Amicus Curiae Brief — Miller-El v. Dretke

No. 03-9659

— |

IN THE SUPREME COURT OF THE UNITED STATES

THOMAS JOE MILLER-EL, Petitioner

V.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION, Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE STATE OF CALIFORNIA AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

STEVEN T. OETTING

Supervising Deputy Attorney General

SABRINA Y. LANE-ERWIN

Deputy Attorney General

Counsel of Record

110 West "A" Street, Suite 1100

San Diego, CA 92101

Telephone: (619) 645-2565

Fax: (619) 645-2271

Counsel for Amicus Curiae

State of California

TABLE OF CON: ENTS

IN DECIDING THIS CASE, THE COURT SHOULD

NOT SUGGEST (EVEN IMPLICITLY) THAT A

DEFENDANT MAY PRESENT A COMPARATIVE

ANALYSIS OF THE VENIRE MEMBERS FOR THE

FIRST TIME ON DIRECT APPEAL OR COLLATERAL

‘Ww

:

=)

5

:

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky

476 U.S. 79 (1986)

Burks v. Borg

27 F.3d 1424 (9" Cir. 1994)

Collins v Rice

365 F.3d 667 (9" Cir. 2004)

petition for cert. filed

(U.S. July 7, 2004) (No. 04-52)

Ford v. State

1 S.W.2d 691(Tex. Crim. App. 1999)

Gibson v. State

117 S.W.3d 567 (Tex.App.—Corpus Christi 2003)

rev. granted, (Tex. Crim. App. April 7, 2004)

Hernandez v. New York

500 U.S. 352 (1991)

Lewis v. Lewis

321 F.3d 824 (9" Cir. 2003)

McClain v. Prunty

217 F.3d 1209 (9" Cir. 2000)

Miller-El vy. Cockrell

537 U.S. 332 (2003)

osu

<_< —— ee

Page

7,8

3,4

2, 4-

iii

TABLE OF AUTHORITIES (continued)

People v. Box

23 Cal.4th 1153

5 P.3d 130 (2003)

People v. Johnson

30 Cal.4th 1302

71 P.3d 270 (2003)

People v. Johnson

47 Cal.3d 1194

767 P.2d 1047 (1989)

Powers v. Ohio

499 U.S. 400 (1991)

Purkett v. Elem

514 U.S. 765 (1995)

State v. Martin

68 N.W.2d 399 (S.D. 2004)

Turner v. Marshall

121 F.3d 1248 (9th Cir. 1997)

Turner v. State

861 S.W.2d 36 (Tex. App.- Houston 1993)

U.S. v. Alanis

335 F.3d 965 (9th Cir. 2003)

Young v. State

826 S.W.2d 141 (Tx. Crim. App. 1991)

Page

4,5,7

7,8

iV

TABLE OF AUTHORITIES (continued)

Statute

28 U.S.C. § 2254(d)

Other Authorities

Antiterrorism and Effective Death Penalty

Act of 1996

Page

IN THE SUPREME COURT OF THE UNITED STATES

No. 03-9659

THOMAS JOE MILLER-EL, Petitioner,

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION, Respondent.

INTEREST OF AMICUS CURIAE

This case raises the question of whether Texas prosecutors

committed error under Batson v. Kentucky, 476 U.S. 79 (1986),

‘n peremptorily challenging jurors in a capital case. One of the

arguments asserted by petitioner in support of his Batson claim

is that a comparison between the prospective jurors who were

peremptorily challenged and those who were retained reveals

that the prosecution’s challenges were racially based. The

parties have not addressed, however, whether an appellate or

habeas court may conduct a comparative analysis of challenged

and retained jurors if petitioner did not present a comparative

analysis to the trial court in support of his Batson motion. In

California, a reviewing court is precluded from engaging in a

comparative analysis if the argument was not raised in the trial

court. The interest of California in this case is to preserve its

rule and avoid this Court implicitly sanctioning the notion that

a defendant may present a comparative analysis for the first time

on appeal or collateral review when no such analysis had been

presented to, or evaluated by, the trial court.

SUMMARY OF ARGUMENT

Although Batson set forth a framework for evaluating an

objection to a discriminatory peremptory challenge, the Court

did not specify how to implement the framework it established,

instead leaving that task to trial courts. A comparative analysis

of the prospective jurors is one means by which a defendant can

demonstrate that a party exercised an unconstitutional

peremptory challenge. In California, a party must present a

comparative analysis to the trial court before such an analysis

may be considered on review. This rule ensures that the tribunal

most familiar with the facts and best able to evaluate the parties’

credibility is able to consider the argument. A reviewing court

cannot effectively compare prospective jurors or evaluate the

prosecutor’s credibility on a cold record.

Whether Texas has such a requirement is unclear, and

evidently respondent has never argued that a defendant must

assert a comparative analysis argument in the trial court before

it may do so again in appellate and habeas courts. Nevertheless,

relying in part on this Court’s prior decision in Miller-El v.

Cockrell, 537 U.S. 322, 339 (2003), the Ninth Circuit has held

that there is no such requirement and has several times engaged

in a comparative analysis for the first time on federal habeas

review. As a consequence, the Ninth Circuit has found state

court Batson rulings to be unreasonable based in part on

comparative analyses that California appellate courts are barred

(quite properly) from undertaking. California seeks to apprise

the Court of this situation so that the Court does not

inadvertently support the Ninth Circuit practice of allowing a

comparative analysis argument to be raised for the first time on

federal habeas corpus.

ARGUMENT

IN DECIDING THIS CASE, THE COURT

SHOULD NOT SUGGEST (EVEN

IMPLICITLY) THAT A DEFENDANT MAY

PRESENT A COMPARATIVE ANALYSIS OF

THE VENIRE MEMBERS FOR THE FIRST

TIME ON DIRECT APPEAL OR

COLLATERAL REVIEW

In Batson, this Court established a framework involving a

three-step procedure for evaluating an objection to an

unconstitutional peremptory challenge:

Under [this Court’s] jurisprudence, once the opponent of

a peremptory challenge has made out a prima facie case of

racial discrimination (step one), the burden of production

shifts to the proponent of the strike to come forward with

a race-neutral explanation (step two). If a race-neutral

explanation is tendered, the trial court must then decide

(step three) whether the opponent of the strike has proved

purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam);

Hernandez v. New York, 500 U.S. 352, 358-359 (1991)

(plurality opinion); Batson, 476 U.S. at 96-98. Beyond the

three-pronged approach established in Batson, however, the

Court has not mandated what particular procedures must be

used to implement the decision. Rather, the Court has charged

trial courts with developing such rules. Powers v. Ohio, 499

U.S. 400, 416 (1991); see also Batson, 476 U.S. at 99 & n.24.

One tool that some courts have used to evaluate a —~

prosecutor’s nondiscriminatory justifications (Batson step three)

is comparative analysis. This process entails comparing the

dismissed jurors (i.e., those alleged to have been peremptorily

challenged for an assertedly racially-based reason) with retained

jurors who have similar attributes or characterizations to the

excused jurors. The information is then factored into the trial

a ee

judge’s evaluation of whether the peremptory challenges

amounted to purposeful discrimination. See People v. Johnson,

30 Cal.4th 1302, 1318-1320, 71 P.3d 270 (2003).

In order for comparative analysis to be a fair and effective

tool for implementing Batson, the defendant must present a

comparative analysis argument to the trial court when that court

is addressing the defendant’s Batson motion. An appellate (or

habeas) court addressing a comparative analysis argument made

for the first time on appeal (or on habeas review) would face

several obstacles. Th= cold record may not even reveal the race

of the jurors challenged or retained, let alone body language or

demeanor. A reviewing court is simply unable to evaluate

important extra-record evidence necessary to determine whether

the jurors are truly comparable. In addition, absent the

objection being made at trial, the reviewing court would not

have the benefit of a contemporaneous response from the

prosecutor who exercised the challenge. Without that

explanation, the reviewing court’s "comparative juror analysis

could not accurately take into account the various factors that

influence the decision to make a peremptory challenge."

Johnson, 30 Cal.4th at 1324, n.7 (citing People v. Johnson, 47

Cal.3d 1194, 1220-1221, 767 P.2d 1047 (1989)). See also

Miller-El, 537 U.S. at 339 (quoting Hernandez, 500 U.S. at 365)

("There will seldom be much evidence bearing on [whether

counsel’s race-neutral explanation should be believed], and the

best evidence often will be the demeanor of the attorney who

exercises the challenge.").

Finally, this Court has emphasized that a trial court’s

finding that counsel had no discriminatory intent is a "‘pure

issue of fact’" and therefore is "‘accorded significant

deference." Miller El, 537,U.S. at 339 (quoting Hernandez,

500 U.S. at 365). In establishing this highly deferential standard

of review, the Court has noted concerns such as evidence that

does not appear in the record. Miller-El, 537 U.S. at 339.

Likewise the California Supreme Court has emphasized that

"permitting appellate courts to overturn trial court decisions

based on their own comparative analysis of a cold record,

divorced from the nuances of trial not apparent from the record,

is inconsistent with the deference reviewing courts necessarily

give trial courts." Johnson, 30 Cal.4th at 1324; see also State

v. Martin, 68 N.W.2d 399, 405 (S.D. 2004) (generally noting

the difficulties associated with conducting comparative analysis

on a cold record).

This case does not present the question whether a

comparative analysis asserted jor the first time before a

reviewing court is a proper tool for deciding step three Batson

issues. To be sure, when this case was last before it, this Court

spent considerable time discussing comparative analysis.

Miller-El, 537 U.S. at 329, 331-335, 343. Indeed, the Court

red-flagged the possibility that it would rely upon comparative

analysis to decide Batson issues in the future: "Whether a

comparative juror analysis would demonstrate the prosecutors’

rationales to have been pretexts for discrimination is an

unnecessary determination at this stage, but the evidence does

make debatable the District Court’s conclusion that no

purposeful discrimination occurred." /d. at 343 (emphasis

added). But that opinion did not address whether all (or any of)

the bases of the comparative analysis it discussed were raised in

the trial court. There was a good and obvious reason for this.

Respondent did not argue to this Court that petitioner waived

his comparative analysis argument by failing to assert it in the

trial court.

Respondent presumably eschewed that argument because

he had previously waived it. The federal magistrate judge, after

noting that petitioner did not "present[ ] to the state court" his

comparative analysis (JA 910)", explained that:

The Court asked the parties to brief the issue of whether

petitioner fairly presented the factual basis of his

"improper questioning" and "comparative juror analysis"

claims in state court. See Order, 7/28/99. Respondent

conceded that these arguments "are subsumed within the

broad Batson issue and are not tantamount to the

presentation of a new claim." (Resp. Supp. Brief at 2).

Therefore, the Court will consider these claims on the

merits.

JA 910, n.12. Respondent may have made that concession due

to the uncertainty in Texas law as to whether a comparative

analysis argument may be raised for the first time on appeal.

Compare Young v. State, 826 S.W.2d 141, 142-46 (Tx. Crim.

App. 1991) (holding, in a non-capital case, that a comparative

analysis argument may be raised for the first time on appeal),

with Turner v. State, 861 S.W.2d 36, 38-39 (Tex.

App.—Houston 1993) (distinguishing Young and holding that a

comparative analysis argument may not be raised for the first

time on appeal in a capital case).” Alternatively, respondent

may have concluded that the state trial court sua sponte

conducted a comparative juror analysis in the course of holding

that the prosecutors did not engage in disparate treatment. See

JA 878.

The California Supreme Court permits defendants to assert

comparative analysis arguments in support of Batson motions.

1. The Joint Appendix for this case will not be available to counsel

for Amicus State of California prior to the filing deadline for this Amicus

Brief. Therefore, the citations to "JA" refer to the previous Joint Appendix

filed with the briefing in Miller-E/, 537 U.S. 322.

2. Texas law on this issue remains unclear. In Gibson v. State, 117

S.W.3d 567, 578-579 (Tex.App.—Corpus Christi 2003), rev. granted, (Tex.

Crim. App. April 7, 2004), the court stated that the Texas Court of Criminal

Appeals had sub silentio overruled Young in Ford v. State, 1 S.W.2d 691,

693 (Tex. Crim. App. 1999).

Significantly, however, it steadfastly refuses to engage in such

analysis for the first time on appeal. Johnson, 30 Cal.4th at

1325 ("[A] reviewing court should not attempt its own

comparative juror analysis for the first time on appeal... .

While we decline to prohibit the practice outright, we are hard

pressed to envision a scenario where comparative juror analysis

for the first time on appeal would be fruitful or appropriate.");

Peonle v. Box, 23 Cal.4th 1153, 1190, § P.3d 130 (2003). In

contrast, the Ninth Circuit does not require that a comparative

analysis argument be preserved in the trial court. In fact, the

Ninth Circuit will engage in comparative analysis, not only for

the first time on appeal, but also for the first time on federal

habeas review. See, e.g., Collins v. Rice, 365 F.3d 667, 681-682

(9" Cir. 2004), petition for cert. filed, (U.S. July 7, 2004) (No.

04-52); U.S. v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003); Lewis

v. Lewis, 321 F.3d 824, 832-833 (9" Cir. 2003); McClain v.

Prunty, 217 F.3d 1209, 1220-1224 (9" Cir. 2000); and Turner

v. Marshall, 121 F.3d 1248 (9th Cir. 1997). This creates an

obvious problem in federal habeas corpus cases in which the

petitioner asserts a Batson violation but failed to present a

comparative juror analysis to the state trial court. The Ninth

Circuit has been finding the credibility determinations of

California courts unreasonable, and not entitled to deference

under 28 U.S.C. § 2254(d), based on its own comparative

analysis. See, e.g., Collins, 65 F.3d at 681-682; Lewis, 321 F.3d

at 832-833; McClain, 217 F.3d at 1220-1224.” In such cases,

the Ninth Circuit is faulting the state appellate courts for having

reached unreasonable decisions based on an analysis that the

state appellate courts were barred — for perfectly sensible

reasons — from undertaking. The differing approaches of the

California appellate courts and the Ninth Circuit as to whether

3. The Ninth Circuit appears to treat the role of comparative

analysis that was never raised in the trial court the same whether the case is

pre- or post-AEDPA, or whether the case originated in a state or federal

court. Compare, e.g., Turner, 121 F.3d 1248, with Alanis, 335 F.3d at 969.

comparative juror analysis must first be raised in the trial court

distorts application of the § 2254(d) deference standard. The

California Supreme Court and Ninth Circuit have recognized

their different practices. Johnson, 30 Cal.4th at 1323-1324;

Burks v. Borg, 27 F.3d 1424,1427 (9" Cir. 1994) (noting that

the United States Supreme Court "has not yet ruled on the role

of comparative analysis on appellate review, so no one is quite

sure whether our circuit or the California Supreme Court is

right").

There are sever! ways in which the Court’s resolution of

the instant case may impact the California Supreme Court’s

rule. This Court’s former decision in Miller-El did not decide

whether comparative analysis must be raised in the trial court

before it is considered on review. But in two cases, Collins,

365 F.3d at 681-682 and Alanis, 335 F.3d at 969, the Ninth

Circuit engaged in comparative analysis for the first time on

collateral review and cited Miller-El when it did so.

Apparently, the Ninth Circuit viewed Miller-El’s discussion of

comparative juror analysis -- without a prefatory discussion of

whether that analysis was raised in the trial court -- as

permitting federal courts to engage in a comparative juror

analysis for the first time on collateral review. There is every

reason to believe that the Ninth Circuit will look to the Court’s

opinion in this case for further guidance on this issue even

though, once again, the issue is not presented to the Court.

For this reason, it would be very helpful for this Court to

make explicit that it 1s not addressing the issue of whether

comparative analysis arguments must be raised in the trial court

in order for appellate or habeas courts to engage in comparative

analyses. Amicus State of California respectfully submits that,

if the Court conducts a comparative analysis in deciding

petitioner’s Batson claim, it also note that respondent has

waived any argument that the Court should not engage in a

comparative analysis because the argument was not preserved

in the trial court.

CONCLUSION

California seeks to maintain its rule that comparative

analysis may not be raised for the first time on direct appeal and,

concomitantly, to receive the benefit of its rule when California

cases are collaterally reviewed on federal habeas corpus. In

deciding this case, the Court should ensure it does not implicitly

support the notion that comparative analysis may be raised for

the first time on direct or collateral review - an issue that is not

before the Court.

Dated: September i, 2004

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

STEVEN T. OETTING

Supervising Deputy Attorney General

SABRINA Y. LANE-ERWIN

Deputy Attorney General

Counsel of Record

Counsel for Amicus Curiae

State of California