Opposition Brief — Adams v. Lancaster

“Supreme Cour, US. 7

(2) FILED |

OCT 7 2003

No. 03-356

- OFFICE OF THE CLERK

In the

Supreme Court of the United States

STANLEY ADAMS, Warden,

Petitioner,

v.

Burt LANCASTER,

Respondent.

On PETITION For Writ Or CERTIORARI

To Tue UnitTep States Court Or APPEALS

For Tue Sixt Circuit

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

KENNETH M. MocILL

Counsel of Record

MOosILL, POSNER & COHEN |

27 E. Fuint STREET

2ND FLOOR

LaKE Orion, MI 48362

(248) 814-9470

Counsel for Respondent

Burt Lancaster

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

COUNTER-STATEMENT OF

QUESTION PRESENTED FOR REVIEW

Where, as Here, a State Court Trial Judge Determined

That a Prosecutor’s Race-Neutral Explanation for the Exercise

of a Peremptory Challenge Against an African-American

Juror Was the Product of Discriminatory Intent, and Where

the State Court Judge Later Reversed Himself on the

Erroneous Belief That the Prosecutor’s Absence of Challenge

to a Subsequently Seated African-American Juror Excused the

Discriminatory Challenge to the Earlier African-American

Juror, the District and Circuit Courts Properly Considered the

Totality of the State Court Judge’s Comments and Findings in

Concluding That the State Court Judge’s Initial Finding Was

Entitled to a Presumption of Correctness and That the

Prosecutor’s Exercise of a Peremptory Challenge Against the

Earlier African-American Juror Was Based on Discriminatory

Intent in Violation of the Rule of Batson v. Kentucky; Habeas

Relief Was Properly Granted, and the Petition Should Be

Denied.

TABLE OF CONTENTS

Counter-Statement of Question Presented for Review ... i

‘Tae OF COE Sn ka ok oa a eee li

TER OF ROOTS og 5 56s he oe ee ee ili

Counter-Statement of the Case ..............%.. 1

Reasons for Denying the Writ ................. 3

Conclusion

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U.S. 79 (1986) ....... passim

Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998) .... 7

Greene v. Brigano, 123 F.3d 917 (6th Cir. 1997) ..... 7

Hernandez v. New York, 500 U.S. 352 (1991) ...4.. 9

Lancaster y Adams, 24 F.3d 423 (6th Cir. 2003) ..... 8

McClaio v. Prunty, 217 F.3d 1209 (9th Cir. 2000) .... 7

Purkett v. Elem, 514 U.S. 765 (1995) ............ 4

Sinistaj v. Burt, 66 F.3d 804 (6th oS errr 7

Smith v. Texas, 311 U.S. °28 (1940) ............ 3

Strauder v. Virginia, 100 U.S. 303 (1880) ......... 3

Swain v. Alabama, 380 U.S. 202 (1965) .......... 3

United States v. Battle, 836 F.2d 1084 (8th Cir. 1987) . 4

United States v. Harris,

Pee Woe owe comm CH. E999) ww ww eee ees 4,8

United States v. Horsley,

864 F.2d 1543 (11th Cir. 1989) .............. 8

United States v. McFerron,

163 F.3d 952 (6th Cir. 1998) ............... 8

United States v. Tucker, 90 F.3d 1135 (6th Cir. 1996) . 4

Unites States Postal Service v. Aikens,

MMs PRE CRIME ccc ce ete wee ees sceses 4

Statutes and Rules

ncn ns a ob odo ww a lee 8 ee So 1

Ee eee er eee 1

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COUNTER-STATEMENT OF THE CASE

Introduction. Respondent Burt Lancaster, a retired

Detroit Police officer with a long personal and family history

of sericus mental health problems, was charged in the

underlying case with and convicted of first-degree murder and

possession of a firearm in the commission of a felony,

M.C.L. §750.316; M.C.L. §750.227b, for having killed his

girlfriend in the middle of the day in a parking lot in

Southfield, Michigan, on April 22, 1993. Mr. Lancaster’s

defense to these charges was that he was legally insane at the

time of the killing or that, in the alternative, his conduct was

partially excused by diminished capacity. Following trial by

a jury in Oakland County, Michigan, Circuit Court before

Hon. Barry Howard, Oakland Circuit Judge, Mr. Lancaster

was convicted as charged and sentenced to a mandatory term

of life imprisonment without parole plus two years.

Following exhaustion of his state court remedies,

Respondent timely petitioned for a writ of habeas corpus

pursuant to 28 USC §2254. On September 25, 2001, Hon.

Avern Cohn, Senior United States District Judge, granted the

requested relief, finding Respondent’s Batson claim to be

meritorious but rejecting his other asserted grounds for relief

(R26; Opinion and Order Conditionally Granting Writ of

Habeas Corpus; Apx 127). On March 26, 2003, the United

States Court of Appeals for the Sixth Circuit affirmed, and on

June 4, 2003, the Sixth Circuit denied Petitioner’s petition fer

rehearing en banc. ;

Statement of relevant facts. Mr. Lancaster is an African-

American. During jury selection at his trial, the prosecutor

used a peremptory challenge to excuse Mr. Bowden, one of

two African-American males in the venire (Tr 11/07/9, p

115; Apx 331). The prosecutor asked no questions of Mr.

1

Bowden before moving to strike him (Tr 11/07/94, p 109;

Apx 330). Defense counsel objected at the bench on Batson

v. Kentucky (476 U.S. 79 (1986)) grounds, and the court

conducted a brief hearing during which the prosecutor

attempted to justify his action by asserting that Mr. Bowden’s

tone and temperament in responding to the court’s questions

left the officer-in-charge feeling uncomfortable

(Court/Counsel, Tr 11/07/94, pp 117-120; Apx 333-336).

Judge Howard initially sustained the objection, stating that.

he did not have the same opinion of Mr. Bowden’s responses

and that the prosecutor’s explanation was not valid

(Court/Counsel, Tr 11/07/94, p 120; Apx 336). Judge

Howard also expressed concern that permitting the strike to

stand would result in only one African-American remaining

in the pool of potential jurors (Court/Counsel, Tr 11/07/94,

p 108; Apx 329). Later the same day, after another African-

American, Mr. Webb, was called as a juror, the prosecutor

renewed his objection to Mr. Bowden, and Judge Howard

reversed himself without explanation (Court/Counsel, Tr

11/07/94, pp 128, 136-137; Apx 337, 339-341).

Explaining his turn-around the next morning, the judge

alluded to the fact that Mr. Webb, who is also African-

American, had been seated on the jury:

... as the process continued, there was another juror,

another African-American, who was selected... Mr.

Walton renewed his objection again to Mr. Bordon

[sic] ... The Court reflected - the Court, while not

satisfied with the original explanation given ... by Mr.

Walton with regard to Mr. Bordon [sic] ... however

felt that that explanation was given more credibility by

the subsequent examination of the other jurors. The

Court then reconsidered it’s [sic] opinion, in light of

2

the examination, and then felt, because of the conduct

of the prosecution and the subsequent juror that it was

legitimate ...

(Court/Counsel, Tr 11/08/94, pp 3-4; Apx 334-345).

REASONS FOR DENYING THE WRIT

This Court’s efforts to eliminate racial discrimination in

jury selection policies and practices began well over a century

ago. In Strauder v. Virginia, 100 U.S. 303 (1880), this Court

struck down a statute qualifying only white persons for jury

duty as violative of the Fourteenth Amendment’s central

purpose, removing all discriminations implying “inferiority in

civil society, lessening the security of their [African-

Americans’] enjoyment of the rights which others enjoy”.

In Smith v. Texas, 311 U.S. 128 (1940), this Court

stressed that “racial discrimination in the exclusion from jury

service of otherwise qualified groups not only violates the

Constitution and the laws enacted under it but is at war with

our basic concepts of a democratic society and a

representative government.”

In Swain v. Alabama, 380 U.S. 202 (1965), this Court

considered not a discriminatory statute but prosecutors’

racially discriminatory exercise of peremptory challenges.

The Court was unwilling in Swain to limit litigants’ historical

privilege of exercising peremptory challenges without judicial

intervention, instead placing on the defense the heavy burden

of establishing that the whole peremptory challenge system

was being perverted before relief would be granted. By the

mid-1980s, however, Swain’s failure to prevent chronic and

widespread racial discrimination in jury selection and the need

for a new rule with teeth in it had become clear. Batson v.

3

Kentucky, 476 U.S. 79 (1986), established that new rule and

has been a watershed in the Court’s efforts to monitor and

prevent (or at least reduce) the use of racial discrimination in

litigants’ exercise of peremptory challenges.

Batson’s now-familiar three-step test' is designed to

provide a workable means for avoiding the unconstitutional

exclusion of even a single minority juror. Cf. Batson, supra,

476 U.S. at 95. Where such improper exclusion occurs, the

harm accrues not only to the accused but also to “jurors not

selected because of their race, and to the integrity of the

judicial system as a whole”. /d. 476 U.S. at 87-88; United

States v. Harris, 192 F.3d 580, 587-588 (6th Cir. 1999);

United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987)

(striking a single African-American on the basis of race

' The defense must first make out a prima facie case of purposeful

discrimination, after which the burden shifts to the prosecution to

offer a race-neutral explanation for the challenge. The final step in

the analysis is for the court to decide whether the opponent of the

strike has proved purposeful racial discrimination by a

preponderance of the evidence. Batson, supra, 476 U.S. at 98;

Purkett v. Elem, 514 U.S. 765 (1995); United States v. Tucker, 90

F.3d 1135, 1142 (6th Cir. 1996). However, “[o]nce a prosecutor

has offered a race-neutral explanation for the peremptory

challenges and the trial court has ruled on the ultimate issue

intentional discrimination, the preliminary issue of whether the

defendant has made a prima facie showing becomes moot”.

Hernandez v. New York, 500 U.S. 352, 359 (1991); United States

v. Harris, 192 F.3d 580, 587 (6th Cir. 1999). Moreover, the

prima facie prong of the test was “never intended to be rigid,

mechanized or ritualistic ... [and] is merely a sensible, orderly way

to evaluate the evidence in light of common experience as it bears

on the critical question of discrimination”. Unites Sta tal

Service v. Aikens, 460 U.S. 711, 715 (1983).

4

violates equal protection even though other black jurors

seated).

Batson’s protection against the unconstitutional exclusion

of even a single juror, and the state court trial judge’s

misapprehension of this fundamental rule, are at the heart of

this case. As the Sixth Circuit and Judge Cohn properly

understood, a prosecutor’s racially motivated challenge of one

juror is not excused by his absence of such improper conduct

as to a later minority juror. Judge Cohn spoke directly to this

point in his opinion:

The fact that another African-American took a seat in

the jury box, a fact which apparently greatly

influenced the trial Court, was irrelevant ... “[a]

single invidiously discriminatory governmental act” is

not “immunized by the absence of such discrimination

in the making of other comparable decisions.”

(R26; Opinion and Order Conditionally Granting Writ of

Habeas Corpus at p 9 (cite omitted); Apx 135).

In coming to his conclusion, Judge Cohn was called upon

to consider the totality of the state court trial judge’s

comments and actions on the issue, and he did so thoughtfully

and carefully. He examined the judge’s initial decision to

sustain the Batson objection to Mr. Bowden, he considered

the judge’s reversal of field when Mr. Webb, another

African-American juror, was seated, and he took into account

the judge’s explanation the next morning as to why he had

changed his earlier decision, an explanation which included

reference to the fact that Mr. Webb was African-American.

Petitioner would have this Court limit Judge Cohn’s

consideration of the record to the state court trial judge’s last

5

statement on the issue rather than the totality of the

circumstances. Such a rule would overlook the obvious fact

that, in order fairly to assess what the trial judge meant by the

words he used in his last comment, one must consider the

surrounding circumstances, particularly where, as here, the

comment itself makes reference to those circumstances and

can only be properly understood by consideration of them.

The district and circuit courts properly rejected such a

position.

Taking out of context the trial judge’s reference to a

reassessment of the prosecutor’s explanation, Petitioner

argues to this Court that the comment must be held to mean

that the trial judge had come to decide that the prosecutor’s

decision to strike Mr. Bowden was not on the basis of race.

Given the timing of the trial judge’s abrupt reversal of field --

e.g.,when another African-American juror was seated -- and

his mention of that circumstance in his next day’s comments,

it is entirely reasonable to question whether the judge’s

comments meant something very different from what

Petitioner is arguing. Considering the totality of the

circumstances, the trial judge most likely meant that, since the

prosecutor was not excluding all minorities, as he was willing

to keep Mr. Webb on the jury, he (the prosecutor) was not

going overboard, and the judge was, therefore, willing to

permit the prosecutor to trade Mr. Webb’s presence for that

of Mr. Bowden. It also appears that the judge’s conclusion

was based on a misunderstanding of the extent to which

Batson and its progeny prohibit the use of race as a

consideration in excluding even a single juror.

In deciding this case, Judge Cohn was necessarily required

to decide what the trial judge meant in all of his comments

and actions and whether the trial judge’s analysis had been

based on a correct or incorrect interpretation of Batson. That

6

task included fact determinations a federal court accepts

unless clearly erroneous. Greene v. Brigano, 123 F.3d 917

(6th Cir. 1997); Sinistaj v. Burt, 66 F.3d 804, 807 (6th Cir.

1995). Judge Cohn’s conclusion that the trial judge had

“apparently [been] greatly influenced” by the presence of

another African-American in the jury box is not only amply

supported by the record, it is, ultimately, the only logical

explanation of why the trial judge did and said what he did

when he did. As Judge Cohn also noted, however, and as the

law is clear, the fact that “the prosecution subsequently

permitted another African-American to be seated was also

irrelevant” (R26; Opinion and Order at p 9; Apx 135).

Judge Cohn’s conclusion -- and the trial judge’s initial

conclusion -- is further supported by the extreme thinness of

the prosecutor’s explanation of reasons for striking Mr.

Bowden, an explanation that was subjective and unrelated to

the case. The prosecution’s attempt to attribute the decision

to strike Mr. Bowden to the officer-in-charge, who was also

African-American, transparently sought to pass the buck to a,

hopefully, more palatable source for a discriminatory

challenge. The ploy was too clever, however, and was

further reason to question the sincerity of the prosecutor’s

words. [The tactic, if accepted, would also virtually eliminate

the protections of Batson in any case in which the officer-in-

charge or prosecutor is a member of the same racial or ethnic

group as the accused.] While prosecutors are given very

substantial latitude in offering race-neutral reasons to support

peremptory challenges of minority jurors, courts have not

hesitated to reject them as pretexts when they are

“[iJmplausible or fantastic”. Cf., e.g., McClain v. Prunty,

217 F.3d 1209, 1218 (9th Cir. 2000) (exercise of peremptory

against minority juror because she was “‘overly educated’”

and because of her body language inadequate as race-neutral

explanation of strike); Coulter v. Gilmore, 155 F.3d 912, 920

7

(7th Cir. 1998) (explanation that juror seemed “timid”

“verg[ed] on the absurd”); United States v. Horsley, 864 F.2d

1543, 1544 (11th Cir. 1989) (“I just got a feeling about him”

legally insufficient). Both Judge Cohn and the Sixth Circuit

properly found that, given the totality of this record, the

prosecutor’s explanation was outside the range of acceptable

claims.

The Sixth Circuit’s concluding comments well sum up

why habeas relief was properly granted in this case:

... Without more, the prosecutor’s decision to select a

subsequent African-American juror from the venire

does nothing to cure the wrong committed under

Batson in excluding Bowden because of his race.

Where purposeful discrimination has occurred, to

conclude that the subsequent selection of an African-

American juror can somehow purge the taint of a

prosecutor’s impermissible use of a peremptory strike

to exclude a venire member on the basis of race

confounds the central teachings of Batson.

Lancaster v Adams, 24 F.3d 423, 434 (6th Cir. 2003).

Finally, it is important to note that a Batson error is

structural error not subject to harmless error analysis. Harris,

supra, 192 F.3d at 588; United States v. McFerron, 163 F.3d

952, 956 (6th Cir. 1998).

For all the reasons stated above, Judge Cohn’s decision

was correctly arrived at procedurally, it was the correct

decision substantively, and the Sixth Circuit properly affirmed

that decision. The issues raised by Petitioner do not warrant

the exercise of this Court’s discretionary jurisdiction, and the

Petition should be denied.’

CONCLUSION

For all the reasons stated above, the Petition should be

denied.

Respectfity Submitted,

Kenneth M. Mogill

MOGILL, POSNER & COHEN

27 E Flint Street, 2d Floor

Lake Orion, Michigan 48362

(248) 814-9470

Attorney for Respondent

October 3, 2003

2 For these reasons, Petitioner’s second asserted reason for

granting the writ -- focusing on the state court’s ultimate legal

conclusion rather than on whether the Michigan Court of Appeals

erred in its application of Batson, supra, and Hernandez, supra --

also fails and warrants no further discussion.

9