holding that "[t]he inquiry required by Batson must be focused on the distinctions actually offered by the State in the state court, not on all possible distinctions we can hypothesize. Apparent or potential reasons do not shed any light on the prosecutor's intent or state of mind when making the peremptory challenge"
How later courts described this case
- holding that "[t]he inquiry required by Batson must be focused on the distinctions actually offered by the State in the state court, not on all possible distinctions we can hypothesize. Apparent or potential reasons do not shed any light on the prosecutor's intent or state of mind when making the peremptory challenge"
- holding that the passage of time rendered remand for a Batson hearing inappropriate as a remedy and that "statistical evidence, which might be the subject of some analysis at such a hearing, is relevant but not dispositive to our decision" and could not alone justify a remand over a new trial
- finding that counsel was not ineffective because of failure to present mental expert testimony when, in light of conversations with the defendant, counsel had no reason to think that a mental examination would be useful.
- noting that the state’s contemporaneous reliance on Swain to defend a claim on direct appeal that it had exercised its strikes in a racially discriminatory manner, together with the state’s failure to deny on direct appeal that it exercised its strikes in a racially discriminatory manner “suggests that race was at least apartial basis for its use of peremptory challenges,” which suggestion supports the conclusion “that the State’s proffered race-neutral explanations are pretextual”
Written by the judges who cited it.
The opinion
BECKER, Chief Judge,
Concurring in the Judgment.
This en banc appeal ultimately turns on the petitioner’s Batson claim. Unfortunately, I find myself unable to join in either Judge Sloviter’s or Judge Alito’s opinion on that issue. 1
First, I cannot agree with Judge Slovi-ter’s treatment of the prosecution’s challenge to prospective juror Nichols. Rather, I agree with Judge Alito’s opinion on this issue, see Dis. Op. at 318-22, largely because I do not share Judge Sloviter’s skepticism of the prosecutor’s testimony as *316 to Nichols’s “significant pause.” Human memory can be quite powerful, and I think it entirely possible that this “significant pause” became indelibly etched in the prosecutor’s mind. As explicated by the dissent, the hearing judge determined that the prosecutor’s testimony on this matter was credible, and I cannot agree that the race-neutral reason proffered for striking Nichols was “not fairly supported by the record.” 28 U.S.C. § 2254 (d)(8) (1988).
On the other hand, while the point is quite close, I cannot bring myself to join Judge Alito’s discussion of the challenge to prospective juror McGuire. Unlike the challenge to Nichols, an action for which the prosecutor relied on his memory to articulate a race-neutral explanation, the prosecutor had no recollection whatsoever about the differences between McGuire and Reed. I- therefore agree with Judge Sloviter that there is no basis in the record for distinguishing McGuire, a prospective black juror who was struck, from Reed, a white man who was not struck and who ultimately served on the jury. While ideally this issue would be developed further at a federal habeas hearing, I reluctantly conclude, again agreeing with Judge Slovi-ter, that no purpose would be served by having such a hearing at this late date. Accordingly, I will join in the judgment accompanying her opinion.
While I might end at this point, I am impelled to comment on the statistical evidence by reason of the prominent discussion of the issue in the Sloviter and Alito opinions, and the fact that Judge Alito’s dissent identifies significant problems with Judge Sloviter’s discussion of that evidence. I feel myself unable to join in Judge Alito’s opinion on that facet of the case for he has not allayed my concern about the practices of the Kent County prosecutor’s office at times relevant here. Specifically, the absence of black jurors on four juries in a county that was 18% black and had a jury venire that was 9% black remains troubling. As the Supreme Court has observed in other contexts when presented with perhaps imperfect statistical data, “[Fjine tuning of the statistics could not have obscured the glaring absence of minoriti[ies]-[T]he ... inability to rebut the inference of discrimination came not from a misuse of statistics, but from the inexorable zero.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 , 342 n. 23, 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977) (internal quotations omitted).
This concern is exacerbated for me by the State’s failure to submit rebuttal evidence. If Riley’s data was too weak to support an inference of discrimination in the face of the prosecutor’s race-neutral explanations, there was no burden on the government to submit rebuttal data. However, as Judge Sloviter’s discussion of the chronology of events makes clear, the State volunteered to provide rebuttal data, and then failed to do so. See Op. of the Court at 292. If the hearing judge had acknowledged the State’s failure to provide evidence notwithstanding its promise and then specifically said that he did not consider this failure to be sufficiently probative to overcome the credibility determination, his factual conclusion would be fait accompli. But the fact that the hearing judge did not mention the State’s failure to provide evidence, in the wake of the “volunteering,” sticks out like a sore thumb, and renders it doubtful for me that the “record as a whole” supports the hearing judge’s conclusion.
Judge Sloviter seems to concede that a federal habeas hearing would give Riley ample time to conduct an expert statistical analysis of the complete record, time which he lacked at the earlier hearing, as she explains, because of the State’s late deci *317 sion not to submit any statistical evidence. See Op. of the Court at 292. Were the statistical evidence dispositive of Riley’s Batson claim, I would remand for a federal habeas hearing. Judge Sloviter, however, states that the statistical evidence is “relevant but not dispositive to our decision.” Op. of the Court at 293. Because I accept her representation on this matter, I do not press the issue further, and simply join in the judgment accompanying her opinion. 2
. I do, however, join in Part II of Judge Alito's opinion, dealing with the Caldwell issue.
. I note that, even if I did not agree with Judge Sloviter on the juror McGuire issue, the judgment accompanying her opinion is plainly closer to my own position than the views of Judge Alito. Under these circumstances, I would vote with her anyhow to avoid a stalemate. See Screws v. United States, 325 U.S. 91, 134 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945) (Rutledge, J., concurring); see also Olmstead v. L.C., 527 U.S. 581, 607-08 , 119 S.Ct. 2176 , 144 L.Ed.2d 540 (1999) (Stevens, J., concurring); Bragdon v. Abbott, 524 U.S. 624, 656 , 118 S.Ct. 2196 , 141 L.Ed.2d 540 (1998) (Stevens, J., concurring); AUSA Life Ins. Co. v. Ernst & Young, 206 F.3d 202, 225 (2d Cir.2000) (Jacobs, J., concurring).