# Andrew Lee Jones v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary, Angola, Louisiana

> Court of Appeals for the Fifth Circuit · February 21, 1989 · 864 F.2d 348

URL: https://www.frixlaw.com/law-library/cases/9478525

## Case

- **Full name:** Andrew Lee JONES, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 21, 1989
- **Citations:** 864 F.2d 348
- **Precedential status:** Published
- **Opinion:** On rehearing by Rubin
- **Judges:** Rubin, King, Higginbotham
- **Cited by:** 106 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478525

## How later opinions describe it (automated extraction)

- finding petitioner “must demonstrate that the misconduct is persistent and pronounced or that the evidence of guilt was so insubstantial that the conviction could not have occurred but for the improper remarks” in order to establish inflammatory remarks denied petitioner due p…
- finding, in a case with a shorter period between trial and the Batson hearing than the instant one, that “[y]ears after trial, the prosecutor cannot adequately reconstruct his reasons for *754 stóking a venireman”
- concluding that state court’s refusal to dismiss a juror for cause after the defendant’s challenge for cause based on lack of impartiality constituted an implicit factual finding that the juror was not biased
- holding that state court’s .refusal to dismiss a prospective juror for cause based on an asserted lack of impartiality reflected an implicit factual finding that the juror was not biased
- holding that state court’s refusal to dismiss a prospective juror for cause based on an asserted lack of impartiality reflected an implicit factual finding that the juror was not biased

## Opinion text

ON PETITION FOR REHEARING
Before RUBIN, KING, and HIGGINBOTHAM, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
In his petition for rehearing, Jones asserts that his failure to make a contemporaneous objection to the prosecutor’s alleged use of peremptory challenges to unconstitutionally exclude blacks from the jury does not bar his claim under Batson v. Kentucky 1 in a federal habeas corpus proceeding. We modify as follows our holding 2 that the Louisiana courts applied a procedural bar to Jones’s Batson claim. However, because a contemporaneous ob *369 jection is a necessary predicate for stating a Batson claim, the petition for rehearing is denied.
Jones claims that the Louisiana courts did not apply a procedural bar to his claim that the prosecutor used peremptory challenges, not objected to at trial, to exclude members of his race from the jury. First, Jones contends that Louisiana’s contemporaneous objection rule 3 does not apply to a newly announced evidentiary standard such as the one in Batson. In concluding that Louisiana’s contemporaneous objection rule applied, we relied on State v. Evans, 4 a decision by a Louisiana appeals court, which held that a defendant, tried before the Supreme Court announced the Batson decision, was barred from raising a Batson claim for the first time after trial. 5 Jones tries to distinguish the failure to raise a Batson claim in Evans from Jones’s failure to raise it on the ground that Evans’s jury selection was made after the Supreme Court heard oral argument in Batson while Jones’s jury selection was made two years earlier.
We disagree. In Evans, the court found the failure to object to the allegedly unconstitutional use of peremptory challenges inexcusable because, although Batson announced a new evidentiary standard, it reaffirmed the longstanding legal prinicple that “a black defendant is denied equal protection of the law when he is put on trial before a jury from which members of his race have been purposefully excluded.” 6 The Evans case did not rely on the fact that Batson had been recently argued before the Supreme Court. Rather, the court followed the principle used in the federal courts: a party is barred from raising a newly articulated constitutional standard if the basis for asserting that claim was known and available at the time of the trial. 7
Second, Jones contends that the Louisiana Supreme Court does not consistently apply procedural bars in capital cases. In determining that the Louisiana Supreme Court would not excuse a procedural default to reach the merits of a Batson claim, we relied in Jones on non-capital cases. Jones brings to our attention that the Louisiana Supreme Court’s stated policy in capital cases is to consider arguments that should have been raised in the trial court, but were not. 8 In capital cases the Louisiana Supreme Court does not “strictly and regularly” 9 apply a procedural bar to claims of error not raised at trial.
Nevertheless, we hold that a contemporaneous objection to the use of peremptory challenges to exclude jurors on the basis of race is a necessary predicate to later raising a Batson claim. The nature of the claim requires that it be raised when the strikes are made. Under Batson, once the defendant makes a prima facie showing, the State must come forward with a neutral explanation for challenging black jurors. 10 The trial judge then evaluates, “considerpng] all relevant circumstances,” whether the prosecutor’s explanation is race-neutral or a pretext for excluding potential jurors based on race. 11 In making this determination the trial judge has available not only the prosecutor’s explanation, but also the judge’s observations of the demeanor of the prosecutor and the veniremen. As the Supreme Court noted in Bat-son, the finding of intentional discrimination in use of peremptory challenges is a *370 finding of fact that “largely will turn on evaluation of credibility.” 12 Years after trial, the prosecutor cannot adequately reconstruct his reasons for striking a venireman. Nor can the judge recall whether he believed a potential juror’s statement that any alleged biases would not prevent him from being a fair and impartial juror. Furthermore, any prosecutorial misconduct is easily remedied before trial simply by seating the wrongfully struck venireman. After trial, the only remedy is setting aside the conviction. 13
The Supreme Court’s analysis in Batson presumed that an objection would be made promptly, probably before the venire was dismissed. 14 The Court referred to a defendant’s “timely objection” to a prosecutor’s strike. 15 Batson’s claim was remanded for a hearing “[bjecause the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action.” 16
In Griffith v. Kentucky, the Supreme Court held that Batson applies retroactively to cases not yet final when Batson was decided. 17 That Batson is retroactive, however, does not mean it applies in cases in which an objection was not made. In both cases reviewed in Griffith, defense counsel made timely objections. In determining to apply Batson retroactively, the Court was concerned with “the ‘actual inequity that results’ when only one of many similarly situated defendants receives the benefit of the new rule.” 18 Defendants who did not object to the use of peremptory challenges are not “similarly situated” with those who did. Equity does not require that those who did not object benefit from Batson’s new evidentiary standard.
In addition, sua sponte, the court revises pages 1267 to 1268 of the Jones opinion 19 as follows:
Having found the evidence sufficient to support the aggravated-rape finding, the Louisiana Supreme Court did not consider the sufficiency of the evidence to support heinousness. Nor do we need to reach the issue. Construing Louisiana law, this court has held, and it is therefore the law of the circuit, that a death verdict must stand even if the jury finds more than one aggravating circumstance and the finding as to all but a single aggravating circumstance is invalid. 20 In Wilson v. Butler the petitioner argued, as Jones does here, that Louisiana requires the jury to weigh aggravating circumstances against mitigating ones in such a way that predicting the jury’s decision based on fewer aggravating circumstances is impossible. We explicitly found that “an independent review of the Louisiana sentencing statute, as well as Louisiana case law, reveals that Louisiana law does not require weighing of aggravating against mitigating circumstances.” 21 Since the record supports the jury’s finding that Jones committed the offense during an aggravated rape, the sentence is upheld.
Jones urges that the Supreme Court’s recent decision in Johnson v. Mississippi, 22 requires us to reconsider our doctrine that *371 one valid aggravating circumstance will support a death sentence. Johnson, however, addressed Mississippi, not Louisiana, law. Mississippi law requires a jury to weigh mitigating and aggravating circumstances while, as we have noted, Wilson held that Louisiana law does not.
For these reasons the petition for rehearing is denied.
. 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).
. Jones v. Butler, slip op. at 1266-67, 864 F.2d 348, 363-364 (5th Cir.1988).
. La.Code Crim.Proc. art. 841.
. 506 So.2d 1283 (La.App.1987).
. Id. at 1287 .
. Id. (citing Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1880)).
. See Engle v. Isaac, 456 U.S. 107, 130-34 , 102 S.Ct. 1558, 1573-75 , 71 L.Ed.2d 783 (1982).
. State v. Clark, 492 So.2d 862, 865 (La.1986); State v. Hamilton, 478 So.2d 123 , 127 n. 7 (La.1985), ce rt. denied, 478 U.S. 1022 , 106 S.Ct. 3339 , 92 L.Ed.2d 743 (1986); State v. Glass, 455 So.2d 659, 667 (La.1984), cert. denied, 471 U.S. 1080 , 105 S.Ct. 2159 , 85 L.Ed.2d 514 (1985).
. Wheat v. Thigpen, 793 F.2d 621, 624 (5th Cir.1986), ce rt. denied, 480 U.S. 930 , 107 S.Ct. 1566 , 94 L.Ed.2d 759 (1987).
. Batson v. Kentucky, 476 U.S. 79, 97 , 106 S.Ct. 1712, 1723 , 90 L.Ed.2d 69 (1986).
. Id. at 96 , 106 S.Ct. at 1723 .
. Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21.
. United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987).
. See id., (quoting United States v. Erwin, 793 F.2d 656, 667 (5th Cir.), cert. denied, 479 U.S. 991 , 107 S.Ct. 589 , 93 L.Ed.2d 590 (1986)).
. Batson, 476 U.S. at 98-101 , 106 S.Ct. at 1724-25 .
. Id. at 100 , 106 S.Ct. at 1725 .
. 479 U.S. 314, 329 , 107 S.Ct. 708, 716 , 93 L.Ed.2d 649 (1987).
. Id. at 329 , 107 S.Ct. at 716 (quoting United States v. Johnson, 457 U.S. 537 , 556 n. 16, 102 S.Ct. 2579 , 2590 n. 16, 73 L.Ed.2d 202 (1982).).
. Jones v. Butler, 864 F.2d 348, 363-364 (5th Cir.1988).
. See Wilson v. Butler, 813 F.2d 664, 673-74 , reh’g granted on other grounds, 825 F.2d 879 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1059 , 98 L.Ed.2d 1021 (1988). Judges Rubin and King continue to adhere to their dissent in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214 , 103 S.Ct. 3553 , 77 L.Ed.2d 1399 (1983).
. Wilson, 813 F.2d at 674 (citations omitted).
. — U.S. —, 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478525. Public record. Not legal advice.