Opposition Brief — Keyaira Porter, Petitioner v. Arizona

Supreme Court briefDec 1, 2021

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No. 21-6008

In the

Supreme Court of the United States

KEYAIRA PORTER,

STATE OF ARIZONA,

Petitioner,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Arizona

BRIEF IN OPPOSITION

MARK BRNOVICH

Attorney General

of Arizona

JOSEPH A. KANEFIELD

Chief Deputy/

Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

LINLEY WILSON

Deputy Solicitor

General/ Section

Chief of Criminal

Appeals

MICHAEL T. O’TOOLE

Assistant Attorney

General

(Counsel of Record)

JILLIAN B. FRANCIS

Assistant Attorney

General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

Criminal Appeals Section

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-8830

Michael.OToole@azag.gov

CADocket@azag.gov

Counsel for Respondent

QUESTIONS PRESENTED

Whether a trial court denying a Batson challenge must expressly

state it is finding no purposeful discrimination when a peremptory

strike is partially based on a prospective juror’s demeanor and the other

reason for the strike is not found to be pretextual.

Whether appellate courts are constitutionally required to conduct

a comparative juror analysis for the first time on appeal when resolving

a Batson claim.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................................................... 2

TABLE OF CONTENTS ........................................................................... 3

TABLE OF AUTHORITIES ...................................................................... 5

INTRODUCTION ...................................................................................... 7

STATEMENT OF THE CASE .................................................................. 8

Factual Background. ............................................................... 8

Jury Selection. ......................................................................... 9

Arizona Court of Appeals Decision. ...................................... 11

Arizona Supreme Court Decision. ........................................ 12

Arizona Eliminates Peremptory Challenges. ....................... 14

REASONS FOR DENYING THE PETITION ........................................ 14

The Court Should Deny the Petition Because There Is

No Intractable Split of Authority Concerning the Scope

of this Court’s Decision in Snyder. ....................................... 14

There is no significant jurisdictional split

regarding the scope of Snyder...................................... 14

The Arizona Supreme Court found that Arizona

law does not generally require express findings,

not that the federal constitution has no such

requirement. ................................................................. 22

II.

III.

Porter’s Comparative Juror Analysis Claim Was

Rejected on Adequate and Independent State Grounds;

At Any Rate, There is No Jurisdictional Split as To

Whether Appellate Courts Are Required to Conduct a

Comparative Juror Analysis for the First Time on

Appeal. ................................................................................... 24

The Arizona Supreme Court denied Porter’s

comparative juror analysis claim on adequate and

independent state law grounds.................................... 24

There is no jurisdictional split regarding a

general requirement to conduct a comparative

juror analysis for the first time on direct appeal. ....... 27

Porter’s claim would fail even if a comparative

juror analysis were conducted. .................................... 36

Arizona’s Elimination of Peremptory Challenges

Renders This Case A Poor Vehicle to Consider Any

Batson-Related Issues. .......................................................... 38

CONCLUSION ........................................................................................ 39

APPENDIX

APPENDIX A

Arizona Supreme Court Order Eliminating Peremptory

Strikes ....................................................................................... 1a

APPENDIX B

Excerpt from Voir Dire, March 27, 2018, pages 1–118 ............ 8a

APPENDIX C

Excerpt from Sergeant James Hermes’ Direct Examination,

March 28, 2018, pages 98–115 .............................................. 127a

TABLE OF AUTHORITIES

Cases

Addison v. State, 962 N.E.2d 1202 (Ind. 2012) ....................................... 35

Batson v. Kentucky, 476 U.S. 79 (1986) .................................... 7, 9, 14, 24

Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006) .................................... 35

Clay v. Commonwealth, 291 S.W.3d 210 (Ky. 2008) .............................. 36

Commonwealth v. Maldonado, 788 N.E.2d 968 (Mass. 2003) ................ 18

Coombs v. Diguglielmo, 616 F.3d 255 (3d Cir. 2010) ............................. 18

Davis v. Ayala, 576 U.S. 257 (2015) ........................................................ 21

Dretke v. Haley, 541 U.S. 386 (2004) ...................................................... 24

Edelman v. People of State of Cal., 344 U.S. 357 (1953) ........................ 26

Flowers v. Mississippi, 139 S. Ct. 2228 (2019) ................................. 30, 31

Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) ................................ 18

Harris v. Hardy, 680 F.3d 942 (7th Cir. 2012) ....................................... 33

Herb v. Pitcairn, 324 U.S. 117 (1945) ............................................... 24, 36

Marshall v. Commonwealth, 977 N.E.2d 40 (Mass. 2012) ..................... 18

McDaniels v. Kirkland, 813 F.3d 770 (9th Cir. 2015) ............................ 34

Michigan v. Long, 463 U.S. 1032 (1983) ........................................... 23, 25

Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231 (2005) .................. 28, 31

Morgan v. City of Chicago, 822 F.3d 317 (7th Cir. 2016) ....................... 17

Morgan v. Illinois, 504 U.S. 719 (1992) .................................................. 31

People v. Beauvais, 393 P.3d 509 (Colo. 2017) .................................. 20, 35

People v. Lenix, 187 P.3d 946 (Cal. 2008) ............................................... 35

People v. Tennille, 888 N.W.2d 278 (Mich. App. 2016) ........................... 18

People v. Williams, 299 P.3d 1185 (2013) ............................................... 17

Ramey v. Lumpkin, 7 F.4th 271 (5th Cir. 2021) ..................................... 34

Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009) ................................ 33

Roach v. State, 79 N.E.3d 925 (Ind. App. 2017) ............................... 16, 17

Smulls v. Roper, 535 F.3d 853 (8th Cir. 2008) ....................................... 20

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

Sochor v. Florida, 504 U.S. 527 (1992) ................................................... 26

State v. Alexander, 851 S.E.2d 411 (N.C. App. 2020) ............................. 19

State v. Lucas, 18 P.3d 160 (Ariz. App. 2001) ......................................... 23

State v. Pona, 926 A.2d 592 (R.I. 2007) .................................................. 19

State v. Reiners, 664 N.W.2d 826 (Minn. 2003) ...................................... 19

Thaler v. Haynes, 559 U.S. 43 (2010)...................................................... 21

United States v. Brown, 809 F.3d 371 (7th Cir. 2016)............................ 38

United States v. Cruse, 805 F.3d 795 (7th Cir. 2015) ............................. 21

United States v. Lovies, 16 F.4th 493 (7th Cir. 2021)............................. 33

United States v. McAllister, 693 F.3d 572 (6th Cir. 2012)...................... 18

United States v. McMath, 559 F.3d 657 (7th Cir. 2009) ............. 17, 20, 21

United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011)............................. 19

United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011) ........................ 17

United States v. Thompson, 735 F.3d 291 (5th Cir. 2013) ......... 16, 17, 19

United States v. Wilkerson, 556 Fed. Appx. 360 (5th Cir. 2014) ............ 34

Wainwright v. Goode, 464 U.S. 78 (1983) ............................................... 24

Wainwright v. Witt, 469 U.S. 412 (1985) ................................................ 32

Williams v. State, 429 P.3d 301 (Nev. 2018)........................................... 20

Rules

Ariz. R. Crim. P. 22.1(a)(2) ...................................................................... 11

INTRODUCTION

In the Petition for Writ of Certiorari, Petitioner Keyaira Porter

presents two questions that implicate Batson v. Kentucky, 476 U.S. 79

(1986), and its progeny. Neither of the questions presented warrant

this Court’s review.

Contrary to Porter’s contention, there is no

significant split of authority concerning the scope of this Court’s holding

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

Further, the Arizona

Supreme Court relied on Arizona case law to conclude that Porter’s

comparative juror analysis claim was waived because it was not timely

raised in the trial court.

Pet. App., at 9–10a, ¶¶ 20–22.

This

constituted an adequate and independent state law ground for denying

the claim, which bars federal review. Finally, Arizona recently became

the first state in the country to eliminate peremptory challenges. BIOApp., at 2–7a. This renders this case a poor vehicle to resolve either

issue presented.

For these reasons and others discussed below, the

petition for writ of certiorari should be denied.

STATEMENT OF THE CASE

Factual Background.

On the evening of August 14, 2017, police officers conducted a

traffic stop in Mesa, Arizona. BIO-App., at 131–32a. After concluding

the stop, the officers called for the subject vehicle to be towed. Id. at

132–34a. The officers allowed Porter, a passenger in the vehicle, to

retrieve items from the vehicle before the tow truck arrived. Id. at 132–

33a. Sometime after the tow truck arrived, a police sergeant told Porter

she had to move away from the vehicle so it could be safely towed. Id.

at 133–34a. Porter, nonetheless, walked back to the vehicle to remove

more items. Id. The sergeant explained that the tow-truck driver had

to tow the vehicle, but Porter became argumentative and refused to

move away from the vehicle. Id.

When the sergeant put his hand on Porter’s shoulder to guide her

away from the vehicle, she turned around and “swung at [him],”

missing his face but hitting his arm. Id. at 134a, 141a. The sergeant

tried to grab Porter to arrest her, but she pushed him. Id. at 134–35a.

Porter engaged in a “pushing match” with the sergeant, and they wound

up falling to the ground.

Id. at 141a.

Porter was “screaming” and

“cussing.” Id. 142a.

While on the ground, the sergeant’s right arm was pinned

underneath Porter. Id. at 134–35a, 142–45a. Porter was “swinging and

flailing her arms and legs,” and the sergeant struggled to keep her

pinned down. Id. at. 135a. When the sergeant ordered Porter to let go

of his arm, she tried to bite it instead. Id. at 135a, 145a. At that point,

the sergeant, consistent with his use-of-force training, struck Porter one

time in the face.

Id. at 130–31a, 135a, 139a, 145–46a.

Porter

immediately released the sergeant’s arm, and the officers handcuffed

her. Id. at 135a, 145a. Porter was arrested for aggravated assault and

resisting arrest. Pet. App., at 2a, ¶ 2.

Jury Selection.

During jury selection, Porter challenged the prosecution’s

peremptory strikes of two minority jurors, Juror 2 and Juror 20. BIOApp., at 120–21a. The prosecutor stated she struck Juror 2 because the

juror’s brother was convicted of aggravated assault, which was the

“same nature as this matter.” Id. at 122a.

The prosecutor added that

this juror “did not seem to be very sure with her responses” when she

was asked if her brother’s conviction would impact her ability to serve

on the jury; thus, the prosecutor questioned the juror’s impartiality in

“an aggravated assault case.”

Id.

The prosecutor struck Juror 20

because she had previously been the foreperson of a jury that returned

a not-guilty verdict. Id. at 122–23a.

In response, Porter did not assert that the prosecutor’s reasons

were not race-neutral, nor did she claim they were a pretext for

discrimination. Id. at 123–24a. In fact, in regard to Juror 2, Porter

said she “recognize[d]” the prosecutor’s concern regarding the juror’s

“brother being arrested and charged and found guilty of an assault,

which is the same situation here as far as assault . . . .”

Id.

And

although Porter said the juror indicated she could be fair, she did not

challenge the prosecutor’s assertion that the juror “did not seem to be

very sure with her responses” during voir dire. Id. at 122–24a. Porter

did not have any response to the prosecutor’s reasons for striking Juror

20. Id.

The trial court accepted the prosecutor’s race-neutral explanations

for the strikes and denied Porter’s Batson challenge. Id. at 124–26a. In

denying the challenge, the court noted: (1) the prosecutor struck

another panel member who had previously rendered a not-guilty

verdict; (2) the prosecutor had struck another panel member who had

been a foreperson; (3) it was reasonable for the State to strike a

potential juror “that had an experience where their close family member

was arrested for a similar charge to that which is involved in this case”;

(4) it was reasonable to “strike jurors who may be stronger

personalities,” which was an apparent reference to the strike of a juror

who had previously been a foreperson; 1 and (5) it was reasonable to

strike jurors who had rendered not guilty verdicts in the past. Id.

Porter did not object to the trial court’s findings or request that

further findings be made. Id. at 126a.

Arizona Court of Appeals Decision.

Even though Porter did not raise these claims on appeal, a

majority of the Arizona Court of Appeals held that that the trial court

was required to make express findings regarding: (1) the prosecutor’s

_______________

In Arizona, jurors typically elect their own foreperson. See Ariz. R.

Crim. P. 22.1(a)(2). The trial court, therefore, was acknowledging that

forepersons may have stronger personalities than other jurors.

demeanor-based explanation for striking Juror 2; and (2) “the racially

disproportionate impact of the strikes.” Pet. App., at 13a, ¶ 1.

The dissenting judge, in contrast, concluded that the trial court

“did exactly as was required under Arizona’s current Batson

jurisprudence; it considered the State’s explanations and Porter’s

arguments, found one of the State’s proffered reasons for striking

Prospective Juror 2 credible—and, in fact, reasonable—and concluded

Porter had not met her burden of showing the State was motivated by

discriminatory intent.” Id. at 25a, ¶ 33 (McMurdie, J., dissenting). The

dissent also took issue with the majority adopting its “sweeping new

rule” because Porter had made no such arguments either at trial or on

appeal. Id. at 27a, ¶ 36, n.5.

Arizona Supreme Court Decision.

The Arizona Supreme Court granted review and, as an initial

matter, chastised the court of appeals for resolving an issue on appeal

that was not raised in the trial court or on appeal and doing so without

briefing by the parties.

Pet. App., at 3a, ¶ 5.

The court held that

neither federal law nor Arizona law require a trial court to “make

express findings on the credibility of a demeanor-based justification for

a peremptory strike when a non-demeanor-based justification is also

offered and there is no evidence that either justification is pretextual.”

Id. at 2a, ¶ 1.

In regard to federal law, the court found that Snyder v. Louisiana,

552 U.S. 472 (2008), was “inapplicable in cases where a demeanor-based

and a nondemeanor-based justification are offered and neither is clearly

pretextual.” Pet. App., at 6a, ¶ 14. The court also found that “Arizona’s

Batson jurisprudence” likewise does not require “explicit findings on

demeanor-based justifications when a non-demeanor-based justification

is offered and there is no evidence that either justification is

pretextual.” Id. at 8a, ¶ 19.

Further, the court held that by failing to raise a comparative juror

analysis claim in the trial court, Porter “deprived the prosecutor of the

opportunity to distinguish allegedly similarly situated jurors and

divested the trial court of the occasion to conduct an in-depth

comparison of the jurors,” and, thus, she waived on the claim on appeal.

Id. at 9–10a, ¶ 22.

The Arizona Supreme Court ultimately upheld the trial court’s

denial of Porter’s Batson challenge, stating that although express

findings are not required, trial courts are encouraged “to make them as

they will bolster their rulings and facilitate review on appeal.” Id. at

10–11a, ¶ 27.

Arizona Eliminates Peremptory Challenges.

Shortly after the Arizona Supreme Court affirmed Porter’s

conviction and sentence, it adopted rules eliminating peremptory

challenges in both criminal and civil cases.

BIO-App., at 2–7a.

Consequently, Arizona has become the first state in the nation to abide

by Justice Marshall’s call for the complete elimination of peremptory

challenges.

Batson, 476 U.S. at 103–08 (1986) (Marshall, J.,

concurring) (encouraging the elimination of peremptory challenges

“entirely”).

REASONS FOR DENYING THE PETITION

The Court Should Deny the Petition Because There Is No

Intractable Split of Authority Concerning the Scope of this

Court’s Decision in Snyder.

There is no significant jurisdictional split regarding

the scope of Snyder.

Porter contends that certiorari should be granted on the first

question presented (i.e., whether a trial court must make express

findings at Batson’s third step) because state and federal courts are

divided on this question. Pet., at 10–25. The Arizona Supreme Court,

however, did not determine whether, as a general matter, “trial courts

must make express findings at Batson’s third step.” Id. at 11. Instead,

it decided the narrower, fact-intensive issue of whether federal or

Arizona law requires a trial court to “make express findings on the

credibility of a demeanor-based justification for a peremptory strike

when a non-demeanor-based justification is also offered and there is no

evidence that either justification is pretextual” in light of Snyder. Pet.

App., at 2a, ¶ 1; see also id. at 5a, ¶ 12 (“The crux of this case concerns

whether Snyder requires trial courts to make express findings on the

credibility of a demeanor-based justification in response to a Batson

challenge.”).

Porter contends that the Arizona Supreme Court recognized “the

split” in deciding her own case. Pet., at 12. But the court did not cite

any cases embracing a contrary holding to its own when it noted that

“the majority of federal courts” have concluded that “Snyder’s expressfinding requirement is inapplicable in cases where a demeanor-based

and a nondemeanor-based justification are offered and neither is clearly

pretextual.”

Pet. App., 6–7a, ¶ 14.

Further, as explained below,

although Porter suggests otherwise, only the Seventh Circuit has come

to a contrary conclusion than the one reached by the Arizona Supreme

Court on this issue.

Porter argues that the Fifth Circuit recognized a disagreement on

the scope of Snyder in United States v. Thompson, 735 F.3d 291, 300

(5th Cir. 2013). Pet., at 11. Thompson, however, merely noted that the

Seventh Circuit had taken a contrary view to the one taken in an

unpublished Eleventh Circuit decision. 735 F.3d at 300. And the Fifth

Circuit itself found Snyder does not “require a district court to make

record findings of a juror’s demeanor where the prosecutor justifies the

strike based on demeanor alone.”

Id.

This is consistent with the

Arizona Supreme Court’s decision below because it acknowledges that

Snyder’s rule is limited to situations where a non-demeanor-based

reason is found to be pretextual. Pet. App., 6–7a, ¶ 14.

Porter also cites the Indiana Court of Appeals’ decision in Roach v.

State, 79 N.E.3d 925, 930 (Ind. App. 2017), for the proposition that “the

federal circuit courts are split regarding” the scope of Snyder. Pet., at

11. Roach does state that the federal circuit courts “are split,” but it

only cites a footnote from a Seventh Circuit case in support of that

proposition, i.e., Morgan v. City of Chicago, 822 F.3d 317, 330 n.30 (7th

Cir. 2016). Roach, 79 N.E.3d at 930. That footnote, in turn, merely

cites to the Fifth Circuit’s decision in Thompson, supra, concerning the

disagreement between the Seventh Circuit and an unpublished

Eleventh Circuit decision.

Morgan, 822 F.3d at 330 n.30 (7th Cir.

2016).

Porter also cites a dissent in a California Supreme Court case in

support of her contention there is a split of authority. Pet., at 11. But

the dissent asserts a split about the need for an explicit analysis when

denying a Batson challenge in general; it does not support Porter’s

suggestion that there is a split of authority concerning the scope of

Snyder. See People v. Williams, 299 P.3d 1185, 1235 (2013) (Liu, J.

dissenting). Of the four cases cited by the dissent for the proposition

that Batson requires an explicit analysis at the third step, the only one

that addresses the scope of Snyder is––again––a Seventh Circuit case.

See United States v. Rutledge, 648 F.3d 555, 559 (7th Cir. 2011)

(following prior decision in United States v. McMath, 559 F.3d 657 (7th

Cir. 2009)). The other three cases cited by the dissent, in contrast, do

not concern the need for express findings when a peremptory strike is

based on demeanor. See United States v. McAllister, 693 F.3d 572, 581

(6th Cir. 2012) (prosecutor’s reasons nondemeanor-based); Coombs v.

Diguglielmo, 616 F.3d 255, 261–65 (3d Cir. 2010) (trial court appeared

to dismiss defendant’s Batson challenge out-of-hand and “improperly

restrict[ed] the defendant’s ability to prove discriminatory intent”);

Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir. 2008) (prosecutor’s

three reasons all nondemeanor-based).

Porter cites other cases in support of her contention that there is

an intractable split, but to the extent she suggests that these cases

establish a split regarding the scope of Snyder, this is misleading.

Rather, these cases discuss the purported general need for explicit

findings when addressing a Batson claim. See McAllister, 693 F.3d at

580 (stating that Batson requires stating “an explicit, on-the-record

analysis of each of the elements”) (internal quotation marks omitted);

Commonwealth v. Maldonado, 788 N.E.2d 968, 973 (Mass. 2003)

(requiring “specific findings by the judge as to whether the explanation

offered by the challenging party is both adequate and genuine” once a

prima facie Batson challenge is made) abrogated on different grounds by

Marshall v. Commonwealth, 977 N.E.2d 40 (Mass. 2012); People v.

Tennille, 888 N.W.2d 278, 288 (Mich. App. 2016) (“In conducting

a Batson analysis, a court may not simply ‘accept’ a prosecutor’s raceneutral explanation and terminate the inquiry there.”); State v. Reiners,

664 N.W.2d 826, 832 (Minn. 2003) (stating that “[i]t is important for the

court to announce on the record its analysis of each of the three steps of

the Batson analysis”); State v. Alexander, 851 S.E.2d 411, 419 (N.C.

App. 2020) (requiring “specific findings of fact at each stage of the

Batson inquiry”); State v. Pona, 926 A.2d 592, 608 (R.I. 2007)

(prospectively requiring “finding[s] of credibility for each challenged

strike” under Batson) (internal quotation marks omitted).

Thus, other than the Seventh Circuit, the decisions of every circuit

court and every state court of last resort cited in Porter’s petition that

have considered the scope of Snyder have held, like Arizona, that a

predicate to obtaining relief is the demonstration that a corollary nondemeanor-based reason was invalid. See Thompson, 735 F.3d at 300–01

(“Snyder does not require a district court to make record findings of a

juror’s demeanor where the prosecutor justifies the strike based on

demeanor alone.”); United States v. Moore, 651 F.3d 30, 42 (D.C. Cir.

2011) (“Snyder does not establish a rule that trial courts must make

specific findings about demeanor.”); Smulls v. Roper, 535 F.3d 853, 860–

61 (8th Cir. 2008) (en banc) (distinguishing Snyder where “both

proffered reasons [for the peremptory strikes] withstand scrutiny”);

People v. Beauvais, 393 P.3d 509, 521, ¶ 41 (Colo. 2017) (“We agree with

the courts that confine Snyder to its facts.”); Williams v. State, 429 P.3d

301, 310 (Nev. 2018) (concluding that trial court erred in denying

Batson challenge where the non-demeanor-based reason for the strike

was pretextual and there was no credibility finding regarding the

demeanor-based reason).

And even under Seventh Circuit precedent, the trial court’s

decision in this case would have been upheld. In McMath, the trial

court summarily denied the defendant’s Batson challenge, even though

the defense challenged the prosecutor’s demeanor-based reason for the

strike. 559 F.3d at 661. On that record, the Seventh Circuit remanded

for further findings and a possible evidentiary hearing.

Id. at 666.

Here, in contrast, even though the defense did not assert that the

prosecutor’s race-neutral reasons were pretextual, the trial court made

factual findings and concluded there was no “purposefulness [sic]

discrimination.” BIO-App., at 125–26a.

Under Seventh Circuit

precedent, the trial court’s findings were sufficient. See United States v.

Cruse, 805 F.3d 795, 807–09 (7th Cir. 2015) (upholding denial of Batson

challenge where the trial judge found that the reasons given by the

prosecutor were race-neutral and the that a strike was “not racially

invidious”).

Further, after the Seventh Circuit decided McMath, this Court

upheld the denial of a Batson challenge even though the trial judge who

denied the challenge did not personally observe the demeanor in

question, and even though the judge denied the challenge “without

further explanation” after finding the prosecutor’s reason for the strike

was race-neutral.

Thaler v. Haynes, 559 U.S. 43, 45 (2010).

recently, this Court also rejected the contention that it was necessary to

consider a demeanor-based reason for a strike when the other reason for

the strike was valid. Davis v. Ayala, 576 U.S. 257, 275 (2015) (“As a

result [of the valid reason for the strike], it is not necessary for us to

consider the prosecutor’s supplementary reason for this strike—the poor

quality of [the juror’s] responses ….”). The scope of this Court’s decision

in Snyder, therefore, is not seriously in question.

Therefore, contrary to Porter’s suggestion, there is no intractable

split regarding the scope of Snyder.

The Arizona Supreme Court found that Arizona law

does not generally require express findings, not that

the federal constitution has no such requirement.

As noted, in addition to suggesting that there is a split concerning

the parameters of Snyder, Porter more broadly contends there is a split

as to whether express findings must be made at Batson’s third step.

Pet., at 11–16.

But, again, the Arizona Supreme Court did not generally consider

the purported need for express findings at Batson’s third step––it only

addressed the limited issue of whether “a trial court must make express

findings on the credibility of a demeanor-based justification for a

peremptory strike when a non-demeanor-based justification is also

offered and there is no evidence that either justification is pretextual.”

Pet. App., at 2a, ¶ 1; see also id. at 3a, ¶ 4 (again setting forth the scope

of the court’s review).

The court rejected the contention that federal law, specifically

Snyder, mandated such a requirement in Section I of its opinion. Id. at

4–7a, ¶¶ 7–14.

Then in Section II, the supreme court considered

whether “Arizona's Batson jurisprudence requires express findings that

the prosecutor's race-neutral reasons were credible and non-pretextual.”

Id. at 7a, ¶ 15. The court first rejected the contention that “Arizona law

requires

express

findings

all

proffered

peremptory

strike

justifications in light of” a prior state court of appeals decision, State v.

Lucas, 18 P.3d 160 (Ariz. App. 2001). Pet. App., at 7a, ¶ 16. Next, the

court

rejected

Porter’s

invitation

implement

explicit-

determination rule based on out-of-state case law. Id. at 7–8a, ¶ 17.

Finally, the Arizona Supreme Court relied on its own precedent to

conclude that express findings are not required under Batson’s third

step. Id. at 8a, ¶ 18.

Accordingly, to the extent there is a jurisdictional split concerning

whether a trial court must make express findings at Batson’s third step,

this is not the case to consider that issue because the Arizona Supreme

Court did not make any such determination; instead, it merely found

that Arizona law imposes no such requirement. See Michigan v. Long,

463 U.S. 1032, 1040 (1983) (“Respect for the independence of state

courts, as well as avoidance of rendering advisory opinions, have been

the cornerstones of this Court’s refusal to decide cases where there is an

adequate and independent state ground.”). And, in fact, because Batson

declined to “to formulate particular procedures to be followed upon a

defendant’s timely objection to a prosecutor’s [peremptory] challenges,”

476 U.S. at 99, it is not surprising that various jurisdictions employ

somewhat different standards for resolving Batson challenges.

II.

Porter’s Comparative Juror Analysis Claim Was Rejected

on Adequate and Independent State Grounds; At Any Rate,

There is No Jurisdictional Split as To Whether Appellate

Courts Are Required to Conduct a Comparative Juror

Analysis for the First Time on Appeal.

The Arizona Supreme Court denied Porter’s

comparative juror analysis claim on adequate and

independent state law grounds.

It is a long-established principle that this Court will not review a

state court decision supported by adequate and independent state law

grounds. Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945) (“This Court

from the time of its foundation has adhered to the principle that it will

not review judgments of state courts that rest on adequate and

independent state grounds.”). Under this principle, “the views of the

[S]tate’s highest court with respect to state law are binding on the

federal courts.” Wainwright v. Goode, 464 U.S. 78, 84 (1983); see also

Dretke v. Haley, 541 U.S. 386, 392 (2004) (“[A]n adequate and

independent state procedural disposition strips this Court of certiorari

jurisdiction to review a state court’s judgment . . . .”).

This Court has laid out the following guidance for determining

when a state court decision is based on an adequate and independent

state law ground.

When the state court decision rests primarily on

federal law, it, of course, is not based on a state law ground. Long, 463

U.S. at 1040–41. But if the federal authorities cited by the state court

“are being used only for the purpose of guidance, and do not themselves

compel the result that the court has reached,” the ruling is one of state

law. Id at 1041. Finally, “[i]f the state court decision indicates clearly

and expressly that it is alternatively based on bona fide separate,

adequate, and independent grounds,” federal review is barred. Id.

Under this guidance, the decision below resolved Porter’s

comparative juror analysis claim on adequate and independent statelaw grounds and, thus, that claim is not subject to review in this Court.

The Arizona Supreme Court applied well-established state law holding

that Porter’s comparative juror analysis claim was precluded because

she failed to raise it in the trial court. Pet. App., at 9–10a, ¶¶ 21–22

(collecting Arizona cases finding waiver of comparative analysis when

raised for the first time on appeal). The court did not rely on federal

law in rejecting the claim on the basis of waiver. Id. Thus, consistent

with Snyder’s suggestion that such claims can be defaulted in state

court, Porter waived her comparative juror analysis claim by not raising

the claim in the trial court in the first instance. See Snyder, 552 U.S. at

483 n.2 (noting that––in contrast to the instant case––that the state

supreme court did not find that the petitioner “had procedurally

defaulted reliance on a comparison of the African–American jurors

whom the prosecution struck with white jurors whom the prosecution

accepted”).

Accordingly, the Arizona Supreme Court’s decision not to conduct

a comparative juror analysis for the first time on appeal rests on an

adequate and independent state law ground, and, is therefore not

subject to review by this Court. See Sochor v. Florida, 504 U.S. 527,

533–34 (1992) (holding that when state supreme court found that a

claim was “not preserved for appeal,” this was an adequate and

independent ground preventing federal review); see also Edelman v.

People of State of Cal., 344 U.S. 357, 358 (1953) (“It is clear that this

Court is without power to decide whether constitutional rights have

been violated when the federal questions are not seasonably raised in

accordance with the requirements of state law.”).

There is no jurisdictional split regarding a general

requirement to conduct a comparative juror analysis

for the first time on direct appeal.

Porter contends the country is split on the question of whether

appellate courts “should” consider a comparative juror analysis for the

first time on appeal. Pet., at 24–25. But whether an appellate court

should consider such claim for the first time on appeal does not raise a

federal constitutional issue; rather, any split would have to necessarily

concern a requirement that such claims be considered for the first time

on appeal. In other words, if there is no constitutional right at issue,

there is no case or controversy under Article III.

And to the extent Porter suggests there is a split between

jurisdictions requiring a court to conduct a comparative juror analysis

for the first time on direct appeal and those that forbid it, she is

mistaken.

Miller-El II, Snyder, and Flowers.

To give context to Porter’s supposed split, a quick discussion of

this Court’s decisions in Miller-El II, Snyder, and Flowers is warranted.

In each of these cases, the Court conducted a comparative juror analysis

when one was not conducted in the trial court, but each case involved

capital sentences and extraordinary circumstances that are not present

in Porter’s case.

In Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231 (2005), this

Court overturned a Batson challenge in a capital murder trial and

granted habeas relief.

Miller-El II relied on a number of factors in

concluding there was a Batson violation, including: (1) the prosecutor’s

use of peremptory strikes to remove 91% of prospective black jurors; (2)

a comparative juror analysis against similarly situated non-minority

jury members; (3) disparate questioning between prospective nonminority and black jurors; (4) use of the “jury shuffling” procedure; and

(5) evidence of historical discrimination supplemented by a manual

outlining a specific policy of excluding blacks from juries. Id. at 253–66.

Further, the evidence revealed that the prosecution struck a black juror

who would have been an “ideal juror” in a death penalty case and did

not strike similarly-situated white jurors. Id. at 241–52.

In Snyder, this Court again conducted a comparative juror

analysis when one had not been made in the trial court; the Court

warned, however, of the difficulties inherent in conducting a

comparative juror analysis for the first time on appeal. 552 U.S. at 483

(noting that “a retrospective comparison of jurors based on a cold

appellate record may be very misleading when alleged similarities were

not raised at trial”). The Court nevertheless concluded that the juror

trait at issue—concern about serving on a sequestered jury due to

conflicting obligations—was thoroughly explored by the trial court

during voir dire, and it found that the prospective black juror was one of

50 members of the venire who expressed concern that the trial would

interfere with his personal obligations. Id. at 480, 483. The reason

given for striking the black juror was the juror’s student teaching

obligations, but the court called the juror’s school and confirmed the

juror would be able to fulfil his obligations without issue. Id. at 480–85.

This Court found that the prosecutor’s use of a peremptory strike

against the black juror, when compared to similarly situated white

jurors, constituted pretextual racial discrimination considering the

prospective jurors’ assertions of personal hardship if required to serve

on a sequestered jury. Id. at 483–85.

More recently, in Flowers v. Mississippi, 139 S. Ct. 2228 (2019),

the Court found that four facts required the reversal of a state court’s

rejection of a Batson claim: (1) in the defendant’s six trials, the

prosecution employed peremptory challenges to strike 41 of 42 black

prospective jurors; (2) in the sixth and most recent trial, the prosecution

exercised peremptory strikes against five of the six black prospective

jurors; (3) the prosecution engaged in “dramatically disparate

questioning of black and white prospective jurors”; and (4) the Court

engaged in a comparative juror analysis and found that the prosecution

struck one black prospective juror who was similarly situated to white

prospective jurors who were not struck. 139 S. Ct. at 2235, 2248–49.

The Court stated that it need not decide whether any of those facts

alone would require reversal, but instead found that all the facts and

circumstances taken together established clear error in denying the

defendant’s Batson challenge. Id. at 2251

These three cases are readily distinguishable from the facts

present in this case. The numerous factors at issue in Miller-El II and

the statistics showing a pattern of racially discriminatory challenges

are simply not present here. Likewise, the “extraordinary facts” and

procedural history in Flowers are not present here. Flowers, 139 S. Ct.

at 2235.

And finally, unlike the voir dire in Snyder, in which the

prosecutor’s non-demeanor-based reason for striking the juror was

“thoroughly explored” and plainly contradicted by the record, 552 U.S.

at 482–83, here, the record is too sparse for appellate review. Moreover,

Miller-El II, Snyder, and Flowers do not call for the proposition that a

comparative juror analysis must be conducted on a cold record or that

any singular discrepancy calls for reversal. Instead, in these capital

cases the comparative juror analysis was one factor among many—

contradictory

evidence,

pattern

discrimination,

disparate

questioning, or extraordinary facts—that led to reversal.

Crucially, Miller-El-II, Snyder, and Flowers were all death penalty

cases. Capital cases routinely involve extensive and thorough voir dire

questioning to determine whether prospective jurors’ views on capital

punishment would hinder the performance of their duties. 2 See Morgan

v. Illinois, 504 U.S. 719, 726–28 (1992) (emphasizing that in a capital

_______________

For example, the voir dire in Miller-El II lasted five weeks and the

transcripts consisted of 4,662 pages. 545 U.S. at 283 (Thomas, J.,

dissenting).

case, jurors must be impartial as to both culpability and punishment);

Wainwright v. Witt, 469 U.S. 412, 424–26 (1985) (noting that, in capital

cases, “many veniremen simply cannot be asked enough questions to

reach the point where their bias has been made ‘unmistakably clear’”).

Accordingly, the voir dire record in capital cases tends to be more

thorough and therefore more appropriate for a first-time comparative

juror analysis than a voir dire record in a non-capital case, like Porter’s,

where a race-neutral reason for a strike will likely not have been

“thoroughly explored.” Snyder, 552 U.S. at 483.

There is no split of authority concerning whether

an appellate court is required to conduct a

comparative juror analysis for the first time on

appeal.

Porter cites circuit court cases where a comparative analysis was

used by federal habeas courts in determining whether a state court’s

decision was based on an unreasonable determination of the facts. Pet.,

at 25–26. For example, in a capital habeas case, the Seventh Circuit

conducted a comparative juror analysis as part of the “totality of the

circumstances”

concluding

that

the

habeas

petitioner

had

demonstrated purposeful discrimination in the jury selection by

establishing that the state court’s contrary determination was based on

“an unreasonable determination of the facts.”

Harris v. Hardy, 680

F.3d 942, 964–65 (7th Cir. 2012). But in another case on direct review,

the Seventh Circuit found that the defendant “forfeited [his] jurorcomparison arguments by not presenting them to the district court,”

United States v. Lovies, 16 F.4th 493, 502 (7th Cir. 2021) (noting that

“[o]ther circuits have held that where a defendant fails to argue for

comparative juror analysis at trial, the appellate court need not conduct

such an analysis”). The Seventh Circuit ultimately declined to decide

whether a comparative juror analysis is subject to any “review on

[direct] appeal, or if it may be reviewed only for plain error.” Id. at 502.

The point, however, is that the Court did not hold that a comparative

juror analysis is constitutionally required on direct appeal. Id. at 502–

03.

Likewise, the Fifth Circuit conducted a comparative juror analysis

in a federal capital case for the first time in finding that the state

court’s determination of the facts underlying a Batson claim was

unreasonable.

Reed v. Quarterman, 555 F.3d 364, 370–71 (5th Cir.

2009). That court, however, has also recognized that there is no clearly

established law that courts “must, of their own accord, uncover and

resolve all facts and circumstances that may bear on whether a

peremptory strike was racially motivated when the strike’s challenger

has not identified those facts and circumstances.” Ramey v. Lumpkin, 7

F.4th 271, 280 (5th Cir. 2021) (emphasis in original). And, in fact, the

Fifth Circuit has also found that, on direct appeal, a defendant

“robb[ed] the Government of the opportunity to demonstrate other

meaningful distinctions” between jurors by not raising the comparisons

at trial. United States v. Wilkerson, 556 Fed. Appx. 360, 365 (5th Cir.

2014) (unpublished). And although Wilkerson ultimately compared the

jurors at issue, it did not hold that it was required to so by federal law.

Id.

Further, although the Ninth Circuit will employ a comparative

juror analysis in a federal habeas case when no such comparison had

been requested in the trial court, this again is in the context of a federal

habeas court determining whether the state court’s determination of the

facts underlying a Batson claim was unreasonable. See McDaniels v.

Kirkland, 813 F.3d 770, 778–79 (9th Cir. 2015).

And, in fact, even

though the Ninth Circuit has suggested that comparative juror analysis

should be used on appeal, it has held that such analysis is not always

“compelled at the appellate level.” Boyd v. Newland, 467 F.3d 1139,

1148 (9th Cir. 2006).

Therefore, any requirement to conduct a comparative juror

analysis, even if one was not requested in the trial court, has only been

recognized in federal habeas cases in determining whether a state

court’s factual findings underlying a Batson claim were unreasonable,

not on direct appeal.

Moreover, while Porter cites state court cases that have conducted

a comparative juror analysis for the first time on appeal, none of these

cases stand for the proposition that the analysis is constitutionally

required in all cases. See People v. Lenix, 187 P.3d 946, 961 (Cal. 2008)

(stating that a comparative juror analysis should be considered for the

first time on appeal “if relied upon by defendant and the record is

adequate to permit the urged comparisons”); People v. Bauvais, 393

P.3d 509, ¶ 52 (Colo. 2017) (“Unargued juror comparisons can be

appropriate tools for discovering discriminatory animus, but their use

should be limited to instances in which the reviewing court can make an

informed comparison.”); Addison v. State, 962 N.E.2d 1202, 1213–17

(Ind. 2012) (reviewing comparative juror claim for the first time on

appeal under fundamental error review, which applies in only

“extremely narrow” circumstances) (internal quotation marks omitted);

Clay v. Commonwealth, 291 S.W.3d 210, 215 (Ky. 2008) (conducting

comparative juror analysis for the first time on appeal where “the

record [was] fully developed”).

Accordingly, because no courts have found that conducting a

comparative juror analysis is constitutionally required when raised for

the first time on direct appeal, there is no split that warrants this

Court’s intervention.

Porter’s claim would fail even if a comparative juror

analysis were conducted.

Even if the Arizona Supreme Court had conducted a comparative

juror analysis in this case, the outcome here would have been the same,

making this case a poor vehicle for resolving the alleged split of

authority. Cf. Herb, 324 U.S. at 126 (“We are not permitted to render

an advisory opinion, and if the same judgment would be rendered by the

state court after we corrected its views of federal laws, our review could

amount to nothing more than an advisory opinion.”).

Any argument that a comparative analysis of the jury at issue in

this case would have altered the Arizona Supreme Court’s decision is

unavailing, because the record does not reveal that the seated and

struck jurors were significantly similar. Porter contends that Juror 2

was comparable to Juror 22 because both had family members who had

been convicted of a crime and because both said they could be fair. Pet.,

at 30. But as discussed, the prosecutor struck Juror 2 “due to the fact

that her brother was convicted of a crime that is of the same nature as

this matter, aggravated assault, where he was found guilty.” BIO-App.,

at 122a (emphasis added). In response to this assertion, Porter

recognized the prosecutor’s concern regarding the juror’s “brother being

arrested and charged and found guilty of an assault, which is the same

situation here as far as assault . . . .” Id. at 123–24a. Moreover, Juror

22’s son had been convicted for entirely different crimes—breaking and

entering and receiving stolen property. Id. at 105a.

And although both prospective jurors said they could be fair, the

prosecutor averred that Juror 2 “did not seem to be very sure with her

responses” during voir dire. Id. at 122a. Porter did not challenge this

observation. Id. at 122–24a. Moreover, the record reflects that Juror

22 had strong ties to law enforcement, as her mother and her “best

friend” had both been police officers. Id. at 49–50a. Accordingly, even if

a comparative juror analysis had been conducted, there is no basis to

conclude that the prosecutor’s strike of Juror 22 was a pretext for

purposeful discrimination. See United States v. Brown, 809 F.3d 371,

375 (7th Cir. 2016) (stating that prospective jurors were not similarly

situated where, inter alia, one juror “had relatives in law enforcement,

whereas [the other juror] did not”).

Because the outcome would be the same even if a comparative

juror analysis were required, this case is a poor vehicle for review of

Porter’s alleged “split.”

III. Arizona’s Elimination of Peremptory Challenges Renders

This Case A Poor Vehicle to Consider Any Batson-Related

Issues.

As noted, the Arizona Supreme Court adopted rule changes

shortly after it rendered its decision below, thereby making Arizona the

first state in the nation to eliminate peremptory challenges. BIO-App.,

at 2–7a. By eliminating peremptory strikes, Arizona has removed itself

from the dictates of Batson in the future. Because Arizona no longer

has a significant interest in this Court’s resolution of any Batsonrelated issues, review is not warranted here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MARK BRNOVICH

Attorney General

of Arizona

MICHAEL T. O’TOOLE

Assistant Attorney

General

(Counsel of Record)

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

JILLIAN B. FRANCIS

Assistant Attorney

General

BRUNN W. ROYSDEN III

Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

Criminal Appeals Section

2005 N. Central Ave.

Phoenix, AZ 85004

Michael.OToole@azag.gov

CADocket@azag.gov

LINLEY WILSON

Deputy Solicitor

General/ Section Chief of

Criminal Appeals

Counsel for Respondent

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.