Foster v. Chatman

          Argued November 2, 2015

         ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

         Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State's use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U.S. 79. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained from the State copies of the file used by the prosecution during his trial. Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror were highlighted in bright green, with a legend indicating that the highlighting "represents Blacks"; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, "If it comes down to having to pick one of the black jurors, [this one] might be okay"; (3) notes identifying black prospective jurors as "B#1, " "B#2, " and "B#3"; (4) notes with "N" (for "no") appearing next to the names of all black prospective jurors; (5) a list titled "[D]efinite NO's" containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated "NO. No Black Church"; and (7) the questionnaires filled out by five prospective black jurors, on which each juror's response indicating his or her race had been circled.

         The state habeas court denied relief. It noted that Foster's Batson claim had been adjudicated on direct appeal. Because Foster's renewed Batson claim "fail[ed] to demonstrate purposeful discrimination, " the court concluded that he had failed to show "any change in the facts sufficient to overcome" the state law doctrine of res judicata.

         The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal.

         Held:

         1.This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds for that unelaborated judgment, there is no indication that it rested on a state law ground that is both "independent of the merits" of Foster's Batson claim and an "adequate basis" for that decision, so as to preclude jurisdiction. Harris v. Reed, 489 U.S. 255, 260. The state habeas court held that the state law doctrine of res judicata barred Foster's claim only by examining the entire record and determining that Foster had not alleged a change in facts sufficient to overcome the bar. Based on this lengthy "Batson analysis, " the state habeas court concluded that Foster's renewed Batson claim was "without merit." Because the state court's application of res judicata thus "depend[ed] on a federal constitutional ruling, [that] prong of the court's holding is not independent of federal law, and [this Court's] jurisdiction is not precluded." Ake v. Oklahoma, 470 U.S. 68, 75; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 152. Pp. 6–9.

         2.The decision that Foster failed to show purposeful discrimination was clearly erroneous. Pp. 9–25.

         (a)Batson provides a three-step process for adjudicating claims such as Foster's. "First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder v. Louisiana, 552 U.S. 472, 477 (internal quotation marks and brackets omitted). Only Batson's third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp. 9–10.

         (b)Foster established purposeful discrimination in the State's strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution's justifications for both strikes, the record belies much of the prosecution's reasoning. Pp. 10–22.

         (i) The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence showing that Garrett's name appeared on the prosecution's list of "[D]efinite NO's"-the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pretrial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State's willingness to accept white jurors with the same characteristics. For example, the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve. Pp. 11–17.

         (ii) With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster's pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood's membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny. As to the age of Hood's son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster's age would be a factor at sentencing. And as to Hood's religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State's file contains a handwritten note stating, "NO. NO Black Church, " while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns were expressed with regard to similar white prospective jurors. Pp. 17–23.

         (c) Evidence that a prosecutor's reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U.S. 231, 241. Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution's shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was "motivated in substantial part by discriminatory intent." Snyder, 552 U.S., at 485. P. 23.

         (d) Because Batson was decided only months before Foster's trial, the State asserts that the focus on black prospective jurors in the prosecution's file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster's trial, "reeks of afterthought." Miller-El, 545 U.S., at 246. And the focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. Pp. 23–25.

         Reversed and remanded.

          Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.

          OPINION

          Roberts Chief Justice

         Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State's use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, 476 U.S. 79 (1986). The trial court and the Georgia Supreme Court rejected Foster's Batson claim.

         Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.

         I

         On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White's possessions were recovered from Foster's home and from Foster's two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988).

         District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 "qualified" prospective jurors. Five were black.

         In the second phase, known as the "striking of the jury, " both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. §15–12–165 (1985). The process worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State declined to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted.

         The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.

         The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death.

         Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed, 258 Ga., at 747, 374 S.E.2d, at 197, and we denied certiorari, Foster v. Georgia, 490 U.S. 1085 (1989).

         Foster subsequently sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, again pressing his Batson claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act, see Ga. Code Ann. §§50–18–70 to 50–18–77 (2002), seeking access to the State's file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State's objections, the state habeas court admitted those documents into evidence. They included the following:

         (1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting "represents Blacks." See, e.g., App. 253. The letter "B" also appeared next to each black prospective juror's name. See, e.g., ibid. According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney's office during jury selection. That allowed "everybody in the office"-approximately "10 to 12 people, " including "[s]ecretaries, investigators, [and] district attorneys"-to look at them, share information, and contribute thoughts on whether the prosecution should strike a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified, were returned to Lanier before jury selection. Id., at 220.

         (2) A draft of an affidavit that had been prepared by Lundy "at Lanier's request" for submission to the state trial court in response to Foster's motion for a new trial. Id., at 203. The typed draft detailed Lundy's views on ten black prospective jurors, stating "[m]y evaluation of the jurors are a[s] follows." App. 343. Under the name of one of those jurors, Lundy had written:

"If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors." Id., at 345 (paragraph break omitted).

         That text had been crossed out by hand; the version of the affidavit filed with the trial court did not contain the crossed-out language. See id., at 127–129. Lundy testified that he "guess[ed]" the redactions had been done by Lanier. Tr. 203.

         (3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as "B#1, " "B#2, " and "B#3, " respectively. App. 295–297. Lundy testified that these were examples of the type of "notes that the team- the State would take down during voir dire to help select the jury in Mr. Foster's case." Tr. 208–210.

         (4) A typed list of the qualified jurors remaining after voir dire. App. 287–290. It included "Ns" next to ten jurors' names, which Lundy told the state habeas court "signif[ied] the ten jurors that the State had strikes for during jury selection." Tr. 211. Such an "N" appeared alongside the names of all five qualified black prospective jurors. See App. 287–290. The file also included a handwritten version of the same list, with the same markings. Id., at 299–300; see Tr. 212. Lundy testified that he was unsure who had prepared or marked the two lists.

         (5) A handwritten document titled "definite NO's, " listing six names. The first five were those of the five qualified black prospective jurors. App. 301. The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was "used for preparation in jury selection." Tr. 215; Tr. of Oral Arg. 45.

         (6) A handwritten document titled "Church of Christ." A notation on the document read: "NO. No Black Church." App. 302.

         (7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror's response indicating his or her race had been circled. Id., at 311, 317, 323, 329, 334.

         In response to the admission of this evidence, the State introduced short affidavits from Lanier and Pullen. Lanier's affidavit stated:

"I did not make any of the highlighted marks on the jury venire list. It was common practice in the office to highlight in yellow those jurors who had prior case experience. I did not instruct anyone to make the green highlighted marks. I reaffirm my testimony made during the motion for new trial hearing as to how I used my peremptory jury strikes and the basis and reasons for those strikes." Id., at 169 (paragraph numeral omitted).

         Pullen's affidavit averred:

"I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. I did not rely on the highlighted jury venire list in making my decision on how to use my peremptory strikes." Id., at 170–171 (paragraph numeral omitted).

         Neither affidavit provided further explanation of the documents, and neither Lanier nor Pullen testified in the habeas proceeding.

         After considering the evidence, the state habeas court denied relief. The court first stated that, "[a]s a preliminary matter, " Foster's Batson claim was "not reviewable based on the doctrine of res judicata" because it had been "raised and litigated adversely to [Foster] on his direct appeal to the Georgia Supreme Court." App. 175. The court nonetheless announced that it would "mak[e] findings of fact and conclusions of law" on that claim. Id., at 191. Based on what it referred to as a "Batson . . . analysis, " the court concluded that Foster's "renewed Batson claim is without merit, " because he had "fail[ed] to demonstrate purposeful discrimination." Id., at 192, 195, 196.

         The Georgia Supreme Court denied Foster the "Certificate of Probable Cause" necessary under state law for him to pursue an appeal, determining that his claim had no "arguable merit." Id., at 246; see Ga. Code Ann. §9–14–52 (2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari. 575 U.S. __(2015).

         II

         Before turning to the merits of Foster's Batson claim, we address a threshold issue. Neither party contests our jurisdiction to review Foster's claims, but we "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).

         This Court lacks jurisdiction to entertain a federal claim on review of a state court judgment "if that judgment rests on a state law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989).

         The state habeas court noted that Foster's Batson claim was "not reviewable based on the doctrine of res judicata" under Georgia law. App. 175. The Georgia Supreme Court's unelaborated order on review provides no reasoning for its decision.^[1] That raises the question whether the Georgia Supreme Court's order-the judgment from which Foster sought certiorari^[2]-rests on an adequate and independent state law ground so as to preclude our jurisdiction over Foster's federal claim.

         We conclude that it does not. When application of a state law bar "depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded." Ake v. Oklahoma, 470 U.S. 68, 75 (1985); see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 152 (1984).

         In this case, the Georgia habeas court's analysis in the section of its opinion labeled "Batson claim" proceeded as follows:

"The [State] argues that this claim is not reviewable due to the doctrine of res judicata. However, because [Foster] claims that additional evidence allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court's ruling [on direct appeal], this court will review the Batson claim as to whether [Foster] has shown any change in the facts sufficient to overcome the res judicata bar." App. 192.

         To determine whether Foster had alleged a sufficient "change in the facts, " the habeas court engaged in four pages of what it termed a "Batson . . . analysis, " in which it evaluated the original trial record and habeas record, including the newly uncovered prosecution file. Id., at 192–196. Ultimately, that court concluded that Foster's "renewed Batson claim is without merit." Id., at 196 (emphasis added).

         In light of the foregoing, it is apparent that the state habeas court's application of res judicata to Foster's Batson claim was not independent of the merits of his federal constitutional challenge.^[3] That court's invocation of res judicata therefore poses no impediment to our review of Foster's Batson claim. See Ake, 470 U.S., at 75.^[4]

         III

         A

         The "Constitution forbids striking even a single prospective juror for a discriminatory purpose." Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (internal quotation marks omitted). Our decision in Batson v. Kentucky, 476 U.S. 79, provides a three-step process for determining when a strike is discriminatory:

"First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder, 552 U.S., at 476-477 (internal quotation marks and brackets omitted).

         Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson's third step. That step turns on factual determinations, and, "in the absence of exceptional circumstances, " we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder, 552 U.S., at 477.

         Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution's file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a "certif[ied] . . . true and correct copy of 103 pages of the State's case file" from his 1987 trial. App. 247. The State argues that "because [Foster] did not call either of the prosecutors to the stand" to testify in his state habeas proceedings, "he can only speculate as to the meaning of various markings and writings" on those pages, "the author of many of them, and whether the two prosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them." Brief for Respondent 20. For these reasons, the State argues, "none of the specific pieces of new evidence [found in the file] shows an intent to discriminate." Ibid. (capitalization omitted). For his part, Foster argues that "[t]here is no question that the prosecutors used the lists and notes, which came from the prosecution's file and were certified as such, " and therefore the "source of the lists and notes, their timing, and their purpose is hardly 'unknown' or based on 'conjecture.'" Reply Brief 4–5 (quoting Brief for Respondent 27–28).

         The State concedes that the prosecutors themselves authored some documents, see, e.g., Tr. of Oral Arg. 45 (admitting that one of the two prosecutors must have written the list titled "definite NO's"), and Lundy's testimony strongly suggests that the prosecutors viewed others, see, e.g., Tr. 220 (noting that the highlighted jury venire lists were returned to Lanier prior to jury selection). There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as "B#1, " "B#2, " and "B#3." Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving "a determination as to what weight the Court is going to put on any of [them]" in light of the objections urged by the State. 1 Record 20.

         We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State's invitation to blind ourselves to their existence. We have "made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder, 552 U.S., at 478. As we have said in a related context, "[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . . evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). At a minimum, we are comfortable that all documents in the file were authored by someone in the district attorney's office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value.

         B

         Foster centers his Batson claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett. Rather, he decided to strike her only after learning that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause that morning.

         Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. Specifically, Lanier objected to Garrett because she: (1) worked with disadvantaged youth in her job as a teacher's aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service. See App. 55– 57 (pretrial hearing); id., at 93–98, 105, 108, 110–112 (new trial hearing); Record in No. 45609 (Ga. 1988), pp. 439– 440 (hereinafter Trial Record) (brief in opposition to new trial).

         The trial court accepted Lanier's justifications, concluding that "[i]n the totality of circumstances, " there was "no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons" for the strike. App. 143. On their face, Lanier's justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact.

         Lanier's misrepresentations to the trial court began with an elaborate explanation of how he ultimately came to strike Garrett:

"[T]he prosecution considered this juror [to have] the most potential to choose from out of the four remaining blacks in the 42 [member] panel venire. However, a system of events took place on the morning of jury selection that caused the excusal of this juror. The [S]tate had, in his jury notes, listed this juror as questionable. The four negative challenges were allocated for Hardge, Hood, Turner and Powell. . . . But on the morning of jury selection, Juror Powell was excused for cause with no objections by [d]efense counsel. She was replaced by Juror Cadle [who] was acceptable to the State. This left the State with an additional strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list." Trial Record 438–440 (brief in opposition to new trial) (emphasis added and citations omitted).

         Lanier then offered an extensive list of reasons for striking Garrett and explained that "[t]hese factors, with no reference to race, were considered by the prosecutor in this particular case to result in a juror less desirable from the ...