Tompkins v. Texas Brief Amicus Curiae

    No. 87-6405

In The

(tart at tfyr Mnftrft BtaUa
October Term, 1988

Phillip D. Tompkins,
Petitioner,

v.

State of Texas,
Respondent.

On Writ of Certiorari to 
the Court of Criminal Appeals of Texas

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW  

AS AMICUS CURIAE

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen
Norman Redlich 

Trustee
W illiam L. Robinson 
Judith A. W inston

Lawyers’ Committee for 
Civil Rights Under Law  

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

Robert E. Montgomery, Jr. 
Counsel o f Record

Erika A. Kelton

Paul, W eiss, Rifkind, 
W harton & Garrison 

1615 L Street, N.W.
Suite 1300
Washington, D.C. 20036 
(202) 223-7300

Attorneys for Amicus Curiae

W il s o n  -  Ep e s  P r in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  -  W a s h in g t o n , D .C .  2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ..........................................  iii

STATEMENT OF INTEREST OF AMICUS
CURIAE....... .................................................................. 1

STATEMENT OF THE CASE .......................................... 2

SUMMARY OF ARGUMENT ...........................................  3

ARGUMENT.......... ....1,........................................... ...........  5
I. BATSON v. KENTUCKY REAFFIRMS LONG- 

ESTABLISHED PRECEDENT THAT JURY 
SELECTION MUST BE TOTALLY RACE 
NEUTRAL............................................      5

II. THE TRIAL COURT ABDICATED ITS RE­
SPONSIBILITY TO EYAULATE THE LEGIT­
IMACY OF THE PROSECUTOR’S EXPLANA­
TION OF PEREMPTORY CHALLENGES 
AGAINST WHICH A PRIMA FACIE CASE
HAD BEEN M ADE............................................. 9
A. The Trial Court Must Actively Scrutinize 

The Prosecutor’s Explanation For Pretext
And Mixed Motives.......................... ..............  9

B. The Trial Court Utterly Failed To Fulfill Its
Duty To Determine The Legitimacy Of The 
Prosecutor’s Explanations ............   15

C. The Trial Court May Consider Only The
Prosecutor’s Actual Reasons For Challenge.. 18

III. THE APPELLATE COURT APPLIED IN­
CORRECT STANDARDS OF REVIEW ...........  19
A. The Court Of Criminal Appeals Failed To

Review The Legal Sufficiency Of The Trial 
Court’s Findings ............................................. 20

B. The Court Of Criminal Appeals Erred By
Reviewing The Trial Court’s Findings Ac­
cording To A “Rational Basis” Standard, 
Instead Of The “ Clearly Erroneous” Stan­
dard Required By Batson ...............................  22



11

1. The Court Of Criminal Appeals Failed
To Review The Entire Record Before 
Upholding- The Trial Court’s Findings 
Regarding The Prosecutor’s Intent.......  24

2. The Court Of Criminal Appeals Failed
To Hold The Trial Court’s Findings 
Clearly Erroneous, Despite Its Convic­
tion That Those Findings Were Not 
Credible.........................    25

CONCLUSION ................          28

TABLE OF CONTENTS— Continued
Page



I l l

TABLE OF AUTHORITIES
Cases Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ..................................................................... 12

Alexander v. Louisiana, 405 U.S. 625 (1972) ...A, 5, 9,11
Amadeo v. Zant, 108 S. Ct. 1771 (1988) ...............  24
Anderson v. Bessemer City, 470 U.S. 564 (1985) ..5, 23, 27 
Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252 (1977) ................~~....... 4,8,9,15
Batson v. Kentucky, 476 U.S. 79 (1986) ....... ....... passim■
Bose Corp., Inc. v. Consumers Union of United

States, Inc., 466 U.S. 485 (1984)..........  21,24
Cassell v. Texas, 339 U.S. 282 (1950)----------------  6
Commonwealth v. DiMatteo, 12 Mass. App. Ct.

547, 427 N.E.2d 754 (1988) .........   14
Commonwealth v. Soares, 377 Mass. 461, 387 N.E.

2d 499, cert, denied, 444 U.S. 881 (1979)....... 14
Ex parte Branch, No. 86-500, slip op. (Ala. Dec. 4,

1987) ______ ______ _____ _________________ -  10,23
Ex parte Virginia, 100 U.S. 339 (1880) ..... .........  5
Floyd v. State, 511 So. 2d 762 (Fla. 1987) ...........  13
Gamble v. State, 257 Ga. 325, 357 S.E.2d 792

(1987) ......... ........................................... ..... -..... -  10,14
Garrett v. Morris, 815 F.2d 509 (8th Cir.), cert, 

denied sub nom. Jones v. Garrett, 108 S. Ct.
233 (1987) ........ .............. ................... ............  10,13

Gray v. Mississippi, 107 S. Ct. 2045 (1987)------ 21
Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C.

Cir. 1987), cert, granted, 108 S. Ct. 1106 (1988).. 8
Inwood Laboratories, Inc. v. Ives Laboratories,

Inc., 456 U.S. 844 (1982) ....................................  23
Jackson v. Virginia, 443 U.S. 307 (1979) .... ........  20
Johnson v. State, No. 57,526, slip op. (Miss. May

18, 1988) (en banc).............. ........ ...................... 23
McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273 (1976) ................... ........ ...............................  8,12
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ......... ................ .. ......................... ............ 4, 11,12
Norris v. Alabama, 294 U.S. 587 (1935) _______4,11, 20
People v. Hall, 35 Cal. 3d 161, 672 P.2d 854

(1983) .................................................... -.............. - 10,13



IV

People v. Trevino, 39 Cal. 3d 667, 704 P.2d 719
(1985) ............................. ........................ ..................  13,14

People v. Turner, 42 Cal. 3d 711, 726 P.2d 102
(1986)  .................................................. ............ ..... 13

People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748
(1978)  ...................................................................  13,14

Peters v. Kiff, 407 U.S. 493 (1972) ....... ................  11
Pullman-Standard v. Swint, 456 U.S. 273 (1982).. 21
Rogers v. Richmond, 365 U.S. 534 (1961)............... 21
Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987).... 13, 14 
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).. 20
Schuessler v. State, 719 S.W.2d 320 (Tex. Grim.

App. 1986)............................ - .................... .............  23
State v. Alvarado, 226 Neb. 195, 410 N.W.2d 118

(1987)  ...................................................................  23
State v. Antwine, 743 S.W.2d 51 (Mo. 1987),

cert, denied, 108 S. Ct. 1755 (1988) ....................  10
State v. Gilmore, 103 N.J. 508, 511 A.2d 1150

(1986)......... ..................................... ........................-  10,14
State v. Gonzalez, 206 Conn. 391, 538 A.2d 210

(1988) - ....................................................................... 24
State v. Jackson, No. 477A87, slip op. (N.C. May

5, 1988) ....................................................................... 23
State v. Slappy, 522 So. 2d 18 (Fla. 1988) ___ __  13,14
Stone v. Powell, 428 U.S. 465 (1976).................... . 24
Strauder v. West Virginia, 100 U.S. 303 (1880).... 5
Swain v. Alabama, 380 U.S. 202 (1965) ________  3
Texas v. Mead, 465 U.S. 1041 (1983).................. 19
Texas Dept, of Community Affairs v. Burdine,

450 U.S. 248 (1981) ____ _______________ __ ..11,12,18
Time, Inc. v. Firestone, 424 U.S. 448 (1976).......  21
United States v. Chalan, 812 F.2d 1302 (10th Cir.

1987) ....... ..................................................................  14
United States v. United States Gypsum Co., 333

U.S. 364 (1948) ...... ........ .......................... ...........5,23,27
Van Guilder v. State, 709 S.W.2d 178 (Tex. Crim.

App. 1985), cert, denied, 106 S. Ct. 2891 (1986).. 23
Wainwright v. Witt, 469 U.S. 412 (1985) ................ 15
Washington v. Davis, 426 U.S. 229 (1976) ...... ....... 4, 8

TABLE OF AUTHORITIES— Continued
Page



V

TABLE OF AUTHORITIES— Continued
Page

Whitus v. Georgia, 385 U.S. 545 (1967)..................6,11, 20
Younger v. Harris, 401 U.S. 37 (1971) ....................  19

Rule and Statutes

Supreme Court Rule 36.2...........................................  2
28 U.S.C. §§ 2254 (b ) , (d) ..... .............. .....................  20

Article

Monaghan, Constitutional Fact Review, 85 Colum.
L. Rev. 229 (1985) ...............................................  21



In T he

B>ujrrottP ( t a i l  nf %  Hntteft JHata
October T e r m , 1988

No. 87-6405

P h illip D. T om pkins ,
v Petitioner,

State  op T e xa s ,
Respondent.

On Writ of Certiorari to 
the Court of Criminal Appeals of Texas

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

STATEMENT OF INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963, at the request of the President 
of the United States, to involve private attorneys in the 
national effort to assure the civil rights of all Americans. 
During the last 25 years the Lawyers’ Committee and its 
local affiliates have enlisted the services of thousands of 
members of the private bar in addressing the legal prob­
lems of minorities and the poor. The Committee’s mem­
bership today includes former United States Attorneys 
General and Solicitors General, past presidents of the 
American Bar Association, a number of law school deans 
and many of the nation’s leading lawyers. The wide­
spread perception that prosecutors have exercised per­
emptory challenges in a discriminatory manner, and the



2

importance of the principle of equal justice under law, 
prompted the Lawyers’ Committee to file a brief amicus 
curiae in Batson v. Kentucky, 476 U.S. 79 (1986). The 
same concerns, coupled with the fact that the Batson 
principles will remain extremely fragile until this Court 
provides more guidance concerning their implementation, 
prompt the Lawyers’ Committee to file a brief amicus 
curiae in support of petitioner in this case. The parties 
have consented to the filing of this brief, which is there­
fore submitted pursuant to Supreme Court Rule 36.2.

STATEMENT OF THE CASE

Petitioner Phillip Daniel Tompkins, a black man, was 
convicted by a Texas jury of capital murder, based on his 
alleged intentional killing of a white woman while in the 
course of committing or attempting to commit robbery 
and kidnapping. (J.A. 56.) He was sentenced to death. 
(J.A. 56.)

The venire at petitioner’s trial included thirteen blacks. 
Of these prospective black jurors, eight were challenged 
for cause. The remaining five black venirepersons were 
excluded by the prosecutor’s peremptory challenge. Peti­
tioner objected and moved to quash the jury on grounds 
that the prosecution had exercised its peremptory strikes 
to purposefully exclude venirepersons on the basis of 
race. The trial court overruled petitioner’s motion, and 
did not inquire into the State’s reasons for striking all 
the black venirepersons. (J.A. 57-58.)

While petitioner’s appeal was pending review by the 
Court of Criminal Appeals of Texas, this Court decided 
Batson v. Kentucky, 476 U.S. 79 (1986). In April 1987, 
the reviewing court abated the appeal, and sent the case 
back to the trial court with instructions to conduct a 
Batson hearing. Following that hearing, the trial court 
ruled that although petitioner had made a prima facie 
showing of prosecutorial discrimination in the exercise of



3

peremptory challenges, that showing had been rebutted 
by the State’s explanations for the suspect peremptory 
strikes. (J.A. 47-49.)

The Court of Criminal Appeals affirmed the trial 
court’s Batson findings and petitioner’s conviction, re­
jecting petitioner’s constitutional claim under Batson on 
the ground that the trial court had not acted irrationally 
in finding that there was no discrimination. (J.A. 72-73.)

SUMMARY OF ARGUMENT

This case raises squarely the question of whether the 
increased protection for defendants’ fourteenth amend­
ment rights which the Court mandated in Batson v. Ken­
tucky, 476 U.S. 79 (1986) will be vitiated by ineffective 
trial court procedures and overly deferential appellate 
review. In Batson, this Court once again acknowledged 
that “  [discrimination within the judicial system is [the] 
most pernicious,” id. at 87-88, and that the potential for 
such discrimination is especially great in connection with 
prosecutors’ exercise of peremptory challenges. Id. at 96.

In response to this continuing threat, Batson altered 
the twenty-year-old evidentiary ruling of Swain v. Ala­
bama, 380 U.S. 202 (1965), to allow a defendant to rely 
on evidence from his own trial to establish a pmma facie 
inference of discrimination in the prosecutor’s use of 
peremptory challenges. Once established, the burden then 
shifts to the State to justify the suspect challenge by ar­
ticulating “ a [legitimate] neutral explanation related to 
the particular case to be tried.” Batson,, 476 U.S. at 98.

Having established the legal standards and the general 
framework within which they should be applied, how­
ever, the Batson court left important procedural ques­
tions unanswered. Id. at 99. Justice White’s prediction 
—that “ [m]uch litigation will be required to spell out the 
contours of the Court’s equal protection holding today”



4

id. at 102 (White, J., concurring)—has proven correct. 
Nov/, two years later, the Court must return to the Bat­
son. problem and provide further guidance, without which 
clearly unconstitutional peremptory challenges such as 
those at issue here will he effectively immunized by in­
adequate judicial scrutiny.

Petitioner Tompkins’ conviction should be held consti­
tutionally defective under Batson on three separate 
grounds. First, the decisions of the Texas courts were 
apparently premised on the incorrect belief that peremp­
tory challenges based in part, though not solely, on racial 
grounds are permissible under Batson. This Court has 
repeatedly held that where an individual’s fourteenth 
amendment right to equal protection is threatened, con­
duct based on mixed racial and nonracial motives is not 
insulated from challenge. See, e.g., Arlington Heights v. 
Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 
(1977) ; cf. Washington v. Davis, 426 U.S. 229, 240-42 
(1976). Mixed-motive explanations are especially dan­
gerous where, as in the case of peremptory challenges, 
nonracial reasons may be easily generated. To allow any­
thing but totally nonracial explanations would rapidly 
undermine Batson’s protections.

Second, the trial court made factual findings that were 
clearly insufficient as a matter of law. The Tompkins 
trial court abdicated its obligation to ascertain the legiti­
macy of the prosecutor’s justifications in light of Bat­
son’s requirement that such explanations be racially neu­
tral, non-speculative and logically related to the particular 
case. Batson., 476 U.S. at 98. The lower court accepted 
the prosecutor’s rebuttal at face value, thereby vio­
lating that court’s duty to probe nonracial justifica­
tions for pretext in light of the evidence and circum­
stances of the case. See, e.g., McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 804 (1973); Alexander v.
Louisiana, 405 U.S. 625, 632 (1972); Norris v. Alabama, 
294 U.S. 587, 593-96 (1935). Were trial courts not re­



5

quired to make an earnest attempt to judge the legal
sufficiency and legitimacy of prosecutors’ rebuttal the 
equal protection rights safeguarded by Batson would be 
meaningless.

Finally, the Texas Court of Criminal Appeals erred 
both by failing to review the legal sufficiency of the trial 
court’s determination, and by failing to apply a “ clearly 
erroneous” standard of review. In the first instance, the 
appellate court inappropriately deferred to the trial 
court’s finding that the prosecutor lacked discriminatory 
intent, even though such finding was based on an ob­
vious misapplication of federal law. Second, the review­
ing court failed to employ the “clearly erroneous”  stand­
ard of review contemplated by Batson. 476 U.S. 98 n.21. 
Contrary to its obligation, the appeals court deferred 
blindly to the court below, even though its independent 
examination of the record “ east considerable doubt upon 
the neutral explanations offered by counsel for the State.” 
(J.A. 66 n.6A.) Anderson v. Bessemer City, 470 U.S. 
564, 573 (1985) ; United States v. United States Gypsum 
Co., 333 U.S. 364, 395 (1948).

ARGUMENT
I. BATSON v. KENTUCKY REAFFIRMS LONG- 

ESTABLISHED PRECEDENT THAT JURY SELEC­
TION MUST BE TOTALLY RACE NEUTRAL

An unbroken line of cases, beginning over a century 
ago, has held that the Equal Protection Clause demands 
that a person’s ability to serve on a jury be evaluated 
exclusively in terms of individual characteristics, rather 
than in terms of racial identity. Strauder v. West Vir­
ginia, 100 U.S. 303 (1880) ;  Ex parte Virginia, 100 U.S. 
339 (1880).1 Batson v. Kentucky, 476 U.S. 76 (1986)

1 See, e.g., Alexander v. Louisiana, 405 U.S. 625, 632 (1972) (hold­
ing that in order to constitutionally validate a prima facie case of 
discrimination in venire selection the state must show that “permis­
sible racially neutral selection criteria and procedures have produced



6

reaffirmed this promise of equal protection, by requiring 
that where an inference of discrimination is raised by 
prosecutors’ use of peremptory challenges, the State may 
validate the suspect challenge only by providing specific, 
logical and entirely nonracial reasons. Prosecutors are 
duty bound “ to exercise their challenges only for legiti­
mate purposes.” 476 U.S. at 99 n.22. Thus, once a 
defendant has made a prima facie showing that the 
prosecutor exercised his peremptory challenges in a dis­
criminatory manner, the prosecutor “ must articulate a 
neutral explanation” for his strikes. Id. at 98.

Batson’s requirement of racial neutrality must be con­
strued to validate only those challenges that are moti­
vated entirely by nonracial reasons. In Tompkins, the 
Texas Court of Criminal Appeals implies that even 
though challenges based on racial grounds alone are pro­
hibited by Batson, challenges that are based on both 
racial and nonracial grounds may be permissible. The 
appellate court stated that if the prosecutor “admits a 
racially motivated reason for exclusion, without more, 
the trial judge should never find” that strike constitu­
tional. (Emphasis added.) (J.A. 65 n.6.) The appellate 
court further stated that a defendant’s prima facie show­
ing of discrimination would stand unless the prosecutor 
“ could come forward and demonstrate some ‘neutral’— 
non-race related—explanation . . . .” (Emphasis added.) 
(J.A. 61.) That court concluded that no constitutional 
violation had occurred at trial, because the trial judge 
“ found, implicitly, that the prosecuting attorneys did not 
exercise their peremptories against the five black venire- 
persons complained about solely on account of their race. 
. . .” (Emphasis added.) (J.A. 62.)

the monochromatic result” ) ; Whitus v. Georgia, 385 U.S. 545, 552 
(1967) (holding that in venire selection procedures, where “ the 
opportunity for discrimination was present . . .  it [must not be] 
resorted to” ) ; Cassell v. Texas, 339 U.S. 282, 286 (1950) (holding 
that “ [j Jurymen should be selected as individuals on the basis of 
individual qualifications, and not as members of a race” ).



7

While the above opinion language may not conclusively 
demonstrate that the Texas courts have misread Batson,2 
the transcript of the Batson hearing in this case leaves 
little doubt on the point. Throughout the trial court’s 
interrogation, the prosecutors freely and repeatedly con­
ceded that even after this Court’s decision in Batson it 
was the practice of the Harris County District Attorney’s 
office to exercise their peremptory challenges based in 
part on considerations of race.3

The Texas courts’ interpretation of Batson is mani­
festly incorrect, Batson cannot fairly be read to allow 
challenges which are based, even in part, on assumptions 
that rely on race to judge an individual’s fitness as a 
juror. If race-based assumptions contribute in any way 
to the prosecutor’s decision to use a peremptory chal­
lenge, the State’s reasons are not neutral— as Batson 
expressly requires— and the strike violates the Equal 
Protection Clause. To allow anything but totally non­

2 Indeed, although Batson is replete with references to the princi­
ple that the prosecutor’s explanation of suspect challenges must be 
racially neutral, this Court’s opinion does contain language prac­
tically identical to the last of the above quotations. 476 U.S. at 89.

8 Testimony elicited from Harris County District Attorneys at 
the Batson hearing confirms that the race of veniremembers played 
a part in those prosecutors’ decisions to retain or strike an indi­
vidual, even though race may not have been the sole basis for exclu­
sion. One prosecutor, when asked whether race would “enter into 
[his] decision . . .  to use a peremptory challenge,” answered that 
he “would not exclude that person solely because of his race.”  When 
reminded that he was asked whether “ it would enter into [his] 
decision making process” he responded: “ Oh, certainly. Certainly.” 
Supp. R. vol. 1, 82-33. Indeed, Thomas Royce, the prosecutor who 
exercised two of the three disputed peremptory challenges, agreed 
that in selecting juries he presumed that blacks as a group were 
more inclined to be sympathetic and lenient towards black defen­
dants. Id. at 156, 162. Other members of the District Attorneys’ 
office noted that, in general, “ there was a caution exercised when 
dealing with minorities,” id. at 182, and that “many of those people 
have preconceived notions about law enforcement and government,” 
Id. at 184.



8

racial explanations would quickly subvert Batson’s prom­
ise of discrimination-free peremptory challenges.4 5

This conclusion is inescapable in light of this Court’s 
repeated rejection of mixed-motive explanations in other 
contexts. In Arlington Heights v. Metropolitan Housing 
Dev. Corp., the Court noted that racial discrimination 
need not be the “ sole,” “primary,” or “ dominant” factor 
in an official decision for the Equal Protection Clause to 
be violated. It is enough that “ a discriminatory purpose 
has been a motivating factor.” 429 U.S. 252, 265-66 
(1977).6 Cf. Washington v. Davis, 426 U.S. 229, 240-42 
(1976). Where the constitutional right to equal protec­
tion is threatened, therefore, mixed-motive explanations 
will simply not suffice.

The standard applied by the Texas courts to the 
sufficiency of the State’s explanation of its peremptory 
challenges was thus fundamentally defective. Contrary 
to those courts’ apparent understanding, a peremptory 
challenge need not be based “solely”  on racial considera­
tions to be constitutionally impermissible. Where as­
sumptions based on race play even a minor part in the 
prosecutor’s decision to strike a potential juror, that chal­

4 As Justice Marshall observed in Batson: “ Any prosecutor can 
easily assert facially neutral reasons for striking a juror . . . .  If 
such easily generated explanations are sufficient to discharge the 
prosecutor’s obligation to justify his strikes on nonracial grounds, 
then the protection erected today may be illusory.” 476 U.S. at 
106 (Marshall, J., concurring).

5 The principle that mixed-motive explanations are not sufficient 
to rebut a prima facie ease of discrimination is also found in Title 
VII case law. See, e.g., McDonald v. Santa Fe Trail Transportation 
Co., 427 U.S. 273, 282 n.10 (1976) (noting that a Title VII plaintiff 
need not prove that he was “ rejected or discharged solely on the 
basis of his race” ) ; Hopkins v. Price Waterhouse, 825 F.2d 458 
(D.C. Cir. 1987), cert, granted, 108 S. Ct. 1106 (1988) (holding 
that mixed-motive explanations are insufficient to rebut the infer­
ence of impermissible gender discrimination in employment 
decision).



9

lenge is tainted. To satisfy Batson, the state’s explana­
tion must convince the trial court that the race of the 
juror had no bearing whatsoever on the decision to 
strike.

II. THE TRIAL COURT ABDICATED ITS RESPON­
SIBILITY TO EVALUATE THE LEGITIMACY 
OF THE PROSECUTOR’S EXPLANATION OF 
PEREMPTORY CHALLENGES AGAINST WHICH 
A  PRIMA FACIE CASE HAD BEEN MADE
A. The Trial Court Must Actively Scrutinize The 

Prosecutor’s Explanation For Pretext And Mixed 
Motives

Batson charged trial courts with responsibility for en­
suring that prosecutors exercise their peremptory chal­
lenges for only legitimate, race-neutral purposes. Batson, 
476 U.S. at 98-99. Accordingly, trial courts are required 
“ to be sensitive to the racially discriminatory use of 
peremptory challenges.”  Id. at 99. This obligation to 
scrutinize thoroughly the State’s conduct for discrimina­
tory purpose is not new to equal protection doctrine. As 
this Court stated in Arlington Heights, 429 U.S. at 266 
“ [d]etermining whether invidious discriminatory pur­
pose was a motivating factor demands a sensitive in­
quiry into such circumstantial and direct evidence of 
intent as may be available.” Where discriminatory mo­
tives are alleged to underlie official decisions, the trial 
court has an active role in “ examin [ing] the purpose 
underlying the decision.” Id. at 268. See also Alexander 
v. Louisiana, 405 U.S. 625, 630 (1971) (trial courts may 
find it necessary to undertake a “factual inquiry” that 
“takes into account all possible explanatory factors” ).

Under Batson, a defendant alleging the impermissible 
exclusion of veniremembers “may make out a prima facie 
case of purposeful discrimination by showing that the 
totality of the relevant facts gives rise to an inference of 
discriminatory purpose. . . . Once the defendant makes



10

the requisite showing, the burden shifts to the State to 
explain adequately the racial exclusion.” 476 U.S. at 93- 
94. Accordingly, the adequacy of the prosecutor’s rebut­
tal explanation must be tested by the trial court. To 
ensure that only legitimate explanations are accepted, 
the trial court’s inquiry must be designed to distinguish 
sincere from contrived reasons, and wholly nonracial 
from mixed motives.6

To fulfill its Batson obligations the trial judge must 
take the initiative to evaluate each proffered explanation 
in light of the factual and legal issues in the case, his 
observation of the prosecutor’s voir dire and his knowl­
edge of trial techniques. This role is fully consistent 
with Batson’s requirement that trial courts be “alert” 
and “ sensitive” to racially discriminatory challenges 
while supervising voir dire. 476 U.S. at 99, n.22.’7

An active role for the trial court is also suggested by 
numerous prior holdings of this Court that once a prima 
facie inference of discrimination is raised, a probing 8

8 See, e.g., Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.), cert, 
denied sub nom. Jones v. Garrett, 108 S. Ct. 233 (1987) ( “ the 
court has a duty to satisfy itself that the prosecutor’s challenges 
were based on constitutionally permissible trial-related considera­
tions, and that the proffered reasons are genuine ones, and not 
merely a pretext for discrimination” ) ; People v. Hall, 35 Cal. 3d 
161, 167, 672 P.2d 854, 858 (1983) (“ [I]t is imperative, if the con­
stitutional guarantee is to have any real meaning, that . . . the 
allegedly offending party . . . come forward with explanation to the 
court that demonstrates other bases for the challenges and that 
the court satisfy itself that the explanation is genuine. This de­
mands of the trial judge a sincere and reasoned attempt to evaluate 
the prosecutor’s explanation.” ) (Emphasis in original.)

1 See Garrett v. Morris, 815 F.2d at 511; Ex parte Branch, No. 
86-500 slip op. at 21-22 (Ala. Dec. 4, 1988); People v. Hall, 35 Cal. 
3d at 167, 672 P.2d at 858; Gamble v. State, 257 Ga. 325, 327, 357 
S,E.2d 792, 794-95 (1987); State v. Antwine, 743 S.W.2d 51, 64-65 
(Mo. 1987), cert, denied, 108 S. Ct. 1775 (1988); State v. Gilmore, 
103 N.J. 508, 536-37, 511 A.2d 1150, 1164-65 (1986).



11

review of assertedly reasonable and neutral conduct is 
necessary. Such is the teaching of Norris v. Alabama, 
294 U.S. 587, 593-96 (1935) which found the State’s 
rebuttal of a pnma facie inference of discrimination in 
the selection of jury venires inadequate when that ex­
planation was considered in light of the evidence in the 
record. The sufficiency of the rebuttal must be assessed 
in view of the entire circumstances as they have been 
presented. See Alexander v. Louisiana, 405 U.S. at 632; 
Whitus v. Georgia, 385 U.S. 545, 550-51 (1967).

Likewise, in the employment discrimination context, 
this Court has consistently ruled that the inquiry into a 
complainant’s prima, facie case of discriminatory employ­
ment practices or treatment is not complete once an em­
ployer presents his explanation. The court’s inquiry must 
also consider whether the “stated reason . . . was in fact 
pretext,” McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 804 (1972) ; Texas Dept, of Community Affairs v. 
Burdine, 450 U.S. 248, 255-56 (1981).

In criminal prosecutions, earnest trial court scrutiny 
of the legitimacy of the prosecution’s explanation of its 
peremptory challenges is especially crucial.® Exclusion of 
a cognizable class “may have unsuspected importance in 
any case that may be presented.” Peters v. Kiff, 407 
U.S. 493, 503-504 (1972). Certainly in petitioner’s case, 
where he faces a sentence of death, the consequences of 
constitutionally impermissible discrimination in jury se­
lection could not be greater. To require less than the 
closest scrutiny of a prosecutor’s explanation would 
transform the Batson inquiry into a mere formality. 8

8 The trial court s duty to probe the State’s rationale is especially 
critical where, as here, defense counsel was not afforded a mean­
ingful opportunity to rebut the prosecutor’s explanation. Even 
though defense counsel had no way of anticipating the explanations 
the prosecutor would offer at the Batson hearing, the trial court 
required that defense comment on the prosecutor’s explanations be 
made within a few days of the Batson hearing’s close, but 2% 
weeks before the record was transcribed. Supp. E. vol. 1 at 227-28.



12

The trial court must, first, elicit all of the prosecutor’s 
reasons for a suspect strike, in order to ensure that 
mixed motives are not present. To require less than all 
of the prosecutor’s actual reasons would enable the state 
to sustain impermissible mixed-motive strikes by identi­
fying a single nonracial consideration. Once all of the 
prosecutor’s reasons have been elicited and determined, 
at least facially, to arise from completely nonracial mo­
tives, the trial court must assure that each rationale is 
legitimate and not pretextual. Batson requires that each 
legitimate explanation be “neutral” and “related to the 
particular case to be tried.” 476 U.S. at 98.9 These 
criteria are most effectively tested by considering, gen­
erally (1) whether similarly situated white and minority 
veniremembers were treated differently, and (2) whether 
the justification for challenge was legally or factually 
relevant to the case at bar.

Analogous factors were credited by this Court in 
McDonnell Douglas v. Green, 411 U.S. at 804, and 
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 
273, 282-83 (1976), where evidence that similarly situ­
ated white and black employees were treated differently 
was considered especially relevant to the showing of pre­
text in the Title VII context. Likewise, Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 431 (1975) held that where 
employers are required to show that an employment prac­
tice bears a job-related reason, such reason must be 
judged to be “ predictive of or significantly correlated 
with important elements of work behavior which com­
prise or are relevant to the job.”

To satisfy their duties under Batson, therefore, trial 
courts must conduct an independent inquiry sufficient to 
ensure that the state’s explanations are legitimate,

9 Batson further rioted that “the prosecutor must give a ‘clear 
and reasonably specific’ explanation of his ‘legitimate reasons’ for 
exercising the challenges.” 476 U.S. at 98 n.20 (quoting Texas Dept, 
of Community Affairs v. Burdine, 450 U.S. at 258).



13

racially neutral and logically related to the case. At a 
minimum, the trial court should undertake a detailed sua 
sponte examination of whether: (a) minority veniremem- 
bers were stricken, while similarly situated white venire- 
persons escaped challenge;10 (b) the voir dire of minority 
venirepersons appeared designed to elicit a particular re­
sponse, and similar examination was not undertaken of 
white venirepersons;11 (c) the challenged venireperson 
was examined in a perfunctory manner, if at all; 12 and

10 Roman v. Abrams, 822 F.2d 214, 228 (2d Cir. 1987) (dissimilar 
treatment raises suspicion that reason is pretextual); Garrett v. 
Morris, 815 F.2d at 514 (challenges based on “ lack of education, 
background, and knowledge” were invalid where whites with sim­
ilar backgrounds survived challenge); People v. Trevino, 39 Cal. 3d 
667, 691-92, 704 P.2d 719, 733 (1985) (challenges of Hispanic sur- 
named venirepersons invalid where similarly situated whites ex­
pressed similar ambivalence towards the death penalty but went 
unchallenged); State v. Slappy, 522 So. 2d 18, 19-20 (Fla. 1988) 
(peremptory challenge invalid where prosecutor explained that a 
black elementary school teacher was struck as possibly being too 
liberal while a white elementary school teacher was not challenged); 
Floyd v. State, 511 So. 2d 762, 765 (Fla. 1987) (where prosecutor 
struck black veniremember because he was a student, failure to 
strike a white student was “ strong evidence” that the reason was 
“a subterfuge to avoid admitting discriminatory use of the per­
emptory challenge” ).

11 People v. Turner, 42 Cal. 3d 711, 726-27, 726 P.2d 102, 111 
(1986) (minority venireperson struck because of single, ambiguous 
response to prosecutor’s question); People v. Hall, 35 Cal. 3d at 
165, 672 P.2d at 856 (only minority venirepersons were asked where 
they grew up which served as basis for exclusion).

12 Garrett v. Morris, 815 F.2d at 514 (prosecutor’s reasons pre­
textual when he had not explored in voir dire the purported basis 
for challenge) ; People v. Turner, 42 Cal. 3d at 714, 726 P.2d at 111 
( “prosecutor’s failure to engage . . .  ‘in more than desultory voir 
dire . . .’ is one factor supporting an inference that the challenge 
is in fact based on group bias” ) ; People v. Wheeler, 22 Cal. 3d 
258, 281, 583 P.2d 748, 764 (1978) ( “ the failure of [the prosecutor]
. . . to engage these jurors in more than desultory voir dire”  may 
support the demonstration of discrimination); State v. Slappy, 522 
So. 2d at 23 n.2 (where two black veniremembers excused without



14

(d) the explanation offered by the State was not logi­
cally related to the elements of the offense.13

In this last regard, it is essential that a logical correla­
tion is established between the prosecutor’s rationale and 
the legal issues and facts as they are known at the time 
of voir dire. This inquiry is not simply an evaluation

questioning, the safeguards would be “meaningless . . .  if, by sim­
ply declining to ask any questions at all, the state could excuse all 
blacks from the venire” ) ; Gamble v. State, 257 Ga. at 329-30, 357 
S.E.2d at 795 (prosecutor’s explanations invalid where no voir dire 
of challenged venireperson).

13 Roman v. Abrams, 822 F.2d at 228 (prospective jurors’ knowl­
edge of computers, electronics, and bookkeeping not basis for ex­
clusion on grounds that they may not be able to accept reasonable 
doubt standard of proof); United States v. Chalan, 812 F.2d 1302, 
1314 (10th Cir. 1987) (unspecified dissatisfaction with venireper- 
son’s background and juror’s questionnaire not acceptable grounds 
for exclusion ) ;  People v. Trevino, 39 Cal. 3d at 689, 704 P.2d at 731 
(prosecutor must show venireperson’s “ specific bias,” i.e., “bias re­
lating to the particular case on trial or the parties or witnesses 
thereto” (quoting People v. Wheeler, 22 Cal. 3d at 276, 583 P.2d 
at 761)); People v. Wheeler, 22 Cal. 3d at 282, 583 P.2d 748, 
765 (1978) (burden of justification will be satisfied where prose­
cutor explains suspect challenges on grounds that are “ reasonably 
relevant to the particular case on trial or its parties or witnesses— 
■i.e., for reasons of specific bias” ) ; State v. Slappy, 522 So. 2d at 20, 
23 (invalid strike where prosecutor stated that challenged venire- 
member was too liberal because she was a school teacher but failed 
to demonstrate that she shared that tra it); Gamble v. State, 257 Ga. 
at 328, 357 S.E.2d at 795-96 (exclusion of potential juror because 
he is a Mason invalid where “ it is not clear how Masonic member­
ship is related to this case” ) ; Commonwealth v. Soares, 377 Mass. 
461, 485, 387 N.E.2d 499, 514 (1979) (peremptory challenges valid 
where a juror’s “ unique relationship to the particular case raises the 
spectre of individual bias” ) ; Commonwealth v. DiMatteo, 12 Mass. 
App. Ct. 547, 552-53, 427 N.E.2d 754, 757 (1981) (widowhood an 
insufficient indicator of bias in a trial for armed robbery of a ser­
vice station); State v. Gilmore, 103 N.J. at 542, 511 A.2d at 1168 
(purported lack of intelligence not grounds for challenge where 
issues to be resolved by the jury do not demand “high intellectual 
achievement of the jurors” (quoting State v. Gilmore, 199 N.J. 
Super. 389, 411-12, 489 A.2d 1175, 1187 (1985))).



15
of the prosecutor’s credibility as a witness during the 
Batson hearing. Nor is the judge merely “ applying some 
kind of legal standard to what he sees and hears,” as the 
judge does, for example, when he determines juror bias 
against the death penalty. See Wamwright v. Witt, 469 
U.S. 412, 429 (1985). Rather, the prosecutor’s explana­
tion must be rationally and analytically related to the 
case being tried.

Finally, the trial court’s formal findings must supply 
sufficient detail to assure that upon review the basis for 
each Batson-related conclusion is clear. Absent such ex­
planation, a reviewing court will lack the necessary un­
derstanding to distinguish those findings entitled to great 
deference from those which are not.

B. The Trial Court Utterly Failed To Fulfill Its Duty 
To Determine The Legitimacy Of The Prosecutor’s 
Explanations

In Tompkins, the trial court completely abdicated its 
Batson obligations. The repetitious and conclusory nature 
of the court’s findings is itself a strong indication that 
the State’s rebuttal explanations were accepted on their 
face. In each instance, the court recited as if by rote 
that “ the State’s excusal . . . was neutral, relative, clear 
and legitimate as required by Batson and was not racially 
motivated.” (J.A. 47-49.) When the stated basis for those 
findings is examined, the court’s failure to evaluate in­
dependently the State’s explanations is obvious with re­
spect to three of the five veniremembers challenged 
peremptorily. In each case, the record reflects that the 
prosecutor’s explanations were neither neutral nor logi­
cally related to the matter at bar.14

14 Although in this case three peremptory challenges are suspect, 
it should be noted that the improper exclusion of only one of the 
veniremembers would be constitutionally offensive. As Batson 
stated: “ ‘A single invidiously discriminatory governmental act’ 
is not ‘immunized by the absence of such discrimination in the 
making of other comparable decisions’.” 476 U.S. at 95 (quoting 
Arlington Heights, 429 U.S. at 266, n.14).



16

(i) Isabella Thomas was purportedly challenged be­
cause she had “problems” following the law of circum­
stantial evidence. Supp. R. vol. 1, 109. The trial court 
accepted this rationale without the slightest attention to 
its adequacy. When tested, the proffered explanation is 
plainly insufficient to overcome the defendant’s prima 
facie inference. First, at the time the strike was exer­
cised the prosecutor’s case was based on direct evidence. 
(J.A. 68.) Hence, the law of circumstantial evidence was 
not relevant or sufficiently correlated to the case to be a 
proper basis for challenge. Second, Ms. Thomas’ problem­
atic responses were elicited through the prosecutor’s own 
confused hypothetical; when the questions were clarified, 
Thomas Responded without problem.15 16 Finally, similarly 
situated white veniremembers also responded with diffi­
culty to questions pertaining to the laws of circumstan­
tial evidence, intent and causation, but went unchal­
lenged. R. vol. 11, 1550-53; R. vol. 6, 316-19; R. vol. 
15, 2261-65.

(ii) Leroy Green was purportedly challenged because 
he was a postal employee, and because he responded non­
verbally. Supp. R. vol. 1, 208-18. Again, this explana­
tion does not even come close to meeting Batson’s re­
quirements. The prosecutor never explained how postal 
employees as a group were biased, in what way Green 
shared that bias or how any such bias was related to the 
case. Indeed, no such explanation is logically possible.18

16 The prosecutor asked Ms. Thomas whether she could find some­
one guilty of burglary if he was caught several days after the crime 
with the victim’s property. Ms. Thomas responded negatively. 
After further explanation, she responded that she could if “shown 
all the possibilities beyond a reasonable doubt.” R. vol. 9, 1006-11.

16 Neither of the Texas courts who considered this rationale 
found it plausible. Although the appellate court found that Green 
“was . . . struck solely . . . because he had been an employee of the 
United States Postal Service for some thirteen years . . .” (J.A. 
70-71), the trial judge omitted all reference to this part of the 
State’s explanation from its “ Findings of Fact and Conclusions of 
Law.” (J.A. 49.)



17
The remainder of the State’s explanation cannot be con­
sidered race-neutral, since similarly situated white ve- 
nirepersons were not challenged even though they also 
responded to questions nonverbally.17

(iii) Frank Samuel was purportedly challenged be­
cause he appeared to be illiterate, a conclusion based on 
the prosecutor’s suspicion that his data sheet might have 
been filled out by another person, and because he re­
sponded to three questions by nodding. Supp. R. vol. 1, 
135-43. This explanation is plainly insufficient. First, 
nearly a dozen unchallenged white veniremembers also 
responded nonverbally to examination.18 Second, Samuel 
was never questioned directly on the subject of his liter­
acy or about the data sheet. Indeed, at the Batson hear­
ing the prosecutor acknowledged that Mr. Samuel could 
read when asked to do so at voir dire. Supp. R. vol. 1, 138. 
Further, the prosecutor undermined the veracity of this 
rationale by disputing, in another context, the impor­
tance and verifiability of the same questionnaire. Supp. 
R. vol. 1, 71.

The trial court, when faced with explanations that were 
clearly implausible or suggestive of bias, inexplicably 
failed to recognize its obligation to assess the legitimacy 
of these justifications. Rather than pursue further in­
quiry, or engage in a serious evaluation of their suffi­
ciency, the court blindly accepted the explanations at face 
value. In so doing, the court woefully failed to meet the 
legal standard set forth in Batson. 17 18

17 Nonverbal responses from unchallenged venirepersons are 
scattered throughout the voir dire transcript. Charles Yana, R. vol. 
11, 1469, 1472; Denise Hollingsworth, R. vol. 11, 1544-47, 1556, 1565, 
R. vol. 12, 1590; William Wright, R. vol. 12, 1761-62, 1773; Sharon 
Miller, R. vol. 16, 1827-28, 1832, 1834, 1838, 1842-43, 1846; Carol 
Moore, R. vol. 16, 1885-86, 1890-91, 1903, 1917; Peggy Whitley, R. 
vol. 5, 172, 179, 186, 189, 192-93; and Curtis Sumrall, R. vol. 7, 500, 
571, 588, 664, 672, all responded nonverbally.

18 See supra note 17.



1 8

C. The Trial Court May Consider Only The Prosecu­
tor’s Actual Reasons For Challenge

Implementation of Batson presents special problems 
where, as here, prosecutors are unable to recall the pre­
cise basis for a suspect challenge. In Tompkins, the 
Batson hearing was held six years after the original 
voir dire. Situations such as these are particularly ripe 
for speculative, equivocal, and possibly disingenuous ex­
planations.

The only satisfactory rebuttal of a prima facie show­
ing of discriminatory purpose is testimony by the prose­
cutor of his actual, nonracial reason or reasons for 
peremptorily challenging the venireperson. Under Bat­
son, a prosecutor must offer an “ explanation of his 
legitimate reasons’ for exercising the challenge.” 476 
U.S. at 95 n.20 (quoting Texas Dept, of Community 
Affairs v. Bur dine, 450 U.S. at 258). This standard is 
meaningless unless the prosecutor is obligated to present 
his actual reasons, and not simply his best guess. Ex­
planations formulated in hindsight and composed largely 
of speculation or impressionistic reasoning cannot, as a 
general matter, fulfill the Batson obligations.

A trial court’s invitation to speculate concerning facts 
of which the prosecutor has no honest recollection cannot 
fail to encourage calculated responses or selective recall 
that may consciously or unconsciously arise from, prej­
udice. As Justice Marshall emphasized in Batson, such 
reasons may be easily generated, 476 U.S. at 106. Be­
cause post hoc reconstructions will, if accepted, inevi­
tably erode the safeguards Batson was designed to erect, 
this Court should make explicit the logic of Batson that 
only by properly explaining its actual motivations may 
the State rebut a defendant’s prima facie showing of dis­
crimination.

The fact that the Batson hearing in the present case 
was fraught with examples of the prosecutor’s specula­



19

tive reasoning18 * thus provides an independent ground 
for reversal.

HI. THE a p p e l l a t e  c o u r t  a p p l i e d  i n c o r r e c t
STANDARDS OF REVIEW

Batson held that an appellate court should give “ ap­
propriate deference” to trial court findings of intentional 
discrimination. 476 U.S. at 98 n.21. The Texas Court 
of Criminal Appeals, however, was blindly deferential in 
this case to the trial court’s finding that the State did 
not challenge any of five black venirepersons based on 
their race. Because the trial court’s findings are deter­
minative of petitioner’s equal protection claim, this 
Court should declare erroneous the appellate court’s lax 
review of those findings.20

10 For instance, when the prosecutor was asked whether she
could recall why she asked a particular question of a challenged 
venireperson, the prosecutor responded: “No, I can just go on what 
it indicates from the questions and what I asked and the answers 
I got and from what I asked him here, which was unusual for me 
to ask, I have to assume there was a reason I asked it and that is 
the type of thing I would have asked if I were getting nonverbal 
communications coming from the person in the witness box.” Supp. 
R. vol. 1, 224. Later, when asked why nonverbal responses to voir 
dire made her inclined to strike a venireperson, the prosecutor 
could only respond generally, “ [t]here are all sorts, of reasons, that 
are nonverbal that give you a feeling about whether a juror would 
make a good juror in your case or how they feel about you or how 
you feel about them.” Counsel responded: “ Okay, you just don’t 
remember. Is that correct?” ; to which the prosecutor answered 
“ Right, and if we had done it at the time . . .” Id. at 225.

20 This Court’s examination of the standards of appellate review 
applied by the Texas Court of Criminal Appeals in this case would 
not “unduly interfere with the legitimate activities of the States.” 
Younger v. Harris, 401 U.S. 37, 44 (1971). Generally, a state ap­
pellate court is free, as a matter of state law, to decide the level of 
deference to accord to a trial court’s factual findings. Texas v. 
Mead, 465 U.S. 1041, 1044 n.2 (1983) (Rehnquist, J., dissenting 
from denial of certiorari). Notwithstanding this freedom, however, 
where federal constitutional rights are concerned, a state court is



20

The Court of Criminal Appeals was overly deferential 
to the trial court’s findings in two respects. First, the 
appellate court failed to review the legal sufficiency of 
the trial court’s process for evaluating the legitimacy of 
the prosecutor’s explanations, as required by Batson. 
Second, the Court of Criminal Appeals improperly ap­
plied a “ rational basis” standard in its review of the trial 
court’s findings, rather than the more stringent “ clearly 
erroneous” standard called for in Batson.

A. The Court Of Criminal Appeals Failed To Review 
The Legal Sufficiency Of The Trial Court’s Findings

The court of appeals failed to assure that the trial 
court’s ultimate findings of no discrimination reflected 
the Batson requirements that the prosecutor’s explana­
tions be “ legitimate,” “ neutral” and “ related to the par­
ticular case to be tried.”  476 U.S. at 98. As explained

obligated to “ consider federal claims in accord with federal law.” 
Schneckloth v. Bustamonte, 412 U.S. 218, 259 (1973) (Powell, J., 
concurring).

Where, as in the context of Batson challenges, the factual find­
ings of a state trial court control the outcome of a defendant’s 
federal constitutional claims, this Court has insisted on examining 
the adequacy of state appellate review. For example, this Court 
has independently examined evidence in cases concerning the exclu­
sion of blacks from juries. The state appellate court’s review of the 
trial court’s fact-finding was closely scrutinized because, as in this 
case, the “conclusion of law of a state court as to a federal right 
and findings of fact are so intermingled that the latter control the 
former.” Norris v. Alabama, 294 U.S. at 590; see also Whitus v. 
Georgia, 385 U.S. at 550. In federal habeas corpus proceedings, 28 
U.S.C. §§ 2254(b), (d), federal courts are permitted to review state 
appellate court findings of evidentiary sufficiency to assure that 
state convictions have been secured in accord with the federal con­
stitution. Jackson v. Virginia, 443 U.S. 307, 323 (1979). Otherwise, 
states might attempt to satisfy the “beyond a reasonable doubt” 
standard with nothing more than “ a trial ritual.”  Id. at 316-17. 
Thus, where important constitutional rights are at stake, this Court 
may review both the facts found by state courts and the standards 
of state appellate review applied to such facts without offending 
principles of federalism.



21

above, the trial court must elicit and evaluate, as a pred­
icate to its ultimate finding on intent, the prosecutor’s 
explanation for each suspect challenge. The trial court’s 
failure to conduct this evaluation in terms of the legal 
standards established by Batson necessarily invalidated 
the ultimate finding, and required the appellate court to 
set aside the trial court’s finding that the prosecutor 
lacked discriminatory intent.

Deference to a finding of fact is not due where there 
has been no “conscious determination” by the trial court 
of the existence or nonexistence of critical subsidiary 
facts or legal conclusions. Cf. Time, Inc. v. Firestone, 
424 U.S. 448, 463 (1976). Moreover, deference to a 
state trial court’s factual finding is “ inappropriate where 
. . . the trial court’s findings are dependent on an ap­
parent misapplication of federal law.” Gray v. Missis­
sippi, 107 S. Ct. 2045, 2053 n.10 (1987) (citing Rogers 
v. Richmond, 365 U.S. 534, 547 (1961)). The trial 
court’s findings in this case clearly reflect an erroneous 
view of the requirements of Batson, and should have 
been set aside on that ground. See Pullman-Standard 
v. Swint, 456 U.S. 273, 287 (1982).

A trial court’s obligation under Batson to find legally 
sufficient facts attenuates the degree of deference that a 
reviewing court should give to the ultimate finding. Cf. 
Bose Carp., Inc. v. Consumers Union of United States, 
Inc., 466 U.S. 485, 500 n.16 (1984) (“ The conclusive­
ness of a ‘finding of fact’ depends on the nature of the 
materials on which the finding is based.” ). Less defer­
ence is due when the sufficiency of the trial court’s ulti­
mate factual finding is based, in part, on legal conclu­
sions.121 In the Batson context, the trial court’s ultimate 
intent finding “ is inseparable from the principles through 21 * * *

21 “ [Wjhile ‘what happened’ may be. viewed as a question of
fact, the legal sufficiency of the evidence may be viewed as the
equivalent of a question of law.” Monaghan, Constitutional Fact
Review, 85 Colum. L. Rev. 229, 236 (emphasis in original).



22

which it is deduced,” id. at 501 n.17, and should there­
fore be independently reviewed on appeal. Id.

In the present case, the Court of Criminal Appeals did 
not properly evaluate whether the trial court’s findings 
were legally sufficient.122 In fact, they were not. See dis­
cussion, supra, 15-17. Even the Court of Criminal 
Appeals recognized that at least one of the prosecutor’s 
explanations, while nonracial, was so patently unrelated 
to the case as to be “ shocking and totally not under­
standable” based on the record. (J.A. 68.) Nevertheless, 
apparently believing that it was bound to review only the 
trial court’s ultimate factual findings— not the legal 
sufficiency of the court’s underlying compliance with the 
Batson standards—the appellate court declined to over­
rule the court below.

The petitioner’s conviction thus suffers from a whole­
sale abdication by the Texas courts of their judicial obli­
gation to test the legal sufficiency of a proffered conclusion. 
Just as the trial court blindly accepted the prosecutor’s 
explanation, so the court of appeals closed its eyes 
in undiscerning deference to the trier of fact’s ulti­
mate findings. Carried to its logical conclusion, the ju­
dicial philosophy of the courts below would allow a pros­
ecutor to rebut a prima facie case through mere denial 
of discriminatory intent or affirmation of personal good 
faith; precisely the result that Batson expressly prohibits. 
476 U.S. at 97-98.

B. The Court Of Criminal Appeals Erred By Review­
ing The Trial Court’s Findings According To A 
“ Rational Basis”  Standard, Instead Of The “ Clearly 
Erroneous” Standard Required By Batson

Even assuming that the ultimate findings of the trial 
court were not legally deficient, the appellate court in­

s'2 The error is made all the more obvious by the fact that the 
trial court, apparently recognizing the hybrid nature of its Batson 
hearing findings, styled them “ Findings of Fact and Conclusions of 
Law.” (J.A. 47.)



23

correctly applied a “ rational basis” standard in review­
ing the finding that the State’s exercise of its peremptory 
challenges was not racially discriminatory. (J.A. 66 
n.6A.) That standard would require reversal of the 
trial judge’s findings of fact “ only if no rational trier 
of fact could have failed to find his factual allegation 
true by a preponderance of the evidence.” Id. at 8, 
citing Van Guilder v. State, 709 S.W.2d 178 (Tex. Grim. 
App. 1985), cert, denied, 106 S. Ct. 2891 (1986); Schues- 
sler v. State, 719 S.W.2d 820 (Tex. Grim. App. 1986). 
Because such a standard of review does not insure proper 
scrutiny of the basis for trial court findings regarding 
discrimination, it is inadequate to protect the fundamen­
tal rights guaranteed under Batson.

Indeed, this Court suggested in Batson, by referring 
to its opinion in Anderson v. Bessemer City, 470 U.S. 
564, 573 (1985), that the appropriate level of appellate 
review for Batson findings of purposeful discrimination 
was the “ clearly erroneous” standard. Batson, 476 U.S. 
at 98 n.21. The clearly erroneous standard requires, at a 
minimum, that an appellate court (1) review the entire 
record before assessing the validity of a trial court’s fac­
tual findings and (2) hold the findings clearly erroneous 
when, based on the entire record the reviewing court “ is 
left with the definite and firm conviction that a mistake 
has been committed.” United States v. United States 
Gypsum Co., 333 U.S. 364, 395 (1948); Inwood Labora­
tories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855 
(1982). The Court of Criminal Appeals failed to satisfy 
either of these requirements.123 23

23 Numerous state supreme courts have adopted the clearly er­
roneous standard in reviewing the Batson hearing findings of trial 
courts. See, e.g., Ex parte Branch, No. 86-500 slip op. (Ala. May 13, 
1988); State v. Alvarado, 410 N.W.2d 118 (Neb. 1987); Johnson v. 
State, No. 57,526 slip op. (Miss. May 18, 1988) (en banc). Other 
state supreme courts have applied ambiguous standards of review 
by referring to the high level of deference owed to trial court find­
ings. See, e.g., State v. Jackson, No. 477A87 slip op. (N.C. May 5,



24

1. The Court Of Criminal Appeals Failed To Re­
view The Entire Record Before Upholding The 
Trial Court’s Findings Regarding The Prosecu­
tor’s Intent

The appellate court reviewed the record of this case 
selectively, to the detriment of petitioner’s fourteenth 
amendment rights. The Court refused to consider the 
prosecutor’s disparate treatment of similarly situated 
white and black venirepersons during voir dire, despite 
defense counsel’s offer of such a comparison. (J.A. 66 
n.6A.) The appellate court’s failure to consider such 
evidence in the record is plainly contrary to the independ­
ent examination of the entire record contemplated by the 
clearly erroneous standard of appellate review. Bose, 
466 U.S. at 499 (1984). The Court of Criminal Appeals 
mistakenly treated defense counsel’s proposed comparison 
of evidence already in the record as new evidence. It 
thus failed to recognize that analysis of evidence in the 
record is well within the obligation of a reviewing court. 
See, e.g., Amadeo v. Zant, 108 S. Ct. 1771, 1777 (1988).

The Court of Criminal Appeals’ failure to review the 
entire record in this regard was not a harmless proce­
dural default ; it was an egregious abdication of its re­
sponsibility to safeguard petitioner’s constitutional rights. 
Stone v. Powell, 428 U.S. 465, 493-94 n.35 (1976). The 
appellate court recognized that defense counsel’s compar­
ison of similarly situated white and black venirepersons 
“ cast considerable doubt upon the neutral explanations 
offered by counsel for the State,” (J.A. 66 n.6A), and 
might have “ materially affected the trial judge’s ulti­
mate findings of fact” had it been presented at the 
Batson hearing. Id. With its head firmly planted in the

1988) (special deference); State v. Gonzalez, 206 Conn. 391 (1988) 
(great deference). This growing plethora of state standards can 
only be rationalized through the confirmation by this Court that the 
clearly erroneous standard is constitutionally required.



25

Texas sand, however, the court observed that “we do not 
consider this circumstance in reviewing the trial judge’s 
findings in this cause.” Id.

The appellate court’s refusal to consider defense coun­
sel’s supplemental brief was not only perversely unjust; 
it was also patently illogical in light of the mechanics of 
the Batson hearing. The trial judge and defense counsel 
did not hear the prosecutor’s race-neutral explanations 
for having struck certain venirepersons until the Batson 
hearing was held. By effectively requiring the defense 
counsel at the Batson hearing spontaneously to analyze 
multi-volume voir dire transcripts and to compare simi­
larly situated white and black venirepersons vis-a-vis the 
prosecutor’s explanation in order to preserve the eviden­
tiary question on appeal, the appellate court placed an 
impossible burden on defense counsel. To disregard a 
compelling presentation of evidence on this basis, absent 
some legitimate procedural justification, is both unfair 
and impermissible under Batson. 476 U.S. at 96-98.

2. The Court Of Criminal Appeals Failed To Hold 
The Trial Court’s Findings Clearly Erroneous, 
Despite Its Conviction Thai Those Findings Were 
Not Credible

The Court of Criminal Appeals accepted the trial 
court’s intent findings even though the court felt, based 
on its own review of the record, that certain of the 
prosecutor’s race-neutral explanations were not credible. 
This unwarranted degree of deference violates the clearly 
erroneous standard of review and undermines the degree 
of judicial inquiry contemplated by Batson.

As noted above, the record raises serious questions 
about the veracity and sufficiency of the prosecutor’s 
explanations. The appeals court recognized the apparent 
inconsistencies in the trial court’s findings. In the case 
of the prosecutor’s strike on grounds that the venireper- 
son had problems with the law of circumstantial evi­



26

dence, the appeals court described this explanation as 
“ shocking and totally not understandable.”  (J.A. 68.) 
“Without more,” the court continued, “we would have to 
hold that only an irrational trier of fact could have ac­
cepted this reason as a ‘neutral explanation’ .” Id. None­
theless, the court, on its own initiative, supplied further 
justification for the strike— that a jury instruction on 
circumstantial evidence would still have been a theoreti­
cal possibility.2 * * 24 In the case of the prosecutor’s strike on 
grounds that the venireperson was a postal employee, the 
appeals court was given “great concern” (J.A. 70), be­
cause of the “difficulty in understanding the relevancy of 
a venireperson’s employment as a postman . . . as far as

2i In the face of implausible and ambiguous facts in the record, 
the appellate court impermissibly supplemented the trial court’s 
findings by engaging in its own speculation concerning the prose­
cutor’s reasons for two of the suspect peremptories. First, with 
regard to the venireperson struck because of her reservations about 
circumstantial evidence, the appeals court substituted an imputed 
motive for the prosecutor’s stated motive for exercising the peremp­
tory challenge: “ [W ]e hold that the prosecuting attorney exer­
cised a peremptory on the venireperson rather than risk a hung 
jury.” (J.A. 70.) Second, the prosecutor struck a venireperson
alleged to be illiterate. Yet it was the Court of Criminal Ap­
peals, and not the prosecutor, that attempted to correlate this
explanation to the case by concluding that the case was going to 
include “ detailed written jury instructions” (J.A. 70), thus making 
the alleged illiteracy a legitimate basis for challenge. In fact, at 
the Batson hearing, the prosecutor admitted that the foreman jury 
charge was usually read to the jury. Supp. R. vol. 1, 144.

Faced with this clear failure by the State to meet its burden under 
Batson, the Court of Criminal Appeals should have moved without 
hesitation to set aside the conviction. If it is inconsistent with the 
values protected by Batson to allow the prosecution to speculate 
concerning his reasons for exercising a suspect peremptory chal­
lenge (see discussion, swpra, at 18-19), it is all the more im­
permissible for a court of appeals far removed in time, space and 
orientation from the event at issue, to substitute its own “best 
guess” as to the State’s motive. This error, also, constitutes an 
independent cause for reversal.



27

his qualifications for jury service.”  (J.A. 71.) However, 
the court overlooked not only this grave insufficiency, 
but also the fact that the trial court had not even men­
tioned the employment issue in its findings (J.A. 49), 
and affirmed the legitimacy of the State’s explanation for 
the sole reason that it was not race-related. (J.A. 71- 
72.)

In light of its stated reservations, the appeals court’s 
uncritical deference to the trial court finding on these 
venirepersons was wholly unjustified. A reviewing court 
must set aside a finding, even if there is some evidence 
in the record to support it, when the court feels based 
on the entire evidence that a mistake has been made. 
Anderson, 470 U.S. at 573; Gypsum Co., 333 U.S. at 
395. The Court of Criminal Appeals should have clearly 
rejected findings which it found “shocking and totally 
not understandable” and the cause for “great concern,” 
rather than sustain them on the basis of its own specula­
tion or artificially narrow view of the record.

This is no less true where the trial court’s findings is 
in part based on a “credibility” determination. See J.A. 
65. A witness’ facially credible testimony may be con­
tradicted or rendered inconsistent by other evidence. 
Anderson, 470 U.S. at 575. Here, the prosecutor’s race- 
neutral explanation concerning the venireperson’s hesi­
tancy about circumstantial evidence was squarely con­
tradicted by the prior admission into evidence of defend­
ant’s confession. In such a case, a reviewing court should 
find clear error, even though the finding is purportedly 
based on a credibility determination. Id. The Court of 
Criminal Appeals committed reversible error when it de­
clined to act on the glaring contradictions in the record 
before it.



2 8

CONCLUSION

The judgment of the Court of Criminal Appeals of 
Texas should be reversed and the cause remanded.

Respectfully submitted,

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen
N orman Redlich 

Trustee
W illiam  L. R obinson 
Judith A. W inston

Lawyers ’ Committee for 
Civil R ights Under Law  

1400 Eye Street, NW.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

R obert E. Montgomery, Jr . 
Counsel of Record

Erika  A. Kelton

Paul, W eiss, R ifkind 
W harton & Garrison 

1615 L Street, N.W.
Suite 1300
Washington, D.C. 20036 
(202) 223-7300

Attorneys for Amicus Curiae