Two state court wins punctuate this edition. The first isCurtis Flowers v. Statewhere relief was granted on one of the strongest Batson claims seen here in some time. The other isJeremiah Rodgers v. Statewhere relief is had on the denial of the admission of certain evidence during the penalty phase. Excerpts from both cases are below.

The Fifth Circuit hasgranted a stayto Billie Wayne Coble unfortunately an opinion is not readily available. Press accounts note that “the order did not specify a reason for the stay, the motion that the 5th Circuit Court of Appeals granted was based on the trial court’s lack of jurisdiction to set an execution date for Billie Coble, as his case was still pending in that court when the date was set,” [Coble’s attorney, Richard Ellis, of Mill Valley, Calif.] said Friday. “Mr. Coble’s case is still pending his motions for rehearing in the 5th Circuit.”

On the lethal injection front, theAm. Soc. of Anesthesiologistshas issued guidance for its members; in a nutshell, the "system has painted itself into this corner and it is not our obligation to get it out." The Supreme Court has upheld a stay entered by the Western District of Arkansas (and at least for now affirmed by theEighth Circuit) in the matter Don Davis who was scheduled to be put to death by Arkansas this week (district court's order,pleadingsand theindex to the exhibits) As always on this topic,Boalt Hall'slethal injection archivescontinue to be the best source for lethal injection related documents.

New scholarship is noted. Paige Forster has this note,An Argument for the Admissibility of Execution Impact Evidence in Pennsylvania, 67 University of Pittsburgh Law Review (2005), which posits that since Pennsylvania permits Victim Impact Evidence, fairness requires that Execution Impact Evidence be permitted as well.

Looking ahead to the next edition, the Ninth Circuit inArave v. Mawell Hoffmanhas granted relief on trial counsel's performance during plea negotiations. In New Jersey, the state supreme court inState v. Anthony DiFriscogrants relief on post-conviction holding that during the direct appeal & proportionality review it should have, in a very fact based analysis, vacated DiFrisco's death sentence.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060703.htm

Scheduled Executions

July

11 Derrick O'Brien (Texas)

11 Bobby Wilcher (Miss--vol)

12 Rocky Barton (Ohio--vol)

14 William Downs (South Carolina--vol)

19 Mauriceo Brown (Texas)

20 Robert Anderson (Texas)

20 Brandon Hedrick (Virginia)

25 Allen Bridgers (Texas)

27 Michael Lenz (Virginia)

More Execution information

In Favor of Life or Liberty

Jeremiah Rodgers v. State, 2006 Fla. LEXIS 1402 (FL 6/29/2006) "[W]e find that the denial of the admission of the specified evidence from the Lawrence residence was harmful error and requires a new penalty phase."

Curtis Flowers v. State, 2006 Miss. LEXIS 356 (Miss 6/29/2006)"[W]e find that the State engaged in racially discriminatory practices during the jury selection process and that the trial court committed reversible error in upholding the peremptory strikes exercised against Vickie Curry and Connie Pittman. Based on the State's Batson violation, we are required to reverse the judgment of the Montgomery County Circuit Court and remand this case for a new trial."

Favoring Death

George Buckner v. Polk, 2006 U.S. App. LEXIS 16062 (4th Cir 6/26/2006) Habeas relief denied on claims of factual innocence; ineffective assistance of counsel as to the failure "to investigate, discover, develop, and present mitigating evidence that might have convinced the jury not to recommend a death sentence;" and use of pre-Miranda silence as impeachment.

Sedley Alley v. Little, 2006 U.S. App. LEXIS 16605, 16071, 16100, 16101 (6th Cir 6/24/2006) (unpublished) Untimeliness of lethal injection challenge is a sufficient here to dispose of the challenge. Numerous dissents en banc are noted.

Eric Moore v. Quarterman, 2006 U.S. App. LEXIS 16443 (5th Cir 6/29/2006) Grant of habeas relief under Atkins reversed for failing to adequately exhaust Atkins issues. (commentary below)

Patrick Knight v. Quarterman, 2006 U.S. App. LEXIS 16553 5th Cir 6/30/2006) (unpublished) Relief denied on his Brady and ineffective assistance of counsel claims.

Angel Resendiz v. Quarterman, 2006 U.S. App. LEXIS 16177 (5th Cir 6/27/2006) By not filing his Ford v. Wainwright claim concerning competency to be executed in his initial habeas petition Resendiz's current claim as to competency to be executed must meet the requirements of sec. 2244. (see alsoResendiz v. Livingston)

William Taylor v. State, 2006 Fla. LEXIS 1397 (FL 6/29/2006) Relief denied on claims relating to: (1) the denial of a motion to suppress evidence that was obtained as a result of a warrantless search; (2) the penalty phase jury instructions placing the burden of proof to the defendant by instructing that the jury has the duty to recommend a sentence based on whether sufficient mitigating circumstances exist to outweigh any existing aggravating circumstances; (4) denigration of the role of the jury in violation of Caldwell v. Mississippi; and (5) various claims relating to Ring v. Arizona.

James Guzman v. State, 2006 Fla. LEXIS 1398 (FL 6/29/2006) Relief denied as to false statements by lay and police witnesses under Giglio.

Robin Archer v. Florida, 2006 Fla. LEXIS 1403 (FL 6/29/2006) Relief denied on a newly discovered evidence claim, a Giglio claim, and a Brady claim.

Manuel Pardo, Jr., v. State, 2006 Fla. LEXIS 1404 (FL 6/29/2006) Relief denied on issues relating to: "(1) the trial court’s denial, without an evidentiary hearing, of his claims regarding inadequate expert mental health evaluations; (2) the denial, without an evidentiary hearing, of the claim that trial counsel was ineffective in waiving severance of counts; (3) the Brady issue; and (4) the denial of his ineffective assistance claim regarding failure to seek severance of counts. Pardo has also filed a petition for a writ of habeas corpus, raising claims of ineffective assistance of appellate counsel and denial of a proper direct appeal because of omissions in the record."

Michael Howell v. State, 2006 Okla. Crim. App. LEXIS 28 (Okla. Crim. App. 6/29/2006) Relief denied on numerous claims, following an Atkins trial & resentencing trial, including: 1) the prosecutor exceeded the proper bounds of opening statement; 2) prosecutor’s irrelevant and improper statements about Howell’s character in closing; 3) court improperly admitted irrelevant and prejudicial law enforcement opinion concerning Howell’s mental functioning without a proper foundation; 4) improper testimony concerning Howell’s competency to testify; 5) trial court improperly admitted irrelevant and prejudicial letters attributed to Howell; 6) evidence of use of verbal obscenities by Howell; 7) trial court’s instruction that mental retardation must be “present and known” before age 18 violated Atkins v. Virginia; 8) the trial court erred by denying non-unanimous verdict forms to the jury; 9) evidence in the murder introduced at the mental retardation hearing; 10) allocation of the burden of proof by a preponderance of the evidence to the Defense; and 11) entitlement to a directed verdict of mental retardation as a matter of law.

State v. Johnny Bennett, Jr., 2006 S.C. LEXIS 225 (SC 6/26/2006) "[T]his is an appeal from a capital sentencing proceeding. Appellant contends the trial court committed three errors warranting reversal. First, the trial court refused to allow defense counsel to ask jurors whether they would "stick with their vote or go with the majority" during voir dire. Second, the trial court determined that certain testimony and evidence about a prior offense was not inadmissible "victim impact" evidence. Third, the trial court ruled that remarks made by the Solicitor did not unfairly inject racial issues into the trial. We affirm."

Paul Reid v. State, 2006 Tenn. LEXIS 555, (Tenn 6/26/2006) "We granted interlocutory review in this post-conviction capital case to clarify the procedure for determining competency to proceed in a post-conviction action. For the reasons explained herein, we hold that the civil standard for mental incompetence adopted in State v. Nix, 40 S.W.3d 459 (Tenn. 2001), applies to a competency determination during post-conviction proceedings. To trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence. A finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues. A trial court should appoint, if necessary, a "next friend" or guardian ad litem to pursue the action on behalf of the petitioner. Accordingly, the decision of the trial court is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion. "

State v. Leonard Young, 2006 Tenn. LEXIS 559 (Tenn 6/30/2006) Relief denied as: "(1) the evidence was sufficient to establish venue in Shelby County; (2) the death in the immediate family of the original trial judge constituted an "other disability" under Tennessee Rule of Criminal Procedure 25(a) such that appointment of a substitute judge was proper; (3) the trial court committed harmless error in allowing into evidence several photographs of the victim as a child; (4) the evidence is sufficient to support Defendant's conviction of first degree premeditated murder; (5) the trial court committed harmless error in admitting certain victim impact evidence; (6) the trial court committed harmless error in instructing the jury that Defendant's 1999 Mississippi conviction of kidnapping was an offense, the statutory elements of which involve the use of violence to the person; and (7) the death sentence is valid under this Court's mandatory review pursuant to Tennessee Code."

Ex Parte Noey Martinez, 2006 Tex. Crim. App. LEXIS 1286 (Tex. Crim. App. 6/28/2006) Relief denied on claims relating to ineffective assistance of counsel claims on failure to investigate: 1) statutorily recognized mitigating defense of temporary insanity resulting from drug intoxication; and 2) mitigating evidence relating to physical, emotional, and sexual abuse and neglect in applicant's background.

Ex Parte Derrick Frazier, 2006 Tex. Crim. App. LEXIS 1287 (Tex Crim App 6/28/2006) Relief summarily denied. Dissent on the denial of a successive petition notes that the CCA should adopt a rule "that capital habeas applicants must be held accountable for all facts within the knowledge ofstate habeas counsel, or which could have been known to her by the exercise of reasonable diligence, at the time she files her initial application for writ of habeas corpus.. . . . Here, Pollock could not have known of the jury misconduct claim by the exercise of reasonable diligence at the time she filed the applicant's initial writ application"

Selected Excerptsfrom, & Commentary on, this Edition's Cases

Jeremiah Rodgers v. State, 2006 Fla. LEXIS 1402 (FL 6/29/2006) "[W]e find that the denial of the admission of the specified evidence from the Lawrence residence was harmful error and requires a new penalty phase."

In his first penalty-phase issue, Rodgers argues that the trial court erred in its decision to exclude certain items of evidence that were retrieved from Lawrence's residence. Rodgers contended that these items were relevant to Rodgers' mitigation theory that Lawrence had significant leadership in the murder of Robinson and was the dominant force in the conspiracy to which Rodgers had pled guilty.

Specifically, Rodgers' counsel offered into evidence all of the items seized from Lawrence's residence, which included:

A small red notebook in the handwriting of Mr. Lawrence, a throwing knife in a sheath, a knife with a black-taped handle, a black hood, a pair of handcuffs, a .410 Winchester live shotgun shell, a red plastic container with suspect gun powder. . . . [M]iscellaneous live and spent ammunition, a suspected pipe bomb that I'm told is rendered harmless now, a firearm cleaning record, a folding buck knife, two throwing stars, two wooden stakes, one pair of S & W handcuffs, one pair of nunchaks, one Sears screwdriver with a sharp point, one black leather slapjack, one knife with a black handle, one sickle, one T-handle cork screw, two unknown type weapons with blades, one wood-handled chisel, one fingerless black glove, two black knives with sheaths, one Velcro wrist strap, one chrome spike wristband, one silver-sharpened piece of metal, one "Assault Weapons" book, one "Silencer Snipers and Assassins" book, one "Ultimate Sniper" book, one "Trapper and Mountainmen" book, one "Dear Mom, a Sniper's Vietnam" book, one "Wild Foods Field Guide" cookbook, one "Sniper [*26] World of Combat" sniping book, one "U.S.M.C. Close Quarters Combat Manual," one "U.S. Special Forces Conditioning Program" book, one "Marine Sniper" book, one "Undercover Official Cookbook," one marksman BB Pistol, one Wal-Mart receipt for a .270 caliber Remmington rifle, one Remmington gun literature, 20 rounds of .270 caliber Hornaday live ammo box--ammo in a box, 19 rounds of .12 gauge live ammunition, one U.M.C. .380 caliber ammunition in a box with four live rounds, one gun cleaning kit, one receipt for the Lorcin .380 serial number 480849, one box with Derringer percussion serial number 176962 "jukar" . . ., one nipple-cap, one ramrod with powder measurer.

Jury Trial Proceedings, vol. 9, at 1580-81. The State objected to their admission on relevance grounds.

Rodgers' counsel argued to the trial judge the following:

Your Honor, in order to argue culpability we need to be able to argue about a person's knowledge of weapons, the use of weapons, and things of that nature.

The testimony will be that Mr. Rodgers was in prison until approximately Thanksgiving of '98 - '97. And then this offence occurred on May 7, 1998. For the rest of that period of his adult life he [*27] was incarcerated in prison.

On the other hand, Mr. Lawrence has a number of things that point to him having tremendous knowledge about weapons, the use of weapons, about woods, or the forest area, and the ability to survive in that area. These weapons and the literature that is here that we have listed for the Court is the same stuff, the same material, the same guns, ammunition, and literature that were introduced in the Lawrence case. Apparently they had some relevance in that case to show the same thing.

We are seeking to introduce this to show that Mr. Lawrence had knowledge of weapons, knowledge of the use of weapons, knowledge of ammunition, knowledge of the use of ammunition, and to show that his knowledge of these things allowed him to be the dominant force in the conspiracy to which Mr. Rodgers has pled.

These things have tremendous relevance in this case. We believe--although I can't certify it because I was not there--we believe the State used these same items in the Lawrence case to prove the same thing.

The trial court admitted the receipt for the purchase of the Lorcin handgun and the ammunition, stating:

I'm going to allow that in. I'm going to [*28] allow the evidence regarding the boxes [of] .380 ammunition, since that's the same caliber of this Lorcin semi-automatic; but all the other items that were seized at Mr. Lawrence's home, the Court is not going to allow those. But I will allow the Defense to introduce the sales receipt of the Lorcin semi-automatic and also the box of the .380 ammunition.

The Court subsequently allowed into evidence the cleaning kit because the cleaning kit could be used to clean a pistol, which was the murder weapon.

In this appeal, Rodgers argues that the decision by the trial judge to deny the admission of the items found at Lawrence's residence was contrary to Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (plurality opinion), in which the Supreme Court stated:

[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604.

Rodgers [*29] further points out that we approved the admission of this same material from Lawrence's residence for consideration by the sentencing judge at the time of Lawrence's capital sentencing trial. Lawrence v. State, 846 So. 2d 440, 448-49 (Fla. 2003). Specifically, during the sentencing phase of Lawrence's trial, Lawrence contended that Rodgers had been the dominant force in the murder. At a hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993), in the Lawrence case, the State introduced many of the very same items that were excluded in Rodgers' trial, including the following books: (1) William Powell, "The Anarchist Cookbook," (1971); (2) Time-Life Books, "Serial Killers" (1992); and (3) five books about snipers including John L. Plaster, "The Ultimate Sniper: An Advanced Training Manual For Military & Police Snipers" (1993), and J. David Truby, "Silencers, Snipers & Assassins: An Overview of Whispering Death" (1972). See Lawrence, 846 So. 2d at 448-49. The State also introduced a scrapbook that Lawrence had compiled that included numerous articles about serial killers, many of which predated Lawrence's involvement with [*30] Rodgers, and it introduced the book, The Incredible Machine, which provided detailed information about the human body. When reviewing the codefendants' relevant participation, the trial judge in Lawrence's case found the above information relevant, noting: "The books and the scrapbook reveal Lawrence's interests and support the State's contention that he would have actively participated in the murder." Lawrence, 846 So. 2d at 449 (quoting the sentencing order). The judge also found that because several sections of The Incredible Machine were marked with a pen, including a picture of the calf muscle on a female body, possession of this book indicated that Lawrence initiated and carried out the plan to cut the calf muscle that was found in Lawrence's freezer. Id. at 449. Although the evidence was admitted in Lawrence's trial to rebut Lawrence's contention that Rodgers was the dominant force in the murders, the trial court permitted it because the evidence was relevant as to which defendant was active in what parts of the planning and implementation of the murder plan. As addressed above, we did not disapprove of the trial judge's rulings on this [*31] matter in Lawrence's case.

Under section 921.141(6)(e), Florida Statutes (1997), the fact that the defendant acted under "the substantial domination of another person" is a statutory mitigating circumstance. We conclude that Rodgers was entitled to have the jury consider the proffered Lawrence evidence in support of Rodgers' theory that at the time of the murder, he was under the domination of Lawrence. Moreover, Rodgers was entitled to have considered by the jury the evidence as to whether, under the circumstances of the Robinson murder, Rodgers was so less culpable than Lawrence for the murder of Robinson that Rodgers should not be sentenced to death. The relative culpability of Rodgers and Lawrence was relevant in this penalty phase. See Hertz v. State, 803 So. 2d 629, 653 (Fla. 2001). This was clearly relevant here since the State stipulated as part of Rodgers' plea bargain that the State would not argue that Rodgers was the actual shooter of Robinson. n10 Given the extensive mitigation which was presented in the case, including Rodgers' significant mental health history, we cannot say that the State has shown that there is no reasonable [*32] possibility that that the error in excluding this evidence did not contribute to the sentence of death. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Therefore, we find that the denial of the admission of the specified evidence from the Lawrence residence was harmful error and requires a new penalty phase.

Curtis Flowers v. State, 2006 Miss. LEXIS 356 (Miss 6/29/2006)"[W]e find that the State engaged in racially discriminatory practices during the jury selection process and that the trial court committed reversible error in upholding the peremptory strikes exercised against Vickie Curry and Connie Pittman. Based on the State's Batson violation, we are required to reverse the judgment of the Montgomery County Circuit Court and remand this case for a new trial."

P9. During the initial stage of jury selection, the State exercised all twelve of its peremptory strikes against African-American jurors. Two African-Americans were initially seated on the jury after the State ran out of peremptory strikes. Stanley Booker, an African-American male who was initially selected to serve on the jury, was released from service after he came forward and admitted to the judge that he could not be fair and impartial. After Mr. Booker was released, the judge provided for the picking of alternate jurors, and the State exercised all three of its available peremptory strikes of alternates against African-American jurors. Only one African-American, Lashanda McChristion, ultimately sat on the jury that convicted Flowers. Though the State exercised all fifteen of its peremptory strikes against African-American jurors, Flowers only contests the striking of eleven of those fifteen jurors on appeal. n2 We now address Flowers' challenge of those eleven jurors.

P64. The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge, and though the sheer number of strikes exercised against a cognizable group of jurors is [*64] not itself dispositive of our analysis, "the relative strength of the prima facie case of purposeful discrimination will often influence this inquiry" into Batson challenges. Sewell v. State, 721 So.2d 129, 136 (Miss. 1998); see also Mack v. State, 650 So.2d 1289, 1298 (Miss. 1994) (stating that "[t]he stronger the prima facie case, the more cogent the explanations from the state and supporting evidence must be and vice versa.") (citation omitted). Of the six hundred summonses sent out to potential jurors in this case, three hundred juror questionnaires were filled out by potential jurors and received by the court in response to the summonses. At least 120 potential jurors indicated that they were of African-American descent, meaning that at least forty percent of the potential jury pool was African-American. This percentage closely tracks the racial demographics of Montgomery County, as defense counsel asserted that African-American citizens comprise forty-five percent of the county's population. The prosecutor exercised all fifteen of his peremptory strikes on African-Americans, and the lone African-American who ultimately [*65] sat on Flowers' jury was seated after the State ran out of peremptory challenges. Such a result cannot be considered "happenstance." See Miller-El v. Cockrell, 537 U.S. 322, 342, 123 S. Ct. 1029, 1042, 154 L. Ed. 2d 931 (2003). n13

P65. While many of the seeming discrepancies in the jury selection process can be explained away by application of procedural bars, defense counsel's failure to rebut all of the State's race-neutral reasons, or genuine concerns about a juror's fitness to serve on the jury, the facts and law before this Court compel us to find a Batson violation in [*66] the instant case. The peremptory challenge exercised against Vickie Curry was clearly pretextual, as there was no basis in the record for two of the grounds proffered by the State, and the State's third ground was predicated on Curry's acquaintance with Flowers' sister ten years prior, a tenuous relationship at best. Our finding that the trial court erred in upholding the strike of Curry is bolstered by the trial court's own erroneous statement that "the State has a right to exercise a challenge based on some of the answers from the other jurors as far as their peremptory challenge goes." Also, the State's actions in striking Connie Pittman are equally specious, as there is no evidence in the record to support the State's proffered reason for striking her, and it appears that the State fabricated a supposedly race-neutral reason in an attempt to strike yet another African-American juror.

P66. While there was sufficient evidence to uphold the individual strikes of Golden, Reed, and Alexander Robinson under a "clearly erroneous" or "against the overwhelming weight of the evidence" standard, these strikes are also suspect, as an undertone of disparate treatment exists in the State's [*67] voir dire of these individuals. The striking of Golden is suspect because her views on the death penalty were nearly indistinguishable from those of two white jurors who ultimately served on the jury, suggesting disparate treatment. The striking of Reed is suspect because there is no evidence in the record to show that she had any connection with members of Flowers' family, despite the fact that she had previously worked at the same business as those family members. The peremptory challenge to Alexander Robinson is also suspect because his opposition to the death penalty was not as strong as that of two white jurors who served, and his prior service on a civil jury that voted not guilty has little bearing on his ability to be fair and impartial in a criminal case. The genuineness of Robinson's prior jury service as a reason for the State to strike him is questionable since the State failed to voir dire other white jurors concerning their prior jury service. While each individual strike may have justifiably appeared to the trial court to be sufficiently race neutral, the trial court also has a duty to look at the State's use of peremptory challenges in toto. See Miller-El, 125 S. Ct. at 2331 [*68] (the ruling in Batson "requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it."); Stewart v. State, 662 So.2d 552, 559 (Miss. 1995) ("the trial court must consider all the relevant circumstances, such as the way prior peremptory strikes have been used and the nature of the questions posed on voir dire."); Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir. 2003) ("After analyzing each of the prosecutor's proffered reasons, our precedent suggests that the court should the step back and evaluate all of the reasons together.") (Emphasis added). Though a reason proffered by the State is facially neutral, trial judges should not blindly accept any and every reason put forth by the State, especially where, as here, the State continues to exercise challenge after challenge only upon members of a particular race.

P67. Because racially-motivated jury selection is still so prevalent twenty years after Batson was handed down and because this case presents such a concerted effort by the State to exclude African-Americans from jury service, we have reached a point where it is "necessary [*69] to reconsider Batson's test and the peremptory challenge system as a whole." Miller-El, 125 S. Ct. at 2344 (Breyer, J., concurring). While the Batson test was developed to eradicate racially discriminatory practices in selecting a jury, prosecuting and defending attorneys alike have manipulated Batson to a point that in many instances the voir dire process has devolved into "an exercise in finding race neutral reasons to justify racially motivated strikes." Howell, 860 So.2d at 766 (Graves, J., dissenting). When Batson was handed down, Justice Marshall predicted that "[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge." Batson, 476 U.S. at 105 (Marshall, J., concurring). Unfortunately, as this case has shown, Justice Marshall was correct in predicting that this problem would not subside. His solution to this problem was to ban peremptory challenges outright, a position later advocated by Mississippi Supreme Court Justice Michael [*70] Sullivan. See Batson, 476 U.S. at 108 (Marshall, J., concurring) (stating that "only by banning peremptories entirely can such discrimination be ended."); Thorson v. State, 653 So.2d 876, 896 (Miss. 1994) (Sullivan, J., concurring) (stating that "the proper remedy for this type of situation is the complete elimination of peremptory challenges in the trial courts of Mississippi.").

P68. One of the principles undergirding the Batson decision itself is that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson, 476 U.S. at 89. And while numerous studies have been conducted in an effort to quantify the effects that race has on jury verdicts, n14 the United States Supreme Court has been critical of such studies because these types of statistical analyses don't "prove that race enters into any capital sentencing decisions or that race was a factor in [an individual defendant's] particular case." McCleskey v. Kemp, 481 U.S. 279, 308, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). [*71] Batson makes clear that each juror must be evaluated on his/her own merits, not based on supposed group-based traits or thinking. Despite the fact that race still seems to be a prevalent consideration in jury selection and/or deliberations, it appears unlikely that any courts will be soon willing to take the unprecedented and seemingly extreme measure of abolishing the peremptory challenge system in its entirety.

P69. One alternative to the abolition of peremptory challenges is the adoption of a rule that permits only limited voir dire, similar to the rule in Maryland. See Dingle v. State, 361 Md. 1, 759 A.2d 819 (Md. 2000). Maryland grants a trial judge "broad discretion in the conduct of voir dire, most especially with regard to the scope and the form of the questions propounded," and the judge "need not make any particular inquiry of the prospective jurors unless that inquiry is directed toward revealing cause for disqualification." Dingle, 759 A.2d at 826. Maryland recognizes two areas of inquiry that may properly uncover cause for disqualification:

(1) an examination to determine whether prospective jurors meet the minimum statutory qualifications for jury service, see Maryland Code (1974, 1989 Repl. Vol., 1992 Cum. Supp.), Courts & Judicial Proceedings Article, § 8-207; or (2) "'an examination of a juror . . . conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.'"

Id. at 823 (citations omitted). [*73] The Court of Appeals in Maryland has instructed the lower courts that questions asked during voir dire "should focus on issues particular to the defendant's case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered." n15 Id. at 824 (emphasis added). Various commentators have also suggested category-conscious jury selection, harsher sanctions, enhanced voir dire, or changing the way courts scrutinize the second step of Batson, as alternatives to outright elimination of the peremptory challenge system. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 246-61 (2005) (analyzing alternatives to eliminating peremptory challenge system).

P70. While we neither abolish peremptory challenges, nor adopt a limited voir dire rule, nor make any specific changes to our peremptory challenge system, we are inclined to consider such options if the attorneys of this State persist in violating the principles of Batson by racially profiling jurors. Because it is well recognized that the right to an "impartial jury and fair trial" is guaranteed by our Constitution, but that "the right of peremptory challenge is not of constitutional magnitude," we would be well within our authority in abolishing the peremptory challenge system as a means to ensure the integrity of our criminal trials. See Batson, 476 U.S. at 108 (Marshall, J., concurring).

Eric Moore v. Quarterman, 2006 U.S. App. LEXIS 16443 (5th Cir 6/29/2006) Grant of habeas relief under Atkins reversed for failing to exhaust as claim in federal court relied on factually stronger evidence than that presented in state court. FromDecision of the Day:

For the second time, the Fifth Circuit reverses a district court decision granting habeas relief to death row inmate Eric Moore. Moore has challenged his death sentence on the grounds that he is mentally retarded, and therefore his execution would be unconstitutional under the Supreme Court’s Atkins decision. After the district court first granted habeas relief, the Fifth decided that the district court had not adequately addressed the question of whether Moore exhausted his claims in state court. On remand, the district court referred to its earlier conclusion that Moore had exhausted his claims in Texas state court, which had predictably rejected them.

On appeal a second time, a divided panel decides that the district court is wrong: Moore did not exhaust his claims because he presented new and more compelling evidence of retardation in federal court than he had presented to the state courts. Although the Court dismisses Moore’s petition without prejudice, it’s unclear whether Moore has any remaining legal avenues open to him. Indeed, Judge Dennis’s dissent assumes that today’s decision ensures that Texas will be executing yet another retarded inmate, in violation of the Supreme Court’s holdings.