Opposition Brief — Ford v. Montana

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onic IN THE

SUPREME COURT OF THE UNITED STATES

EUGENE FORD,

Petitioner,

Vv.

STATE OF MONTANA,

Respondent.

On Petition for a Writ of Certioran

to the Montana Supreme Court

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MIKE McGRATH

Attorney General of Montana

MARK W. MATTIOLI*

Assistant Attorney General

*Counsel of Record

215 North Sanders

P.O. Box 201401

Helena, MT 59620-14

(406) 444-2026 2 RECEIVED |

SEP 23 ‘09

OFFICE OF THE Ci

L_SUPREME COURT. US |

ISSUE PRESENTED

After the venire was dismissed and the selected jury was sworn, Ford's trial

counsel asserted that the prosecution’s striking of six women from the venire deprived

Ford of his right to a “jury by his peers.” In an interwoven analysis of federal and state

law, the Montana Supreme Court determined that the objection was untimely. At issue

here is whether this Court should grant a wnt of certiorari to determine whether the

Montana Court’s decision was procedurally novel.

TABLE OF CONTENTS

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REA BOING PO DVIS THT WORE osscesccisscenssccosensvnssasvnesrinvnicciersonsaninietenensinascisesictons 8

I. SUMMART OF REASONS FOR DENIAL. ..0..0ssecevsciscosssenvsnsscsnvocosverninnvetiosinoenness 8

II. THE MONTANA COURT’S DECISION WAS NOT NOVEL .........::cssesseseeeeees 9

A. The Montana Court’s Decision Does Not Warrant Certiorari Review ...... 10

1. The Montana Court’s Decision Was Consistent With Batson

SE TA FIIING ovivensisessortencsescsininpesinisrnievaiisnmnsannciiiatiamaianinnnnauvtegs 10

2. Ford Has Failed to Satisfy This Court’s Criteria for Granting

IE sic scitcsicesonecivininnbiisnieapevincinncnniiidanaieiahiandiiamntiion 13

B. Ford v. Georgia 1s Not COMBOTING ....00.<ceescessecsvsssenssersnsvenssnarenvecesonssaensney 15

1. Unlike Georgia Counsel Prior to Batson, Montana Counsel Had

Fair Notice of the Need to Make a Timely Objection ................0+ 15

2. Ford, Not the Montana Court, Is Guilty of Novelty ................:s00 19

III. . THIS COURT’S OBLIGATION TO UPHOLD IMPORTANT FEDERAL

RIGHTS DOES NOT REQUIRE IT TO SANCTION FORD’S CHARADE ...... 20

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iii

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky,

SP: FO TSN snisniccsersiorocnhensiieiainaiadiaaamiamamaaedaaadaaaie passim

Caldwell v. Mississippi,

FE Se EI crisasenschsedincciseunnibiansdnaneig aaeuadaadmgn aa Ata maaadamabamaitics 21

Calhoun v. Purvis,

Gite ae Pe CEM. SR Fa CO etaisecateccesepenece cea ed ledanntienen 14

Davis v. Wechsler,

Be Shiv Ee CF FD vives sssisticetnahcadinninnesiinaeagamatapiaaadadiledanaganeaamat an aad 20

Douglas v. Alabama,

Fe aes EF ED ssiiciciis sisi sinatesesennmsinessianageaa agdeataaalamaaitananemmetadada Manan tees 21

Edmonson v. Leesville Concrete Co.,

Pe As Ge CEG OED cisiavvcsisscsprvsitbanna scan anebieninaaddaenimmadien ume alas tcas 14

Ford v. Georgia,

A Vitis EE IED srisscysccicrovcssiticicocagpaanadaneepbiincaiataaadsadtiemdaaaidamaaiimann Tees passim

Georgia v. McCollum,

PE ah TE CID ect iscsnsicininiisieisctacittacinacseanbipeedtaaieiaaaaaning manana cde ada aia dete ices 10

Griffith v. Kentucky,

BFF SEs FOOT erivectnssnsiel vsiciincccicciploneeialiaddiaaaasamaiaimaamatemadinlniietiss ae aae Tae eo 16

Hernandez v. New York,

Ey ae CE) i dite nitecnihaenenicmdan mamma ena 10, 11, 14, 22

In re K.G.F.,

Pe TS BD, Bae I ©, Be I osievsicssceisnosiiaad nace aioe ee dicate 23

J.E.B. v. Alabama,

PR Sele Sk Fy RA CU sexsesseinnssieniaiesinnclasSiitaehiladeraaeneigaagia aint emda meena passim

James v. Kentucky,

Ae AA. EE © UD vier ceinnoriierininsaicseonspeciesinaiebsiaheainadtaniaglameuibainietapaielaaalcialalaahanada passim

Lee v. Kemna,

ee is Ue GD csr ssisiecaeiiheieetpepseaabad lb aa la a a 18, 19, 21

iv

TABLE OF AUTHORITIES (Cont.)

Michigan v. Long,

4G3. U.S. 1032 (1983) .......0s.ssssesssccssovescesvnsecsecvensncensessecrssenssesecesssnasesesenssnssasesseosscensosonssenseaee 9

NAACP v. Alabama, ex rel. Patterson,

357 U.S. 449 (1958) ....ccessecscscossssererscssesoesesseoseevecsesensensssessscessesensusonesnesnseososconsoescosessssees 13

Osborne v. Ohio,

BIS U.S. 103 (1990) cecsssessecsesseerssorereovessescopsosovesvonensonssossssnnseseosesosersensseonnssosonsonsessaousees 21

Purkett v. Elem.,

Ee EF, FR 1D sinsvecssirenveseciososnssesectvonseusssecesenneosecuvessoumnneuncgeesvesvebbonsepens esaneiine 10, 22

State v. Burch,

830 P.2d 357 (Wash. Ct. App. 1992) ..........csccscccssrcsressrensesensesessssessessscessesesesenseees 13, 14

State v. Harris,

852 P.2d 1248 (Ariz. Ct. App. 1993)..............sssssssserssrssscecesssesessnssssessssssscsssssenesssseess 13

State v. Robbins,

1998 MT 297, 292 Mont. 23; 971 P.2d 359,

overruled by State v. LaMere,

2000 MT 45, 298 Mont. 358, 2 P.3d 204 (1997) ............sscsssesscesreeseeenrcesscssssenecssesesesonees 3

State v. Sparks,

SSS SE2E GSE (19B7) ..csecsvecevsscssssosnsssassssvonvosscnsetessosnensontesevecvenesivonsensussesnneenenssuts passim

State v. Wright,

896 P.2d 713 (Wash. Ct. App. 1995) .............cssssssscscsescsecesresecsscenesensssceseesessssssesenses 14

Staub v. City of Baxley,

SSS US. S13 CIGSB) secsvnssveenescovrnssncsssnasssnsoveseteenstonsevsensanestisentvoeiseutesensbtosonsseasanpnvesenennenss 12

Swain v. Alabama,

DO TB, FOE CII GS) nesieiscnevivinnerevecncenvonsensivonnssavenciiustncenvennenersomnsniebnesoveneetite 10, 15, 16, 19

Trevino v. Texas,

SS U.S. SZ (1GGZ) occersccvvssiserssoescesseenneseasonssansovaseascveyeseseeonssnsonnseunssotnoeunensennnes 10, 16, 21

Wainwright v. Sykes,

BSB UTD. T2 (1977) wcnvesecorsereseaserarseservsosvesncesnesnepbeonsneninvssonesncesenseovmensssenteaieonesnianihenns 17,21

Morning v. Zapata Protein,

128 F.3d 213 (4th Cir. 1997).....c.cccsrccscsscorscescesccccsecneccsensscceonsecssncsncssessneseossesesesnesscecsseses 11

TABLE OF AUTHORITIES (Cont.)

MONTANA MATERIALS

Montana Code Annotated

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STATEMENT OF THE CASE

The issue for this Court is whether it should grant certiorari to determine whether

the Montana Court’s decision to bar Ford’s post-Batson era claim was procedurally

novel.

Eugene Ford and Michael Paul were living together because Paul was frail and

Ford had promised Paul’s mother that he would take care of Michael. The night Michael

was killed, witnesses saw Ford enter the parties’ apartment, and then heard a physical

altercation and an argument involving a loud, angry male’s voice (identified as Ford’s)

and a “really soft” or “muffled” voice which sounded female (Paul’s voice). Witnesses

heerd a “slap,” a person “blubbering,” and “stuff being knocked around and failing to the

floor.” It sounded as if a man were beating up his wife. When the police arrived, Ford

was spontaneously and repeatedly exclaiming that he had killed Paul, stating, in part,

“When I get pissed, the chances of you making it aren’t good... . I choked him. I did

so many things .... I think it was excessive, real excessive. | think I jumped on a

corpse. I broke out in a rage... .” Ford exclaimed, “I killed him. I killed him. I broke

his neck.” Tr. III at 356-68; Tr. IV at 596-97, 604, 607, 623-24.

After he was Mirandized and waived his rights, Ford admitted, in a videotaped

interview, that he was much stronger than Paul and that he had previously controlled Paul

by pushing, shoving or giving him a “jolt” in the chest, which would knock Michael

against the wall and then to the floor. State’s Ex. 21. However, this time, Paul received

multiple injuries to his head, neck, torso, liver and groin. The autopsy revealed that

Paul’s larynx (Adam’s apple) and hyoid bone in his neck were broken. Although the

autopsy disclosed that Paul had a cancerous tumor in his intestine, it was not the cause of

his death. Michael Paul died of asphyxia due to the fractures in his neck.

Tr. III at 530-31, 535-36, 541-54.

Ford’s prior criminal history included a stabbing, and an assault in which he held a

gun to a woman’s head and threatened to kill her. D.C. Doc. 94; 2/10/00 Tr. at 7-8, 28,

31-32, 35.

The twelve-person jury, which convicted Ford of deliberate homicide, was

selected as follows: The fifty-five person venire was divided almost equally between

men and women. Ford’s counsel successfully challenged two female panelists and one

male panelist for cause. The prosecution successfully challenged one male panelist for

cause. Tr. II at 30-35, 76-77, 96-97, 151-52, 155-58. After challenges for cause were

exercised, the final twenty-four panelists consisted of fourteen women and ten men.

(App. 1.) Thus, assuming gender was not a consideration in jury selection, it was more

likely that any given peremptory strike would be lodged against a female panelist.

In Montana, in a non-capital prosecution, each party is allowed only six

peremptory strikes. Mont. Code Ann. § 46-16-116(1), (3). Four of the defense’s strikes

happened to be women. All six of the prosecution’s strikes happened to be women. The

sitting jury consisted of eight men and four women. Each party then struck male

alternates. The chosen alternate happened to be a woman. (App. 1.)

After the venire was dismissed and the sitting jury was empanelled and sworn,

Ford’s trial counsel interposed the following objection:

Your Honor, I have just a brief motion. I think the State’s use of

their peremptory challenges is in violation of my client’s right to a jury by

his peers.

Of the twelve that were selected or the six that they struck, all six of

them were women. Your Honor. And that is a separate identifiable group.

And I feel that is a violation. I would ask for a new jury pool.

Tr. Il at 195, 209-10. These were the only words uttered by Ford’s trial counsel

regarding the matter. A popular objection in Great Falls (Cascade County) at the time of

Ford’s 1999 trial was a “fair cross-section” objection. See, e.g., State v. Robbins,

1998 MT 297, 4 28, 292 Mont. 23; 971 P.2d 359, overruled by State v. LaMere, 2000 MT

45, 298 Mont. 358, 2 P.3d 204 (1997 objection); State v. Lopez, 2001 MT 97, 305 Mont.

218, 26 P.3d 745 (1998 or 1999 objection).

Cascade County Attorney Brant Light responded to the objection, stating, “First,

Your Honor, if I was going to get rid of women, it wouldn’t be on a self-defense case. It

is usually men who believe in self-defense. But I can certainly go through, if the court

wants me to, as to why I made selections. I certainly just realized now that it was all,

what, females?” Tr. II at 210. On appeal, Montana argued that because the case was

essentially a domestic violence murder involving a male perpetrator’s claim of

self-defense, it was more likely that a prosecutor, inclined to discriminate, would try to

exclude men. Resp. Br. at 33-34; 7/24/01 Oral Argument Tape.

The County Attorney then gave his reasons for his peremptory strikes. One of the

panelists (Berg) was stricken because, in part, she was a friend of a prominent local

criminal defense attorney. Another (Leraas) was stricken because, in part, she had

dealings with the prosecutor’s office and three attorneys reported that she would not be a

favorable juror. In addition, during voir dire, Leraas testified that she would be reluctant

to sit on the jury if it meant sending someone to jail, which prompted Ford’s counsel to

challenge Leraas for cause on the premise that she would not be fair to the State.

Tr. II at 88-89, 109-12, 210-11. At oral argument below, Montana emphasized that if the

prosecutor were engaged in a plan to exclude women, defense counsel’s challenge to

Leraas presented him with a perfect opportunity to show his invidious intent. However,

the prosecutor resisted the challenge and was then forced to remove Leraas with his last

peremptory challenge. (App. 1); 7/24/01 Oral Argument Tape.

Another panelist (Grebowski) was stricken because the prosecutor believed she

‘““was not picking up much of what we were doing and being able in a homicide case to

listen to details and be able to understand some of the complexity of the case.” Ford’s

petition recites the prosecutor’s reasons for striking Grebowski, presumably because Ford

believes this Court might think the prosecutor’s strike was influenced by false stereotypes

concerning the relative abilities of men and women. Pet. at 4. However, while none of

the prosecutor’s explanations were questioned by Ford’s counsel at trial, the prosecutor’s

striking of Grebowski was never challenged on direct appeal and, at oral argument, Ford

conceded that the reasons given for challenging Berg, Leraas, and Grebowski were

gender neutral. 7/24/01 Oral Argument Tape. And the record reveals that Grebowski

was confused. For example, after initially stating that she had never served ona jury :

before, she later stated that she had been on a jury “that took six weeks,” at which point

defense counsel cut her off and directed his questioning to other panelists.

Tr. II at 173-75.

Ford’s insinuation--that the merits of his purported Batson-claim concerned

Grebowski--is false and misleading. Ford’s argument on direct appeal (albeit one never

made in trial court) concerned panelists Carlisle, McKinney and Leiby.

With respect to McKinney and Leiby, the prosecutor explained, “Lisa McKinney

and Rita Leiby, to be really honest, was really to get to the two jurors who I thought

would be really excellent, that being John Easley and James Aklestad, who I think would

be good jurors for the State of Montana. So I tried to get to the point to get them. It just

worked out that way as far as the numbering goes.” Indeed, the prosecutor struck

McKinney and Leiby with his fourth and fifth strikes, saving his last strike for Leraas,

who had dealings with the prosecutor’s office in a bad check case and whom three

attorneys said would not be a good juror. Although the voir dire transcript supports the

prosecutor’s assertion that Akelstad and Easley would make good jurors, Tr. II at 41,

51-52, 81-82, 92-93, 130-33, 177-79, 193, Ford’s trial counsel did not claim that the

prosecutor’s explanations were gender-driven or pretextual. Nonetheless, on direct

appeal, Ford, for the first time, claimed that the prosecution’s “only reason for striking its

fourth and fifth challenges was to end up with two ‘more desirable’ males on the jury

panel|,]” and that it “struck these two women merely to get to two men{.]”

Appellant’s Br. at 13, 26.

After explaining his strikes, the prosecutor stated, “I think that’s it, Your Honor.”

Tr. I] at 211. Although the prosecutor neglected to give his reasons for striking Carlisle,

Ford’s trial counsel never requested that the court require the prosecutor to explain his

reasons for that strike.

On direct appeal, the Montana Appellate Defender’s Office was appointed to

represent Ford because he purportedly intended to raise claims of ineffective assistance of

trial counsel. D.C. Docs. 92,97. However, the Appellate Defender did not raise any

such claims. Rather, as the Montana Court noted, “It was not until he filed his appeal that

Ford first labeled his dispute over the State’s exercise of peremptory challenges a

‘Batson’ challenge.” (App. 2, § 8.) And Ford asserted, for the first time, that he actually

carned his burden of proof under Batson and JE.B. in trial court and, therefore, that his

deliberate homicide conviction should be automatically reversed and remanded for a new

trial. Appellant’s Br. at 13. At oral argument, Ford resisted a remand.

7/24/01 Oral Argument Tape.

On direct appeal, Montana argued that the Court should bar the merits because

Ford’s counsel made a misdirected and untimely fair cross-section objection and that

Ford was changing the theory of his objection. Montana emphasized the following

omissions by Ford's counsel: (1) he never cited the federal equal protection clause, or

Batson, or J.E.B.; (2) he never claimed to have proven a prima facie Batson violation

based upon disproportionate impact alone; (3) he never argued that the prima facie

requirement was mooted; (4) he never asserted that the nature of the case was more likely

to lend itself to invidious discrimination against women; (5) he never claimed that any of

the prosecutor’s explanations were pretextual; (6) he never rebutted the gender neutrality

of the explanations or objected to the prosecutor’s inadvertent failure to give his reasons

for striking one panelist; (7) he did not allege discrimination during jury selection or that

the same reasons provided for striking female panelists were equally applicable to male

panelists not stricken; and (8) he never requested a three-step Batson hearing.

Appellant’s Br. at 17-41; 7/24/01 Oral Argument Tape.

Montana argued that it would be fundamentally unfair to impugn the prosecutor or

reverse the trial court under these circumstances. Montana also argued that the burden of

proof remained upon Ford at all times, that Ford did not meet that burden and that, by

changing the theory of his objection on appeal, Ford was attempting to improperly shift his

initial and ultimate burden of proof to the proponent of the strikes in violation of United

States Supreme Court precedent. Appellant’s Br. at 17-41; 7/24/01 Oral Argument Tape.

The Montana Supreme Court concluded that Ford’s Batson challenge was

untimely, noting that Batson itself presupposes a timely objection and that the Montana

Court had “consistently held that the purpose of a timely objection is to give a district

judge the first opportunity to correct any error.” (App. 2, { 27.) Although the Court

applied a different bar than Montana sought to apply, the rationale for the Court’s

decision was the same rationale advocated by Montana on appeal, namely, the

requirement that the proponent of the strikes be given a fair opportunity to explain its

strikes and that the trial court be afforded a full and fair opportunity to correct any

perceived errors. Resp. Br. at 17-21. The timing of the objection was also raised at oral

argument. 7/24/01 Oral Argument Tape.

Ford then petitioned for rehearing, contending that Ford v. Georgia, 498 U.S. 411

(1991), prohibited the Montana Court from barring a Batson claim in a case of first

impression. The Court denied the petition, noting, “[A]s our Opinion reflects, there

exists in this State a well-established body of case law requiring substantive objections to

be interposed while the district court still has the opportunity to cure the alleged

defect... . Moreover, in addition to this well-established body of case law, § 46-16-117,

MCA, statutorily requires that all jury challenges must be interposed before the jury is

sworn.” (App. 3.)

REASONS FOR DENYING THE WRIT

‘ SUMMARY OF REASONS FOR DENIAL

Ford v. Georgia involved a very novel retroactive application of the Georgia

Supreme Court’s later, prospective-only decision in State v. Sparks, 355 S.E.2d 658

(1987), to bar a pre-Batson claim as untimely. It fits well within a narrow category of

cases in which this Court has deemed a state court’s application of a procedural bar

novel. However, the Montana Court’s decision here does not fit within this narrow

category because Montana counsel had notice of Batson v. Kentucky, 476 U.S. 79 (1986),

J.E.B. v. Alabama, 511 U.S. 127, 129 (1994), and numerous decisions requiring such

claims to be timely asserted; they had notice of Montana’s consistently applied and

regularly followed contemporaneous objection requirement; and, they had notice of

Mont. Code Ann. § 46-16-117, requiring jury challenges to be lodged before the jury is

sworn.

While Ford v. Georgia is not controlling, Ford has failed to establish a conflict of

authority or, at least, not a significant or intolerable conflict providing a compelling

reason for granting certiorari review.

That Ford is accusing the Montana Court of procedural novelty is truly

remarkable. Ford made a “jury by his peers” objection after the jury was sworm and the

venire was dismissed. He did not allege a prima facie showing, claim that he had proven

an ultimate case of invidious gender discrimination, or attack the legal sufficiency of the

prosecutor’s explanations until he filed his direct appeal. Contending that his initial and

ultimate burden of proof could be satisfied based solely upon a non-case-specific

showing of six strikes, Ford sought to shift the burden of proof to the proponent of the

strikes and to turn jury selection into a disparate impact trial. While Ford’s claim was

both procedurally and substantively novel, the Montana Court’s decision to bar it was not

novel.

Finally, there is no perceivable federal interest here which would warrant

disregarding Montana’s and the federal forum’s compatible interests in preserving the

trial as the “main event” or which merits allowing the substantive law to fall victim to

bad trial procedures and sandbagging.

Ford’s petition for a writ of certiorari should be denied.

Il. THE MONTANA COURT’S DECISION WAS NOT NOVEL.

The Montana Court’s determination that Ford’s objection was untimely employs

an interwoven analysis of state and federal law. Therefore, under Michigan v. Long,

463 U.S. 1032, 1039 (1983), this Court has jurisdiction, but, for the reasons discussed

below, Ford’s petition should be denied.

10

A. The Montana Court’s Decision Does Not Warrant Certiorari Review.

While Ford mostly ignores the import of the Montana Court’s analysis of Batson,

assessing the purported novelty of the Court’s decision requires careful analysis of

Batson itself.

1. The Montana Court’s Decision Was Consistent With Batson and

Its Progeny

In Batson, defense counsel lodged an equal protection objection before the jury

was sworn based upon Batson’s antecedent, Swain v. Alabama, 380 U.S. 202 (1965).

The trial court summarily denied counsel’s request for a hearing. Jd. at 83. The

timeliness of the objection was not lost on this Court, which noted, “We decline . . . to

formulate particular procedures to be followed upon a defendant’s timely objection to a

prosecutor’s challenges.” Jd. at 99. Before remanding for a hearing, this Court reiterated

that the objection was timely. Jd. at 100. The petitioner in /.E.B. also made a clear and

timely equal protection objection before the jury was empanelled. 511 U.S. at 129.

Like Batson itself, pre-Batson era cases such as Ford v. Georgia alse involved

timely objections. /d. at 413-14 (pretrial Swain-type objection). Accord Trevino v.

Texas, 503 U.S. 562 (1992) (motion before jury selection). The same is true of

post-Batson cases. See, e.g., Purkett v. Elem., 514 U.S. 765, 766 (1995) (objection

during jury selection); Georgia v. McCollum, 505 U.S. 42, 44-45 (1992) (objection

before jury selection began); Powers v. Ohio, 499 U.S. 400, 403 (1991) (repeated

objections made during jury selection); Hernandez v. New York, 500 U.S. 352, 355-56

(1991) (objection during jury selection).

11

When this Court decided Batson, it did not intend to disrupt state court proceedings

or unnecessarily burden trial judges. Batson at 99. Rather, Batson was intended to allow

“prompt rulings on objections to peremptory challenges without substantial disruption of

the jury selection process.” Hernandez at 358. As the Montana Court observed, the

remedies this Court mentioned in footnote 24 of Batson, “presuppose resolution of the

objection before a jury is sworn.” (App. 2, § 23) (emphasis in original). And numerous

federal and state courts have concluded that Batson challenges should be raised before the

jury is sworn and/or before the venire is dismissed. (App. 2; {J 21, 23-26)

(citations omitted). Ford did neither. (App. 3.)

Because Batson itself contemplates a timely objection, subject to the states

determining when such claims will be deemed untimely according to their own laws,

Ford v. Georgia at 423, the Montana Court’s decision to bar Ford’s post-Batson claim

given preexisting Montana law was permissible and not novel. A “general rule of

timeliness is especially pertinent to Batson challenges.” Morning v. Zapata Protein,

128 F.3d 213, 215 (4th Cir. 1997); see also, Brewer v. Marshall, 119 F.3d 993, 1002-03

(1st Cir. 1997) (general contemporaneous objection rule deemed adequate to bar a Batson

claim).

Ford’s untimely “jury by his peers” objection undermined Montana’s interest in

giving the challenged attorney a fair chance to effectively defend his strikes and

“deprived the district court of the ability to correct any error in the proceedings in a

timely fashion.” (App. 2, 9 27.) Application of this undoubtedly legitimate state interest

to Ford’s claim is consistent with the deference this Court voiced in Batson and Ford v.

12

Georgia, and the federal forum’s own interest in protecting the integrity of the trial and

appellate processes.

Furthermore, apart from this Court’s recognition of the need to prevent

unnecessary disruptions of state trials, equal protection concerns also support requiring

Batson claims to be asserted when they are most easily proven or refuted. A timely

Batson claim is more targeted to ameliorating the principle harms caused by invidious

discrimination; namely, the harm to the dignity of improperly-excluded jurors and the

harm to the fairness and integrity of the justice system. Batson at 87-88. These harms

are best remedied when the objection is timely enough to give the trial judge a realistic

opportunity to allow improperly-excluded panelists to sit on the venire, if not on the jury

itself. Given Montana’s explicit recognition of the “inviolable” dignity of all persons

(App. 2, § 10), this is especially evident in Montana. However, Ford’s untimely and

disruptive request for a new venire did not seek to uphold the nghts of any alleged

victims of invidious discrimination. Rather, Ford wanted a jury of his liking.

The Montana Court’s analysis of federal law was perceptive. Its decision does not

deserve inclusion in that narrow category of cases in which state courts, hostile or

insensitive to federal rights, invoked procedural artifice to shield nights violations from

judicial scrutiny, of which Ford v. Georgia is an unfortunate example. See, e.g., James v.

Kentucky, 466 U.S. 341, 348-49 (1984) (where the right to a vital jury instruction was

lost because counsel asked for an “admonition” rather than an “instruction”); Staub v.

City of Baxley, 355 U.S. 313, 320 (1958) (“an arid ritual of meaningless form’’);

13

NAACP v. Alabama, ex rel. Patterson, 357 U.S. 449, 457 (195 8) (application of

procedural rule was “pointlessly severe”).

2. Ford Has Failed to Satisfy This Court's Criteria for Granting

Certiorari.

While, as addressed below in subsection B, Ford v. Georgia is not controlling

here, Ford fails to demonstrate a conflict among the circuits. To establish a conflict

among the states, he principally relies on two lower court decisions, State v. Burch,

830 P.2d 357 (Wash. Ct. App. 1992) and State v. Harris, 852 P.2d 1248 (Ariz. Ct. App.

1993). It is difficult to see how Ford finds support in Harris, where the court applied a

pre-Batson rule, dating back to 1977, requiring jury objections to be lodged before the

jury is impaneled and the venire is dismissed. Jd. at 1250-51. The Court in Harris

rightly rejected the notion, as Ford similarly presses here, that Ford v. Georgia required a

prior waiver rule expressly applying to peremptory challenges attacked under Batson. Id.

Like Arizona, Montana followed a preexisting contemporaneous objection rule and the

Montana legislature required jury objections to be made before the jury is sworn.

(App. 2, § 27; App. 3.)

Burch, a post-Batson case, relied upon Ford v. Georgia for the proposition that

state courts are free to adopt procedures governing when a Batson objection would be

considered untimely. The defendant, a black man, was tried and convicted by an

all-white jury after the only African-Americans on the venire were excluded. Burch was

based upon the court’s conclusion that only the Washington Supreme Court could amend

14

the rules of appellate procedure governing when a Batson claim must be made.

Id. at 364.

State v. Wright, 896 P.2d 713 (Wash. Ct. App. 1995), upon which Ford

secondarily relies, was decided by the same Washington Court of Appeals. It simply

followed Burch. Wright at 719. As an aside, Wright rejected the notion, pressed by Ford

in the Montana Court, that a Batson violation can be established based upon “numbers

alone.” Wright at 718.

Calhoun v. Purvis, 425 S.E. 2d 901 (Ga. Ct. App. 1992), another lower court

decision, was a civil case involving a black plaintiff who received an all white jury after

the defense struck all African-Americans from the venire. A Batson objection was made

after the jury was selected, but before it was seated. The trial judge denied the objection,

refusing to apply Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), absent a

ruling from the Georgia Supreme Court. On appeal, the court in Calhoun determined that

the Georgia Supreme Court’s earlier opinion in Sparks did not apply because of unique

differences in procedure between civil and criminal cases in Georgia. Calhoun at 903-04.

Like the Georgia Supreme Court’s decision in Sparks, it was the prerogative of the

lower courts in Calhoun, Wright and Burch to require a specific Batson time bar.

However, neither Washington nor Georgia laws speak to Montana law. Batson explicitly

refrained from requiring uniform implementation. Hernandez at 358; Batson at 99.

While Batson left open the possibility of a uniform federal rule governing when Batson

objections are too late, id., it would be inconsistent with principles cf federalism, and this

Court’s expression of deference to the states in Batson itself, to require each state to

15

develop a specific bar as a federal requisite to barring a purported Batson claim for the

first time. The fact that some states have adopted or required specific time bars did not

require Montana to fall in line and, as discussed below, Ford v. Georgia imposed no such

federal mandate.

B. Ford v. Georgia Is Not Controlling.

Relying upon Ford v. Georgia, Ford is making an as-applied challenge. Ford does

not contend that Montana’s contemporaneous objection rule was, in itself, not “fairly

established and regularly followed by the time as of which it is to be applied.” Jd. at 422.

Rather, he argues that Montana cannot procedurally bar a Batson claim in a case of first

impression and that its decision to apply a different procedural bar than Montana argued

on direct appeal was novel. However, Ford v. Georgia does not hold that a state court

can never procedurally bar a purported Batson claim in case of first impression. Nor does

it prohibit application of a bar, comparable to one a state is relying upon, sua sponte.

Ford v. Georgia involved Georgia’s extraordinarily novel application of its 1987 decision

in Sparks. Here, in contrast, if procedural novelty exists, it is of Eugene Ford’s own

making.

1. Unlike Georgia Counsel Prior to Batson, Montana Counsel Had

Fair Notice of the Need to Make a Timely Objection.

Ford v. Georgia was a capital case involving a black defendant who was convicted

of kidnapping, raping and killing a white woman. The defendant’s counsel filed a pretrial

motion alleging, as then required by Swain, that the prosecutor was guilty of excluding

black panelists in case after case. As predicted in counsel’s pretrial motion, the

16

prosecutor used nine of his ten strikes against black panelists. /d. at 413-15. On direct

appeal, the Georgia Court procedurally barred James Ford’s claim on two grounds.

First, after this Court remanded the case in light of Griffith v. Kentucky, 479 U.S.

314 (1987), the Georgia Court held that “nothing in Griffith would warrant the extension

of relief upon grounds not raised at trial.” Ford v. State, 362 S.E.2d 764, 765 (Ga. 1987).

However, this Court held that with respect to cases pending on direct review when

Batson was decided, it would treat Swain-type objections as Batson claims. Because the

petitioner in Batson made a Swain-type objection, this Court declined to hold parties in

the pre-Batson era to a higher standard than applied in Batson itself. Jd. at 855-56. As

Montana argued at oral argument below (in response to Ford’s reliance upon Ford v.

Georgia in his reply brief), Ford v. Georgia “addressed what steps a defendant in a

criminal case was required to take to preserve an equal protection objection to the State’s

race based use of peremptory challenges during the pre-Batson era.” Trevino at 566.

The Georgia Court also determined, sua sponte, that James Ford’s Swain-type

objection was untimely pursuant to the Court’s 1987 decision in Sparks. Ford v. Georgia

at 417. However, the procedural novelty in Ford v. Georgia was not a function of the

Court’s decision to apply Sparks sua sponte. Rather, the novelty stemmed from the fact

that Sparks did “not even remotely” constitute an independent and adequate procedural

bar. Jd. at 424.

Sparks held that a Batson objection would be considered untimely, and therefore

waived, unless the objection was made before the venire was dismissed and the jury was

sworn. However, the Georgia Court’s application of Sparks to bar James Ford’s

17

objection was novel in three respects. First, Sparks was decided in 1987, well after

James Ford’s 1984 trial. Secondly, the Georgia Court’s holding in Sparks was

prospective only. Finally, the equal protection objection in Ford v. Georgia was made

before trial. Sparks could not adequately bar a pretrial objection because Sparks

prospectively determined when a Batson objection would be too late; Sparks did not

determine when such an objection would be considered premature. Accordingly, this

Court held that Sparks was inadequate to bar James Ford’s pretrial objection.

Id. at 424, 425 n.7.

Unlike Georgia counsel prior to Sparks and Batson itself, Eugene Ford’s trial

counsel was on notice of this Court’s opinions in Batson and J.E.B., and numerous

federal decisions noting the importance of a timely objection in the Batson context.

Ford’s trial occurred in 1999, thirteen years after Batson was decided and five years after

J.E.B. was decided. The importance of making a timely objection is familiar to the law

of this nation, Wainwright v. Sykes, 433 U.S. 72, 88 (1977) and, pertinently, to the law of

Montana. (App. 2, § 27.)

Furthermore, in contrast to the Georgia Court’s very novel sua sponte application

of Sparks, the interests and policies underlying the bar the Montana Court applied are

identical to the interests Montana sought to invoke on appeal. And Montana’s argument

that Ford was making a misguided fair cross-section objection assumed that the

objection, however it was characterized, was untimely. Montana noted in its brief that

the objection was made after the jury was empanelled (Resp. Br. at 4), and the timing of

the objection was addressed during oral argument. Compare Batson at 84 n.4.

18

Independent of Montana’s contemporaneous objection rule, Ford’s counsel also

had notice that the Montana legislature required jury challenges to be made before the

jury is sworn. Mont. Code Ann. § 46-16-117. Because this statute “is a solemn

expression of the will of the supreme power of the state[,]” Mont. Code Ann. § 1-1-101,

its adequacy, in a state with as few people as Montana, should not turn upon whether the

Montana Court has previously applied it in the Batson context. In his petition for

rehearing, Ford was given the opportunity to make the argument he is restating here, i.e.,

that the statute does not apply, but the Montana Court rejected Ford’s argument.

(App. 3.) In any event, Ford’s “jury by his peers” objection was a challenge both to the

composition of the jury and to individual jurors whom Ford presumably did not want to

be seated because of their gender or the peer requirement. Therefore, the statute applied.

“The adequacy of a state ground, of course, does not depend on an appellate

decision applying general rules to the precise facts of the case at bar.” Lee v. Kemna,

534 U.S. 362, 122 S. Ct. 877, 889 (2002). And, in Ford v. Georgia, this Court did not

hold that the states must develop specific rules expressly applicable to Batson claims--as

the Georgia Court happened to have done in Sparks. Even if we assume that Georgia had

pre-Sparks timeliness rules comparable to Montana’s, the Georgia Court’s decision in

Sparks itself precluded Georgia from arguing that an adequate bar existed in Georgia

prior to 1987, when Sparks was decided. In contrast, in this post-Batson case,

Eugene Ford’s counsel had adequate notice of the time bars the Montana Court applied.

And unlike the Court in Sparks, the Montana Court did not make its decision prospective

only, nor was it required to do so. Ford v. Georgia does not speak to Montana law, and it

19

would be incompatible with principles of federalism and comity (reflected in Batson and

Ford v. Georgia) to effectually tether Montana law to the nuances of Georgia law and the

Georgia Court’s very novel application of its later, prospective-only decision in Sparks to

bar as untimely a pretrial, pre-Batson, Swain-type equal protection claim.

2. Ford, Not the Montana Court, Is Guilty of Novelty.

In contrast to the procedural firewall at issue in Ford v. Georgia, it is Ford’s claim,

not the Court’s handling of it, which is novel here. On direct appeal, Ford’s untimely

“jury by his peers” objection was transformed not only into a Batson claim, but a proven

Batson/J.E.B. violation purportedly requiring automatic reversal of Ford’s deliberate

homicide conviction. After perusing the cold record, Ford contrived that he had proven a

prima facie case, or that the prosecutor mooted that requirement, he unfairly

characterized the prosecutor’s gender-neutral explanations for removing two panelists as

a plan to get rid of two women; he belatedly complained about the prosecutor’s supposed

fatal failure to give his reasons for striking one panelist and, he attempted to overlay this

Court’s three-step Batson analysis onto a trial record where no timely or specific Batson

objection was raised, no three-step Batson hearing was held, and where Ford’s counsel

did none of things one would expect if he were asserting a Batson violation or claiming to

have proven any such thing. Apart for the fact that the objection was untimely, each of

Ford’s Batson arguments was made for the first time on appeal. It was not “exorbitant,”

Lee v. Kemna, 122 S. Ct. at 885, or the least bit novel for the Montana Court to bar them.

The procedural bar at issue in Ford v. Georgia was pointless and harsh. Here, in

contrast, Ford’s Montana counsel was on notice.

20

Ill. THIS COURT’S OBLIGATION TO UPHOLD IMPORTANT FEDERAL

RIGHTS DOES NOT REQUIRE IT TO SANCTION FORD’S CHARADE.

Finally, this Court’s federalism jurisprudence presupposes a cognizable federal

claim or federal interest justifying a determination that state law is inadequate. This

principle inheres in Justice Holmes’ oft-quoted statement in Davis v. Wechsler, 263 U.S.

22, 23 (1923), “Whatever springs the State may set for those who are endeavoring to

assert rights that the State confers, the assertion of federal rights, when plainly and

reasonably made, is not to be defeated under the name of local practice.” Here, Ford did

not “plainly and reasonably” raise a Batson violation in trial court and it is not

“inescapable that the defendant sought to invoke the substance of his federal right” within

the meaning of this Court’s precedent. Cf James, 466 U.S. at 351.

Ford, a .nan, did not assert third-party standing to vindicate the purported rights of

any excluded panelists pursuant to Powers v. Ohio. Rather, Ford’s trial counsel raised

Ford’s personal right (“my client’s nght”) to a “jury by his peers” or the fair cross-section

requirement--a right often paradoxically at odds with equal protection principles. Ford’s

argument that the prosecutor treated his objection as a Batson claim, and that Montana

waived any objection to its timeliness, assumes that the primary purpose of an adequate

and timely objection is to give notice to a party, when its main purpose is to give notice

to the trial court; it further assumes, incorrectly, that Ford made a specific Batson

objection in trial court. (App. 2, 4 8.)

Although the Montana Court effectively treated Ford’s “jury by his peers”

objection according to pre-Batson standards of adequacy, cf. Ford v. Georgia and

21

Trevino, it nonetheless determined that its timing “deprive[d] the district court of the

ability to correct any error in the proceedings in a timely fashion.” (App. 2, 27.) Thus,

notwithstanding the principle that a state cannot defeat federal jurisdiction based upon a

bar its court did not apply, Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), here,

Montana's non-jurisdictional opposition to certiorari review stresses that Montana shares

the federal forum’s interest in requiring objections “ample and timely to bring the alleged

federal error to the attention of the trial court and enable it to take appropriate corrective

action. ... Cf. Douglas v. Alabama, 380 U.S. 415, 422-23 (1965). See also United

States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940). The trial is the “main

event.” Wainwright at 90.

This Court has refused to deem state laws adequate when their application serves

no “perceivable” state interest. See, e.g., Lee v. Kemna, 122 S. Ct. at 886; Osborne v.

Ohio, 495 U.S. 103, 124 (1990); James at 349. Here, comity counsels invocation of a

corollary principle, deference, because a substantive Batson claim was not amply and

timely raised, let alone amply and timely proven.

Despite failing to specifically raise and timely prove a Batson violation in trial

court, Ford’s novel approach did not stop there. On direct appeal, he argued that a

pattern of six strikes, in and of itself, would constitute prima facie and ultimate proof of

invidious discrimination against women in what was, in essence, a domestic violence

murder involving a male perpetrator’s claim of self-defense. However, while proof of

invidious intent “may include proof of disproportionate impact,” more is required unless

no possible non-discriminatory explanation exists. Batson at 93. Ford’s trial counsel

22

himself exercised an amazing two-thirds (four) of his six strikes against women, which

illustrates why proof under Batson is a question of invidious intent, rather than of

disparate impact. Hernandez at 359-63. Batson contemplates a fact-intensive,

case-specific inquiry. Batson at 95-98; J.E.B. at 129, 138-40 (where the targeting of

males, based on gender stereotypes, resulted in an all-female jury in a paternity action).

Apart from the fact that four women served on Ford’s jury, and notwithstanding

Ford’s failure to timely raise a specific Batson claim and to timely rebut the prosecutor’s

explanations (as required by Batson), a discriminatory intent was neither “inherent” in the

prosecutor’s reasons for striking McKinney and Leiby, nor in his inadvertent failure to

mention his reasons for striking Carlisle. Cf Purkett at 768. Rather, Ford was asking the

Montana Court to turn jury selection into a disparate impact trial at which the proponent

of the strikes would have the ultimate burden of proof when “the ultimate burden of

persuasion . . . rests with, and never shifts from, the opponent of the strike.” Jd. As

discussed above, if the prosecutor here had a discriminatory plan, he miserably failed to

execute it when he chose not to join in defense counsel’s challenge for cause to Leraas.

While the federal forum does not have a reasonable interest in allowing Ford to

continue on with his artful attempt to reverse a Montana homicide conviction, Montana’s

interest in barring a post-Batson claim so poorly presented and ill-timed as Eugene Ford’s

is compelling. It is not an example of a state court’s developing novel, ad hoc, and

pointlessly severe procedural hurdles in order to thwart judicial scrutiny of invidious

discrimination.

23

Finally, although the Montana Court did not reach the merits of the claim, the idea

that it was employing procedural artifice to cover up gender discrimination does not ring

true. The Montana Court vigilantly upholds the right of all Montanans to “inviolable”

hunan dignity, see, e.g., In re K.G.F., 2001 MT 140, 4 45, 306 Mont. 1, 29 P.3d 485, but

it was not compelled to jump to the merits of a claim beset with so many problems. And

this Court’s responsibility for upholding federal rights does not force the conclusion that,

in the final analysis, an effective state court Batson challenge is one which is

non-specific, disruptive, unproven, contrary to this Court’s decisional law, and untimely.

CONCLUSION

For the foregoing reasons, Montana respectfully requests that this Court deny the

petition for a writ of certiorari.

Respectfully submitted,

MIKE McGRATH

Attorney General of Montana

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

By: Meh M alert

MARK W. MATTIOLI *

Assistant Attorney General

* Counsel of Record

September 2002

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No. 00-337

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 230

STATE OF MONTANA,

Plaintiff/Respondent, a

v. : eed Sant

EUGENE FORD,

Defendant/Appellant. eee te er, epee

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest, Appellate Defender Office, Helena, Montana

For Respondent:

Mike McGrath, Montana Attomey General, Mark W. Mattioli, Assistant

Attomey General, Helena, Montana; Brant S. Light, Cascade County Attomey,

Great Falls, Montana

Heard: July 24, 2001

Submitted: August 9, 2001

Decided: November 20, 2001

Filed:

rk

Justice Patricia O. Cotter delivered the Opinion of the Court.

q! On November 12, 1999, a unanimous jury in the Eighth Judicial District, Cascade

County, found Eugene Ford (Ford) guilty of deliberate homicide, a felony. He was sentenced

to the Montana State Prison for life and was declared ineligible for parole. Ford appeals

from this verdict and sentence.

92 The issue presented for review is whether the District Court properly denied Ford's

motion for the impanelment of a new jury. Ford alleges that the State violated his equal

protection rights by improperly exercising its peremptory challenges so as to exclude women

from Ford's jury panel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

93 ‘In March 1999, Ford was charged with the offense of deliberate homicide involving

the death of his roommaie, Michael Paul. Ford's trial commenced on November 8, 1999, with

selection of the jury. A review of the trial Transcript indicates the venire, comprised of fifty

prospective jurors, appeared as instructed and were swom as to their qualifications to serve

as trial jurors in the case at bar. From the list of names of the prospective jurors, it appears

the venire was evenly split between males and females. The first twenty-four prospective

jurors, sixteen females and eight males, were drawn and the State's voir dire examination

commenced. One male was excused for cause and replaced by another male. The State then

passed the prospective jurors for cause and Ford's attorney ccnducted his voir dire

examination. He challenged two female prospective jurors for cause, and they were excused

and replaced by two males. One of these males was then excused for cause and replaced

with another male. At this point, the prospective jury panel consisted of fourteen females and

ten males.

94 Each party was allotted six peremptory challenges. The State exercised its peremptory

challenges, excusing six females from the prospective jury panel. Ford then exercised his

peremptory challenges, excusing four females and two males. Three prospective alternate

jurors were drawn, two males and one female. The State excused one male and Ford excused

one male. The final jury, comprised of eight males, four females and one female alternate

juror, was then sworn, and the remaining venirepersons were dismissed with the thanks of

the Court.

q5 After the jury was swom and the venire dismissed, and outside the presence of the

jury, Ford's attorney then moved for a new jury pool, claiming the State had exercised its

peremptory challenges "in violation of [Ford's] right to a jury by his peers" by striking six

women. The State, without verbal prompting from the District Court, offered explanations

for striking five of the six excused prospective jurors. The District Court noted Ford's

objection, but without explanation or reason, overruled his objection. The trial then

proceeded.

46 Upon completion of the trial, a unanimous jury found Ford guilty of deliberate

homicide. He was sentenced to the Montana State Prison for life and was declared ineligible

for parole.

STANDARD OF REVIEW

47 The issue of gender discrimination in jury selection is a case of first impression for

this Court, and while the parties do not agree as to the appropriate standard of review this

Court should apply to the case at bar, it is well established that when considering a Batson

challenge, i.e., a challenge that a litigant has exercised its use of peremptory strikes in a

discriminating manner, an appellate court will defer to the tral court's findings of fact unless

clearly erroneous, and will review the trial court's application of the law de novo. Tolbert

v. Page (9th Cir. 1999), 182 F.3d 677, 1999 U.S. App. LEXIS 14201. See also Brewer v.

Marshall (\st Cir. 1997), 119 F.3d 993, 1997 U.S. App. LEXIS 18147.

DISCUSSION

§8 | In making his objection at trial to the peremptory challenges exercised by the Staite,

Ford’s counsel claimed that the State had violated his nght “to a jury by his peers.” It was

not until he filed his appeal that Ford first labeled his dispute over the State’s exercise of

peremptory challenges a “Batson” challenge. (Appellant's Brief, p. 17). Because this Court

has not previously addressed Batson and its progeny, we deem it appropnate to briefly review

the history and evolution of the Batson challenge to jury composition.

99 Allcitizens of this country and of this state are guaranteed equal protection under the

laws by the United States Constitution and the Montana Constitution. Section | of the

Fourteenth Amendment of the United States Constitution reads:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

q10 Article II, Section 4 of the Montana Constitution reads:

The dignity of the human being is inviolable. No person shall be denied the

equal protection of the laws. Neither the state nor any person, firm,

corporation, or institution shall discriminate against any person in the exercise

of his civil or political rights on account of race, color, sex, culture, social

origin or condition, or political ov religious ideas.

These constitutional provisions are intended to eliminate governmental discrimination based

upon race, gender, religion, or political philosophy.

qi1 ‘Ina landmark case in 1880, the United States Supreme Court, explaining a function

of the recently ratified Fourteenth Amendment (1868), informed the State of West Virginia

that its juror qualification statute, allowing only "white male persons” to be eligible for jury

service, was 2 violation of a black defendant's right to a jury selected "without discrimination

against all persons of his race or color, because of their race or color." Strauder v. West

Virginia (1880), 100 U.S. 303. In 1881, the facts of Neal v. Delaware, 103 U.S. 370,

prompted the U.S. Supreme Court to extend Strauder by holding that Delaware's refusal to

call black citizens to jury duty was also unconstitutional. Since that time, the Fourteenth

Amendment has repeatedly been invoked to support the eradication of discrimination in the

jury selection process.

412 While these early Supreme Court opinions instructed states to include black citizens

in venires, they failed to guarantee that black citizens would actually serve on juries.

5

Through the use of peremptory challenges, prosecutors were for many years generally

successful in eliminating black juror participation. Stephen R. DiPrima, Note: Selecting a

Jury in Federal Criminal Trials After Batson and McCollum, 95 Colum. L. Rev. 888, 900

(1995).

413 Courts throughout our history have lauded the importance of peremptory challenges

to our judicial system. The peremptory challenge "is one of the most important of the nghts

secured to the accused." Pointer v. United States (1894), 151 U.S. 396, 408, 14 S.Ct. 410,

414, 38 L.Ed. 208, 214. It is "an essential part of the trial," and, more specifically, it is

"essential to the faimess of trial by jury." Lewis v. United States (1892), 146 U.S. 370, 376,

13 S.Ct. 136, 138, 36 L.Ed. 1011, 1014. See also, Holland v. Illinois (1990), 493 U.S. 474,

484, 110 S.Ct. 803, 809, 107 L.Ed.2d 905, 919.

914 Peremptory challenges are used during voir dire to stike members of the venire who

the striking party prefers not to have on the jury, usually because of a perceived bias on the

part of the potential juror. Unlike strikes for "cause," which are accompanied by an

expressed reason for the strike, peremptory strikes may be exercised without having to

explain the reason behind them. Peremptory strikes are often based primarily on instinct, and

are cherished tools, guarded protectively by litigators. It in undeniable, though, that an

unfortunate consequence of not having to explain the peremptory strike has been that persons

have been excluded from jury participation because of their race or gender. However, as

long as the use of the peremptory challenge was unfettered, any discriminatory motive would

be unproven and, in any event, immaterial.

q!5 The unrestrained use of peremptory challenges came to an end with Batson v.

Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. In Batson, the U.S. Supreme

Court developed the rule that the state, in a criminal case, cannot utilize its peremptory

challenges to remove prospective jurors on the sole basis of race. Batson was a black man

indicted in Kentucky on charges of second degree burglary and receipt of stolen goods.

During jury selection, the prosecutor used his peremptory challenges to strike all four black

persons on the venire, and an all-white hey convicted Batson on both counts. Defense

counsel argued to the trial court at the time of jury selection that the prosecutor's use of his

peremptory challenges violated Batson's rights under the Sixth and Fourteenth Amendments.

In keeping with the attitude that peremptory challenges were sacred, the trial court informed

defense counsel that peremptory challenges could be used to "strike anybody they want to."

The ——s Supreme Court affirmed the trial court. Batson, 476 U.S. at 83-84.

416 The United States Supreme Court reversed the lower court's decision. The Court held

that purposeful racial discrimination by the government in the jury selection process was a

violation of the Equal Protection Clause of the Constitution. Batson, 476 U.S. at 89. The

Court set out a three-prong procedure to be used by the trial court when determining whether

such a violation had occurred. First, the defendant must make out a prima facie case of

. purposeful discrimination. Then, the state must provide race-neutral explanations for its

peremptory strikes. The trial court must then proceed to determine if the defendant has

established purposeful discrimination. Batson, 476 U.S. at 97-98.

417 The Supreme Court also set forth those factors necessary to establish a prima facie

case of purposeful discrimination: |) the defendant must show that he or she is a member

of a cognizable racial group; 2) the defendant must show that the prosecutor exercised

peremptory challenges to remove members of the defendant's race from the venire; and 3)

defendant must show that such facts and any other relevant circumstances raise an inference

that the prosecutor used the peremptory jury selection practice to exclude members of the

venire from the petit jury on account of their race. Batson, 476 U.S. at 96.

418 As indicated above, the standard of review to be applied by an appellate court to a

Batson challenge depends upon the issue being appealed. If the issue on appeal is a matter

of law, such as the timeliness in which a Batson challenge is made, the appellate court will

review the tal court's application of the law de novo. If the issue is a factual one, however,

e.g., whether a party has established a prima facie case for discrimination, an appellate court

wil] defer to the trial court's findings of fact unless clearly erroneous. Tolbert, 182 F.3d at

684. Therefore, it is imperative that the trial court fully develop a record for review - a

record that includes all relevant facts and information relied upon by the trial court to render

its decision, as well as a full explanation of the court's rationale. United States v. Diaz (11th

Cir. 1994), 26 F.3d 1533, 1994 U.S. App. LEXIS 19495.

919 Over the years since Batson was decided, the U.S. Supreme Court has expanded

Batson's scope and "reaffirmed repeatedly [its] commitment to jury selection procedures that

are fair and nondiscriminatory." J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 128,

114 S.Ct. 1419, 1421, 128 L.Ed.2d 89, 97. For instance, the Batson rule no longer applies

exclusively to prosecutors striking members of the venire who are the same race as the

defendant. Any racially-motivated reason for striking a prospective juror is prohibited under

Batson, whether the prospective juror shares the racial identity of the defendant or not.

Powers v. Ohio (1991), 499 U.S. 400, 409, 111 S.Ct. 1364, 1370, 113 L-Ed.2d 411, 424.

Moreover, the Batson challenge is no longer limited exclusively to the government in

criminal actions. It has been extended to prevent a defendant in a criminal action from using

peremptory challenges to exclude jurors based on race (Georgia v. McCollum (1992), 505

U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33), and has also been applied to private litigants in

a civil case. (Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 111 S.Ct. 2077, 114

L.Ed.2d 660).

420 In addition to their application to racially motivated peremptory challenges, the Batson

criteria have also been invoked to address other forms of discrimination in the jury selection

process. The U.S. Supreme Court has relied on Batson to prohibit gender discrimination

during jury selection. J.E.B., 511 U.S. 127. On appeal, Ford premises his challenge to the

State’s use of its peremptory challenges to strike six women from the venire, upon J.E.B. and

its progeny.

421 Ford argues that the State violated his Fourteenth Amendment rights by improperly

exercising all of its peremptory challenges to exclu’2 women from the jury panel. The State

responds that there was no discriminatory motive underlying its use of peremptory

challenges. and that there would be no reason to systematically exclude women from the jury

panel in a murder case involving a male defendant and a male victim. However, before we

even consider the merits of Ford’s claim, we must first evaluate the timeliness of the Batson

motion. While defendants have a right "to be tried by a jury whose members are selected

pursuant to nondiscriminatory criteria," Batson, 476 U.S. at 85-86, this right must be

exercised in a timely manner. Failure to raise a Batson challenge in a timely manner results

in the waiver of the challenge. Morning v. Zapata Protein (USA), Inc. (4th Cir. 1997), 128

F.3d 213.

922 When establishing the elements of a Batson challenge, the Batson Court did not

specify at what point in time in the proceedings an objection must be made in order to be

timely. As this is a case of first impression for this Court, we look to other courts for

guidance.

§23 Several jurisdictions have closely analyzed Batson's language and concluded that the

U.S. Supreme Court envisioned that a Batson challenge must be made before the jury is

sworn. State v. Wilson (1993), 117 N.M. 11, 868 P.2d 656; United States v. Cashwell (11th

Cir. 1992), 950 F.2d 699, 704; United States v. Dobynes (8th Cir. 1990), 905 F.2d 1192,

1196, cert. denied (1990), 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167. These courts note

that in Footnote 24 of the Batson opinion, the U.S. Supreme Court offered the following

alternative possibilities upon a finding of discrimination: the court may discharge the venire

10

and select a new jury from a panel not previously associated with the case, or it may disallow

the discriminatory challenges and resume selection, with the improperly challenged jurors

reinstated on the venire. Clearly, both of these options presuppose resolution of the objection

before a jury is sworn.

q2. Numerous courts have held that not only must a Batson challenge be issued before the

jury is sworn, but it must also be raised before the venire is dismissed. See United States v.

Biaggi (2d Cir. 1990), 909 F.2d 662, 679; Government of Virgin Islands v. Forte (3d Cir.

1986), 806 F.2d 73, 76; Morning, 128 F.3d at 216; United States v. Abou-Kassen (5th Cir.

1996), 78 F.3d 161, 167; United States v. Rodriquez (11th Cir. 1990), 917 F.2d 1286, 1288;

State v. Cummings (Mo. Ct. App. 1992), 838 S.W.2d 4, 6; Sorensen v. State, 2000 Wyo.

LEXIS 143, 6 P.3d 657, 662; State v. Harris (1988), 157 Ariz. 35, 36, 754 P.2d 1139, 1 140.

425 There are several reasons why a Batson challenge must be raised before the jury is

swor and the venire dismissed. The Wilson court, embracing the Cummings rationale,

stated:

There simply is no justification for defense counsel to wait until the remaining ~

venirepersons are discharged to challenge the state's peremptory strikes. If

defense counsel does wait until the venire panel is discharged and the

challenge is sustained, then the jury selection process must start anew, and an

additional venire panel must be called. This simply delays justice, and, in

those jurisdictions where an additional venire is not readily available, the delay

can be substantial.

Wilson, 117 N.M. at 15-16, quoting Cummings, 838 S.W.2d at 6.

426 Additionally, in Allen v. State (Tx. Ct. App. 1987), 726 S.W.2d 636, 1987 Tex. App.

ee ee ee nee ee ee ee

LEXIS 6672, the Texas Court of Appeals, citing United States v. Erwin (Sth Cir. 1986), 793

F.2d 656, explained that a Batson objection made before the venire is dismissed puts the

prosecutor on notice that he or she may be required to provide race-neutral explanations for

the peremptory strikes. With the venire still before the prosecutor, he or she has the

opportunity to associate the names and faces of the stricken veniremembers with the reasons

for striking them. This task becomes very difficult once the persons to whom the

peremptories were directed have disappeared from sight, especially where, as here, the

defendant challenges as many as six strikes.

927 Ifweallow a Batson challenge to be raised after the jury is impaneled and swom and

the venire dismissed, we not only impair the ability of the challenged attorney to effectively

defend his or her strikes, but we also deprive the district court of the ability to correct any

error in the proceedings in a timely fashion. While we have not previously addressed the

Batson challenge explicitly, the concept of requiring a substantive challenge to be brought

while the district court still has the opportunity to cure the alleged defect is not novel. We

have consistently held that the purpose of a timely objection is to give a district judge the first

opportunity to correct any error. | See State v. Tucker, 2000 MT 255, 301 Mont. 466, 10 P.3d

832; State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111; State v. Finley (1996), 276

Mont. 126, 915 P.2d 208 (overruled in part on other grounds by State v. Gallagher, 2001 MT

39, 304 Mont. 215, 19 P.3d 817); State v. Weinberger (1983), 204 Mont. 278, 665 P.2d 202.

428 We conclude that because Ford’s counsel waited until after the jury was impaneled

12

and sworn and the venire dismissed to raise his Batson challenge, his motion was untimely

429 The decision of the District Court is affirmed.

We Concur:

LA ONALLY

M .

=

Chief Justice

13

i

. CEIVELE

o nA 6 R RE

FEB Q 1 2002

IN THE SUPREME COURT OF THE STATE OF MONTA

= ENERALD urrivt

ATTORNEY Gene NTANA

No. 00-337 HELENA, MO

STATE OF MONTANA, =F —

i yETLED

Plaintiff and Respondent, )

) N 31 2002

v. ) dR D E R

) ed Smith -

EUGENE FORD, ) ~~ B8,GF thease A aa

)

Defendant and Appellant.

Eugene Ford, by counsel, has filed a Petition for Rehearing in this matter. The State

has responded, urging us to deny the petition. We agree with the State.

Ford's jury panel objection, made after the jury had been sworn and after the venire

had been dismissed, was not made in a timely manner. As noted in our Opinion, several

jurisdictions have concluded that the U.S. Supreme Court intended that a Batson chailenge

be made before the jury is sworn. Other jurisdictions have adopted the rule that such a

challenge may be raised after the jury is sworn but must be raised before the venire is

dismissed. Ford did neither.

Furthermore, as our Opinion reflects, there exists in this State a well-established body

of case law requiring substantive objections to be interposed while the district court still has

the opportunity to cure the alleged defect. Any challenge to the composition of the jury made

after dismissal of the venire deprives the district court of the ability to correct errors that may

be identified by such a challenge. Moreover, in addition to this well-established body of case

law, § 46-16-117, MCA, statutorily requires that all jury challenges must be interposed

before the jury is sworn. Ford failed to raise his objection until after the jury was sworm and

the venire dismissed, and he thus deprived the District Court of the opportunity to address

the alleged errors. Accordingly,

IT IS HEREBY ORDERED that the "Petition for Rehearing of Opinion" filed with

this Court by Defendant and Appellant, Eugene Ford is DENIED.

av

DATED this 3\ day of January, 2002.

Justices

Justice Jim Rice dissenting.

I respectfully dissent from the Court’s order. I would grant the petition and remand

for a hearing.

Although Ford argues that his objection should have been considered timely, I remain

convinced that the Court correctly held that a timely Batson challenge must be made before

the jury is sworn and the venire dismissed. Ford’s objection was made after the jury was

empaneled and the venire dismissed, and was, therefore, untimely.

However, Ford also argues that the State did not object to the timeliness of his jury

objection in the District Court, instead addressing the merits of the objection by offering

gender neutral reasons for its challenges, and thus waived any objection to the timeliness of

the claim. We have long held that failure to impose an objection at trial waives the ee for

purposes of appeal. State v. LaDue, 2001 MT 47, 304 Mont. 288, 20 P.3d 775.

Ford convincingly argues that this rule applies when the State does not object to the

timeliness of a Batson objection. As authority, he offers People v. Harris (Ill. 1989), 544

N.E.2d 357, a case in which the defendant challenged the State’s exercise of its peremptory

strikes. There, the prosecutor failed to object to the timeliness of the defendant’s motion, but

rather—like the situation here—opposed the motion on its factual merits. On appeal, the State

argued that the defendant’s motion had been untimely made. Citing the well-established rule,

the Illinois Supreme Court concluded that the State had waived its argument that the

defendant’s jury objection was untimely, as “it is equally true that the principle of waiver

applies to the State as well as to the defendant.” Harris, 544 N.E.2d at 378.

3

The State asserts that a waiver by the prosecutor requires understanding about what

kind of objection defendant’s counsel was actually making, and that it was not until appeal

that Ford actually labeled his objection a Batson challenge, as opposed to a duties to the

sufficiency of the venire panel pursuant to Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct.

664, 58 L.Ed.2d 579. I am convinced from the record that Ford’s objection was directed to

the propriety of the prosecutor’s peremptory challenges, and that the prosecutor sion

understood the objection, to which he responded by offering nondiscriminatory reasons for

his strikes.

The District Court failed to properly follow the process for evaluating Ford’s

objection as set forth in Batson, and failed to enter findings regarding the sufficiency of the

prosecutor’s gender-neutral explanations. I would remand this matter to the District Court

to conduct a proper Batson hearing, with the further admonishment that the trial court need

not accept at face value the State’s ostensibly facially-neutral explanations for use of its

peremptory challenges, but must consider whether the proffered reasons are designed to

avoid admitting acts of discrimination. See, David v. State (Ala. 1998), 740 S.2d 1142.

Justice

Justice W. William Leaphart joins in the foregoing dissent of Justice Rice.

Justice

‘

| It.

ms 09g, RECEIVED

DEC 2 8 2001

IN THE SUPREME COURT OF THE STATE OF MONTANA st

ATTORNEY GrNenAcs UFFICE

No. 00-337 re ei " “ ae

STATE OF MONTANA, DEC 2 » 2u01

Ed &

~LE RK CS ~ Smif 4

oer) o °

o AF aeas, +f : ve,

Plaintiff and Respondent,

ORDER

V.

EUGENE FCRD,

Defendant and Appellant.

Eugene Ford, by counsel, has filed a Petition for Rehearing in this matter. The State

has responded, urging us to deny the petition.

We deem it appropriate to permit Ford to file a reply brief in response to the

arguments raised in the State’s Response to the Petition for Rehearing. Although Ford may

address any of the State’s arguments, we invite Ford to address, in particular, the State’s

argument that the provisions of § 46-16-117, MCA, require that all challenges to the

composition of the jury panel must be interposed before the jury is sworn. Accordingly,

IT IS HEREBY ORDERED that Ford shall be entitled, at his discretion, tofileareply - —

brief addressed to the arguments raised by the State of Montana in its response to the petition

for rehearing, said brief not to exceed ten pages, to be filed on or before January 15, 2002.

IT IS FURTHER ORDERED that the Clerk of this Court shall give notice of this

Order by mail to all counsel of record.

“‘~

DATED this 2»,' day of December, 2001.

Justices

No. 01-10070 ORIGINAL

In The

SUPREME COURT OF THE UNITED STATES

+

EUGENE FORD,

Petitioner,

V.

STATE OF MONTANA,

Respondent.

+

AFFIDAVIT OF SERVICE

STATE OF MONTANA )

County of Lewis and Clark “a

I, Bonnie R. Flesch, of legal age, being duly sworn according to law, upon my oath

depose and say:

a I am a legal assistant in the Office of Attorney General, Department of

Justice, State of Montana. RECEIVED

SEP 23 02

OFFICE OF THE CLERK

SUPREME COURT, U.S.

2. On Thursday, September 19, 2002, at the direction of Mark W. Mattioli,

Assistant Attorney General, I served one (1) copy of the Brief in Opposition to Petition

for Writ of Certiorari in the above matter upon Petitioner by placing the document in the

U.S. Mail, first-class postage prepaid, addressed as follows:

Mr. William F. Hooks

Ms. Kristiina Guest

Montana Appellate Defender Office

34 West Sixth Avenue

P.O. Box 200145

Helena, MT 59620-0145 -

a On this date I also placed in the U.S. Mail, first-class postage prepaid, the

original and ten (10) copies of the Brief in Opposition to Petition for Writ of Certiorari

addressed to the Clerk of the United States Supreme Court.

DATED: 24 oa Caen LE 220 02 yaa PAN SPTD

SUBSCRIBED AND SWORN io before me this_/ 9 +h day of

S cele ~~ v , 2002.

Sat G. Murs

Jan¢t E. Meyers ( |

Public for the of Montana

Residing in Heleua. Montana

My Commission expires Se ote who Ia, 200 f