Letter to Everett from Carraway RE: Defendants’ response to plaintiffs’ interrogatory No. 17

    No. 06-1209

In The

Supreme Court of ttyz Untied sta tes

Jo h n  W a s h in g t o n  H ig h t o w e r ,

Petitioner,
v .

W il l ia m  T e r r y , W a r d e n ,

Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE AND 
BRIEF OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC. AS 
AMICUS CURIAE SUPPORTING PETITIONER

T h e o d o r e  M . Sh a w  
Director-Counsel 
Ja c q u e l in e  A. B e r r ie n  

♦Ch r is t in a  A. Sw a r n s  
J e n ig h  J. G a r r e t t  
H o l l y  A. T h o m a s  
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amicus Curiae 

♦Counsel of Record



Motion for Leave to File Brief of the 
NAACP Legal Defense and Educational Fund, Inc.

As Amicus Curiae Supporting Petitioner

The NAACP Legal Defense and Educational Fund, Inc., 
(hereinafter “LDF”)*, respectfully moves, pursuant to Supreme 
Court Rule 37.2(b), for leave to file the attached brief amicus 
curiae in support of the Petition for Writ of Certiorari in this 
matter. (Petitioner has consented to the filing of this brief but 
Respondent has declined to consent.)

The Petition in this matter centers on the correct 
application of this Court’s precedents in Batson v. Kentucky, 
476 U.S. 79 (1986) and Miller El v. Dretke, 545 U.S. 231 
(2005). Mr. Hightower was convicted and received a death 
sentence following a trial conducted (including the jury 
selection process) by a Georgia prosecutor who had a 
documented history of racial discrimination in the jury 
selection process (see Amadeo v. Zant, 486 U.S. 214, 228 
(1988)). The Petition sets forth, in detail, the factual basis for 
the claim that this prosecutor exercised peremptory challenges 
in violation of Batson and Miller-El, v. Dretke, 545 U.S. 231 
(2005) and the conflict among the federal Courts of Appeals 
and state courts concerning the role of comparative juror 
analysis in applying those precedents.

LDF focuses, in its proposed brief as Amicus Curiae, on 
the infirmities of the “implicit finding” approach announced by 
the court below as a substitute for undertaking the 
comprehensive review of the record required by the third step 
of the Batson procedure. LDF’s proposed amicus brief argues 
that there is a fundamental contradiction between the “implicit 
finding” approach and the objectives that shaped both this 
Court’s holding in Batson and its consistent application and

*LDF’s interest in this matter is set forth at pp. 1-2 of its proposed 
Brief as Amicus Curiae, infra.



2

elaboration of that holding in subsequent decisions. LDF’s 
proposed amicus brief therefore is not duplicative of the 
Petition but supplements it by demonstrating how the “implicit 
finding” approach hinders, rather than facilitates, the 
identification and eradication of discrimination in jury 
selection through the exercise of peremptory challenges.

For the above reasons, we respectfully request that the 
Court grant leave to file the attached brief amicus curiae.

Respectfully submitted,

T h e o d o r e  M . Sh a w  
Director- Counsel 
Ja c q u e l in e  A. B e r r ie n  

*Ch r is t in a  A. Sw a r n s  
J e n ig h  J. Ga r r e t t  
H o l l y  A. T h o m a s  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for proposed Amicus 
Curiae *

*Counsel of Record



TABLE OF CONTENTS

Page

Table of Cases ......................................................................... ii

Interest of Amicus Curiae ...................................................... 1

ARGUMENT —

I Introduction and Summary of A rgum ent...........2

II History of Discrimination in Jury Selection . . . .  3

III Each of Batson’s Three Steps is Critical to
Exposing and Eliminating Unconstitutional 
Discrimination ............................................................4

A. Step One: Establishing a Prima Facie
Case .................................................................. 5

B. Step Two: Race-Neutral Explanation for
Strikes ................................  6

C. Step Three: Proving Intentional Discrim­
ination ...........................   6

IV Because the Purpose and Focus of Batson’s
Second and Third Steps are Substantively 
Different, the Eleventh Circuit Erred in 
Treating the Hightower Trial Court’s 
Acknowledgement of the Prosecutor’s 
Proffered Reasons as a Finding -  “Implicit” 
or Otherwise -  that the Prosecutor did not 
D iscrim inate...............................................  9



TABLE OF CONTENTS (continued)

Page

V Had the Lower Courts Conducted a Proper
Step Three Analysis, They Would Have 
Found that H ightower’s Prosecutor 
Intentionally Used his Perem ptory  
Challenges to Exclude Otherwise Qualified 
African-American Potential J u ro rs ................... 13

A. Familial Relationships................................ 14

1. Similar Crime Committed by Relative . 14

2. Previous Interaction Between Prosecutor
and Members of the Venireperson’s 
Family ........................................................15

B. Opinions Regarding the Death Penalty . . .  16

VI Conclusion ................................................................20

TABLE OF CASES

Alexander v. Louisiana,
405 U.S. 625 (1972)......................................................1

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

Carter v. Jury Comm ’n o f Greene County,
396 U.S. 320(1970)...................  1



iii

TABLE OF CASES (continued)

Page

Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614(1991)................................................... 1

Ford v. Norris,
67 F.3d 162 (8th Cir. 1 9 9 5 )..................................... 8n

George v. State,
588 S.E.2d 312 (Ga. Ct. App. 2003) .....................  8n

Georgia v. McCollum,
505 U.S. 42 (1992)................................................  1,3

Ham v. South Carolina,
409 U.S. 524 (1973).................................................... 1

Hardcastle v. Horn,
368 F.3d 246 (3d Cir. 2004) ..................................  10

Hernandez v. New York,
500 U.S. 352(1991)........................................... 6, l ln

Hightower v. Terry,
459 F.3d 1067 (11th Cir. 2 0 0 6 ) ........................ 11,19

Johnson v. California,
545 U.S. 162 (2005)..............................................  1,5

Johnson v. Vasquez,
3 F.3d 1327 (9th Cir. 1 9 9 3 ).......................................7



IV

TABLE OF CASES (continued)

Page

Jones v. Ryan,
987 F.2d 960 (3d Cir. 1993) ..................................... 4

Kesser v. Cambra,
465 F.3d 351 (9th Cir. 2 0 0 6 ) .................................. In

McCray v. New York,
461 U.S. 961 (1983).................................................... 4

McDonnell Douglas Corp. v. Green,
411 U.S. 792(1973)..............................................  7-8

Miller-El v. Cockrell,
537 U.S. 232 (2003)......................................................1

Miller-El v. Dretke,
545 U.S. 231 (2005).........................................passim

Murphy v. Dretke,
416 F.3d 427 (5th Cir. 2 0 0 5 ) ..................................  16

Powers v. Ohio,
499 U.S. 400(1991)..................................................... 3

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

Riley v. Taylor,
277 F.3d 261 (3d Cir. 2001) ..................................  7n



V

TABLE OF CASES (continued)

Page

Splunge v. Clark,
960 F.2d 705 (7th Cir. 1 9 9 2 )..................................  8n

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

Swain v. Alabama,
380 U.S. 202 (1965)...........................................  1 ,3 ,4

Turner v. Fouche,
396 U.S. 346(1970)......................................   1

United States v. Alanis,
335 F.3d 965 (9th Cir. 2003)....................................  10

United States v. Horsley,
864 F.2d 1543 (11th Cir. 1 9 8 9 )..............................  16

United States v. Solis Jordan,
223 F.3d 676 (7th Cir. 2 0 0 0 )............................  15-16

White v. State,
572 S.E.2d 70 (Ga. Ct. App. 2002) ........................ 8n

Williams v. State,
426 S.E.2d 348 (Ga. 1993)....................................... 16



Interest of Amicus Curiae

The NAACP Legal Defense and Educational Fund, Inc. 
(LDF) is a non-profit corporation chartered by the Appellate 
Division of New York Supreme Court as a legal aid society, 
formed to assist African Americans in securing their rights by 
the prosecution of lawsuits. The Legal Defense Fund’s first 
Director-Counsel was Thurgood Marshall. LDF has a long­
standing concern with the influence of racial discrimination on 
the criminal justice system in general, and on jury selection in 
particular. LDF has represented defendants in numerous jury 
selection cases before this court including, inter alia, Swain v. 
Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana 405 
U.S. 625 (1972) and Ham v. South Carolina, 409 U.S. 524 
(1973); pioneered the affirmative use of civil actions to end 
jury discrimination in, Carter v. Jury Comm’n o f Greene 
County, 396 U.S. 320 (1970), and Turner v. Fouche, 396 U.S. 
346 (1970); and appeared as amicus curiae in Miller-El v. 
Dretke, 545 U.S. 231 (2005), Johnson v. California, 545 U.S. 
162 (2005), Miller-El v. Cockrell, 537 U.S.322 (2003), 
Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson v. 
Leesville Concrete Co., Inc., 500 U.S. 614 (1991), and Batson 
v. Kentucky, 476 U.S. 79 (1986).

Because of its long-standing commitment to the 
elimination of racial discrimination in the criminal justice 
system and expertise in discrimination in the jury selection 
process, LDF has an interest in these appeals, which present 
important issues concerning the application of Batson and its 
progeny, and believes its perspective would be helpful to this 
Court in resolving the issues presented in this case. *

* No counsel for any party authored this brief in whole or in part, 
and no person or entity other than amicus made any monetary contribution 
to the preparation or submission of this brief. A letter from counsel for 
Petitioner consenting to the filing of this brief has been filed with the Clerk 
of the Court pursuant to Supreme Court rule 37.3(a). As indicated in the 
Motion for Leave to File submitted herewith, Respondent has withheld 
consent to the filing of this brief.



2

I. Introduction and Summary of Argument

Batson v. Kentucky, 476 U.S. 79 (1986), and its 
progeny, are critical tools in the struggle for race-neutral jury 
selection. In Batson, this Court recognized that peremptory 
challenges cannot be reconciled with the demands of the 
Fourteenth Amendment if they remain insulated from scrutiny 
in the face of prima facie  evidence of racial discrimination. 
This Court therefore established a three-step test for ferreting 
out discrimination: first, defendants must present a primafacie 
case of discrimination, id. at 93-97; then, “the burden shifts to 
the State to come forward with a neutral explanation for 
challenging black jurors,” id. at 97; and, lastly, the trial court 
“will have the duty to determine if the defendant has 
established purposeful discrimination,” id. at 98.

This Court’s precedent has made clear that each step of 
the Batson inquiry is critical to preventing racial 
discrimination. Step one gives the defendant a mechanism to 
expose discrimination and protects the historical prerogative of 
the peremptory challenge. Step two gives the prosecutor the 
chance to defend his/her challenge against prima facie 
evidence of discrimination. At step three, “the court 
determines whether there is intentional discrimination by 
“assessing] the plausibility of [the preferred] reason[s] in light 
of all evidence with a bearing on [them].” Miller-El v. Dretke, 
545 U.S. 231,252(2005).

In Mr. Hightower’s case, the courts applied only the 
first two steps of Batson. No court has undertaken the critical 
third step of the Batson inquiry and no court has determined 
whether or not purposeful discrimination actually occurred. By 
failing to subject the facts of Hightower to this critical analysis, 
the courts shielded, rather than exposed, discrimination in Mr. 
Hightower’s jury selection process.



3

II. History of Discrimination in Jury Selection

This Court has “consistently and repeatedly reaffirmed” 
the principle that the Constitution of the United States prohibits 
racial discrimination by the State at any stage of the jury 
selection process. See Miller-El, 545 U.S. at 238 (quoting 
Georgia v. McCollum, 505 U.S. 42, 44 (1992)); see also 
Strauder v. West Virginia, 100 U.S. 303 (1880); Swain v. 
Alabama, 380 U.S. 202 (1965); and Batson v. Kentucky, 476 
U.S. 79 (1986). The harm inflicted by the state’s use of race as 
a basis for excluding otherwise qualified jurors extends not 
only to the defendant, who has a right to a trial free of racial 
discrimination, but also to each excluded juror and the 
community-at-large. See Strauder, 100 U.S. at 308 (exclusion 
from jury service “is practically a brand upon [the potential 
jurors], affixed by the law, an assertion of their inferiority', and 
a stimulant to that race prejudice which is an impediment to 
securing to individuals of the race that equal justice which the 
law aims to secure to all others.”); Batson, 476 U.S. at 86-87 
(quoting Strauder, 100 U.S. at 309) (the defendant is “denie[d] 
. . .  the protection that a trial by jury is intended to secure” -  
the “rightfs] under the Fourteenth Amendment to ‘protection of 
life and liberty against race or color prejudice.’”); Miller-El v. 
Dretke, 545 U.S. 231, 238 (2005) (quoting Powers v. Ohio, 
499 U.S. 400,412 (1991)) (“When the government’s choice of 
jurors is tainted with racial bias, that ‘overt wrong . . . casts 
doubt over the obligation of the parties, the jury, and indeed the 
court to adhere to the law throughout the trial,’ . . .‘invites 
cynicism respecting the jury’s neutrality,’ and undermines 
public confidence in adjudication.”)(citations omitted).

Notwithstanding this Court’s condemnation of racial 
discrimination in jury selection, prior to 1986 there was no 
workable means of challenging the discriminatory use of 
peremptory challenges. Legal standards prior to Batson 
imposed such a high burden on petitioners claiming



4

discrimination that, notwithstanding the constitutional 
prohibition, African Americans were still intentionally 
excluded from jury service. See Miller-El, 545 U.S. at 239 
(“mak[ing] out a continuity of discrimination over time . . . 
turned out to be difficult to the point of unworkable, and . . . 
[rendered] prosecutors’ use of peremptories largely immune 
from constitutional scrutiny.”) (internal quotation marks 
omitted); Batson, M S  U.S. at 103 (Marshall, J., concurring) 
(after Swain “[mjisuse of the peremptory challenge to exclude 
black jurors has become both common and flagrant.”). 
Without a critical inquiry into the reasons for seemingly 
discriminatory peremptory challenges, the constitutional 
protections of the Fourteenth Amendment were “vain and 
illusory.” Batson, 476 U.S. at 98; see also McCray v. New 
York, 461 U.S. 961, 964 n.l (1983) (Marshall, J., dissenting 
from denial of certiorari).

III. Each of Batson's Three Steps is Critical to Exposing
and Eliminating Unconstitutional Discrimination

In light of the continuing phenomenon of racial 
discrimination injury selection, in Batson this Court declared 
that the right to the peremptory challenge could not be 
reconciled with the right to equal protection if peremptory 
strikes that appeared to be the product of intentional racial 
discrimination were allowed to go unchallenged. 476 U.S. at 
86-87. The Court therefore concluded that insofar as “tension 
exist[ed] between the ‘old tradition’ of unconsidered preference 
for unfettered use of peremptory challenges and the . . . 
meaningful safeguards against invidious application of racial 
stereotypes, then the latter consideration must prevail.” Jones 
v. Ryan, 987 F.2d 960, 968 (3rd Cir. 1993). Instead of finding 
peremptory challenges unconstitutional, however, this Court 
created a straightforward test for exposing and eliminating 
unconstitutionally race-based peremptory challenges: first, the 
defendant must present a prima facie case of discrimination,



5

Batson, 476 U.S. at 96; then, “the burden shifts to the State to 
come forward with a neutral explanation for challenging black 
jurors,” id. at 97; and, finally, the trial court “will have the duty 
to determine if the defendant has established purposeful 
discrimination,” id. at 98, by “assessing] the plausibility of 
[the preferred] reason [s] in light of all evidence with a bearing 
on [them].” Miller-El, 545 U.S. at 252. Each o f Batson's three 
steps have distinct purposes and each is independently critical 
to uncovering discrimination in the exercise of peremptory 
challenges. See generally Purkett v. Elem, 514 U.S. 765 
(1995); Miller-El v. Dretke.

A. Step One: Establishing a Prima Facie Case

The first step of the Batson test serves two functions: 
(1) it preserves the peremptory nature of the challenge by 
requiring a defendant to make a threshold showing of 
discrimination before a prosecutor is required to explain his/her 
strikes; and (2) it rectifies the problem created by Swain in 
imposing a reasonable -  not “onerous” -  threshold burden on 
defendants claiming discrimination. SeeJohnsonv. California, 
545 U.S. 162, 170 (2005). Thus, a defendant claiming 
discrimination in the exercise of peremptory challenges must 
first “produc[e] evidence sufficient to permit the trial judge to 
draw an inference that discrimination has occurred.” Id. In so 
doing, the defendant is entitled to rely upon the “totality of the 
relevant facts” including “evidence concerning the prosecutor’s 
exercise of peremptory challenges at the defendant’s trial,” 
such as evidence of “disproportionate impact” or other 
“circumstantial and direct evidence of intent” such as “the 
prosecutor’s questions and statements during voir dire 
examination and in exercising his challenges,” or that “in the 
particular jurisdiction members of his race have not been 
summoned for jury service over an extended period of time.” 
Batson, 476 U.S. at 93-96 (citations and quotations omitted).



6

B. Step Two: Race-Neutral Explanation for Strikes

Step two affords the prosecutor an opportunity to 
defend his/her strikes against the prima facie evidence of 
intentional discrimination. To meet this burden, the prosecutor 
need only proffer a facially neutral -  not persuasive or 
plausible -  explanation for her strikes. See Purkett, 514 U.S. 
at 768. ‘“Unless a discriminatory intent is inherent in the 
prosecutor’s explanation, the reason offered will be deemed 
race neutral” ’ and the prosecutor will have met his step two 
burden. Id. (quoting Hernandez v. New York, 500 U.S. 352, 
360 (1991)).

C. Step Three: Proving Intentional Discrimination.

At step three of the Batson analysis, the court finally 
decides whether purposeful discrimination has taken place. In 
determining whether the challenged strikes were 
discriminatory, courts can and should examine not only the 
evidence proffered at step one, but also the explanations 
offered by the prosecutor at step two. It is at this third step, 
therefore, that “the persuasiveness of the [prosecutor’s] 
justification becomes relevant” and “implausible or fantastic 
justifications may (and probably will) be found to be pretexts 
for purposeful discrimination.” Purkett, 514 U.S. at 768.

In determining whether or not proffered explanations 
are pretextual, the trial court can consider such evidence as 
“side-by-side comparisons of . . . black venire panelists who 
were struck and white panelists allowed to serve,” 
prosecutorial mischaracterizations of stricken jurors’ 
testimony, statistical evidence regarding how many jurors have 
been struck, the prosecutor’s “failure to engage in any 
meaningful voir dire examination on a subject the State alleges 
it is concerned about,” disparities in the use of peremptory 
strikes, disparate questioning, historical evidence of 
discrimination, and “broader patterns of practice during the



7

jury selection.” Miller-El, 545 U.S. at 240-41, 244, 246, 254. 
With this analysis, the trial court has the capacity to look 
beyond the facial neutrality of the prosecutor’s explanation and 
determine whether the proffered reasons are pretexts for 
intentional discrimination. See Purkett, 514 U.S. at 767-68, 
772, Batson, 476 U.S. at 96-98.

The third step is critical because it ensures that the 
justice system does not exalt form over substance by allowing 
the assertion o f‘“neutral explanations’ which are no more than 
facially legitimate, reasonably specific and clear” to be 
equivalent to a finding of no discrimination. Purkett, 514 U.S. 
at 773 (Stevens, J., dissenting) (quotation omitted). “If any 
facially neutral reason sufficed to answer a Batson challenge, 
then Batson would not amount to much more than Swain” and 
the existence of any “comprehensible” and facially non- 
discriminatory reason would shield intentional discrimination. 
Miller-El, 545 U.S. at 240-45. See also Johnson v. Vasquez, 
3 F.3d 1327, 1331 (9th Cir. 1993) (“When there is reason to 
believe that there is a racial motivation for the challenge, 
neither the trial courts nor we are bound to accept at face  
value a list o f  neutral reasons that are either unsupported in 
the record or refuted by it. Any other approach leaves Batson 
a dead letter.”) (emphasis added). This fact is abundantly 
demonstrated by the existence of the myriad cases finding that 
proffered race-neutral reasons were actually pretexts for 
intentional discrimination.1 See also McDonnell Douglas

1 See, e.g., Miller-El, 545 U.S. at 241-48 (concluding that 
comparative juror analysis revealed that the prosecutor’s reasons for striking 
black jurors were undercut by the prosecutor’s failure to strike similarly 
situated white jurors); Kesserv. Cambra, 465 F.3d 351,360 (9th Cir. 2006) 
(granting the inmate’s habeas petition after finding that “an evaluation of the 
voir dire transcript and juror questionnaires clearly and convincingly refutes 
each of the prosecutor’s nonracial grounds . . . . ”); Riley v. Taylor, 277 F.3d 
261, 279-80 (3d Cir. 2001) (granting a habeas petition after finding that a 
prosecutor’s reasons for striking one juror were “entirely unsupported by the



8

Corp. v. Green, 411 U.S. 792, 804 (1973) (explaining that 
other evidence can show that “presumptively valid reasons . . 
. were in fact a coverup for a racially discriminatory decision”).

Thus, an actual examination of the credibility of the 
proffered explanations in the face of the totality of the evidence 
and all relevant circumstances is necessary to ensure that 
peremptory strikes “do[] not deny equal protection.” Purkett, 
514 U.S. at 769.

record,” and that there was “little basis for distinguishing” another black 
juror who was struck from a white juror who served without challenge); 
Ford v. Norris, 67 F.3d 162,169 (8th Cir. 1995) (granting a habeas petition 
after finding that a black potential juror’s “unqualified answers to the 
prosecutor’s questions concerning the death penalty [were] much stronger 
than responses given by several other white jurors that the prosecutor chose 
not to strike. A prosecutor’s failure to apply a stated reason for striking 
black jurors to similarly situated white jurors may evince a pretext for 
excluding jurors solely on the basis of race . . . .”); Splunge v. Clark, 960 
F.2d 705, 708-09 (7th Cir. 1992) (affirming district court’s grant of habeas 
petition when the “prosecutor’s explanation was insufficient to rebut [the 
defendant’s] prima facie case regarding the challenge exercised against [a 
black juror]. The record reveals no evidence whatsoever that [the juror] did 
not understand the standard of proof to be applied in a criminal case—the 
reason now advanced for upholding her exclusion,” and that “non-black 
potential jurors who answered the [standard of proof] question identically 
were deemed fit for jury service.”); George v. State, 588 S.E.2d312,316-18 
(Ga. Ct. App. 2003) (finding that record evidence contradicted the 
prosecutor’ race-neutral justification); White v. State, 572 S.E.2d70,73 (Ga. 
Ct. App. 2002) (reviewing the voir dire transcript and finding contradictions 
between the proffered justification and the record).



9

IV. Because the Purpose and Focus of Batson's Second 
and Third Steps are Substantively Different, the 
Eleventh Circuit Erred in Treating the Hightower 
Trial Court’s Acknowledgment of the Facial 
Neutrality of the Prosecutor’s Proffered Reasons as 
a Finding -  “Implicit” or Otherwise -  that the 
Prosecutor did not Discriminate.

Because, as detailed above, both the purpose for and the 
evidentiary requirements of Batson's second and third steps are 
substantively different, a finding that the prosecutor’s proffered 
explanations are facially neutral (step two) can never be 
equivalent to a finding that the prosecutor did not discriminate 
(step three). Indeed, this Court has explicitly rejected such an 
analysis and emphasized the fact that Batson requires courts to 
look beyond the facial neutrality of proffered explanations to 
assess the existence of racial motivation.

In Purkett, this Court reversed the Eighth Circuit’s 
finding of a Batson violation where the appellate court 
concluded that the trial prosecutor failed to meet his step two 
burden because his proffered race-neutral explanations were 
implausible and therefore pretextual. In holding that the panel 
improperly conflated steps two and three of the Batson test, this 
Court declared that Batson does not hold that “a trial judge 
must terminate the inquiry at step two when the race-neutral 
reason is silly or superstitious” because such a holding would 
“violateQ the principle that the ultimate burden of persuasion 
regarding racial motivation rests with, and never shifts from, 
the opponent of the strike.” Purkett, 514 U.S. at 768. Thus, 
Purkett reiterated the critical distinction between Batson steps 
two and three and, in particular, the fact that the duty to prove 
racial motivation first occurs at step three.

In declaring that Batson requires lower courts to 
specifically assess the existence of racial motivation at step 
three, Purkett also dictates that Batson prohibits courts from



10

construing the existence of a race-neutral reason as dispositive 
proof that the prosecutor did not discriminate, because such a 
conclusion similarly ignores the question of whether there 
exists evidence of racial motivation (Batson step three). See 
Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) (“[t]he 
Pennsylvania Supreme Court’s decision does not indicate that 
the court engaged in any analysis or consideration of the 
credibility of the potential justifications that it had proffered. 
Rather, the court’s decision reads as if  the court accepted the 
justifications at face value. . . Accordingly, . . .  we lack an 
adequate step three analysis to which we may defer.”) 
(quotation omitted); United States v. Alanis, 335 F.3d 965, 969 
(9th Cir. 2003) (“It is not enough that the district court 
considered the government’s gender-neutral explanations 
‘plausible.’ Instead, it is necessary that the district court make 
a deliberate decision whether the purposeful discrimination 
occurred”). Equating the proffer of a race-neutral reason with 
a finding of no intentional discrimination contradicts Batson 
and Purkett and undermines Batson's, intended goal of 
exposing and eliminating unlawful discrimination and is, 
therefore, constitutionally unacceptable. See Miller-El, 545 
U.S. at 240 ([i]f any facially neutral reason sufficed to answer 
a Batson challenge, then Batson would not amount to much 
more than Swain.").

Notwithstanding Purkett, the previously described 
history o f Batson, and the distinct purpose and requirements of 
each of Batson's three steps, in this case the courts below 
erroneously interpreted an affirmation of the neutrality of the 
trial prosecutor’s strikes as a finding of no intentional 
discrimination. Because this analysis is constitutionally 
erroneous, this Court should grant certiorari and reverse.

Mr. Flightower’s trial counsel made a Batson objection 
after the prosecutor used his peremptory strikes to exclude 6 of 
the 7 African American potential jurors. After the prosecutor



11

offered race-neutral reasons for the strikes -  claiming that he 
struck some jurors because of their opinions on the death 
penalty and others because they had relatives who had been 
involved in criminal activity -  the trial court simply ended the 
inquiry. Specifically, after hearing the prosecutor’s 
purportedly race-neutral rationales, the trial court repeatedly 
and summarily stated, “I find that you have stated an 
articulable reason for striking [juror’s name] and that reason is 
not race related.” See T. 620, 621, 623, 624. At the 
conclusion of the Batson hearing, the trial court stated: “Okay, 
ladies and gentlemen, after hearing the defendant’s motions 
under Batson I find that the defendants have failed to establish 
a prima facie case of discrimination on the part of the district 
attorney.[2] I further find that as to each individual strike, the 
State has presented an articulable, nonrace related reason for 
striking the prospective juror.” T. 626.

Notwithstanding the fact that the trial court clearly 
addressed only steps one and two of the Batson test, the 
Eleventh Circuit majority rejected Hightower’s claim o f Bats on 
error and concluded that the trial court made an “implicit” 
finding of no intentional discrimination (step three). 
Hightower v. Terry, 459 F.3d 1067,1072 n.9 (11th Cir. 2006). 
Specifically, the Eleventh Circuit declared that “a trial court’s 
dispositive ruling may contain implicit findings, which, though 
unstated, are necessary to that ruling.” Id. As such, “[t]he trial 
court’s overruling of Hightower’s Batson objection would have

2 This finding was clearly incorrect, as the prosecutor’s striking of 
6 out of 7 black jurors clearly constituted facts which raise an inference of 
discrimination. Nevertheless, the trial court’s finding that Mr. Hightower 
had failed to make out a prima facie case is, at this stage, irrelevant. As this 
Court held in Hernandez v. New York, 500 U.S. 352, 359 (1991), “Once a 
prosecutor has offered a race-neutral explanation for the peremptory 
challenges and the trial court has ruled on the ultimate question of 
intentional discrimination, the preliminary issue of whether the defendant 
had made a prima facie showing becomes moot.”



12

defied logic had the court disbelieved the prosecutor’s 
race-neutral explanations.” Id. Thus, the Eleventh Circuit 
concluded that the trial court’s specific acknowledgment of the 
neutrality of the prosecutor’s proffered explanations was the 
functional equivalent of a finding that the trial prosecutor did 
not discriminate. This analysis must be rejected under both 
Purkett and Batson.

As previously indicated, in Purkett the Eighth Circuit 
found that the prosecutor failed to meet his step two burden 
because his proffered race-neutral reason was irrelevant to the 
case and therefore pretextual. Purkett, 514 U.S. at 766. Under 
the “implicit finding” theory adopted below, this Court should 
have affirmed the Eighth Circuit’s decision by (a) ignoring 
both the fact that its opinion addressed only step two and also 
the fact that Batson dictates that steps two and three have 
distinct evidentiary requirements, with step two looking only 
to neutrality and step three addressing persuasiveness, and (b) 
concluding that by finding Batson error, the Eighth Circuit 
must have made an “implicit” step three analysis. This Court 
did not, however, adopt such reasoning. Instead, it rejected the 
lower court’s decision by applying to the Eighth Circuit’s 
recitation of the facts of Purkett the analysis required by 
Batson's second and third steps -  and concluding that the Court 
of Appeals erred. See Purkett, 514 U.S. at 767-68.

It is likely that this Court chose not to apply “implicit 
finding” analysis to its review of the Eighth Circuit’s decision 
in Purkett because doing so would have thwarted Batson's goal 
of maintaining the right of the peremptory challenge absent 
evidence of discrimination by allowing reviewing courts to 
assume, without adequate proof, the existence of intentional 
discrimination.

The Eleventh Circuit should have applied the analysis 
adopted by this Court in Purkett to its review of the trial court’s 
decision in Hightower. Thus, instead of assuming, via



13

“implicit finding,” the non-existence of discrimination from the 
trial court’s acknowledgment of the neutrality of the 
prosecutor’s explanations, the Eleventh Circuit should have 
examined the trial court’s decision with an eye toward 
determining whether there was any evidence indicating that the 
trial court conducted the specific analyses which are 
constitutionally required by steps two and three of Batson. 
Because the record is clear that the trial court stopped its 
analysis at step two, the Eleventh Circuit should have found 
that the trial court’s decision was contrary to Batson and 
reversed.

By using “implicit finding” analysis to justify ignoring 
the explicit language of the trial court’s decision (which only 
makes findings as to steps one and two) and Batson’s clear and 
intentional distinctions between the second and third steps, the 
Eleventh Circuit undermined Batson's goal of exposing and 
eliminating discrimination by allowing the existence of “any 
facially neutral reason” to “suffice^ to answer a Batson 
challenge.” Miller-El, 545 U.S. at 240.

For this reason, the Eleventh Circuit’s “implicit 
finding” analysis must be rejected and this Court should grant 
certiorari and reverse.

V. Had the Lower Courts Conducted a Proper Step 
Three Analysis, They Would Have Found that 
Hightower’s Trial Prosecutor Intentionally Used his 
Peremptory Challenges to Exclude Otherwise 
Qualified African-American Potential Jurors.

By improperly stopping its analysis at step two, the trial 
court (and the state and federal courts that affirmed the trial 
court’s decision) undermined Batson's power to uncover racial 
discrimination in jury selection. Had the trial court -  or, 
indeed, any court -  gone beyond an examination of the facial 
neutrality of the prosecutor’s proffered reasons and conducted



14

an actual step three analysis of whether those reasons stood up 
against the record, it would have found that the prosecutor’s 
rationales were clearly pretextual.

A. Familial Relationships

The trial prosecutor asserted that he struck the 
following African-American potential jurors in part because of 
their relatives’ involvement in crime: Thelma Butler, Ricky 
Thomas, Lucious Boswell, and Mattie Harris. The record 
demonstrates that these reasons are pretextual because the trial 
prosecutor accepted similarly situated white jurors or failed to 
question the African-American potential jurors on the effect of 
the familial relationships at issue. See Miller-El, 545 U.S. at 
241 (“If a prosecutor’s proffered reason for striking a black 
panelist applies just as well to an otherwise-similar non-black 
who is permitted to serve, that is evidence tending to prove 
purposeful discrimination to be considered at Batson's third 
step.”); id. at 249 n.8 (where a prosecutor strikes potential 
jurors because of family involvement in crime, “the failure to 
ask undermines the persuasiveness of the claimed concern.”).

1. Similar Crime Committed by Relative

The prosecutor stated that African-American potential 
juror, Ricky Thomas’ “father was convicted for killing his 
mother when Ricky Thomas was eight years old. He came back 
after he served whatever time he had to serve, he came back 
home and raised his children. There’s obviously a possibility 
that Ricky Thomas would identify in this case and compare this 
case with his father’s case and compare what his father has 
meant to him since he come home.” T. 619.3

3 The only similarity between the facts of Hightower and the crime 
that Mr. Thomas’ father committed was that it involved a family member. 
Mr. Thomas was not the victim of a crime, nor did Mr. Thomas testify to the 
facts of his father’s case. The tenuous similarity that the prosecutor 
attempted to raise ends there.



15

The record demonstrates, however, that a white 
potential juror, Michael Anthony Hensler, “was charged with 
voluntary manslaughter back in ‘69 and found guilty of it.” T. 
70. Although the date of Mr. Hensler’s own crime -  1969 -  
was clearly in the same time frame as the events in Mr. 
Thomas’ life,4 the prosecutor accepted Mr. Hensler and Mr. 
Hensler served on the jury that convicted Mr. Hightower.

These facts fatally undermine the trial prosecutor’s 
explanation for his strike of African American potential juror 
Ricky Thomas and strongly support the conclusion that it was 
pretextual.

2. Previous Interaction Between Prosecutor and 
Members of the Venireperson’s Family

The trial prosecutor claimed that he used peremptory 
strikes against African-American potential juror Lucious 
Boswell because he was the “brother o f the wife''’ of a man he 
prosecuted; against African-American potential juror Thelma 
Butler because she was the “sister o f the wife” of a man he had 
prosecuted twelve years before; and against African-American 
potential juror Mattie Harris because “[h]er son has to be 
locked up frequently, but she does not want him punished,” and 
that her daughter was “convicted and imprisoned for drugs.” 
T. 620, 621, 623 (emphasis added).

The failure of the trial prosecutor to ask these potential 
jurors anything about the supposed crimes of these close or 
distant relatives “undermines the persuasiveness of the claimed 
concern.” Miller-El, 545 U.S. at 249 n.8. See also United

4 Mr. Thomas, when questioned, stated that he knew that his father 
had killed his mother, T. 70-71, but stated that it was “back in ‘60 
something. I was too young to remember.” T. 71. When the prosecutor 
pressed him, asking, “You don’t have any memory of that circumstance at 
all?,” Mr. Thomas replied, “No.” T. 71.



16

States v. Solis Jordan, 223 F.3d 676, 686-87 (7th Cir. 2000) 
(“One of the government’s objections to [a] juror was that he 
was fluent in Spanish . . . .  The government expressed the 
concern that the juror might refuse to defer to the government’s 
translations. . . . The district court did not accept this 
explanation, because the government failed to question the 
Spanish-speaking venirepersons about their willingness to 
defer to expert witnesses’ translations of the tape. We agree 
with the district court on this particular point.”); Murphy v. 
Dretke, 416 F.3d 427,434 (5th Cir. 2005) (noting that, “While 
the prosecution’s reasons for peremptorily challenging 
venireperson Cellars were valid, its failure to ask similar 
questions of venireperson LaDonna Smith, who appeared 
similarly situated, does raise an inference of pretext.”); 
Williams v. State, 426 S.E.2d 348, 349 (Ga. 1993) (reversing 
and remanding for a new trial after finding that a prosecutor’s 
purported concerns over black potential jurors ability to apply 
the death penalty “was not explored by the state beyond 
standard questions concerning the death penalty— ”); see also 
United States v. Horsley, 864 F.2d 1543, 1545-46 (11th Cir. 
1989) (“[After the prosecutor has come forward with a race- 
neutral explanation for the strikes,] [t]he trial co u rt. . . must 
decide on the basis o f all the evidence whether a denial of 
equal protection will result if  it overrules the defendant’s 
objection to the prosecutor’s exercise of the challenge.”) 
(emphasis added).

B. Opinions Regarding the Death Penalty

The prosecutor sought to justify his strikes of potential 
African-American jurors Lucious Boswell, Emerson Davis, 
Norman Mack, and Mattie Harris, and alternate Lynette Davis 
by claiming that their attitudes about the death penalty 
rendered them unsuitable. However, the record suggests that 
this explanation was also pretextual because the prosecutor 
mischaracterizedthe statements of Emerson Davis and Norman



17

Mack and because numerous white jurors who were accepted 
by the prosecutor expressed ambivalence about the death 
penalty. See Miller-El, 545 U.S. at 244 (noting, with respect to 
the prosecutor’s mischaracterization of the testimony of an 
African-American potential juror: “[pjerhaps [the prosecutor] 
misunderstood, but unless he had an ulterior reason for keeping 
[the African-American potential juror] off the jury we think he 
would have proceeded differently.”).

The trial prosecutor mischaracterized the testimony of 
African-American potential jurors Emerson Davis and Norman 
Mack. Specifically, the prosecutor asserted that “Mr. Davis 
said that he was somewhat opposed to the death penalty. As 
compared to other people we had on that question about the 
death penalty, he was undesirable from that point of view” and 
that “Mr. Mack . . .  contradicted himself on the death penalty. 
At first he said that he was conscientiously opposed, then upon 
further questioning said that he was somewhat in favor and 
then he said that he was conscientiously opposed under some 
circumstances. [T]here is no way for us to explore under what 
circumstances he was conscientiously opposed.” T. 622, 624.

Contrary to the prosecutor’s assertions, the record 
reveals that when Mr. Mack was initially asked whether he was 
conscientiously opposed to the death penalty, he said, “[i]t 
depends on the circumstances.” He went on to make clear that 
“there are certain circumstances in which [he] could vote for a 
death penalty,” that “in some cases .. .a death penalty would be 
suitable,” and, on a scale of “strongly in favor,” “somewhat in 
favor,” “somewhat opposed,” or “strongly opposed” to the 
death penalty. Mr. Mack indicated that, overall, he was 
“somewhat in favor.” T. 254, 311-312.

Mr. Davis, on the other hand, clearly answered “No” 
when he was asked whether he was opposed to the death 
penalty. T. 344. Mr. Davis also stated that he felt that people 
charged with murder were treated “fairly,” and when asked



18

whether he was “strongly in favor,” “somewhat in favor,” 
“somewhat opposed,” or “strongly opposed” to the death 
penalty, Mr. Davis stated “somewhat.” T. 386-88. At no point 
did Mr. Davis ever indicate that he was opposed to the death 
penalty.

Notably, Mr. Davis’ and Mr. Mack’s actual responses 
were not unlike those of several white jurors who were 
accepted by the prosecution. John Hutcheson testified that 
while he supported the death penalty, he would vote for life, 
depending on the circumstances. T. 388-89. Gary Pritchett 
stated that “every case doesn’t deserve capital punishment. 
There’s going to be some cases that they deserve life 
imprisonment.” T. 214. Karen Gillespie stated that while she 
believed there were some crimes for which the death penalty 
was very appropriate, “sometimes . . . there would be 
circumstances where a life sentence was appropriate.” Merrick 
Carter testified that he would “have to hear the case” to decide 
between life imprisonment and the death penalty. T. 215. None 
of these white veniremembers was challenged by the 
prosecutor.

Had the trial court properly conducted a step three 
inquiry, it would have realized that the trial prosecutor 
misrepresented the statements of Davis and Mack, and that 
their responses were similar to those given by white jurors, and 
would have concluded that the trial prosecutor’s explanations 
were pretextual.

Comparative juror analysis also indicates the pretextual 
nature of the prosecutor’s claim that he struck the African- 
American potential jurors out of concern about their support for 
the death penalty. The prosecutor stated that he struck African- 
American potential juror Lucious Boswell because “in response 
to the question about whether he thought that someone who 
had been convicted of killing three people should be sentenced 
to death, his response was, no, I think he ought to be allowed



19

to work it out in prison” and that he struck African-American 
potential juror, Mattie Hams, because she “said she felt that the 
fact the defendant had killed three people means he is sick and 
needs help.” T. 620, 621. However, the record reflects that 
many white jurors who were accepted by the prosecutor 
similarly indicated that life imprisonment could be a fair 
sentence and/or that the decision to impose capital punishment 
would depend on the circumstances. See T. 103,104,108,213, 
214, 215, 217, 218, 219, 221, 229, 305, 208, 389, 391.

Batson's promise is hollow if it means that the trial 
court’s examination is over once a prosecutor offers a rationale 
for her strikes that is race-neutral but, in the face of the record, 
implausible. See Kesser v. Cambra, 465 F.3d at 358 (“[T]he 
California courts, by failing to consider comparative evidence 
in the record before it that undeniably contradicted the 
prosecutor’s purported motivations, unreasonably accepted his 
nonracial motives as genuine.”). As Judge Wilson put it in his 
dissenting opinion below, “By rejecting Hightower’s Batson 
claim merely because the prosecutor’s justifications were 
‘articulable’ and ‘nonrace related,’ the Georgia courts’ 
adjudication ‘resulted in a decision that was contrary to, or 
involved an unreasonable application of,’ Batson." Hightower 
v. Terry, 459 F.3d at 1075(Wilson, J., dissenting).



20

VI. Conclusion

The strong evidence of pretext in the trial record 
described in the preceding section forcefully demonstrates why 
the truncated Batson analysis employed by the lower courts in 
this case is inadequate and leads to constitutional error. We 
respectfully urge this Court to affirm the fact that race 
discrimination has no place within jury selection, and to 
emphasize that lower courts must apply all of Batson’’ s steps to 
root out discrimination. If uncorrected, the type of decision­
making that occurred in Hightower will herald a return to a 
time before Batson when racial discrimination injury selection 
was rampant and there existed no meaningful opportunity to 
expose and eliminate it. This Court should grant certiorari and 
reverse summarily.5

Respectfully submitted,

T h e o d o r e  M . Sh a w  
Director-Counsel 
Ja c q u e l in e  A. B e r r ie n  

*C h r is t in a  A. Sw a r n s  
J e n ig h  J. G a r r e t t  
H o l l y  A. T h o m a s  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amicus Curiae 
April 6, 2007 *Counsel of Record

5Given the strong reaffirmation of Batson's three-step analysis by 
this Court in Miller-El and the prior remand of this very case for 
reconsideration by the court below in light of Miller-El, summary 
disposition is merited.



\