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Reversal in an Ugly Batson Case

When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
Foster's Batson claim at trial was denied by the trial court.  The Georgia Supreme Court affirmed, and the U.S. Supreme Court denied review.

Subsequently, Foster obtained notes made during jury selection by the prosecution team.  Those notes indicate that the team kept very careful track of the race of jurors, even designating them with numbers that put race first, e.g., B#1.  The most damning notes were made not by the prosecutors themselves but by investigator Clayton Lundy.  The opinion does not note that Lundy is black.

With this new evidence, Foster filed a state habeas corpus petition.  This is where the possible damage comes in.  The state court held that the claim was barred by res judicata.  That is, because the issue had been decided in the first appeal, it could not be reopened.  However, res judicata is not a hard-and-fast rule in habeas corpus, and before reaching that conclusion the state habeas judge examined the merits of the Batson claim and decided that, even with the new evidence, it lacked merit.

When a state court judgment rests on an adequate and independent ground of state law, such that the outcome of the federal question makes no difference to the result, the U.S. Supreme Court lacks jurisdiction to review the case.  A similar rule, though not jurisdictional and not as rigid, applies when a state prisoner attacks the judgment collaterally in the lower federal courts on habeas corpus.

The boundaries of when a state ground is "independent" can be fuzzy at times.  Federal judges in the district courts and the courts of appeals who are looking for excuses to overturn state judgments merely because they disagree with the state's sentencing laws have been known to do everything they can to evade the limits on their authority.  California has been particularly plagued by judges of this stripe, and the state has struggled for many years to get the Supreme Court to review and reverse the erroneous Ninth Circuit decisions in this area.  We thought the "adequacy" prong of that battle had been pretty much won after the Supreme Court's unanimous 2011 smackdown of the Ninth in Walker v. Martin, but the Ninth just danced around Martin, and now the issue is back before the Supreme Court in Johnson v. Lee.   Lee was considered at last Thursday's conference but is absent from today's orders list, meaning it will likely be considered for a fifth time at an upcoming conference.  See prior post.  Update:  Lee has been relisted for Thursday's conference.

Chief Justice Roberts' opinion for the Court in Foster deals rather lightly with the independence problem.  Justice Alito concurs only in the judgment with a much more careful treatment.  Justice Thomas dissents on this point.  For what it's worth, I think Justice Alito has it right.  It is unfortunate that his opinion is not the opinion of the Court.

What can be done in the future to avoid the problems presented in this case?

For dealing with the Batson issue at trial and afterward, the nation's prosecutors have gotten much better in the 30 years since this case was tried.  Extensive training is now available on what the rules are, how to do it right, and how to document that the reasons for challenging jurors are, in fact, race neutral.  Neutral reasons do not always, or even usually, mean neutral results.  In criminal cases generally, the differences in crime rates are going to mean that entirely legitimate challenges of veniremen with involvement in the criminal justice system will not be proportional to the demographics of the general population.  In capital cases particularly, the higher level of opposition to capital punishment will mean more entirely legitimate strikes of persons the prosecutor genuinely suspects would veto a thoroughly deserved sentence.  But prosecutors exercising those strikes need to document them, knowing they may be called upon to explain them many years later.  The funds spent on training will pay for themselves in avoided collateral litigation and avoided retrials.

To establish that state grounds for denying a habeas petition are indeed independent, states with fuzzy grounds for their procedural default and successive petition rules need to clarify them and tighten them up.  In California, there will be an initiative on the ballot with a provision to limit untimely or successive habeas petitions in capital cases to claims of actual innocence or actual ineligibility for the punishment, period.  That provision was written by your humble blogger.

What to do about the old cases?  I think that the state attorneys who handle the collateral reviews (which may be the attorney general or the district attorney, depending on the state and whether the case is in state or federal court) need to do some triage on these cases.  Not every case needs to be fought to the bitter end.  If the facts are ugly enough, as in this case, stipulate to a grant of collateral relief and get the retrial started as soon as possible.  Our cause is not helped by letting cases like this one go to the U.S. Supreme Court.

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