Capital Defense Weekly, May 1, 2006

Notable cases this week include those related to innocence, lethal injection, penalty phase verdict forms and the old hobgoblin of jury selection.

In Justice Alito's first opinion a unanimous Supreme Court inHolmes v. South Carolinaholds that the state denied Bobbie Lee Holmes a fair trial when it prevented him from putting on evidence contradictory to the state's case and that pointed to another possible suspect. South Carolina's rule was that if the state had put on strong forensic evidence of the defendant's guilt, the defendant could be prohibited from raising an alternative theory of a third party's guilt. Justice Alito found this rule to be arbitrary and irrational, writing: "The point is that by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt."

Adding to the national conversation on lethal injection is the Eighth Circuit's decision inTaylor v. Crawford. InTaylorthe Court remands to permit the district court to expand the record. The Court concedes that the timelines under which it had previously ordered the district court to operate were too truncated. The practical impact of the remand, however, is limited, as there are currently only "consensual executions" planned in that circuit. (Briefs here).

Two cases involving jury selection are also noted. The Alabama Court of Criminal Appeals in Lewis v. State remands with directions that the trial court hold a Batson hearing. InJones v. Statethe Oklahoma Court of Criminal Appeals holds the trial court impermissibly limited counsel's cross on death qualification. TheJonesCourt also holds the penalty phase jury verdict form on aggravating circumstances was inadequate and unduly ambiguous.

The Court Monday morning granted cert inOrnaski v. Belmontes. Theissues on which cert was grantedappears to be "the catch-all" mitigator of the California statute.

In the news of the week two stories predominated. The first is the jury verdict in United States v. Zacarias Moussaoui. Although there have beennumerous solid examinationsof that verdict, perhapsthe only onethat seemed to hit the point is that Senior Assistant Federal Public Defender Gerald Zerkin, Edward MacMahon, Esq., Alan Yamamoto, Esq., as well as Assistant Federal Public Defenders Kenneth Troccoli & Anne Chapman did a remarkable job for a difficult client. As a result of their hard work the jury denied the one thing Moussaoui wanted most, martyrdom.

The othermajor storyis that Ohio seriously erred during the execution of Joseph Clark. Reports indicate that as officials began injecting fluids into Clark that would ultimately kill him, his vein collapsed. After several attempts to locate a new vein, Clark sat up on the table and exclaimed, "It’s not working," prompting officials to close the curtains surrounding the area so that family members and the press could not view the proceedings. During the botched execution the curtain was closed so that they "witnesses" would not see the struggle.

The Innocence Projecton Tuesday asked a state panel to investigate whether Texas wrongly executed a man for arson murder and called for a review of arson convictions statewide. Cameron Todd Willingham was convicted of arson murder in 1992 and executed in 2004. Ernest Willis, however, was convicted of the same type of crime but exonerated after getting sentenced to death and serving 17 years in prison. The Innocence Project's press release ishere. The AP story ishere.

Current issue of theJudicatureis devoted entirely to the death penalty and it is entirely available for downloadingat this link. On Friday a federal civil rights jury in Charlottesville Virginia awarded $2.25 million in compensatory damages to Earl Washington, Jr., who came within nine days of execution, and was released in 2001. Over at the blog, an easy to searchGoogle Search box has been added here.

New scholarship is also noted this week.Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomesby Eberhardt, Davies, Purdie-Vaughns, and Johnson will appear in the May 2006 issue ofPsychological Scienceconcludes "that in cases involving a Black defendant and a White victim—cases in which the likelihood of the death penalty is already high—jurors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears stereotypically Black." Bennett Capers argues in a new essay that an examination of Andy Warhol's "Electric Chair series - and of our collective response to the series - broadens the legal discourse on capital punishment in this country;" the essay will be published under the titleOn Andy Warhol's Electric Chair, 94 California Law Review 243 (2006). Barbara Allen Babcock gives us a preview of "Inventing the Public Defender" (which will appear in the American Criminal Law Review October 2006) over at SSRN, where she examines the dream Clara Foltz, one of the first women lawyers in the United States, of a system of competent public defender representation.

The correct link for theTarlton Law Library's collection on capital punishment law reviewswhich was noted here last week is http://web.austin.utexas.edu/law_library/punishment/. My apologies for any confusion.

An additional apology, as always, in getting this edition to your email inbox late. As a way of compensating for any delay, find a preview of some of the next edition's cases at the blog. As always thanks for reading. - k

Archived on the net athttp://capitaldefenseweekly.com/archives/060501.htm

Recent Executions

May
2 Joseph Clark (Ohio)
4 Jackie Wilson (Texas)

Pending Executions

May
12 Jerry Conner (North Carolina)
16 Derrick O'Brien (Texas)
17 Jermaine Herron (Texas)
17 Sedley Alley (Tennessee)
19 Robert Jackson (Delaware)
24 Jesus Aguilar (Texas)

More Execution information

SCOTUS

Holmes v. South Carolina(5/1/2006) The South Carolina rule of evidence that prevented introduction of third-party guilt held to inappropriately limit the right to put on a defense.

In Favor of Life & Liberty

Taylor v. Crawford, 2006 U.S. App. LEXIS 10447 (8th Cir 4/27/2006) Remand ordered to permit additional examination of the issues surrounding lethal injection. Note that this is a brief 60-day remand but presumably prevents any "nonconsensual" execution in this circuit. The question, however, is academic as the only execution scheduled in the Eighth Circuit is a "consensual" execution. ( Briefs here)
Jones v. State, 2006 Okla. Crim. App. LEXIS 16 (Okla. Crim. App. 4/26/2006) (dissent) The penalty phase jury verdict form on aggravating circumstances was inadequate and contained ambiguity that can only be resolved by speculating on the jury's intent. Additionally, the trial court impermissibly limited counsel's cross on death qualification.
Lewis v. State, 2006 Ala. Crim. App. LEXIS 49 (Ala. Crim. App. 4/28/2006) "[C]ase is remanded to the circuit court with directions that that court hold a Batson hearing."

Favoring Death

Shannon v. Dretke, 2006 U.S. App. LEXIS 10500 (5th Cir 4/24/2006) Habeas counsel failed to comply with the AEDPA's one year statute of limitations.
Gillard v. Mitchell, 2006 U.S. App. LEXIS 10353 (6th Cir 4/26/2006) District court's grant of habeas relief vacated. The district court had granted relief on claims trial counsel labored under a conflict of interest and the cumulation of errors at trial violated his constitutional rights. The panel on appeal holds cumulative error not cognizable on habeas under the AEDPA.
People v. Perry, 2006 Cal. LEXIS 4952 (Cal 4/24/2006) Relief denied on claims including: (A) Defendant’s absence from the trial court’s conference; (B) the exclusion of spectators; (C) Issues relating to exhibit no. 44, a photograph of the victim; (D) an ambiguous jury instruction that seemingly permitted the jury to treat the absence of evidence relating to a mitigating factor as aggravating; (E) directing the jury to determine whether aggravation “so outweighs” mitigation as to warrant death, is unconstitutionally vague; (F) failure to assign a burden of proof on the prosecution to prove that death is the appropriate penalty; and (G) jury instructions do not adequately describe the penalty of life without the possibility of parole.
Brown v. State, 2006 Ala. Crim. App. LEXIS 63 (Ala. Crim. App. 4/28/2006) Relief denied on claims including whether: (A) the trial court erred by failing to let the jury determine his competency to stand trial; (B) failure of the trail court to recuse itself; (C) restraining of the defendant to his chair and his removal from the courtroom, respectively; (D) proportionality and (E) HAC.
James v. State, 2006 Ala. Crim. App. LEXIS 64 (Ala. Crim. App. 4/28/2006) Relief denied on claims including: (A) "the circuit court improperly adopted the State's proposed order denying relief;" (B) "the circuit court erred when it denied his motion to proceed in forma pauperis;" (C) "the circuit court prevented him from fully developing and presenting his claims when it denied him leave to proceed ex parte on his requests for funds for a mental health expert and investigative assistance;" (D) "the circuit court erred in refusing to admit into evidence three declarations signed by three expert witnesses -- a psychiatrist, a neuropsychologist, and a mitigation specialist -- concerning his mental health;" (E) "the circuit court erred in denying his motions for discovery and for a continuance and in ordering limited discovery;" (F) failure to order arrest of witness for post-conviction witness; (G) Brady; (H) appellate ineffectiveness; and (I) competency to stand trial.
State v. Newell, 2006 Ariz. LEXIS 47 (Az 4/26/2006) Relief denied on claims including: (A) admissibility of confessions; (B) Batson; (C) denial of a mistrial motion that was based on prosecutorial summation errors; (D) preclusion of probation officer's testimony in the penalty phase; and (E) the preclusion of "the testimony of his mental health expert at the penalty phase as a sanction for refusing to undergo a court-ordered examination by the State's mental health expert."
Schoenwetter v. State, 2006 Fla. LEXIS 668 (FL 4/27/2006) (dissent) Relief denied, most notably, from the dissent, "jury instructions that place the burden upon the defendant to prove that the death penalty should not be imposed unless the defendant establishes the existence of sufficient mitigating circumstances to outweigh the aggravating circumstances established by the State. By continuing to approve these standard instructions relieving the State of its constitutionally mandated burden of proof, we are placing the entire Florida death penalty scheme at risk and in violation of the due process guaranteed by the United States and Florida Constitutions."
Browning v. State, 2006 Okla. Crim. App. LEXIS 17 (Okla. Crim. App. 4/26/2006) Relief denied on a wide variety of claims including: (A) sufficiency of affidavits for search warrant; (B) failure to remove a juror who had been contacted by the decedent's family; (C) jury challenges for cause; (D) trial counsel's cross; (E) failure to investigate; (F) failure to permit inquiry into motives for a person the defense named as an alternate suspect; (G) failure to disclose third party mental health records; (H) admission of certain evidence; (I) improper argument by the prosecution; (J) use of the HAC aggravator; (K) failure to "instruct jurors that aggravating circumstances must outweigh mitigating evidence beyond a reasonable doubt;" and (L) claimed diminishment of mitigators by the trial court. Note that certain felony murder counts were ordered dismissed in light of conviction of malice murder.

Noncapital of note

Jury Service Resource Center v. Muniz, 2006 Ore. LEXIS 350 (Ore 4/27/2006) "We conclude that there is no right of access under the First Amendment to jury pool records of the kind sought here. As previously noted, we have considered the parties' other arguments not premised on the First Amendment and agree with the Court of Appeals that those arguments are not well taken. It follows that the trial court's grant of summary judgment to defendants was correct. The Court of Appeals erred in ruling to the contrary."

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

Holmes v. South Carolina(5/1/2006) The South Carolina rule of evidence that prevented introduction of third-party guilt held to inappropriately limit the right to put on a defense.
Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution's case: If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not [*19] pose an undue risk of harassment, prejudice, or confusion of the issues.
Furthermore, as applied in this case, the South Carolina Supreme Court's rule seems to call for little, if any, examination of the credibility of the prosecution's witnesses or the reliability of its evidence. Here, for example, the defense strenuously claimed that the prosecution's forensic evidence was so unreliable (due to mishandling and a deliberate plot to frame petitioner) that the evidence should not have even been admitted. The South Carolina Supreme Court responded that these challenges did not entirely "eviscerate" the forensic evidence and that the defense challenges went to the weight and not to the admissibility of that evidence. Id., at 343, n. 8, 605 S. E. 2d, at 24, n. 8. Yet, in evaluating the prosecution's forensic evidence and deeming it to be "strong" -- and thereby justifying exclusion of petitioner's third-party guilt evidence -- the South Carolina Supreme Court made no mention of the defense challenges to the prosecution's evidence.
Interpreted in this way, the rule applied by the State Supreme Court does not rationally serve the end that the Gregory rule and its [*20] analogues in other jurisdictions were designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues. The rule applied in this case appears to be based on the following logic: Where (1) it is clear that only one person was involved in the commission of a particular crime and (2) there is strong evidence that the defendant was the perpetrator, it follows that evidence of third-party guilt must be weak. But this logic depends on an accurate evaluation of the prosecution's proof, and the true strength of the prosecution's proof cannot be assessed without considering challenges to the reliability of the prosecution's evidence. Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution's witnesses or the reliability of its evidence is not conceded, the strength of the prosecution's case cannot be assessed without making the sort of factual findings that have traditionally been [*21] reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.
The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant's guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner's guilt.
The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is "arbitrary" in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party [*22] guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant's right to have "'a meaningful opportunity to present a complete defense.'" Crane, 476 U.S., at 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (quoting Trombetta, 467 U.S., at 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413).
Orin Kerr, here, hereand here, offers a unique insight into the Court's opinion in Holmes:
The Supreme Court handed down Holmes v. South Carolinatoday, the first opinion by Justice Samuel Alito. In this case, a very elderly woman was brutally raped, which led to serious injuries and eventually her death. Holmes was charged with capital murder, and his lawyer’s defense was (in part) that the crime had been committed by another person, Jimmy White. The trial court excluded this defense. The Supreme Court of South Carolina affirmed the conviction, ruling that the government’s evidence against Holmes was so strong that the evidence that Jimmy White had committed the offense was inadmissible.
In the decision announced today, the Supreme Court unanimously reversed. According to Justice Alito, the South Carolina court had taken a standard evidentiary rule that courts can exclude evidence that is unduly distracting and “radically changed and extended the rule” starting in a 2001 decision to regulate when defendants are allowed to put on particular defenses. Instead of excluding evidence when it would be too inflammatory or distracting, the new rule gave judges the power to look at the government’s case and then decide whether the defense could go on in light of the judge’s sense of its strength. According to Justice Alito, this rule was inconsistent with the Due Process requirement (as articularted in prior precedents) that a defendant’s right to put on a defense cannot be abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.
Taylor v. Crawford, 2006 U.S. App. LEXIS 10447 (8th Cir 4/27/2006) Remand ordered to permit additional examination of the issues surrounding lethal injection. Note that this is a brief 60-day remand but presumably prevents any "nonconsensual" execution in this circuit. ( Briefs here)
Having now thoroughly considered the arguments of the parties and having read the transcript of the record developed before the district court in the telephonic hearing, we conclude that we will be somewhat more comfortable as we consider and determine [*9] the merits of the case if the district court has had an opportunity to expand or supplement the record. We mean no criticism of Judge Gaitan; in fact, we commend him for his excellent management of the hearing and the issuance of an order on such short notice and within the extreme time constraints created by the first district judge's failure to give the matter the expedited consideration it required and by our attempt to accommodate both sides within the remaining time established by the expiration date of the state supreme court's death warrant. Having reviewed the record made before the district court, we now realize the burdensome strain that our order imposed upon the district court as well as upon the parties as they made extraordinary efforts to comply. We hereby offer our mea culpa-this panel attempted to accommodate two significant and important competing interests, but unfortunately failed in both respects. As a result, the enforcement of the State's judgment has been postponed, and Taylor was unable to make the record he felt necessary for the full and fair consideration of the merits of his case. We simply asked the district court and the parties to do too much in [*10] too little time.
Several existing circumstances inform our decision to remand. The United States Supreme Court is presently considering the issue of whether a § 1983 complaint brought by an inmate sentenced to death and challenging a state's lethal injection procedure is properly recharacterized as a habeas corpus petition. See Hill v. Crosby, 126 S. Ct. 1189, 163 L. Ed. 2d 1144 (2006) (granting an application for a stay of execution and granting the petition for a writ of certiorari on this issue). Because the Supreme Court did not grant a stay in the present case (see S. Ct. Order, 126 S. Ct. 1191, 163 L. Ed. 2d 1145 (2006)), we will permit the case to continue in its present form unless the Court's forthcoming decision in Hill at some point mandates a different course of action.
Additionally, the en banc court of this circuit granted a stay. In view of the existing record, the importance of the issue to this plaintiff as well as others, and the likelihood of the recurrence of these identical issues in future Missouri death penalty cases, we remand for the limited purpose of permitting a continuation of the hearing held on January 30-31, 2006, before Judge Gaitan. While [*11] we conclude that some further opportunity for discovery may be warranted, we leave all matters of what further discovery may be warranted to Judge Gaitan, confident that if he feels it necessary he will employ the assistance of Magistrate Judge Knox, in light of Judge Knox's extensive prior experience with the pretrial issues in this case.
Jones v. State, 2006 Okla. Crim. App. LEXIS 16 (Okla. Crim. App. 4/26/2006) (dissent) The penalty phase jury verdict form on aggravating circumstances was inadequate and contained ambiguity whose intent can only be resolved by speculating on the jury's intent. Additionally, the trial court impermissibly limited counsel's cross on death qualification. On the voir dire issue:
Jones contends in Proposition IV that the trial court impermissibly restricted his voir dire. During Juror P's voir dire, Jones asked if she would impose the death penalty if Jones was convicted of two counts of first degree murder. Juror P responded "Yes." Jones also asked if she would consider a punishment less than death if Jones was convicted of two counts of murder. Juror P responded "No." As discussed above, the trial court should then have excused Juror P for cause. Instead of immediately seeking to have her excused, trial counsel tried to re-ask the questions; the court sustained the State's objections to the questions.
We find that Jones's counsel was attempting to ask a valid question of Juror P: would she automatically impose the death penalty and not consider life imprisonment (either with or without the possibility of parole) if he was convicted as charged? Jones is entitled to ask this question. To prohibit it from being asked is reversible error. n16 A major purpose of voir dire in a capital case is to reveal whether jurors [*12] will consider all three punishment options equally. n17 A juror who cannot should be excused for cause.
The trial court ruled that the question was an impermissible hypothetical given its phrasing-Jones's conviction of two counts of murder instead of just "murder." But Jones was charged with two counts of murder. If the question is hypothetical, then all second stage voir dire suffers similar flaw in that questions are asked on the assumption of conviction. Every defendant should ask each juror about sentencing options and the juror's ability to impose the death penalty; to do otherwise would be inexcusable. The trial court erred in denying Jones his right to continue his voir dire of Juror P.
On the issue of the verdict form:
In Proposition XVIII, Jones argues [*14] that the aggravating circumstance verdict form used at trial was inadequate. Jones objected to the verdict form at trial and requested separate aggravating circumstance verdict forms for each count of murder. This request should have been granted. Instead, the trial court gave supplemental instruction 8A, which informed the jury that the murder to avoid arrest or prosecution aggravating circumstance applies only to Count II. While somewhat remedial, this instruction is not an adequate substitute for the easily-accomplished task of using separate verdict forms for each murder count. Trial courts should use separate aggravating circumstance verdict forms for each count of murder.
The single verdict form used in this case here lists two aggravating circumstances: (1) knowingly creating of a great risk of death to more than one person and (2) commission of murder to avoid lawful arrest or prosecution. The completed verdict form indicates that the jury found the existence of both aggravating circumstances beyond a reasonable doubt. However, instruction 8A informed the jury, and we presume the jury followed it, n20 that the second aggravating circumstance applied only to the [*15] murder in Count II. Thus, we know that the death verdict in Count II was supported by one aggravating circumstance (commission of murder to avoid lawful arrest or prosecution).
However, as a result of the single verdict form, we cannot determine whether the great risk of death aggravating circumstance found by the jury applied to Count 1 or Count 2. A single verdict form, such as this one, supports the great risk aggravating circumstance's application to one of the two murder counts, but not both. n21 This Court cannot speculate as to which murder count this aggravating circumstance was intended to apply. Such speculation would be inappropriate in a death penalty case, where greater certainty is required. Thus, since this Court does not know which of the two counts this single verdict applies, the great risk aggravating circumstance cannot be applied to [*16] either count. As a result of this error and the errors above, the case must be reversed and remanded for resentencing to allow a jury to perform its task with proper verdict forms.
Lewis v. State, 2006 Ala. Crim. App. LEXIS 49 (Ala. Crim. App. 4/28/2006) "[C]ase is remanded to the circuit court with directions that that court hold a Batson hearing."
After Lewis's appeal was taken under submission by this Court, the United States Supreme Court released two decisions addressing Batson claims -- Miller-El v. Dretke, U.S. , 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005), and Johnson v. California, U.S. , 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). In Miller-El, the prosecutors used peremptory strikes to remove 10 of 11 African-American jurors from Miller-El's capital-murder trial. Miller-El objected, claiming that the [*5] strikes were racially based and could not be presumed to be legitimate, given the district attorney's office history of excluding African-Americans from criminal juries. The trial court denied Miller-El's request for a new jury, and his trial ended with a conviction and the imposition of the death sentence. While his appeal was pending, the Supreme Court released Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), holding that discrimination by a prosecutor on the basis of race in selecting a defendant's jury violated the Fourteenth Amendment. On remand, the trial court found no showing that prospective African-American jurors were struck because of their race. Miller-El's conviction was affirmed on appeal, and he sought federal habeas relief. The federal district court denied Miller-El relief, as did the United States Court of Appeals for the Fifth Circuit. After comparing similarly situated black and white jurors, the "shuffling" of the venire panel, and the disparate questioning of black and white jurors, the Supreme Court held that the state court's factual findings as to nonpretextual nature of the state's race-neutral explanations for its use of peremptory [*6] challenges to excuse 10 of 11 African-American jurors were shown to be wrong by the requisite clear and convincing evidence, warranting the grant of federal habeas relief. U.S. at , 125 S. Ct. at 2339-40.
In Johnson, the prosecution used 3 of its 12 strikes to remove all 3 African-American jurors from Johnson's jury -- leaving him to be tried and convicted of second-degree murder by an all-white jury. The California Court of Appeals set aside the conviction, but the California Supreme Court reinstated Johnson's conviction, holding that Batson permitted state courts to establish the standards used to evaluate the sufficiency of prima facie cases of purposeful discrimination in jury selection. The United States Supreme Court reversed, holding that California's "more likely than not" standard was an incorrect standard by which to determine the sufficiency of a prima facie case of purposeful discrimination in jury selection. Given the California Supreme Court's use of an incorrect standard, together with the fact that the prosecution removed of all 3 African-American jurors from the venire panel, the Supreme Court held that this evidence was [*7] sufficient to establish a permissible inference of discrimination to establish a prima facie case of discrimination under Batson, shifting the burden to the state to provide an adequate explanation for the jurors' exclusion by offering race-neutral reasons for its strikes. U.S. at , 125 S. Ct. At 2418-19.
The record here supplies an inference of discrimination on the part of the State. Initially, we note that the record is conflicting as to the number of prospective jurors from which Lewis's jury was selected. The initial jury list of potential jurors consists of 189 individuals. (C. 115-132.) The strike list indicates that Lewis's jury was struck from potential jurors no. 1-96. (C. 133-34.) Eighteen of the 96 jurors were African-American. However, what appears to be the actual strike list indicates that Lewis's jury was struck from a pool of 53 jurors, and only 5 of those 53 were African-American. (C. 135.) The transcript of voir dire proceedings does not clarify this discrepancy. Although the transcript indicates that the roll of jurors was called and that all were present, the individual names were not recorded by the court reporter so [*8] that this Court could determine the exact number of prospective jurors present for voir dire. The record does, however, indicate that eight potential jurors were excused from further service, based on their responses during voir dire. Of the eight jurors excused, six were white and two were African-American, leaving five African-Americans. After voir dire concluded, the prosecutor and defense counsel exercised 41 peremptory challenges to select Lewis's jury. The State used its 21 strikes to strike 4 of the 5 remaining African-Americans from the venire. Defense counsel struck no African-Americans. Lewis's jury consisted of 11 white jurors and 1 African-American juror. Both alternate jurors were white.
The State contends that no inference exists that the State engaged in purposeful discrimination because of the meaningful voir dire directed at the jurors as a whole. The record indicates that the African-American jurors as well as the white jurors responded to the questions posed during voir dire. Moreover, it appears that the African-American jurors and some of the white jurors who gave similar responses to the questions posed were struck, while other white jurors were not. Although [*9] the State may have race-neutral and non-discriminatory reasons for its actions, we conclude that it is necessary to remand this case for a Batson hearing, in light of the many levels of judicial scrutiny that occur when a defendant is convicted of a capital offense and sentenced to death. As the Supreme Court noted in Miller-El:
"The rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U.S., at 96-97, 106 S. Ct. 1712; Miller-El v. Cockrell, 537 U.S. [322] at 339, 537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 [(2003)]. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, 476 U.S., at 106, 106 S. Ct. 1712 (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational [*10] basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals'[] and the dissent's substitution of a reason for eliminating [the prospective juror] does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions."
U.S. at , 125 S. Ct. at 2331-32.
Based on the foregoing, this case is remanded to the circuit court with directions that that court hold a Batson hearing. If the prosecution cannot provide race-neutral reasons for its use of peremptory challenges against African-American jurors, then Lewis shall be entitled to a new trial. See Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991); Pace v. State, 714 So. 2d 316 (Ala.Crim.App. 1995), opinion after remand, 714 So. 2d 320 (Ala.Crim.App. 1996), reversed in part on other grounds, 714 So. 2d 332 (Ala. 1997); Guthrie v. State, 616 So. 2d 913 (Ala.Crim.App. 1992).

THE SMALL PRINT

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