Batiste v. State

BAIRD, Judge,

dissenting.

In this case two significant and complex Constitutional doctrines collide, namely, the right to effective assistance of counsel guaranteed by the Sixth Amendment and the right to a fairly selected jury under the Equal Protection Clause of the Fourteenth Amendment. The majority diminishes the effectiveness of both of these Constitutional doctrines with the mechanical application of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to violations of the Equal Protection Clause recognized in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Therefore, I respectfully dissent.

I.

AN OVERVIEW OF RACIAL DISCRIMINATION IN THE JURY SELECTION PROCESS

More than a century ago in Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880), the United States Supreme Court took the first step toward abolishing racial discrimination in jury selection. Strauder, a black defendant, was indicted for murder and challenged the composition of his jury because a West Virginia statute made blacks ineligible for jury service. Id., at 304-05, 25 L.Ed. 664 . Strauder was convicted by an all-white jury. Id. In one of its earliest opinions interpreting the Equal Protection Clause, the Supreme Court held the West Virginia statute unconstitutional. Id., at 310, 25 L.Ed. 664 .

Unfortunately, Strauder did not end racial discrimination in jury selection; minorities were still excluded from juries with the use of peremptory challenges. In Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the Supreme Court addressed the use of peremptory challenges to exclude minorities. Swain was indicted for rape. 380 U.S. at 203 , 85 S.Ct. at 826 . Eight members of his venire were black. Two were exempt from jury service, and the prosecutor removed the remaining black veniremembers with peremptory challenges. Id., 380 U.S. at 205 , 85 S.Ct. at 828 . As a result, Swain was convicted and sentenced to death by an all-white jury. Id., 380 U.S. at 203 , 85 S.Ct. at 826 . Swain contended the State’s use of peremptory challenges to exclude black veniremembers violated the Equal Protection Clause. Id., 380 U.S. at 210 , 85 S.Ct. at 830 . The Supreme Court agreed. Id., 380 U.S. at 203-04 , 85 S.Ct. at 826 . However, the Court believed that allowing a defendant to attack a prosecutor’s use of peremptory challenges in an individual trial vitiated the purposes behind peremptory challenges. Id., 380 U.S. at 221-22 , 85 S.Ct. at 836-37 . Because the Court believed the peremptory challenge to be an important part of our jury trial system, id., 380 U.S. at 212-20 , 85 S.Ct. at 831-36 , it refused to hold that the exclusion of blacks *18 from a single jury violated the Equal Protection Clause. Id., 380 U.S. at 221 , 85 S.Ct. at 836 . Instead, the Court held a defendant must prove the systematic use of peremptory challenges in a discriminatory fashion over a period of time. Id., 380 U.S. at 227 , 85 S.Ct. at 839 .

The burden of proof created in Swain made it extremely difficult for defendants to prove an equal protection violation, and the Court reexamined the burden in Batson, 1 The Supreme Court lowered the burden by holding a defendant can “establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 . Under Batson , a defendant need only demonstrate that he is “a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove ... members of the defendant’s race.” Id. (citation omitted). With this showing, an inference of racial discrimination is raised. Id. The burden then shifts to the State to rebut the defendant’s prima facie case by articulating race-neutral explanations for its challenges. Id., 476 U.S. at 97 , 106 S.Ct. at 1723 . Although the Court was concerned with the effect of its decision on the peremptory challenge, id., 476 U.S. at 97-99 , 106 S.Ct. at 1723-24 , this concern yielded to the Court’s desire to “enforee[] the mandate of equal protection and further[] the ends of justice.” Id., 476 U.S. at 99 , 106 S.Ct. at 1724 .

In recent years, the Supreme Court has expanded its decision in Batson in several significant ways. See, Curry v. Bowman, 885 S.W.2d 421 (Tex.Cr.App.1993) First, in Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991), the Court eliminated the “race identity” requirement; a defendant may now challenge the exclusion of venire-members of any race, not simply those of his own race. See also, Cook v. State, 858 S.W.2d 467, 471-72 (Tex.Cr.App.1993). Second, in Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991), the Court held litigants in civil cases may not use the peremptory challenge as a discriminatory tool. Finally, in Georgia v. McCollum, — U.S. -, 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992), the Court held the Equal Protection Clause prohibits discriminatory use of peremptory challenges by not only the State, but also the defendant. 2 This overview demonstrates that “[o]ver the last century, in an almost unbroken chain of decisions, [the Supreme] Court gradually has abolished race as a consideration for jury service.” McCollum , — U.S. at-, 112 S.Ct. at 2352 ; see also, Batson, 476 U.S. at 89 , 106 S.Ct. at 1719 . 3

II.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment guarantees, inter alia, a defendant in a criminal trial shall “have the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956). Sixth Amendment jurisprudence has evolved to en *19 compass three primary types of ineffective assistance of counsel claims. First, a defendant’s Sixth Amendment rights are violated when he has no attorney. See, e.g., Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (holding criminal defendants are constitutionally entitled to counsel, even if counsel must be appointed for indigent defendants at State’s expense). Second, the Sixth Amendment is violated when the government adversely affects an attorney’s ability to perform his duties. See, e.g., Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976) (holding unconstitutional a ban on attorney-client consultation during overnight recesses). Finally, the Sixth Amendment is violated in actual ineffectiveness cases when an attorney commits serious errors at trial which prevent him from “functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984).

In Strickland , the Supreme Court formulated a general two-prong test to determine whether counsel actually rendered ineffective assistance: 4

... 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.

Id., 466 U.S. at 687 , 104 S.Ct. at 2064 .

However, certain types of errors are considered so serious that prejudice is presumed. Id., 466 U.S. at 692 , 104 S.Ct. at 2067 ; see also United States v. Cronic, 466 U.S. 648 , 659 n. 25, 104 S.Ct. 2039 , 2047 n. 25, 80 L.Ed.2d 657 (1984). In cases involving those errors, a defendant is not required to affirmatively prove prejudice under the second prong of the Strickland test. In a denial of counsel case, and in certain types of government interference cases, we presume prejudice because “prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 . The Supreme Court also recognized that a “more limited” presumption of prejudice will apply when a defendant alleges actual ineffectiveness based on counsel’s conflict of interest. Id. However, the Court hesitated to presume prejudice in all actual ineffectiveness cases. Id., 466 U.S. at 693, 104 S.Ct. at 2067. Today we are asked whether a Batson violation of the Equal Protection Clause is an error serious enough to warrant a presumption of prejudice under Strickland. 5 For the following reasons, I believe that question should be answered in the affirmative.

III.

WHY PREJUDICE MUST BE PRESUMED

A.

In declining to presume prejudice in all eases of actual ineffectiveness, the Supreme Court stated:

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a *20 general requirement that the defendant affirmatively prove prejudice_ Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid.

Strickland, 466 U.S. at 693 , 104 S.Ct. at 2067 . Concern over the uncertainty of harm and the inability to define deficient conduct is warranted in many situations, but such concern is unjustified in the face of a Batson violation.

When dealing with Batson violations, prejudice is certain. The Supreme Court has recognized three primary types of harm attributable to race-based peremptory challenges. First, the Court has recognized that peremptory challenges based on race violate the equal protection rights of the excluded veniremember. Powers, 499 U.S. at 409 , 111 S.Ct. at 1370 . “As long ago as Strauder ... the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror.” Batson, 476 U.S. at 87 , 106 S.Ct. at 1718 . This is so because the exclusion of an otherwise qualified veniremember because of race “is practically a brand upon [him], affixed by the law, an assertion of [his] inferiority.” Strauder, 100 U.S. at 308 .

Second, race-based peremptory challenges harm the defendant. Even though the initial equal protection violation attaches to the excluded veniremember, the defendant is granted third party standing to assert the veniremember’s equal protection rights because the defendant is also injured. Powers, 499 U.S. at 409-412 , 111 S.Ct. at 1370-71 . To determine whether a litigant has standing to raise claims properly belonging to third parties, the Court considers, inter alia, whether “the litigant [has] suffered an ‘injury-in-fact’.” Id., 499 U.S. at 411 , 111 S.Ct. at 1370. The Powers Court identified two distinct injuries to defendants. Race-based peremptory challenges injure the defendant because they violate his equal protection rights. Id., 499 U.S. at 403 , 111 S.Ct. at 1367. The practice also harms the defendant because “[t]he jury acts as a vital check against wrongful exercise of power by the State and its prosecutors. The intrusion of racial discrimination into the jury selection process damages both the fact and the perception of this guarantee.” Id., 499 U.S. at 411 , 111 S.Ct. at 1371 (citations omitted). Essentially, “the composition of the trier of fact itself is called in question, and the irregularity may pervade all the proceedings that follow.” Id., 499 U.S. at 413 , 111 S.Ct. at 1372.

Third, discriminatory jury selection procedures harm the integrity of our criminal justice system. As the Batson Court recognized, “[selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Batson, 476 U.S. at 87 , 106 S.Ct. at 1718 . See also, Rose v. Mitchell, 443 U.S. 545, 555 , 99 S.Ct. 2993, 3000 , 61 L.Ed.2d 739 (1979) (“Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”). As the Powers Court explained:

... Active discrimination by a prosecutor during [the jury selection] process condones violations of the United States Constitution within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law.... A prosecutor’s wrongful exclusion of a juror by a race-based peremptory challenge is a constitutional violation committed in open court at the outset of the proceedings. The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause.

Powers, 499 U.S. at 412 , 111 S.Ct. at 1371 .

Consequently, it is clear that a Batson violation is closely akin to those types of error where prejudice is presumed. Strickland, 466 U.S. at 693 , 104 S.Ct. at 2067 . Contrary to the majority’s assumption that the impact of this error is “speculative (at best)”, majority op. pg. 15, a Batson violation *21 causes three distinct and serious types of harm. 6

The Strickland Court also declined to presume prejudice in most actual ineffectiveness cases because the Court believed it would be too difficult to define and give notice of the types of conduct attorneys should avoid. Strickland, 466 U.S. at 693 , 104 S.Ct. at 2067 . Attorneys are frequently called upon to make strategic decisions. The Court believed it unfair to evaluate a strategic decision using hindsight and then punish the attorney for making the “wrong” decision. Id., 466 U.S. at 690-91, 104 S.Ct. at 2066. This reasoning is applicable when, to use the majority’s example, an attorney decides not to raise a possible hearsay objection. Majority op. pg. 16.

However, when an attorney chooses not to make a meritorious Batson objection, this reasoning is simply inapplicable. The type of conduct to be avoided can be defined quite easily: inaction in the face of racial discrimination. If the prosecutor removes all black veniremembers with peremptory challenges, or if he removes a single black veniremember after minimal or nonexistent voir dire, defense counsel should never stand idly by. He should make a Batson objection and require the prosecutor to give race-neutral explanations for these challenges.

Further, the Supreme Court’s opinions in this area demonstrate that racial discrimination in jury selection is not properly a matter of strategy. When an attorney makes a stra-tegie choice, he takes a calculated risk in order to assist his client. However, overt discrimination will never assist a defendant. As explained above, the defendant “suffers a real injury when the prosecutor excludes jurors ... on account of race.” Powers, 499 U.S. at 413 , 111 S.Ct. at 1372 .

B.

The Supreme Court of Alabama is the only court which has previously considered whether prejudice should be presumed under Strickland when dealing with Batson violations. Ex parte Yelder, 575 So.2d 137, 139 (Ala.1991), cert. denied, 502 U.S. 898 , 112 S.Ct. 273 , 116 L.Ed.2d 225 (1991). That court identified another problem which arises when we require a defendant to affirmatively prove prejudice. If a defendant must meet an outcome-determinative standard in order to prove prejudice, he is, “in effect, relying on the very assumption Batson condemns.” Yelder, 575 So.2d at 139 . In other words, if a defendant challenges the exclusion of black veniremembers on the basis of race, he must prove that “had blacks not been unfairly removed from his jury, the factfinder might have acquitted him.” Id. The assumption underlying this argument is that blacks as a group harbor particular views — views which would have caused them to react differently to the evidence presented at trial. Because the majority refuses to presume prejudice, the majority requires that the defendant prove the same stereotype condemned by Batson . 7

*22 The majority recognizes this paradox but glosses over the issue without offering a solution. The majority simply states, “a jury of any racial makeup is presumptively capable of providing the impartial tribunal necessary to ensure proper functioning of the adversarial process.” Majority op., pg. 16. The majority fails to recognize this assumption is only valid if the “jury of any racial makeup” was fairly selected. If the jury was not fairly selected, and the veniremembers witnessed overt discrimination in the courtroom, they may be more likely to engage in discrimination of their own. As the Supreme Court stated in Powers , “[t]he purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset.” 499 U.S. at 413 , 111 S.Ct. at 1372. As the Yelder court noted, “Strickland was decided two years before Batson , so it did not anticipate claims of alleged ineffectiveness in the context of the Batson issue. Had Strickland anticipated that issue, ... it would have included that issue as one of those in regard to which prejudice is presumed.” Yelder, 575 So.2d at 139 .

IV.

The majority’s refusal to presume prejudice is also puzzling in light of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), and Arizona v. Fulminante, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991). In Chapman , the Supreme Court held some constitutional errors “may, consistent with the Federal Constitution, be deemed harmless.” Chapman, 386 U.S. at 22 , 87 S.Ct. at 827 . However, Fulmi-nante makes clear that some errors are so serious they are not subject to harmless error analysis; harm is presumed. These types of errors are known as “structural defects.” Significantly, the Fulminante Court used racial discrimination in the selection of a grand jury as an example of a structural defect. Fulminante, 499 U.S. at 310 , 111 S.Ct. at 1264 -65 (citing Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986)).

The majority analyzes these two cases and “assume[s], without deciding, that Batson error is not amenable to a Chapman analysis for harmless error.” Majority op. pg. 13-14. Despite that conclusion, the majority draws a feeble distinction between Fulminante and Strickland . Obviously, harmless error and ineffective assistance of counsel are two distinct issues, but the underlying gravity of Batson error is not altered by the context in which the error is presented. I believe the Supreme Court’s willingness to label racial discrimination in grand jury selection a structural defect, Fulminante, 499 U.S. at 310 , 111 S.Ct. at 1264-65 , is a clear indication of the need to presume harm under Strickland when defense counsel’s ineffectiveness permits racial discrimination in petit jury selection. A structural defect affecting the “integrity of the criminal tribunal itself,” Vasquez, 474 U.S. at 263-64 , 106 S.Ct. at 623 , cannot be viewed as anything but harmful and prejudicial to the defendant. It is unclear how the majority concludes otherwise.

The majority is also concerned with ensuring the finality of criminal convictions. It fears “[a] defendant would be entitled to a Batson hearing ... in the guise of a hearing on his claim of ineffective assistance of counsel,” majority op., pg. 17, n. 5, and “[t]he requirement of a contemporaneous objection would become meaningless.” Id., at 17, n. 5. The majority contends an “incidental effect” of its holding is to “preserve prior holdings ... that Batson error is subject to principles of ordinary procedural default.” Id., at 17, n. 5 (citation omitted).

The majority’s concern is misplaced. The defendant who raises a claim of ineffective assistance based on counsel’s failure to make a meritorious Batson objection is not attempting to circumvent procedural requirements in order to later obtain equal protection of the laws. Rather, he is seeking direct “protection of his personal right to effective assistance of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 377 , 106 S.Ct. 2574, 2584 , *23 91 L.Ed.2d 305 (1986). It is crucial to recognize that “while defense counsel’s failure to make a timely ... motion is the primaiy manifestation of incompetence and source of prejudice ... the two claims are nonetheless distinct.” Id., 477 U.S. at 374 , 106 S.Ct. at 2582. As the Kimmelman Court noted in its consideration of an ineffective assistance of counsel claim based on failure to preserve a meritorious Fourth Amendment issue:

We have no reason to believe that defense attorneys will ‘sandbag’ — that is, consciously default or poorly litigate their clients’ Fourth Amendment claims in state court in the hope of gaining more favorable review of these claims in Sixth Amendment federal habeas proceedings.... [I]t is virtually inconceivable that an attorney would deliberately invite the judgment that his performance was constitutionally deficient.

Kimmelman, 477 U.S. at 382 n. 7, 106 S.Ct. at 2587 n. 7 (emphasis added). The same can be said about an attorney who fails to make a meritorious Batson objection. Thus, the majority’s fears regarding the finality of convictions are groundless.

y.

CONCLUSION

When a defendant establishes ineffective assistance of counsel based on counsel’s failure to protect his equal protection rights as defined by Batson , prejudice should be presumed. As the Supreme Court recognized in McCollum , “there is a distinction between exercising a peremptory challenge to discriminate against jurors on account of race and exercising a peremptory challenge to remove an individual juror who harbors racial prejudice.” McCollum , — U.S. at-, 112 S.Ct. at 2359 . See also, Batson, 476 U.S. at 97-98 , 106 S.Ct. at 1723 . Today, the majority blurs this important distinction and weakens our previous commitment to the ideal of fairly selected juries.

For these reasons, I respectfully dissent.

OVERSTREET, J., joins this opinion.

. The facts in Batson are similar to those in Swain : Batson was a black man indicted for burglary and receipt of stolen goods, and the prosecutor used peremptory challenges to strike every black veniremember. Batson, 476 U.S. at 82-83 , 106 S.Ct. at 1715 .

. The Court held a defendant's use of peremptory challenges constitutes state action because it determines the composition of the jury, a governmental body. 500 U.S. at 620-29 , 111 S.Ct. at 2083-87.

. The Court has also held a defendant’s Fourteenth Amendment rights are violated if the grand jury which indicted him was chosen by discriminatory means, Neal v. Delaware, 103 U.S. (13 Otto) 370, 26 L.Ed. 567 (1881), or if discrimination played a part in selection of the grand jury foreman. Rose v. Mitchell, 443 U.S. 545 , 99 S.Ct. 2993 , 61 L.Ed.2d 739 (1979). In addition, the Court recently held the Batson rationale prohibits gender-based peremptory challenges. J.E.B. v. Alabama ex rel. T.B., — U.S.-, 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994). These decisions, though not precisely on point, further demonstrate a commitment to the eradication of discrimination in jury selection.

. We explicitly adopted the Strickland formulation in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986).

. The Court of Appeals found the first prong of Strickland was met; trial counsel was deficient in not raising a timely Batson objection. Batiste v. State, 834 S.W.2d 460, 466 (Tex.App.—Houston [14th Dist.] 1992). As noted by the majority, the State does not challenge that finding, majority op., pg. 10, n. 1, and we do not review that finding today. However, it should be noted that counsel was actually ineffective only if he failed to raise what would have been a meritorious Batson objection. See, Kimmelman v. Morrison, 477 U.S. 365, 375 , 106 S.Ct 2574, 2582 , 91 L.Ed.2d 305 (1986). For the purposes of this opinion we assume a Batson objection would have been meritorious.

Further, contrary to the majority’s assertion, we are not asked to hold “that trial counsel should be deemed ineffective per se if he forfeits any constitutional error that has been held immune from a harm analysis.” Majority op., pg. 10; see also, Majority op., pg. 14. As noted above, the issue in this case is very narrow.

. The majority apparently believes it wrong to "accept at face value the Supreme Court’s pronouncements” regarding the harmful effects of race-based peremptory challenges on the fairness of a trial. Majority op., pg. 12. According to the majority, the Supreme Court has never said "precisely how" the fairness of a trial is jeopardized by a Batson violation. Id. However, the majority cites several cases in which the Court has clearly described the unfairness which results. Id. These cases forcefully demonstrate the seriousness of Batson error and the certainty of harm, and appellant is unquestionably entitled to rely on them.

. The majority makes the same error as the court of appeals in utilizing a strict outcome-determinative standard. See, Batiste v. State, 834 S.W.2d at 466 . Such a standard was explicitly rejected by the Strickland Court. Strickland, 466 U.S. at 694 , 104 S.Ct. at 2068. Strickland requires only that a defendant show a "reasonable probability ... the result of the proceeding would have been different." Id. A reasonable probability is a "probability sufficient to undermine the confidence in the outcome.” Ibid. See also, Lockhart v. Fretwell, - U.S. -, -, 113 S.Ct. 838, 842 , 122 L.Ed.2d 180 (1993) ("[A]n analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.").

However, even if the second prong of Strickland was applicable and properly applied, appellant could show prejudice. By failing to rid the case of Batson error, trial counsel’s deficient performance was sufficient to undermine our confidence in the proceedings because "[rjace discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there.” Edmonson, 500 U.S. at *22 628 , 111 S.Ct. at 2087 . In other words, the appellant suffered a real injury when the prosecutor excluded potential jurors because of their race. Powers, 499 U.S. at 413 , 111 S.Ct. at 1372 .