Amicus Curiae Brief — James Garfield Broadnax, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefSep 23, 2021

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No. 21-267

IN THE

Supreme Court of the United States

JAMES GARFIELD BROADNAX,

Petitioner,

BOBBY LUMPKIN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC. IN SUPPORT OF PETITIONER

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL*

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

sspital@naacpldf.org

CHRISTOPHER KEMMITT

MICHAELE TURNAGE YOUNG

MAHOGANE D. REED

SANTINO COLEMAN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW, Ste 600

Washington, DC 20005

*Counsel of Record

September 23, 2021

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ............................. iii

INTEREST OF AMICUS CURIAE ................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 1

ARGUMENT ..................................................... 3

This Court Should Grant Certiorari To

Prevent Racial Discrimination In Jury

Selection From Being Insulated From

Judicial Review. ..................................... 3

The Insidious Harms Caused

By Racially Discriminatory

Peremptory Challenges Extend

Beyond Individual Court Proceedings.

............................................................. 3

The Racially Discriminatory Use Of

Peremptory Challenges Has

Continued Unabated Since Batson.... 7

II.

The Dallas County District Attorney’s

Office, Which Prosecuted Mr. Broadnax,

Has A History Of Systematically

Removing Black Prospective Jurors, And

Mr. Broadnax Presented Evidence Of

Racially Disparate Removal In His Case.

................................................................. 9

The Dallas County DA’s Office Has A

History Of Systematically Removing

Qualified Black Prospective Jurors. .. 9

The Fifth Circuit’s Post-Hoc

Rationalizations Minimizing The

Dallas County DA’s Office’s History

Of Discrimination And The Probative

Value Of The State’s Bolding Of Black

Veniremembers’ Names Contravene

Controlling Precedent. ..................... 12

III.

Evidence Of Racial Discrimination In

Jury Selection Held Exclusively In The

Hands Of Prosecutors Is Hard To

Uncover; The Court Should Not Read

Pinholster To Undermine The

Constitutional Guarantee To A Jury

Selected Without Discrimination......... 17

Prosecutors Use Pretextual

Explanations To Conceal Their

Racially Motivated Strikes. ............. 17

Evidence Exclusively Held By

Prosecutors May Be The Most

Probative Evidence Of The Invidious

Intent. ............................................... 19

Pinholster Should Not Nullify The

Equal Protection Clause By Barring

New Evidence That Fundamentally

Alters A Batson Claim Where

Prosecutors Withheld That Evidence

From A Diligent Habeas Petitioner

Until After State Court Proceedings.

........................................................... 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Louisiana,

405 U.S. 625 (1972) ................................................ 1

Attala Cty. NAACP v. Evans,

No. 20-60913, 2021 WL 606430 (5th

Cir. Feb. 5, 2021) .................................................... 1

Batson v. Kentucky,

476 U.S. 79 (1986). ........................................passim

Brown v. Bd. of Educ. of Topeka,

347 U.S. 483 (1954) ................................................ 1

Castaneda v. Partida,

430 U.S. 482 (1977) .............................................. 15

Chamberlin v. Hall,

139 S. Ct. 2773 (2019) ............................................ 1

Cooper v. Aaron,

358 U.S. 1 (1958) .................................................... 1

Cullen v. Pinholster,

563 U.S. 170 (2011) .......................................passim

Davis v. State,

329 S.W.3d 798 (Tex. Crim. App. 2010) .............. 18

Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014) .............................. 21

Edwards v. Vannoy,

141 S. Ct. 1547 (2021) ............................................ 1

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ...................................passim

Foster v. Chatman,

136 S. Ct. 1737 (2016) ...................................passim

Ham v. South Carolina,

409 U.S. 524 (1973) ................................................ 1

Kyles v. Whitley,

514 U.S. 419 (1995) .............................................. 24

Miles v. California,

141 S. Ct. 1686 (2021) ............................................ 1

Miller-El v. Cockrell,

537 U.S. 322 (2003) .......................................passim

Miller-El v. Drekte,

545 U.S. 231 (2005) (Miller-El II)

(Breyer, J., concurring) ........................ 7, 13, 20, 24

Miller-El v. Johnson,

No. 3:96-CV-1992-H

(N.D. Tex. Jan. 31, 2000) (unpublished) ................ 9

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) ................................................ 15

Peters v. Kiff,

407 U.S. 493 (1972) ................................................ 4

Powers v. Ohio,

499 U.S. 400 (1991) .................................... 2, 4, 6, 7

Ramos v. Louisiana,

590 U.S. ___, 140 S. Ct. 1390 (2020) ...................... 1

Smith v. Texas,

311 U.S. 128 (1940) ........................................ 1, 2, 4

Snyder v. Louisiana,

552 U.S. 472 (2008) ........................................ 19, 20

Strauder v. West Virginia,

100 U.S. 303 (1879) ................................................ 4

Swain v. Alabama,

380 U.S. 202 (1965), overruled by

Batson v. Kentucky, 476 U.S. 79

(1986) ...................................................................... 1

Statutes

Ga. Code Ann. §§ 50-18-70 et seq. ............................. 20

Other Authorities

Associated Press, Report: Dallas

prosecutors bar black jurors, NBC

News (Aug. 22, 2005),

https://www.nbcnews.com/id/wbna90

33376 ..................................................................... 11

David C. Baldus et al., The Use of

Peremptory Challenges in Capital

Murder Trials, 3 J. Const. L. 3 (2001) ................... 8

Elisabeth Semel et al., Whitewashing the

Jury Box: How California

Perpetuates the Discriminatory

Exclusion of Black and Latinx Jurors

(2020),

https://www.law.berkeley.edu/wpcontent/uploads/2020/06/Whitewashi

ng-the-Jury-Box.pdf ......................................... 8, 18

Equal Justice Initiative, Race and the

Jury: Illegal Discrimination in Jury

Selection (2021), https://eji.org/wpcontent/uploads/2005/11/race-andthe-jury-digital.pdf ......................................... 17, 18

Jeffrey M. Jones, In U.S., Black

Confidence in Police Recovers From

2020 Low, Gallup (July 14, 2021),

https://news.gallup.com/poll/352304/b

lack-confidence-police-recovers-2020low.aspx .................................................................. 5

Katherine W. Phillips, How Diversity

Makes Us Smarter, 311 Sci. Am. (2014) ................ 5

Ronald F. Wright et al., The Jury

Sunshine Project: Jury Selection Data

as a Political Issue,

2018 U. Ill. L. Rev. 1407 (2018) ............................. 8

vii

Samuel R. Sommers, On Racial Diversity

and Group Decision Making: Identifying

Multiple Effects of Racial Composition

on Jury Deliberations, 90 J. Personality

& Soc. Psychol. 507 (2006) ..................................... 5

Tex. Def. Serv., A State of Denial, Texas

Justice and the Death Penalty (2000),

https://www.texasdefender.org/wpcontent/uploads/2019/12/TDS-2001State-of-Denial.pdf ............................................... 10

Thomas Ward Frampton, The Jim Crow

Jury, 71 Vand. L. Rev. 1593 (2018)........................ 8

Will Craft, Peremptory Strikes in

Mississippi’s Fifth Circuit Court

District at 2, APM Reports (2018),

https://features.apmreports.org/files/

peremptory_strike_methodology.pdf ..................... 8

Willow Research, Do Americans Have

Confidence in the Courts? (Mar. 27, 2019),

https://willowresearch.com/americanconfidence-courts/ ................................................... 5

INTEREST OF AMICUS CURIAE1

Since its founding by Thurgood Marshall more than

80 years ago, the NAACP Legal Defense and

Educational Fund, Inc. (“LDF”) has strived to secure

the constitutional promise of equality for all people.

See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958); Brown v.

Bd. of Educ. of Topeka, 347 U.S. 483 (1954).

Accordingly, LDF has long been concerned with

eradicating jury discrimination. See, e.g., Ham v.

South Carolina, 409 U.S. 524 (1973); Alexander v.

Louisiana, 405 U.S. 625 (1972); Swain v. Alabama,

380 U.S. 202 (1965), overruled by Batson v. Kentucky,

476 U.S. 79 (1986); Chamberlin v. Hall, 139 S. Ct. 2773

(2019); Miles v. California, 141 S. Ct. 1686 (2021);

Flowers v. Mississippi, 139 S. Ct. 2228 (2019); Brief of

Plaintiffs-Appellants, Attala Cty. NAACP v. Evans,

No. 20-60913, 2021 WL 606430 (5th Cir. Feb. 5, 2021);

Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390

(2020); Edwards v. Vannoy, 141 S. Ct. 1547 (2021).

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution

embodies the loftiest of our ideals. “The Fourteenth

Amendment requires that equal protection to all must

be given—not merely promised.” Smith v. Texas, 311

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus curiae, their members, or their

counsel made a monetary contribution to the preparation or

submission of this brief. All parties have consented in writing to

the filing of this brief. All parties have been timely notified of the

submission of this brief.

U.S. 128, 130 (1940). For whether the pronouncements

of the Equal Protection Clause ring true or are empty

promises determines the extent to which this country

is a community of equals or a caste system that

relegates many to second-class citizenship.

“The Fourteenth Amendment’s mandate that race

discrimination be eliminated from all official acts and

proceedings of the State is most compelling in the

judicial system.” Powers v. Ohio, 499 U.S. 400, 415

(1991) (citing Rose v. Mitchell, 443 U.S. 545, 555

(1979)); Batson, 476 U.S. 79, 85 (1986) (“Exclusion of

[B]lack citizens from service as jurors constitutes a

primary example of the evil the Fourteenth

Amendment was designed to cure.”). Indeed, “race

neutrality in jury selection [is] a visible, and

inevitable, measure of the judicial system’s own

commitment to the commands of the Constitution.”

Powers, 499 U.S. at 416. Accordingly, racial

discrimination in jury selection not only “violates our

Constitution and the laws enacted under it,” but it “is

at war with our basic concepts of a democratic society

and a representative government.” Smith, 311 U.S. at

130.

As discussed infra, longstanding precedent makes

clear that racially discriminatory peremptory

challenges violate the Equal Protection Clause of the

Fourteenth Amendment. Yet, the lower court decisions

in this case would place many of these grave

constitutional violations beyond the reach of judicial

review. The opinions below would allow prosecutors to

deny equal rights to Black jurors and the accused so

long as prosecutors succeeded in withholding key

evidence of their unconstitutional conduct until

federal habeas proceedings, thereby undermining not

only the fairness of the deliberative process, but also

the very legitimacy of our justice system and our

representative democracy. We urge the Supreme

Court to grant certiorari and declare that Cullen v.

Pinholster, 563 U.S. 170 (2011), may not be construed

to nullify the Equal Protection Clause by barring the

consideration of key new evidence that fundamentally

alters the nature of a Batson claim, which a diligent

habeas petitioner timely requested but prosecutors

withheld until after the completion of state court

proceedings.

ARGUMENT

This Court Should Grant Certiorari To

Prevent Racial Discrimination In Jury

Selection From Being Insulated From

Judicial Review.

The

Insidious

Harms

Caused

By Racially Discriminatory

Peremptory

Challenges

Extend

Beyond Individual Court

Proceedings.

As this Court explained long ago, denying Black

people the

right

participate

the

administration of the law, as jurors,

because of their color, though they are

citizens, and may be in other respects

fully qualified, is practically a brand

upon them, affixed by the law, an

assertion of their inferiority, and a

stimulant to that race prejudice which

is an impediment to securing to

individuals of the race that equal

justice which the law aims to secure to

all others.

Flowers, 139 S. Ct. 2228, 2239 (2019) (quoting

Strauder v. West Virginia, 100 U.S. 303, 308 (1879)).

Racial discrimination in jury selection also “causes a

criminal defendant cognizable injury,” Powers, 499

U.S. at 411, by denying his “right under the

Fourteenth Amendment to ‘protection of life and

liberty against race or color prejudice,’” Batson, 476

U.S. at 87 (citation omitted). In addition, “[a]ctive

discrimination by a prosecutor during this 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.” Powers, 499 U.S. at 412. “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.”

Id.

“It is part of the established tradition in the use of

juries as instruments of public justice that the jury be

a body truly representative of the community.” Smith,

311 U.S. at 130. The exclusion of an “identifiable

segment of the community” “from jury service”

“deprives the jury of a perspective on human events

that may have unsuspected importance in any case

that may be presented.” Peters v. Kiff, 407 U.S. 493,

503–04 (1972)

Research shows that racially heterogeneous juries

deliberate longer, consider more facts, and make fewer

mistakes than homogenous juries. Samuel R.

Sommers, On Racial Diversity and Group Decision

Making: Identifying Multiple Effects of Racial

Composition on Jury Deliberations, 90 J. Personality

& Soc. Psychol. 507, 606 (2006). Indeed, those working

in racially diverse groups “anticipate differences of

opinion and perspective,” leading them to better

prepare to make their case, anticipate alternative

viewpoints and new information, and work harder to

reach consensus than if they were with others like

themselves who they assumed shared their

presumptions. Katherine W. Phillips, How Diversity

Makes Us Smarter, 311 Sci. Am. (2014). “Diversity

jolts us into cognitive action in ways that homogeneity

simply does not.” Phillips, supra.

Moreover, our judicial system’s failure to eradicate

racial discrimination from jury selection, discussed

infra, has damaged the legitimacy of our judicial

system. Most Americans have lost faith in “the courts

as a fair and impartial arbiter where all are treated

equally.”2 Per a 2021 Gallup poll, 61% of Black

Americans, 41% of white Americans, and 30% of

Hispanic Americans “say they have ‘very little’ or ‘no’

confidence in the criminal justice system.”3 Moreover,

a 2019 public opinion poll found that only one-third of

Americans were confident in the courts and judiciary,

with a majority of Americans holding the belief that

Willow Research, Do Americans Have Confidence in the

Courts? (Mar. 27, 2019), https://willowresearch.com/americanconfidence-courts/.

Jeffrey M. Jones, In U.S., Black Confidence in Police

Recovers From 2020 Low, Gallup (July 14, 2021),

https://news.gallup.com/poll/352304/black-confidence-policerecovers-2020-low.aspx.

the poor and minorities are not treated fairly in our

courts.4

As this Court has stressed, “[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.” Powers, 499 U.S. at 413.

However, these purposes cannot be realized if racial

discrimination is allowed to infect the jury selection

process. Indeed, “[i]n view of the heterogeneous

population of our Nation, public respect for our

criminal justice system and the rule of law will be

strengthened if we ensure that no citizen is

disqualified from jury service because of his race.”

Batson, 476 U.S. at 99.

Furthermore, the harm to those excluded from jury

service cannot be overstated. “Other than voting,

serving on a jury is the most substantial opportunity

that most citizens have to participate in the

democratic process.” Flowers, 139 S. Ct. at 2238 (citing

Powers, 499 U.S. at 407). Serving on a jury “postulates

a conscious duty of participation in the machinery of

justice;” indeed, “[o]ne of its greatest benefits is in the

security it gives the people that they, as jurors actual

or possible, being part of the judicial system of the

country can prevent its arbitrary use or abuse.”

Powers, 499 U.S. at 406 (quoting Balzac v. Puerto Rico,

258 U.S. 298, 310 (1922)). In this way, [j]ury service

preserves the democratic element of the law, as it

guards the rights of the parties and ensures continued

See Willow Research, supra note 4.

acceptance of the laws by all of the people.” Id. at 407

(citation omitted).

In sum, racially discriminatory jury selection

“damages both the fact and the perception” of the

fairness of our judicial system, and thereby harms the

excluded jurors, the community at large, and the

criminal defendant. Powers, 499 U.S. at 406, 409, 411;

see id. at 406 (citing Batson, 476 U.S. at 87). Thus, the

Supreme Court has reaffirmed again and again that

“Equal justice under law requires a criminal trial free

of racial discrimination in the jury selection process.”

Flowers, 139 S. Ct. at 2242; see also id. at 2239

(collecting cases).

The Racially Discriminatory Use Of

Peremptory

Challenges

Has

Continued Unabated Since Batson.

Our Nation all too often continues to honor the

Equal Protection Clause in the breach. For as long as

this Court has denounced racial discrimination in jury

selection, the practice has persisted. See Miller-El v.

Drekte, 545 U.S. 231, 267–69 (2005) (Miller-El II)

(Breyer, J., concurring) (citing eight studies and

anecdotal reports detailing widespread race

discrimination in jury selection); Flowers, 139 S. Ct. at

2239–40 (“[i]n the century after Strauder, . . . [t]he

exclusion of [B]lack prospective jurors was almost total

in certain jurisdictions, especially in cases involving

[B]lack defendants.”).

For example, a 2018 study that reviewed over 1,300

North Carolina felony trials throughout 2011 found

that prosecutors exercised peremptory strikes against

Black jurors “at more than twice the rate that they

excluded white jurors[.]” Ronald F. Wright et al., The

Jury Sunshine Project: Jury Selection Data as a

Political Issue, 2018 U. Ill. L. Rev. 1407, 1419, 1422,

1426 (2018). See also Will Craft, Peremptory Strikes in

Mississippi’s Fifth Circuit Court District at 2, APM

Reports (2018), https://features.apmreports.org/files/p

eremptory_strike_methodology.pdf (analyzing 225

trials from 1992-2017 and finding that prosecutors in

the Fifth Circuit Court District struck potential Black

jurors “at a rate four and a half times that of white

jurors”).

Similarly, in a study of over 5,000 Louisiana

criminal trials between 2011 and 2017, investigative

journalists

determined

that

“prosecutors

disproportionately strike [B]lack jurors no matter who

they are prosecuting.” Thomas Ward Frampton, The

Jim Crow Jury, 71 Vand. L. Rev. 1593, 1620-22, 1624

& n.178, 1628 (2018) (collecting studies and other

resources with empirical findings on Batson). A study

of Batson claims on appeal in California from 2006–

2018

showed

that

California

prosecutors

disproportionately use their peremptory strikes

against Black and Latinx jurors. Elisabeth Semel et

al., Whitewashing the Jury Box: How California

Perpetuates the Discriminatory Exclusion of Black and

Latinx

Jurors

(2020),

https://www.law.berkeley.edu/wpcontent/uploads/2020/06/Whitewashing-the-JuryBox.pdf. And a study of capital murder cases in

Pennsylvania from 1981-1997 suggested that Batson

had “no effect whatever on prosecutorial strikes

against [B]lack veniremembers.” David C. Baldus et

al., The Use of Peremptory Challenges in Capital

Murder Trials, 3 J. Const. L. 3, 73 (2001).

II.

The Dallas County District Attorney’s

Office, Which Prosecuted Mr. Broadnax,

Has A History Of Systematically Removing

Black Prospective Jurors, And Mr.

Broadnax Presented Evidence Of Racially

Disparate Removal In His Case.

The Dallas County DA’s Office Has A

History Of Systematically Removing

Qualified Black Prospective Jurors.

any

case

concerning

intentional

discrimination, context matters. See Batson v.

Kentucky, 476 U.S. at 93 (requiring “a sensitive

inquiry into such circumstantial and direct evidence of

intent as may be available”) (citation omitted). Thus,

in Batson cases, this Court has found relevant the

“historical evidence of racial discrimination by the

District Attorney’s Office.” Miller-El v. Cockrell, 537

U.S. 322, 346 (2003) [hereinafter Miller-El I]. And this

Court and other courts have recognized that the Dallas

County District Attorney’s Office has an “appalling”

and

“disturbing”

history

intentionally

discriminating against Black people and other racial

minorities in jury selection. Miller-El v. Johnson, No.

3:96-CV-1992-H (N.D. Tex. Jan. 31, 2000)

(unpublished); see also Miller-El I, 537 U.S. at 346–47.

Beginning in at least the 1950s, the Dallas County

District Attorney’s Office’s culture was “suffused with

bias against African-Americans in jury selection.”

Miller-El I, 537 U.S. at 347. For example, one former

Dallas County assistant district attorney recalled that

when he was a prosecutor in the late 1950s, he allowed

a Black woman to serve on a jury.5 After his

supervisor, longtime Dallas County District Attorney

Henry Wade, learned that the Black woman was

reluctant to convict and caused a deadlocked jury,

Wade warned the assistant district attorney: “If you

ever put another n****r on a jury, you’re fired.”6

The office’s jury selection practices did not improve

over time. In the mid-to-late 1960s, an assistant

district attorney’s aide created a written circular on

how to select a jury. The document encouraged

prosecutors not to “take Jews, Negroes, Dagos,

Mexicans[,] or a member of any minority race on a

jury, no matter how rich or how well educated.” MillerEl I, 537 U.S. at 334–35. A longtime assistant district

attorney followed up the circular with a memorandum

advising other prosecutors to exclude “any member of

a minority group” because “they almost always

empathize with the accused.”7 The memo was included

in the training manual for all Dallas County ADAs for

nearly a decade, and possibly more, and was available

to office personnel and prosecutors well into the 1980s.

Miller-El I, 537 U.S. at 335, 347.

Even after the training manual was removed from

circulation, the office’s culture of disparately removing

Black and minority prospective jurors persisted. A

study published in the Dallas Morning News of capital

murder cases tried in Dallas County between 1980 and

1986 showed that prosecutors used 90 percent of all

5 Tex. Def. Serv., A State of Denial, Texas Justice and the Death

Penalty 52, n. 41 (2000), https://www.texasdefender.org/wpcontent/uploads/2019/12/TDS-2001-State-of-Denial.pdf.

6 Id.

7 Id. at 53.

peremptory strikes to keep Black prospective jurors

out of the jury box.8 The blatant nature of the practice

was evidenced by prosecutors’ coding of the venire

lists, using “C,” “N,” or “B” to identify the Black

prospective jurors on the rolls.9 See Miller-El I, 537

U.S. at 347. A follow-up study from the Dallas Morning

news confirmed that in 2002, Dallas County

prosecutors

were

excluding

qualified

Black

prospective jurors at more than twice the rate they

removed white prospective jurors and subjecting Black

people to disparate questioning when compared to

white jurors.10

The Dallas County District Attorney’s Office

prosecutors’ actions at Mr. Broadnax’s trial were

consistent with this longstanding pattern, revealing

an intent to remove all Black prospective jurors. And

they largely succeeded. During jury selection, the

State disparately questioned Black prospective jurors,

engaged in race-based questioning of Black venire

members, and used peremptory strikes to remove all

Black prospective jurors and one Latina prospective

juror. See Pet. Br. at 7–10. The final jury included a

Black member solely because the court, after

considering that the state struck “one hundred percent

of the African-Americans in the strike range” and “this

resulted in a disproportionate number of AfricanAmericans being struck from the panel,” Batson Hrg.

8 Id. at 56.

9 Id.

10 Associated Press, Report: Dallas prosecutors bar black jurors,

NBC

News

(Aug.

https://www.nbcnews.com/id/wbna9033376.

22,

2005),

Tr. 5:9-12, reinstated him after a Batson hearing at the

end of jury selection. See also Pet. Br. at 10.

During the federal habeas proceedings, Mr.

Broadnax discovered, for the first time, that the

prosecutors in his case had “marked the race of each

[Black] prospective juror,” see Miller-El I, 537 U.S. at

347—just as other prosecutors in their office had in the

past.

The

Fifth

Circuit’s

Post-Hoc

Rationalizations Minimizing The

Dallas County DA’s Office’s History

Discrimination

And

The

Probative Value Of The State’s

Bolding Of Black Veniremembers’

Names

Contravene

Controlling

Precedent.

As discussed infra, the Fifth Circuit (wrongly)

concluded that this new evidence showing just how

much prosecutors were focused on prospective jurors’

race could not be considered under Pinholster. But,

contrary to this Court’s controlling precedent, the

Fifth Circuit also created a post hoc reason to discount

the race-coded spreadsheet and bolding of Black

prospective jurors’ names. Like the district court, the

Fifth Circuit hypothesized that, in light of the prior

admonishments the Dallas County DA’s office received

from this Court for discriminating in jury selection, see

Miller-El I and Miller-El II, “[t]he office would have

had considerable motivation to identify which jury

venire members belonged to a protected class when

preparing to defend its use of peremptory challenges”

Pet. App. 13a–14a.

This was error for at least three reasons. First, the

State has never offered this justification for why it

bolded the Black prospective jurors’ names.11 Rather,

both the district court and the Fifth Circuit invented

their benign justification from whole cloth. This

approach is squarely foreclosed by Miller-El II, which

held that when a prosecutor attempts to justify his

challenged peremptory strikes, he has to “state his

reasons as best he can and stand or fall on the

plausibility of the reasons he gives.” 545 U.S. at 252.

Miller-El II emphasized that the pretextual

significance of a racially discriminatory reason “does

not fade because a trial judge, or an appeals court, can

imagine a reason that might not have been shown up

as false.” Id.; see also id. (“The Court of Appeals’s . . .

substitution of a reason . . . does nothing to satisfy the

prosecutor[’s] burden of stating a racially neutral

explanation for their own actions.”).

Second, this justification cannot be reconciled with

the State’s racially disparate treatment of Black and

white jurors in this case. See Pet. Br. 7–10. The

prosecutor not only disparately questioned Black

jurors and asked them race-based questions, but also

used the majority of the State’s peremptory challenges

to remove all Black prospective jurors. The

prosecutor’s pattern of strikes against Black venire

members was so troubling that the trial judge rejected

one of the strikes and required the juror to be seated.

While the State initially claimed that notes highlighting

Black jurors were created in preparation for a Batson hearing, the

circumstantial evidence foreclosed the plausibility of that

explanation and the State abandoned this argument. Compare D.

Ct. Dkt. 63 at 70–73 with COA Opp’n, at 36–37. See also D. Ct.

Dkt. 69 at 9–13; COA Br. at 18–19.

Moreover, the State did not bold the names of all

prospective jurors in a protected class; rather, the

State only bolded the names of Black prospective

jurors. The State’s actions during voir dire are

inconsistent with an explanation that they race-coded

the jurors and bolded the names of Black prospective

jurors for a nondiscriminatory reason of any kind. See

Foster v. Chatman, 136 S. Ct. 1737, 1755 (2016)

(explaining that “the focus on race in the prosecution’s

file,” including the prosecution’s inscription of “N” next

to the name of each Black prospective juror, “belie[s]

the State’s claim that it exercised its strikes in a ‘colorblind’ manner” and “demonstrates a concerted effort to

keep [B]lack prospective jurors off the jury”).

And third, the characterization of the prosecutors’

race coding by the lower courts in this case stands in

stark contrast to how this Court characterized the

same office’s almost identical actions of marking the

race of prospective jurors on juror cards. See Miller-El

I, 537 U.S. at 347. Rather than characterizing this

evidence as indicative of the prosecutors’ diligence in

preparing for an inevitable Batson challenge given

that they used their peremptory strikes to remove all

Black prospective jurors, this Court held that nearly

identical evidence “reinforce[s]” “[t]he supposition that

race was a factor.” Miller-El I, 537 U.S. at 347.

Similarly, in Foster v. Chatman, this Court held that

the prosecution’s inscription of the letter “N” next to

each Black prospective juror demonstrated that the

prosecutors were “motivated in substantial part by

race” when they struck Black jurors. 136 S. Ct. at

1755. Neither the district court nor the Fifth Circuit

acknowledged this Court’s prior treatment of identical

evidence.

The Fifth Circuit committed a similar error by

implying that the Dallas County DA’s history of racial

discrimination in jury selection is irrelevant and a

Batson violation could not have occurred because “[a]t

the time of [Broadnax’s] trial, Dallas had elected the

first African-American District Attorney in Texas, and

his office prosecuted Broadnax.” Pet. App. 14a n.10. To

start, that the head of the office was Black says

nothing about whether the prosecutors in his office

would select a jury in a racially discriminatory

manner. These prosecutors, even if they were not “part

of [the] culture of discrimination” rampant throughout

the District Attorney’s Office for decades, “were likely

not ignorant of it.” Miller-El I, 537 U.S. at 347.

Even if one of the prosecutors who was involved in

voir dire was a minority, this would not eliminate the

probative value of the race-coded spreadsheet and the

bolding of Black prospective jurors’ names in Mr.

Broadnax’s Batson

claim. This Court has

unequivocally rejected the premise that a “minority”

will not “discriminate against other members of their

group.” See Castaneda v. Partida, 430 U.S. 482, 499

(1977) (“Because of the many facets of human

motivation, it would be unwise to presume as a matter

of law that human beings of one definable group will

not discriminate against other members of their

group.”); see also Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 78 (1998) (“[I]n the . . . context of

racial discrimination in the workplace we have

rejected any conclusive presumption that an employer

will not discriminate against members of his own

race.”).

A prosecutor may harbor racial stereotypes and

assumptions about prospective jurors and try to

capitalize on them no matter the prosecutor’s racial

identity. What is relevant to the peremptory strikes is

evidence that sheds light on the prosecutor’s state of

mind and actual reasons for the strikes. Whether the

prosecutor struck a Black venire member because of

pure racial animus, or because of the “assumption or

belief that the [B]lack juror would favor a [B]lack

defendant” (an assumption not limited to white

prosecutors), the strike is unconstitutional. Flowers,

139 S. Ct. at 2241.

Furthermore, the prosecutors in Mr. Broadnax’s

trial did engage in jury discrimination and systemic

removal of Black prospective jurors. So much so that

the trial court granted a Batson challenge and

reseated a struck juror “[because of the fact] ‘that there

were no African-American jurors on this jury and there

was a disproportionate number of African-Americans

who were struck.’” See Pet. Br. 10. Thus, the Fifth

Circuit’s representations about the likelihood that a

DA’s Office headed by a Black DA likely would not

discriminate based on race are unfounded and

inconsistent with the record in this case.

III.

Evidence Of Racial Discrimination In Jury

Selection Held Exclusively In The Hands

Of Prosecutors Is Hard To Uncover; The

Court Should Not Read Pinholster To

Undermine The Constitutional Guarantee

Jury

Selected

Without

Discrimination.

Prosecutors

Use

Pretextual

Explanations To Conceal Their

Racially Motivated Strikes.

More than three decades after Batson, prosecutors

still exclude jurors based on race because little effort

is required to hide their unspoken objective. When

Batson was decided, Justice Marshall warned that

“[a]ny prosecutor can easily assert facially neutral

reasons for striking a juror[.]” Batson, 476 U.S. at 106

(Marshall, J., concurring). That warning has proved

prescient as prosecutors routinely devise facially

neutral reasons for striking Black jurors and teach

others to do the same.12

In multiple jurisdictions across the country,

prosecutors have been trained to provide “raceneutral” reasons to conceal their illegitimate use of

peremptory challenges. For example, in 1995 and

2011, the North Carolina Conference of District

Attorneys held training sessions to teach prosecutors

12 See e.g., Equal Justice Initiative, Race and the Jury: Illegal

Discrimination

Jury

Selection,

(July

2021),

https://eji.org/wp-content/uploads/2005/11/race-and-the-jurydigital.pdf (“The Batson decision did not deter prosecutors from

engaging in illegal race-based peremptory strikes so much as it

incentivized them to find ways to keep striking Black jurors

without triggering a Batson objection.”).

how to strike Black jurors without garnering

scrutiny.13 Similarly, in Santa Clara County,

California, the 2016 edition of a prosecution training

manual lists 77 reasons that courts had previously

accepted for striking jurors of color.14 These tactics

have effectively undermined Batson’s central goal of

eradicating discrimination in jury selection. See Semel

et al., supra, at 44 (explaining that training

prosecutors to evade Batson “all but ensures the

continuation of the pernicious legacy of racial

discrimination in jury selection”).

Prosecutors have, for example, claimed they were

concerned about Black “jurors’ demeanor, appearance,

distrust of the criminal legal system, relationship with

someone who had a negative experience with law

enforcement, and place of residence.” Semel et al.,

supra, at 16. Courts routinely accept these and other

justifications for removing Black jurors, even when

white jurors with similar characteristics are not struck

by the prosecution.15 This heightens the importance of

evidence that reveals the prosecution’s intent—

13 Id.

14 Id.

15 See e.g., Davis v. State, 329 S.W.3d 798, 815-16, 818 (Tex. Crim.

App. 2010) (finding no racial discrimination where prosecution

struck Black juror for needing “enormous amount of evidence” to

find future dangerousness while not striking white juror for

needing to be “99.999’ [percent] sure” to impose death) (alteration

in original); see also Semel et al., supra, at 65 (“In case after case,

the California Supreme Court has devised rationales to avoid

comparative analysis, to restrict its application, to speculate

about jurors’ similarities and differences rather than adhere to

the record, or to find the analysis itself unpersuasive.”).

particularly evidence of racial discrimination within

the prosecution’s file.

Evidence Exclusively Held By

Prosecutors May Be The Most

Probative Evidence Of The Invidious

Intent.

Criminal defendants shoulder the burden of

proving intentional discrimination at Batson’s third

step. See Snyder v. Louisiana, 552 U.S. 472 (2008)

(“[T]he question presented at the third stage of the

Batson inquiry is ‘whether the defendant has shown

purposeful discrimination.’”) (citation omitted).

Establishing purposeful discrimination is a difficult

task. And it is especially difficult to prove intentional

discrimination in jury selection due to the myriad

explanations that conceal racially motivated strikes.

The prosecution’s jury selection notes are uniquely

suited to expose this practice.

Foster v. Chatman illustrates both the powerful

impact of evidence held in the prosecution’s file and

the practical difficulty of obtaining it. 136 S. Ct. 1737

(2016). At trial, Foster unsuccessfully objected to the

prosecution’s peremptory challenges of four Black

prospective jurors. Years later, after Foster’s Batson

claim was denied on appeal, Foster obtained the

prosecution’s jury selection notes through a Georgia

Open Records Act request. The prosecution’s file

revealed stark evidence of racial discrimination. See

Foster, 136 S. Ct. at 1744 (listing prosecution

materials on which Black jurors’ names were

repeatedly circled, highlighted, and otherwise singled

out). Rejecting the prosecution’s attempt to minimize

the significance of this evidence, the Court emphasized

“the persistent focus on race in the prosecution’s file.”

Id. at 1754. The Court in Foster made clear that it

would not turn a blind eye to evidence within the

prosecution’s file that “demonstrates a concerted effort

to keep [B]lack prospective jurors off the jury.” Id. at

1755.

Absent Foster’s diligence and the passage of the

Georgia Open Records Act in 2002,16 the prosecution’s

notes would have never been revealed. The

prosecution’s notes were significant because they

allowed the Court to discern the prosecution’s motive.

See Foster, 136 S. Ct. at 1755 (“The contents of the

prosecution’s file, however, plainly belie the State’s

claim that it exercised its strikes in a ‘color blind’

manner.”); see also Miller-El II, 545 U.S. at 266 (“[T]he

prosecutors’ own notes proclaim that the [training

manual’s] emphasis on race was on their minds when

they considered every potential juror.”).

Evidence of racial discrimination held exclusively

by the prosecution is difficult to obtain. When a

defendant does uncover evidence of this type, it is

crucial that it be properly considered under Batson as

part of “all relevant circumstances” regarding

purposeful discrimination. Flowers, 139 S. Ct. at 2245

(citation omitted); see also Snyder, 552 U.S. at 478

(“[I]n reviewing a ruling claimed to be Batson error, all

of the circumstances that bear upon racial animosity

must be consulted.”) (citation omitted). Assessing

discriminatory purpose requires a careful inquiry of

circumstantial evidence of intent. See Foster, 136 S.

Ct. at 1748. Evidence of racial discrimination within

16 See Ga. Code Ann. §§ 50-18-70–50-18-77 (2002).

the prosecution’s jury selection materials offers rare

and unique insight into the prosecution’s intent, which

enhances the accuracy of Batson determinations and

furthers the Court’s “efforts to eradicate racial

discrimination” in jury selection. Batson, 476 U.S. at

85. This Court must ensure that unnecessary

procedural hurdles do not preclude consideration of

this vital evidence.

Pinholster Should Not Nullify The

Equal Protection Clause By Barring

New Evidence That Fundamentally

Alters A Batson Claim Where

Prosecutors Withheld That Evidence

From A Diligent Habeas Petitioner

Until After State Court Proceedings.

Pinholster and the Antiterrorism and Effective

Death Penalty Act of 1996 should not limit

consideration of such evidence. First, given the nature

of the evidence of racial discrimination within the

prosecution’s file, it “fundamentally alters” the Batson

claim within the meaning of Pinholster. See, e.g.,

Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014)

(finding claim “fundamentally altered” where new

evidence placed “claim in a significantly different and

substantially improved evidentiary posture” (citation

omitted)). The overriding concern when assessing a

Batson claim is whether the prosecution’s race neutral

explanations are credible. This necessarily requires a

searching inquiry into the prosecution’s intent. See

Foster, 136 S. Ct. at 1748 (emphasizing that assessing

whether discriminatory purpose “was a motivating

factor demands a sensitive inquiry into such

circumstantial . . . evidence of intent as may be

available” (citation omitted)). There is no other type of

evidence suited to aid that inquiry—save for the

improbable circumstance where a prosecutor openly

acknowledges race as a basis for the strike—like

evidence within the prosecution’s file demonstrating a

“persistent focus on race.” Id. at 1754.

In Mr. Broadnax’s case, the prosecution’s jury

selection file included a spreadsheet that listed the

race of each prospective juror. The names of the

prospective Black jurors—and only their names—were

bolded. In short, the prosecution was identifying and

tracking the Black jurors, which is a tactic that this

Court has deemed especially relevant in prior Batson

cases. See, e.g., Miller El I, 537 U.S. at 347

(emphasizing that “the prosecutors marked the race of

each prospective juror on their juror cards”); Foster,

136 S. Ct. at 1744 (noting that “the names of [B]lack

prospective jurors were highlighted in bright green” on

jury venire list). This evidence is fundamentally

different than any evidence the petitioner could have

presented prior to federal habeas proceedings, as it

sheds light directly on the prosecution’s intent, which

is the essence of the Batson inquiry. Such evidence,

therefore, fundamentally alters the Batson claim

within the meaning of Pinholster.

Second, Mr. Broadnax’s case is just the sort of case

the Supreme Court majority said “may well present a

new claim.” Pinholster, 563 U.S. at 186 n.10. In

Pinholster, this Court held that “review under [28

U.S.C.] § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the

merits.” 563 U.S. at 181. In her dissenting opinion,

Justice Sotomayor expressed concern that this

approach would punish diligent petitioners who,

through no fault of their own, were unable to obtain

evidence withheld in state court. See id. at 214

(Sotomayor, J., dissenting) (noting Pinholster’s

“potential to bar federal habeas relief for diligent

habeas petitioners who cannot present new evidence

to a state court”). Justice Sotomayor detailed the

hypothetical example of a petitioner who “diligently

attempted in state court to develop the factual basis”

for a Brady claim but was unable to do so because the

prosecution withheld supporting evidence. Id. If the

petitioner later obtained the evidence after state court

proceedings concluded, Justice Sotomayor observed, a

federal court could not consider the new evidence.

In response to this concern, the majority explained

that the scenario Justice Sotomayor highlighted “may

well present a new claim.” Id. at 186 n.10. But the

majority declined to “draw the line between new

claims and claims adjudicated on the merits.” Id.

(citation omitted). Mr. Broadnax’s case, which

exemplifies the concern raised in Justice Sotomayor’s

dissent, demonstrates the urgency of resolving this

question. Like Justice Sotomayor’s hypothetical

petitioner, Mr. Broadnax diligently sought evidence

within the prosecution’s file in support of his Batson

claim during state habeas proceedings. The

prosecution withheld that evidence until the state

proceedings concluded. And the courts below refused

to consider the evidence during federal habeas

proceedings—even though it demonstrates that the

prosecution improperly focused on race when

exercising peremptory strikes in Mr. Broadnax’s case.

Thus, Mr. Broadnax’s case, like Justice Sotomayor’s

hypothetical petitioner, “may well present a new

claim.” Id.

Third, aside from the fact that this is a capital case,

which this Court has said it must scrutinize more

closely, see Kyles v. Whitley, 514 U.S. 419, 422 (1995)

(“[o]ur duty to search for constitutional error is never

more exacting than it is in a capital case” (citation

omitted)), it is especially important for this Court to

review this issue because of the grave harms of racially

discriminatory jury selection. As discussed supra,

evidence that fundamentally alters a Batson claim

must be considered not only to protect the

constitutional rights of habeas petitioners, but also to

vindicate the constitutional rights of excluded Black

jurors, protect the integrity of the deliberative process,

and promote the legitimacy of our judicial system. See,

e.g., Miller-El II, 545 U.S. at 238 (explaining that “the

very integrity of the courts is jeopardized when a

prosecutor’s

discrimination

invites

cynicism

respecting the jury’s neutrality . . . and undermines

public confidence in adjudication” (internal quotation

marks and citation omitted)); Flowers, 139 S. Ct. at

2241 (Indeed, “[t]he core guarantee of equal protection,

ensuring citizens that their State will not discriminate

on account of race, would be meaningless were we to

approve the exclusion of jurors on the basis of such

assumptions, which arise solely from the jurors’

race.”).

CONCLUSION

Accordingly, this Court must grant certiorari and

definitively hold that Pinholster, 563 U.S. 170 (2011),

may not be construed to abrogate the Equal Protection

Clause by insulating from constitutional scrutiny

significant new evidence of a Batson violation that,

though timely requested by a diligent habeas

petitioner, was withheld by prosecutors until after the

completion of state court proceedings. To do otherwise

would render the Equal Protection Clause “but a vain

and illusory requirement.” Batson, 476 U.S. at 98.]

Respectfully Submitted,

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL*

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC

40 Rector St., 5th Floor.

New York, NY 10006

(212) 965-2200

sspital@naacpldf.org

CHRISTOPHER KEMMITT

MICHAELE TURNAGE YOUNG

MAHOGANE D. REED

SANTINO COLEMAN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW,

Ste 600

Washington, DC 20005

* Counsel of Record

September 23, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.