Petitioner Ford, a black man charged with,
inter alia,
the murder of a white woman, filed a pretrial "Motion to Restrict
Racial Use of Peremptory Challenges," alleging that the county
prosecutor had "over a long period of time" excluded black persons
from juries where the issues to be tried involved members of the
opposite race. In opposing the motion, the prosecution referred to
Swain v. Alabama, 380 U. S. 202, in
which this Court recognized that the purposeful exclusion of
members of the defendant's race from his petit jury would work a
denial of equal protection under the Fourteenth Amendment to the
Federal Constitution, but held that the defendant would have to
prove a pattern of racial discrimination in prior cases as well as
his own to prevail. The trial judge denied the motion, declaring
that in "numerous or several" cases he had seen the prosecutor
strike prospective white jurors but leave prospective black jurors
in trials of black defendants. During jury selection, the
prosecution exercised 9 of its 10 peremptory challenges to strike
black prospective jurors, leaving 1 black venire member on the
jury. After the jury convicted Ford and he was sentenced to death,
he moved for a new trial, claiming, among other things, that his
Sixth Amendment right to an impartial jury was violated by the
prosecutor's racially based exercise of peremptory challenges. The
motion was denied, and the Supreme Court of Georgia affirmed the
conviction. While Ford's first petition for certiorari was pending
in this Court, the Court decided
Batson v. Kentucky,
476 U. S. 79, which
dropped the
Swain requirement of proof of prior
discrimination by holding it possible for a defendant to make out a
prima facie equal protection violation entirely by
reference to the prosecution's use of peremptory challenges in the
defendant's own case. This Court ultimately vacated Ford's
conviction and remanded in light of
Griffith v. Kentucky,
479 U. S. 314,
which decided that
Batson's new evidentiary standard would
apply retroactively in cases such as the present. On remand, the
State Supreme Court concluded that before his trial Ford had raised
a
Swain claim that was decided adversely to him on appeal,
and could not be reviewed again. The court then suggested that a
Batson claim was never raised at trial, but held
sua
sponte that any equal protection claim that Ford might have
was untimely under the rule the court had stated in
State v.
Sparks, 257 Ga. 97, 98,
355 S.E.2d
658, 659, which, as interpreted by the court,
Page 498 U. S. 412
requires that a contemporaneous objection to a jury be made
under
Batson in the period between the jurors' selection
and the administration of their oaths. Although
Sparks was
decided long after Ford's trial, the court regarded the
Sparks rule as a "valid state procedural bar" to federal
review of Ford's claim under
Wainwright v. Sykes,
433 U. S. 72.
Held: The
Sparks rule is not an adequate and
independent state procedural ground that would bar federal judicial
review of Ford's
Batson claim. Pp.
498 U. S.
418-425.
(a) The State Supreme Court erred in concluding that Ford failed
to present the trial court with a cognizable
Batson equal
protection claim. Although Ford's pretrial motion did not mention
the Equal Protection Clause, and his new trial motion cited the
Sixth Amendment rather than the Fourteenth, the pretrial motion's
reference to a pattern of excluding black venire members "over a
long period of time" constitutes the assertion of an equal
protection claim on the evidentiary theory articulated in
Batson's antecedent,
Swain. That the Georgia
courts, in fact, adopted this interpretation is demonstrated by the
prosecutor's citation to
Swain in opposing the pretrial
motion, by the trial judge's clear implication of
Swain in
ruling that Ford had failed to prove the systematic exclusion of
blacks from petit juries, and by the State Supreme Court's explicit
statement on remand that Ford had raised a
Swain claim.
Because
Batson did not change the nature of the violation
recognized in
Swain, but merely the quantum of proof
necessary to substantiate a particular claim, it follows that a
defendant alleging a
Swain equal protection violation
necessarily states such a violation subject to
Batson's
more lenient burden of proof. Pp.
498 U. S.
418-420.
(b) The State Supreme Court erred in concluding that the
Sparks contemporaneous objection rule can bar federal
consideration of Ford's
Batson claim as untimely raised.
Although the
Sparks rule is a sensible one, its imposition
here is nevertheless subject to this Court's standards for
assessing the adequacy of independent state procedural bars to the
entertainment of federal constitutional claims. These include the
requirement, under
James v. Kentucky, 466 U.
S. 341,
466 U. S.
348-351, that only a state practice that is "firmly
established and regularly followed" at the time at which it is to
be applied may be interposed to prevent subsequent review by this
Court of such a claim. To apply
Sparks retroactively to
bar consideration of a claim not raised between the jurors'
selection and oaths would apply a rule that was unannounced at the
time of Ford's trial and is therefore inadequate to serve as an
independent state ground under
James. Indeed,
Sparks would not, by its own terms, apply here,
Page 498 U. S. 413
since that decision declared that its rule would apply only as
to cases tried "hereafter." Pp.
498 U. S.
421-425.
257 Ga. 661,
362 S.E.2d 764
(1987), reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
Justice SOUTER delivered the opinion of the Court.
Petitioner alleges that the State of Georgia applied the
impermissible criterion of race to exclude venire members from the
petit jury that convicted him. The Supreme Court of Georgia held
petitioner's equal protection claim procedurally barred as untimely
under Georgia law, and we are now called upon to review the
adequacy of the State's procedural rule to bar consideration of the
constitutional issue raised. We reverse.
I
In September 1984, a grand jury in Coweta County, Georgia,
indicted petitioner James A. Ford, a black man, for the kidnaping,
rape, and murder of a white woman. [
Footnote 1] The State notified petitioner of its intent to
seek the death penalty and identified the statutory aggravating
circumstances it would try to prove.
Before trial, petitioner filed a "Motion to Restrict Racial Use
of Peremptory Challenges," [
Footnote 2] alleging that the prosecutor
Page 498 U. S. 414
for Coweta County had "over a long period of time" excluded
black persons from juries "where the issues to be tried involved
members of the opposite race." The motion stated that petitioner
"anticipated" the prosecutor would continue the pattern of racial
exclusion in this case because of the different races of the
accused and the victim. Petitioner requested an order forbidding
the State to use "its peremptory challenges in a racially biased
manner that would exclude members of the black race from serving on
the Jury." App. 3-4.
At a pretrial hearing on the motion, petitioner's counsel said
that his experience had been,
"and the Court is aware[,] that the district attorney and the
other assistant district attorneys have a history and a pattern
when you have a defendant who is black, of using their per-emptory
[
sic] challenges to excuse potential jurors who are also
black."
Petitioner's counsel asked the trial judge to discourage further
resort to this alleged practice by requiring
"the district attorney, if he does use his per-emptory
[
sic] challenges to excuse potential black
Page 498 U. S. 415
jurors, to justify on the record the reason for his excusing
them."
Any failure of the prosecutor to offer such a justification on
the record, petitioner's counsel argued, "would evidence the fact
that he is using [his peremptory challenges] in a discriminatory
manner." App. 10.
The prosecution opposed the motion, denying that petitioner
could prove that prosecutors in previous cases had challenged black
jurors impermissibly. "[I]n practically every trial we have in this
county," the prosecutor observed, "there are always blacks on trial
juries, and an all white jury is rare in any county." He directed
the judge's attention to this Court's decision in
Swain v.
Alabama, 380 U. S. 202
(1965), and argued that, under
Swain, "it would be an
unreasonable burden to require an attorney for either side to
justify his use of per-emptory [
sic] challenges." App.
10-11.
The trial judge responded that on "numerous or several"
occasions
"I've seen cases in which there are, have been black defendants
and the district attorney's office has struck perspective
[
sic] white jurors and left perspective [
sic]
black jurors on the jury. . . . I have seen it done, and I can't
sit here and document them, and I have not documented them, but
it's been on more than one occasion."
The trial judge concluded that he was
"taking that [observation] into consideration among other things
and denying the motion to restrict racial use of per-emptory
[
sic] challenges."
Id. at 11-12.
The trial began 10 days later. Although the jury selection on
the first day was not transcribed, it is undisputed that the
prosecution exercised 9 of its 10 peremptory challenges to strike
black prospective jurors, leaving 1 black venire member seated on
the jury. A black potential alternate juror was challenged not by
the State, but by petitioner. [
Footnote 3]
Page 498 U. S. 416
On the second day of the trial, both petitioner and respondent
made their opening statements, after which the State presented
eight witnesses before the noon recess. At the start of the
afternoon session, the trial judge called a conference in chambers
to discuss, among other things, petitioner's prior motion about
"the State's using all their strikes to strike blacks from being on
the jury." [
Footnote 4]
Although the judge noted that the State had not used all of its
peremptory challenges to strike black venire members and had left a
black person on the jury, petitioner's counsel observed for the
record that the State had used 9 of its 10 challenges to strike
black venire members. The trial judge concurred:
"That's what happened in the jury selection process. I just
think that needs to be put in, since that motion was made. Of
course, the motion has been denied . . . ."
The prosecutor asked the court whether he needed to make any
showing of the reasons he had exercised the State's challenges. The
trial judge answered that he was not asking for any, and none was
made.
Id. at 15-16.
After the jury had convicted petitioner on all counts and he had
been sentenced to death, his counsel moved for a new trial,
claiming,
inter alia, that petitioner's
"right to an impartial jury as guaranteed by Sixth Amendment to
the United States Constitution was violated by the prosecutor's
exercise of his peremptory challenges on a racial basis."
Id. at 7-8. The motion was denied.
On appeal, the Supreme Court of Georgia at one point interpreted
petitioner's claim as one
"that the prosecutor's use of peremptory strikes to remove 9 of
10 possible black jurors denied Ford his right to a jury comprised
of a fair cross-section of the community."
Although the court thereby
Page 498 U. S. 417
referred to the Sixth Amendment concept of a "fair cross-section
of the community,"
see, e.g., Taylor v. Louisiana,
419 U. S. 522,
419 U. S.
526-533 (1975), it also found that petitioner had failed
to prove the "
systematic exclusion of black jurors'" from
service, and thus alluded to the standard for establishing an equal
protection violation first described in Swain v. Alabama,
supra. Ford v. State, 255 Ga. 81, 83, 335 S.E.2d
567, 572 (1985) (quoting Moore v. State, 254 Ga. 525,
529, 330 S.E.2d
717, 721 (1985)). The court found no error, and affirmed
petitioner's conviction.
Petitioner filed his first petition for certiorari with this
Court on January 22, 1986. While it was before us, we held in
Batson v. Kentucky, 476 U. S. 79
(1986), that a black criminal defendant could make a
prima
facie case of an equal protection violation with evidence that
the prosecutor had used peremptory challenges in that case to
strike members of the defendant's race from the jury. Although we
soon held in
Allen v. Hardy, 478 U.
S. 255 (1986), that
Batson's new evidentiary
standard would not be applied retroactively on collateral review of
convictions that had reached finality before
Batson was
announced, we subsequently held in favor of the new standard's
retroactive application to all cases pending on direct review or
not yet final when
Batson was decided.
Griffith v.
Kentucky, 479 U. S. 314,
479 U. S. 328
(1987). We then granted the petition for certiorari in this case
and vacated and remanded for further consideration in light of
Griffith. Ford v. Georgia, 479 U.S. 1075 (1987).
On remand, the Supreme Court of Georgia held,
sua
sponte, without briefing or arguments from the parties, that
petitioner's equal protection claim was procedurally barred. 257
Ga. 661,
362 S.E.2d 764
(1987). The court concluded that, before his trial, petitioner had
raised a
Swain claim that was "decided adversely to him on
appeal, [and] cannot be reviewed in this proceeding." 257 Ga. at
663, 362 S.E.2d at 766. The court then suggested that a
Batson claim was "never raised at trial," 257 Ga. at 662,
362 S.E.2d at 765
Page 498 U. S. 418
(emphasis omitted), but went on to consider whether any such
claim raised either in petitioner's pretrial motion or during the
chambers conference on the second day of the trial could be treated
as timely. The court applied the state procedural rule announced in
State v. Sparks, 257 Ga. 97, 98,
355 S.E.2d
658, 659 (1987), that a
Batson claim must "be raised
prior to the time the jurors selected to try the case are sworn."
Reading
Sparks as requiring a contemporaneous objection to
a defendant's jury "after it was selected and before the trial
commenced," the court concluded that petitioner had failed make
such an objection, with the result that any
Batson claim
was barred by a valid state procedural rule. 257 Ga. at 663-664,
362 S.E.2d at 766. A dissenting opinion took issue with the court's
conclusion that petitioner "never raised a
Batson-type
claim," and with the court's application of a state procedural rule
that had not been announced when petitioner's motion was filed in
1984.
Id. at 664, 362 S.E.2d at 767.
We granted certiorari to decide whether the rule of procedure
laid down by the Supreme Court of Georgia in
Sparks was an
adequate and independent state procedural ground that would bar
review of petitioner's
Batson claim. 495 U.S. 903
(1990).
II
A
The threshold issues are whether and, if so, when petitioner
presented the trial court with a cognizable
Batson claim
that the State's exercise of its peremptory challenges rested on
the impermissible ground of race in violation of the Equal
Protection Clause of the Fourteenth Amendment. We think petitioner
must be treated as having raised such a claim, although he
certainly failed to do it with the clarity that appropriate
citations would have promoted. The pretrial motion made no mention
of the Equal Protection Clause, and the later motion for a new
trial cited the Sixth Amendment, not the Fourteenth.
Page 498 U. S. 419
The pretrial motion did allege, however, that the prosecution
had engaged in a pattern of excluding black persons from juries
"over a long period of time," and petitioner argued to this effect
at the hearing on this motion as well as at the hearing on his
motion for a new trial. This allegation could reasonably have been
intended and interpreted to raise a claim under the Equal
Protection Clause on the evidentiary theory articulated in
Batson's antecedent,
Swain v. Alabama,
380 U. S. 202
(1965). The Court in
Swain recognized that an equal
protection violation occurs when the state uses its peremptory
challenges for the purpose of excluding members of a black
defendant's race from his petit jury,
id. at
380 U. S. 209;
Batson v. Kentucky, supra, 476 U.S. at
476 U. S. 90;
but
Swain also established a rigorous standard for proving
such a violation, holding it
"permissible to insulate from inquiry the removal of Negroes
from a particular jury on the assumption that the prosecutor is
acting on acceptable considerations related to the case he is
trying. . . ."
380 U.S. at
380 U. S. 223.
That assumption could not be overcome, and the state required to
justify its use of peremptory challenges in a particular case,
without proof that the prosecutor,
"in case after case, whatever the circumstances, whatever the
crime and whoever the defendant or the victim . . . [, was]
responsible for the removal of Negroes who ha[d] been selected as
qualified jurors by the jury commissioners and who ha[d] survived
challenges for cause, with the result that no Negroes ever serve on
petit juries."
Id. at
380 U. S.
223-224.
Our interpretation of petitioner's reference to a pattern of
excluding black venire members "over a long period of time" as the
assertion of a
Swain claim was, in fact, adopted in the
Georgia courts. The prosecutor himself cited
Swain to the
trial court in opposing the pretrial motion; the trial judge
clearly implicated
Swain in ruling that petitioner had
failed to prove the systematic exclusion of blacks from petit
juries; and the second opinion of the Supreme Court of Georgia in
this case explicitly stated that petitioner had raised a
Swain
Page 498 U. S. 420
claim, upon the merits of which he had lost on his first appeal.
257 Ga. at 663, 362 S.E.2d at 765-766.
The State, indeed, concedes that petitioner properly raised a
Swain claim in his pretrial motion, Tr. of Oral Arg. 40,
but in proceeding to argue that the motion was insufficient to
raise a claim under
Batson, the State assumes a
distinction between the holdings in those two cases that does not
exist. Both
Swain and
Batson recognized that a
purposeful exclusion of members of the defendant's race from the
jury selected to try him would work a denial of equal protection.
To prevail on such an equal protection claim under
Swain,
as just noted, this Court indicated that a defendant must show a
pattern of racial discrimination in prior cases, as well as in his
own. Because the petitioner in
Swain had failed to prove
purposeful racial discrimination in prior instances of jury
selection, we held that he had "not laid the proper predicate for
attacking the peremptory strikes as they were used in [his] case."
380 U.S. at
380 U. S. 226.
Batson dropped the
Swain requirement of proof of
prior discrimination, holding it possible for a defendant to make
out a
prima facie equal protection violation entirely by
reference to the prosecution's use of peremptory challenges in the
circumstances of the defendant's own case. 476 U.S. at
476 U. S.
92-98.
Because
Batson did not change the nature of the
violation recognized in
Swain, but merely the quantum of
proof necessary to substantiate a particular claim, it follows that
a defendant alleging a violation of equal protection of the law
under
Swain necessarily states an equal protection
violation subject to proof under the
Batson standard of
circumstantial evidence as well. Thus, from the determination by
the Supreme Court of Georgia that petitioner raised a claim under
Swain, it follows that he raised an equal protection claim
subject to the more lenient burden of proof laid down in
Batson. [
Footnote
5]
Page 498 U. S. 421
B
We now face the question whether Georgia can bar consideration
of that
Batson claim as untimely raised. If we were to
focus only on the fact of the state court's conclusion that
petitioner had raised a
Swain claim, the issue of the
Batson claim's timeliness under state law could be
resolved with the simplicity of a syllogism. Under Georgia
precedent, its Supreme Court will review a constitutional claim on
the merits only if the record is clear that the claim "was directly
and
properly made in the court below and distinctly passed
upon by the trial judge."
Atlanta v. Columbia Pictures
Corp., 218 Ga. 714, 719, 130 S.E.2d 490, 494 (1963) (emphasis
added). The fact that the court reviewed petitioner's
Swain claim on the merits, as noted in the court's second
opinion, therefore presupposes the claim's timeliness. Because
Batson
Page 498 U. S. 422
merely modified the allegations and evidence necessary to raise
and prove the equal protection claim in question, it would be
reasonable to conclude that the state court's concession of
timeliness under
Swain must govern its treatment of the
Batson claim as well.
The Supreme Court of Georgia, nonetheless, rested its contrary
conclusion on the rule announced in
State v. Sparks, that
"hereafter, any claim under
Batson should be raised prior
to the time the jurors selected to try the case are sworn." 257 Ga.
at 98, 355 S.E.2d at 659. Although this language clearly sets the
time after which a
Batson claim would be too late, it did
not so clearly set a time before which such a claim would be
premature. The second Georgia opinion in this case, however, makes
it obvious that the court understood
Sparks to require an
objection to be raised after the jurors are chosen. Thus, the court
noted that petitioner made "no contemporaneous objection to the
composition of the jury as selected," 257 Ga. at 663, 362 S.E.2d at
766, and "no objection to the composition of the jury after it was
selected and before the trial commenced."
Id. at 664, 362
S.E.2d at 766. We assume that these observations by the court
announced no new refinement of
Sparks, but merely
reflected the better reading of its opinion as originally written.
In any event, the Georgia court regarded
Sparks as so
interpreted to be a "valid state procedural bar" to petitioner's
claim, citing our decision in
Wainwright v. Sykes,
433 U. S. 72
(1977), thus apparently deciding the federal question whether the
Sparks procedural rule bars federal review of petitioner's
claim. [
Footnote 6]
The requirement that any
Batson claim be raised not
only before trial, but in the period between the selection of the
jurors and the administration of their oaths, is a sensible
rule.
Page 498 U. S. 423
The imposition of this rule is nevertheless subject to our
standards for assessing the adequacy of independent state
procedural grounds to bar all consideration of claims under the
national Constitution. A review of these standards reveals the
inadequacy of Georgia's rule in
Sparks to foreclose
consideration of the
Batson claim in this case.
The appropriateness in general of looking to local rules for the
law governing the timeliness of a constitutional claim is, of
course, clear. In
Batson itself, for example, we imposed
no new procedural rules and declined either "to formulate
particular procedures to be followed upon a defendant's timely
objection to a prosecutor's challenges," or to decide when an
objection must be made to be timely. 476 U.S. at
476 U. S.
99-100. Instead, we recognized that local practices
would indicate the proper deadlines in the contexts of the various
procedures used to try criminal cases, and we left it to the trial
courts, with their wide "variety of jury selection practices," to
implement
Batson in the first instance.
Id. at
476 U. S. 99, n.
24. Undoubtedly, then, a state court may adopt a general rule that
a
Batson claim is untimely if it is raised for the first
time on appeal, or after the jury is sworn, or before its members
are selected.
In any given case, however, the sufficiency of such a rule to
limit all review of a constitutional claim itself depends upon the
timely exercise of the local power to set procedure.
"Novelty in procedural requirements cannot be permitted to
thwart review in this Court applied for by those who, in justified
reliance upon prior decisions, seek vindication in state courts of
their federal constitutional rights."
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449,
357 U. S.
457-458 (1958). In the
NAACP case, we declined
to apply a state procedural rule, even though the rule appeared "in
retrospect to form part of a consistent pattern of procedures,"
because the defendant in that case could not be "deemed to have
been apprised of its existence."
Id. at
357 U. S. 457.
In
James v. Kentucky, 466 U. S. 341
(1984), we held that only a "firmly established
Page 498 U. S. 424
and regularly followed state practice" may be interposed by a
State to prevent subsequent review by this Court of a federal
constitutional claim.
Id. at 348-351;
see also Barr v.
City of Columbia, 378 U. S. 146,
378 U. S. 149
(1964) (state procedural rules "not strictly or regularly followed"
may not bar our review);
NAACP v. Alabama ex rel. Flowers,
377 U. S. 288,
377 U. S. 297
(1964) (procedural rule no bar to our review when state court had
never applied it with the "pointless severity shown here").
The Supreme Court of Georgia's application of its decision in
Sparks to the case before us does not even remotely
satisfy the requirement of
James that an adequate and
independent state procedural bar to the entertainment of
constitutional claims must have been "firmly established and
regularly followed" by the time as of which it is to be applied. At
the time of petitioner's trial, Georgia's procedural law was just
what it was when the
Sparks defendant was tried, for
Sparks was decided more than two years after petitioner in
this case filed his motion on the prosecution's use of peremptory
challenges and long after petitioner's trial was over. When
petitioner filed his pretrial motion, he was subject to the same
law that had allowed the defendant in
Sparks to object
even after the jury had been sworn. The very holding in
Sparks was that the defendant was not procedurally barred
from raising a
Batson claim after the jury had been sworn
and given preliminary instructions, and after the trial court had
held a lengthy hearing on an unrelated matter. The court
entertained the claim as having been raised "relatively promptly"
because no prior decision of the Supreme Court of Georgia had
required an earlier objection.
To apply
Sparks retroactively to bar consideration of a
claim not raised between the jurors' selection and oath would
therefore apply a rule unannounced at the time of petitioner's
trial and consequently inadequate to serve as an independent state
ground within the meaning of
James. Indeed, the Georgia
court itself in
Sparks disclaimed any such effect for
Page 498 U. S. 425
that decision. It was only as to cases tried "
hereafter
[that] any claim under
Batson should be raised prior to
the time the jurors selected to try the case are sworn." 257 Ga. at
98, 355 S.E.2d at 659 (emphasis added). This case was not tried
"hereafter," and the rule announced prospectively in
Sparks would not, even by its own terms, apply to
petitioner's case. Since the rule was not firmly established at the
time in question, there is no need to dwell on the further point
that the state court's inconsistent application of the rule in the
petitioner's case and
Sparks would also fail the second
James requirement that the state practice have been
regularly followed. [
Footnote
7]
III
The Supreme Court of Georgia erred both in concluding that
petitioner's allegation of an equal protection violation under
Swain failed to raise a
Batson claim and in
apparently relying on
Wainwright v. Sykes, 433 U. S.
72 (1977). The
Sparks rule, adopted long after
petitioner's trial, cannot bar federal judicial review of
petitioner's equal protection claim. The judgment below is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The indictment included five counts: murder (count l); rape
(count 2); kidnaping (count 3) armed robbery (count 4); and
burglary (count 5).
[
Footnote 2]
Petitioner's motion, filed on October 9, 1984, reads:
"Now comes JAMES FORD, the Defendant in the above styled action,
and moves the Court to restrict the Prosecution from using its
peremptory challenges in a racially biased manner that would
exclude members of the black race from serving on the Jury. In
support of this Motion the Defendant shows:"
"
1"
"The Prosecutor has over a long period of time excluded members
of the black race from being allowed to serve on the Jury where the
issues to be tried involve members of the opposite race."
"
2"
"This case involves a black accused and the victim is a member
of the white race."
"
3"
"It is anticipated that the Prosecutor will continue his long
pattern of racial discrimination in the exercise of his peremptory
strikes."
"
4"
"The exclusion of members of the black race in the Jury when a
black accused is being tried is done in order that the accused will
receive excessive punishment if found guilty, or to inject racial
prejudice into the fact finding process of the jury.
See McCray
vs. New York, [461 U.S. 961].
Taylor vs. Louisana
[sic
], 419 U. S. 522 (1975)."
App. 3-4.
[
Footnote 3]
By statute, Georgia allots 20 peremptory challenges to "[e]very
person indicted for a crime or offense which may subject him to
death or to imprisonment for not less than four years." Ga.Code
Ann. ยง 15-12-165 (1990). The State is allotted 10 peremptory
challenges in such cases.
Ibid.
[
Footnote 4]
Petitioner and respondent disagree on whether, at the time of
jury selection, petitioner renewed his motion alleging the
prosecution's use of racially discriminatory peremptory challenges.
Its renewal during jury selection is not a fact necessary to our
decision, and we there fore assume for purposes of discussion that
petitioner did not press the motion again.
[
Footnote 5]
The Supreme Court of Georgia's second opinion includes the
statement that petitioner's "pretrial motion was not an objection
to the jury as selected." 257 Ga. 661, 663,
362 S.E.2d
764, 766 (1987). This suggests the possibility that the state
court did not read
Swain v. Alabama, 380 U.
S. 202 (1965), as requiring an objection to the
particular jury selected to try the objecting defendant, and raises
the question whether the Supreme Court of Georgia might now hold
that petitioner's objection was insufficiently specific to his own
jury to raise either a
Swain or a
Batson v.
Kentucky, 476 U. S. 79
(1986), claim. We think such a reading of petitioner's motion and
the proceedings below would be as impermissible as a reading of
Swain without the requirement of proving discrimination in
the selection of an objecting defendant's own jury.
Swain
described a defendant's burden to prove systematic discrimination
as a predicate to attacking the use of peremptory challenges in his
own case, 380 U.S. at
380 U. S. 226,
and the anticipation of unconstitutional challenges in his own case
was the focus of petitioner's pretrial motion. What petitioner did
not, and could not, do by anticipatory objection was allege the
exact number of impermissible challenges or any other details of
the jury selection that might support an inference of
discriminatory purpose. But the State has never argued that the
pretrial motion, which correctly anticipated challenges to a
substantial proportion of the black venire members, was inadequate
for either or both of these reasons. The State has, in fact,
conceded that the trial judge was not misled into thinking that
petitioner objected to anything other than the use of racially
discriminatory peremptory challenges in the selection of the jury
in this case. Tr. of Oral Arg. 31-32.
[
Footnote 6]
We do not read the opinion of the Supreme Court of Georgia as
announcing a refusal to entertain the
Batson claim in the
Georgia courts in the event of our holding that a claim was raised
and is open to federal consideration.
[
Footnote 7]
The defendant in
State v. Sparks, 257 Ga. 97,
355 S.E.2d 658
(1987), was in an even less compelling posture than petitioner in
this case because the
Sparks defendant did not raise his
claim before trial, as did petitioner here. Thus, petitioner
asserted his objection more promptly than the defendant in
Sparks at a time when there was no special rule in Georgia
on when a
Batson-type claim must be raised.