition for a writ of certiorari,
Hightower v. Thomas, 515 U.S. 1162, 115 S. Ct. 2618, 132 L. Ed. 2d 860 (1995).
Having exhausted his state remedies, Hightower filed the instant habeas
petition. The petition contained several claims, including the Batson claim now
under consideration pursuant to the Supreme Court’s mandate. In his petition and
supporting memoranda, Hightower presented his Batson claim as he had presented
it earlier in his brief to the Georgia Supreme Court on direct appeal, but he added
an argument he had omitted from his brief to the supreme court. He contended
that if the district court compared the prosecutor’s questions to the white jurors
with those put to the black jurors, or vice versa, and the respective jurors’ answers
to those questions, it would become apparent that the prosecutor, in exercising his
peremptory challenges, was discriminating against the black jurors because of
their race. The district court ignored this additional argument; it denied
Hightower’s Batson claim with these words:
Petitioner has easily satisfied the first two prongs of his prima facie
burden under Batson; the only disputed issue is whether the totality of
the circumstances raised an inference that the prosecutor peremptorily
6
struck certain jurors because of their race. The trial court, having the
best opportunity to view the prosecutor’s demeanor and determine his
credibility, found the prosecutor’s explanations to be credible. The
trial court also found there to be a race-neutral basis for all of the
prosecutor’s peremptory challenges of black prospective jurors. The
Georgia Supreme Court affirmed the trial court’s evaluation. This
Court cannot say that the Georgia Supreme Court’s determination was
unreasonable or contrary to Batson or any other Supreme Court case
within the meaning of the [Antiterrorism and Effective Death Penalty
Act]. Accordingly, Petitioner is not entitled to relief on this basis.7
We analyzed Hightower’s Batson claim in the same fashion, and concluded,
as the district court did, that “Hightower never provided the [state trial] court with
any evidence tending to discredit the persuasiveness of the prosecutor’s stated
reasons for striking black jurors.”8 Hightower v. Schofield, 365 F.3d at 1035.
7
In determining whether the Georgia Supreme Court’s rejection of Hightower’s Batson
claim should be sustained, the district court focused on what was before the Georgia Supreme
Court. In other words, to the extent that Hightower’s petition contained an argument that
Hightower did not present to that court, the district court ignored the argument. The Rules
Governing Section 2254 Cases in the United States District Courts accommodate this policy of
limiting the district court’s examination of the state high court’s decision to what was before the
high court. If the district court orders the State to respond to a habeas petition, Rule 5(c) requires
the State to attach to its answer “parts of the transcript that the [State] considers relevant.”
Where, as here, a Batson claim is involved, the State must attach the transcript of the portions of
the trial dealing with jury selection (and the Batson objection). The State provided the entire
transcript of the jury selection in this case. Rule 5(d) also requires the State to attach to its
answer the briefs the petitioner and the State submitted to the state appellate court, and that
court’s “opinions and dispositive orders” relating to the petitioner’s claim(s). The State provided
the district court with these materials in this case. In sum, the district court, in examining, and
denying, Hightower’s Batson claim, relied on transcript of the jury selection, the parties’ briefs to
the Georgia Supreme Court, and that court’s dispositive opinion.
8
The only evidence Hightower attempted to present to the trial court in support of his
Batson objection came in the form of a newspaper article, which purportedly showed that the
prosecutor had authored a memorandum detailing a scheme to exclude black persons from juries.
The trial court excluded the newspaper article from the record, on the ground that it had not been
7
Hightower contends that Miller-El required the district court, and this court,
to entertain the argument he presented to the Georgia Supreme Court as well as the
additional argument presented to the district court – that the comparison
mentioned above of the prosecutor’s handling of the white and black jurors
compels the inference that the prosecutor exercised his peremptory challenges on
racial grounds. In effect, he wants to re-brief his appeal to the Georgia Supreme
Court. We assume that he intended to do just that when he included his Batson
claim in his habeas petition to the state superior court. The superior court rejected
his attempt; the supreme court had adjudicated the claim, and state procedural law
precluded him from relitigating it on collateral attack. The Georgia Supreme
Court effectively agreed when it denied Hightower’s application for probable
cause to appeal.
The net effect of these rulings is that if Hightower wants the federal courts
to entertain an argument he could have made in the Georgia Supreme Court but
did not, he must establish cause for his counsel’s failure to present the argument
and resulting prejudice. See Francis v. Henderson, 425 U.S. 536, 542, 96 S. Ct.
1708, 1711, 48 L. Ed. 2d 149 (1976). He has demonstrated neither. Although his
authenticated. We are bound by that ruling, and, as such, we do not consider the article as part of
the record before the Georgia courts for the purposes of our review under § 2254(d).
8
habeas petition to the district court alleges that his lawyers denied him effective
assistance of counsel, it does not allege that counsel were ineffective in the
Georgia Supreme Court for failing to advance his comparisons of black jurors
struck by the prosecutor to white jurors accepted by the prosecutor.
We have considered Miller-El in the context of the instant case. We
conclude that it does not change our disposition of Hightower’s Batson claim.9
9
Although Miller-El involved only the application of § 2254(d)(2), Miller-El, 125 S. Ct.
at 2325, the dissent contends that we should grant Hightower’s writ of habeas corpus on the
ground that the Georgia courts’ rejection of Hightower’s Batson claim constituted a decision
“contrary to, or involv[ing] an unreasonable application of, clearly established Federal law”
under § 2254(d)(1). See post, at __. The dissent argues that the state courts rendered such a
decision because the trial court, and the Georgia Supreme Court on appeal, failed to carry out
Batson’s third step in that they failed to find credible the prosecutor’s race-neutral explanations
for striking black jurors. See post, at __; see also Rice v. Collins, ___ U.S. ___, ___, 126 S. Ct.
969, 974, 163 L. Ed. 2d 824 (2006) (“Third, the court must then determine whether the defendant
has carried his burden of proving purposeful discrimination. This final step involves evaluating
the persuasiveness of the justification proffered by the prosecutor . . . .” (citations and internal
quotation marks omitted)). In so doing, the dissent focuses on the trial court’s language in
overruling Hightower’s Batson objection, in which it stated only that, “as to each individual
strike, the State has presented an articulable nonrace related reason for striking the prospective
juror.”
The dissent fails to recognize, however, that a trial court’s dispositive ruling may contain
implicit findings, which, though unstated, are necessary to that ruling. See United States v.
$242,484.00, 389 F.3d 1149, 1154 (11th Cir. 2004) (en banc) (“[W]e and other federal appellate
courts have“inferred from a district court’s explicit factual findings and conclusion implied
factual findings that are consistent with the its judgment although unstated.”); see also 9A
Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 2579 (2d ed. 1995) (“In
some cases if the court fails to make a finding on a particular fact it has been assumed . . . that it
impliedly made a finding consistent with its general finding.”). In such cases, we make “the
common sense judgment that material factual issues were resolved by the [trial] court in favor of
the judgment when it was reasonable for that court to [have] do[ne] so in light of the evidence.”
$242,484.00 at 1154-55. We have invoked (albeit tacitly) this principle in two Batson appeals,
United States v. Cure, 996 F.2d 1136 (11th Cir. 1993), and United States v. David, 844 F.2d 767
(11th Cir. 1988), in which we upheld a district court’s overruling of a Batson objection even
though the district court did not explicitly find the prosecutor’s race-neutral explanations to be
9
Our opinion in Hightower v. Schofield is accordingly reinstated.
SO ORDERED.
credible. See Cure, 996 F.2d at 1138-39; David, 844 F.2d at 769.
In this case, the trial court, after assuming that Hightower had made out a prima facie
case of racial discrimination, expressly found that the prosecutor had provided an “articulable,
nonrace related reason” for each strike, and overruled Hightower’s Batson objection. The trial
court’s overruling of Hightower’s Batson objection would have defied logic had the court
disbelieved the prosecutor’s race-neutral explanations. We may therefore make “the common
sense judgment” – in light of defense counsel’s failure to rebut the prosecutor’s explanations and
the trial court’s ultimate ruling – that the trial court implicitly found the prosecutor’s race-neutral
explanations to be credible, thereby completing step three of the Batson inquiry.
10
WILSON, Circuit Judge, dissenting:
I dissent from the order reinstating our previous opinion because this case,
even more than Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d
196 (2005), compels a finding that Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 90 L. Ed. 2d 69 (1986), was violated. Miller-El came to the Supreme Court
on review “following the Texas trial court’s prior determination of fact that the
State’s race-neutral explanations [for striking black veniremembers] were true.”
545 U.S. at ___, 125 S. Ct. at 2325. The trial court in Miller-El specifically found
that the prosecutor’s justifications for striking black veniremembers were
“completely credible [and] sufficient” to support a finding of “no purposeful
discrimination.” 545 U.S. at ___, 125 S. Ct. at 2323. The Supreme Court,
reviewing the case under the Antiterrorism and Effective Death Penalty Act of
1996 (the “AEDPA”), stated that “Miller-El may obtain relief only by showing the
Texas conclusion to be ‘an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Id. at ___, 125 S. Ct. at 2325
(quoting 28 U.S.C. § 2254(d)(2)). To prevail, Miller-El was required to prove “by
clear and convincing evidence” that the factual determination was unreasonable.
Id.; 28 U.S.C. § 2254.
11
Miller-El had to overcome a difficult burden (clear and convincing
evidence); Hightower, on the other hand, does not. In Hightower’s case, the trial
court merely found that the prosecutor’s justifications were “articulable” and
“nonrace related” and never touched on the credibility of those statements. The
Georgia courts never made factual determinations regarding the plausibility of the
proffered justifications because they never applied the final step of Batson. Thus,
the Georgia courts rendered a decision that was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. §
2254(d)(1). In light of the Georgia courts’ error and of the evidence presented to
them, I would grant Hightower’s habeas petition.
I. The Georgia courts failed to apply Batson’s third step.
When we initially decided this case, I concurred with the result but
expressed reservations about the state courts’ application of Batson. See
Hightower v. Schofield, 365 F.3d 1008, 1041 (2004) (“Hightower I”) (Wilson, J.,
concurring). As I stated in my concurrence, it appeared that the state trial court
and the Georgia Supreme Court failed to properly apply Batson’s third step by
concluding their analysis at the end of the second step. Id. at 1042.
A Batson challenge requires a three-step inquiry. Rice v. Collins, __ U.S.
__, __, 126 S. Ct. 969, 973, 163 L. Ed. 2d 824 (2006). “First, the trial court must
12
determine whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge on the basis of race. Second, if the
showing is made, the burden shifts to the prosecutor to present a race-neutral
explanation for striking the juror in question.” Id. (citations omitted). The second
step requires evaluating the explanation on its face – “so long as the reason is not
inherently discriminatory, it suffices.” Id. Third, the trial court must “assess the
plausibility of that reason in light of all evidence with a bearing on it.” Miller-El,
545 U.S. at ___, 125 S. Ct. 2331. “This final step involves evaluating ‘the
persuasiveness of the justification’ proffered by the prosecutor . . . .” Rice, ___
U.S. at ___, 126 S. Ct. at 974 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.
Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam)). The Georgia courts did
not apply Batson’s third step.
The trial court made explicit determinations with regard to only the first two
steps.1 The trial court asked the prosecutor, Joseph Briley, about each struck black
veniremember, starting with Ricky Thomas. After Briley offered his justification,
the trial court immediately stated, without asking for the defendant’s input, “Mr.
1
The trial court found that Hightower failed to establish a prima facie case of
discrimination. That determination is erroneous. See Hightower I, 365 F.3d at 1043 (Wilson, J.,
concurring). Both the majority, here, and the Georgia Supreme Court assumed for purposes of
analysis that Hightower established a prima facie case of discrimination.
13
Briley, I find that is an articulable reason the State has stated for striking Ricky
Thomas and is not race related.” The trial court then proceeded to ask about the
next potential juror. Again after Briley’s explanation, the trial court, without
pausing, found that “the State has stated an articulable reason for striking Lucious
Boswell and the reason is not race related.” The trial court and Briley repeated
this sequence for each of the six struck black veniremembers. Finally, after
hearing all the prosecutor’s reasons, 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.”
The trial court never made a finding that these reasons were credible and never
addressed “the persuasiveness of the justification[s].” Purkett, 514 U.S. at 768,
115 S. Ct. at 1771.
The Georgia Supreme Court also failed to reach Batson’s final step.
Applying a clearly erroneous standard and assuming that Hightower had
established a prima facie case, the Georgia Supreme Court affirmed the trial
court’s determination that the prosecutor’s reasons for striking veniremembers
were race-neutral. The language used in the Georgia Supreme Court’s opinion
suggests that once a prosecutor has articulated reasons for his challenges, a court’s
14
finding that those reasons are race-neutral is sufficient to end the Batson inquiry.2
The Georgia Supreme Court appears to have been evaluating not whether
Hightower had met his burden of establishing purposeful discrimination, but
merely whether the prosecutor’s proffered reasons for the strikes were
race-neutral.
The majority says that the trial court implicitly reached the final step. Ante,
__ n.9. I disagree. Implicit findings must be “reasonable in light of the record
evidence.” United States v. $242,484.00, 389 F.3d 1149, 1154-55. The majority
does not evaluate the record to determine whether its implicit findings are
reasonable. As I explain below, the record fails to support a finding that the
2
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.
Hightower v. State, 259 Ga. 770, 773, 386 S.E.2d 509, 512 (1989) (citations omitted). The
Georgia Supreme Court used the words “legitimate” and “non-racial” when paraphrasing the trial
court’s findings regarding to the prosecutor’s proffered reasons, but the trial court stated that for
each struck veniremember, “the State [] presented an articulable, nonrace related reason.”
Importantly, the Georgia Supreme Court merely affirmed the trial court’s findings, which did not
include findings as to the plausibility of the prosecutor’s proffered reasons.
15
prosecutor’s reasons were credible.
The conclusion here is inescapable: By rejecting Hightower’s Batson claim
merely because the prosecutor’s justifications were “articulable” and “nonrace
related,” the Georgia courts’ adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of,” Batson.3 § 2254(d)(1).
II. The proffered reasons were pretextual.
Having re-considered my pre-Miller-El concurrence, I am now persuaded
that had the Georgia courts engaged in all three of Batson’s steps, they in all
likelihood would have found a Batson violation.4 Here, the trial court had before
it the number of peremptory strikes used to remove black veniremembers, the voir
dire answers of all the veniremembers, the prosecutor’s proffered reasons for
striking certain veniremembers, the defendant’s representations about the
3
This case is distinguishable from Atwater v. Crosby, 11th Cir. 2006, ___ F.3d ___ (No.
03-16259, June 12, 2006). In Atwater, we held that generally a defendant must present some
evidence or argument of comparability at the time that the Batson challenge is made in order to
rely upon that argument in habeas proceedings. Id. However, in Atwater, the trial court“went
beyond a mere finding that the state articulated a race neutral reason for the strike.” Id. “The
trial judge upheld the peremptory strike after agreeing that [the juror] exhibited some difficulty
with her responses to the prosecution question.” In so doing, “the third step of the Batson
analysis was touched.” Id. Here, the judge merely found, for every struck black veniremember,
that Briley had given an “articulable” and “nonrace related” justification for the strike–never
venturing beyond Batson’s second step requiring a clearly articulated, race-neutral justification.
4
“Wisdom too often never comes, and so one ought not to reject it merely because it
comes late.” Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct.
290, 293, 93 L. Ed. 259 (1949) (Frankfurter, J., dissenting).
16
prosecutor’s history of discrimination in jury selection, and the prosecutor’s
response to the accusations.5
Because the Georgia courts never assessed Briley’s credibility regarding his
use of peremptory strikes, we have no factual finding to which to defer, and can
look to the record to determine whether it supports the proffered justifications.
See Miller-El, 545 U.S. at ___, 125 S. Ct. at 2323, 2326-30 (where the state courts
5
The defense attorney made the following statement, among others, in support of
Hightower’s Batson challenge:
[Of the seven peremptory strikes, Briley] has used six of those strikes to strike
blacks. . . . Mr. Briley has in the past shown a bent and scheme to keep down the low
number of blacks on either the grand jury or regular panels. . . . He has purposely
excluded blacks so that Mr. Hightower will not get a fair and impartial hearing on this
case and this matter.
Your Honor, I have here a copy of the Fulton Daily Reporter which was on
Wednesday, March 30, 1988, where we got headlines, “Does County Plan To
Discriminate, high court hears jury panel.” This was regarding the case of the State v.
Amadeo which has gone up to the Georgia Supreme Court. I will make a quote here from
the U.S. Supreme Court Justice John Paul Stevens. “The evidence disclosed is the
intentional program of rigging the jury by the prosecutor’s office.” This arose out of a
memo which has been attributed to Mr. Briley stating that there was a purpose and a plan
to have a member [sic] number of blacks on the grand jury in Putnam County in order to
have it just half the jury criteria for grand jury. . . . You are well acquainted with that
case, Your Honor. We would say that this is the same circumstances [sic], the same sort
of scheme that Mr. Briley was doing in this particular case. He is purposely using his
strikes to provide for just the minimum amount of blacks, absolutely the minimum
amount, but what he has done is prevented Mr. Hightower from getting a fair and
impartial hearing.
Importantly, Briley, although disputing the memorandum’s purpose, essentially
admitted penning the memorandum when he responded, “Your Honor, insofar as the
statements from the Daily Report and the statements from Justice Stevens, . . . I believe
Justice O’Conner asked the defense lawyer . . . ‘couldn’t it have been that Mr. Briley was
trying to get the matter improved and was telling them how few they could put on it, in the
jury box.’ So, Your Honor, it is a matter of which direction you look at this case . . . .”
17
and the Supreme Court looked to the voir dire record to determine whether the
proffered reasons were pretextual). “If a prosecutor’s proffered reason for striking
a black panelist applies just as well to an otherwise-similar nonblack [panelist]
who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at
___, 125 S. Ct. at 2325.6 The record is replete with examples of veniremembers
who were struck arguably because of their race, but three strikes are especially
troubling, specifically the exercise of peremptory challenges to eliminate Thelma
Butler, Ricky Thomas, and Emerson Davis.
Briley claims that he struck Thelma Butler because he successfully
prosecuted her brother-in-law twelve years prior. He also claims that Butler was
somewhat hostile. From the record, it appears that Butler was an ideal juror for a
prosecutor seeking the death penalty. Butler felt that people tried for murder are
6
The majority states that in order for us to consider Hightower’s arguments comparing
struck black veniremembers with non-challenged non-black veniremembers, “he must establish
cause for his counsel’s failure to present the argument [in state court] and resulting prejudice.”
Majority Op., at ___. To the extent that the majority holds that any part of Hightower’s Batson
claim procedurally defaulted, I disagree. No Georgia court has ever found any part of
Hightower’s Batson claim procedurally barred, nor did the majority mention this as a ground for
denying relief in the prior vacated opinion. See, generally, Hightower v. State, 259 Ga. 770, 386
S.E.2d 509 (1989); Hightower I, 365 F.3d 1008 (2004). Furthermore, the comparative juror
analysis is further evidence of a Batson violation that the trial court could have considered at
Batson’s third step, whether counsel made the argument or not. See, e.g., Miller-El, 545 U.S. at
___, 125 S. Ct. at 2325 (where comparative juror analysis was considered).
18
treated too leniently. She was strongly in favor of the death penalty. She felt that
mitigating circumstances must be proven before she would consider imposing a
life sentence. Her answers alone undermine the veracity of Briley’s proffered
justification, especially since he never questioned Butler about her brother-in-law.
Even more striking is the fact that Briley declined to strike a non-black juror,
Michael Hensler, who, himself, had been convicted of and imprisoned for
voluntary manslaughter by Briley’s office.
In another example, Ricky Thomas’s father had been convicted of killing
his mother. Because of this conviction and the fact that Thomas had lived with his
father after his father’s release, the prosecutor struck him speculating that Thomas
may possibly identify his father’s case with Hightower’s. Yet, Thomas indicated
that he was in favor of the death penalty, and that he did not even remember the
circumstances surrounding his mother’s killing because he was too young at the
time. The prosecutor never questioned Thomas about his relationship with his
father or the potential impact on his ability to decide the case fairly. Again, the
pretext is more apparent when viewed in light of the fact that Hensler was not
struck.
Emerson Davis was struck because the prosecutor claimed that Davis was
somewhat opposed to the death penalty, more so than other veniremembers. Davis
19
never stated that he was opposed to the death penalty, but rather had to hear the
case before imposing the penalty. The prosecutor mischaracterized his voir dire,
thereby undermining a claim that the prosecutor’s reason was race-neutral. In fact,
Davis’s views were in line with several non-black jurors7 whom the prosecutor
declined to challenge. If Davis was undesirable as compared to other
veniremembers on the question about the death penalty, then the prosecutor would
have used his remaining peremptory strikes to eliminate other veniremembers who
gave similar answers. However, the non-black veniremembers who gave similar
answers were not struck.
Viewing the evidence in its totality, including the “smoking gun”
memorandum penned by Briley, it is clear that Briley’s proffered justifications
were pretextual.
III. This case is factually on all fours with Miller-El.
The factual similarities between Miller-El and this case are extensive. In
Miller-El, the prosecutors struck ten of the eleven qualified black veniremembers
with peremptory challenges. 545 U.S. at ___, 125 S. Ct. at 2325. Here, Briley,
7
These jurors include Merrick Carter, Rhonda Batchelor, Nellie Stapp, M. P. Ervin,
Miriam Shatterly, and John Hutcheson.
20
used six of seven peremptory strikes to strike black veniremembers.8 In Miller-El,
the prosecutor struck a black veniremember because the juror was “inclined” to
favor rehabilitation, while non-black jurors, who expressed stronger beliefs in
favor of rehabilitation, were not struck. 545 U.S. at ___, 125 S. Ct. at 2327-29.
Here, Briley struck Davis, a black veniremember, because he was “somewhat
opposed to the death penalty” as compared to other veniremembers, but did not
strike non-black veniremembers, such as Carter, Shatterly, and others mentioned
above, who expressed views similar to Davis’s, and in some instances expressed
views more equivocal than Davis’s.
Further, in Miller-El, the prosecutor struck from the jury black
veniremembers because they had relatives who were prosecuted by the D.A.’s
office. 545 U.S. ___, 125 S. Ct at 2328. The Court noted the prosecutor’s failure
to inquire into the details of the convictions and relationships as further evidence
that the reason was a pretext. Id. Here, Briley struck four black veniremembers
because they allegedly had relatives who were prosecuted by the D.A.’s office.9
8
In Miller-El, one black juror was allowed to serve. 545 U.S. at ___, 125 S. Ct. at 2325.
Here, three black jurors served at trial. This difference is unimportant, especially in light of
Briley’s memorandum. A prosecutor using any of its peremptory challenge to eliminate a
veniremember because of race runs afoul of the Equal Protection Clause. See Batson, 476 U.S.
at 98 n.22, 106 S. Ct. at 1724 n.22; Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir. 1995).
9
Briley struck Butler, Thomas, Lucious Boswell, and Mattie Harris.
21
Just as in Miller-El, Briley did not inquire into the details of these convictions and
relationships. Briley also declined to challenge, Hensler, a non-black juror who
himself had been prosecuted and convicted of voluntary manslaughter.
In Miller-El, the prosecutor, while stating the race-neutral reasons for the
strikes, mischaracterized the voir dire testimony of some of the black
veniremembers he struck. 545 U.S. at ___, 125 S. Ct at 2327. Similarly, Briley
mischaracterized the testimony of Davis.
This case is a more factually compelling Batson violation than Miller-El
because of Briley’s personal history of past discrimination. The defendant in
Miller-El demonstrated little, if any, past history of discrimination by the specific
prosecutors involved in his case, relying mainly on a manual that instructed
prosecutors to minimize the number of black jurors. The Supreme Court stated
that this evidence confirmed its conclusion that the race-neutral reasons were
pretextual. 545 U.S. at ___, 125 S. Ct at 2339. Here, Briley himself authored a
memorandum that spelled out the scheme to limit the number of blacks in the jury
pool. The Hightower’s counsel argued that Briley had “in the past shown a bent
and scheme to keep down the [] number of blacks” serving on jury panels, and
claimed that Briley wrote a memorandum detailing a plan to limit the number of
blacks on grand juries. Instead of denying involvement with the memorandum,
22
Briley responded to the accusations arguing that the memorandum could be
viewed as an effort to improve matters.
Had the trial court delved into Batson’s third step, this evidence alongside
the other evidence would have cast grave doubt on the truthfulness of Briley’s
proffered reasons.
IV. Conclusion
The Georgia courts made no determination as to whether the prosecutor’s
proffered justifications were pretextual. In finding no Batson violation, the state
courts relied on the fact that the proffered justifications were “articulable” and
“nonrace related.” This is sufficient for Batson’s second step, but not the third
step which “involves evaluating the persuasiveness of the justification.” Rice, ___
U.S. at ___, 126 S. Ct. at 974. We cannot presume that Briley’s proffered
justifications were truthful because the trial court never made that finding. After
reviewing the evidence available to the trial court, I conclude that Briley’s reasons
were pretextual, and that Batson was violated. Accordingly, I would grant
Hightower’s writ of habeas corpus.
The Supreme Court vacated our prior decision and remanded this case “for
further consideration in light of [Miller-El].” Hightower v. Schofield, __ U.S. __,
__, 125 S. Ct. 2929, 2929-30, 162 L. Ed. 2d 863 (2005). Reinstating the prior
23
panel opinion violates the Supreme Court’s express mandate. Respectfully, I
dissent.
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