NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
TIMOTHY TYRONE FOSTER, PETITIONER v.
BRUCE CHATMAN, WARDEN
on writ of certiorari to the supreme court of georgia
[May 23, 2016]
Chief Justice Roberts delivered the opinion of the Court.
Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State’s use of those strikes was racially motivated, in violation of our decision in Batson
476 U. S. 79 (1986)
. The trial court and the Georgia Supreme Court rejected Foster’s Batson
Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson
objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.
On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. Foster
, 258 Ga. 736, 374 S. E. 2d 188 (1988).
District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire
of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 “qualified” prospective jurors. Five were black.
In the second phase, known as the “striking of the jury,” both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. §15–12–165 (1985). The process worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State declined to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted.
The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.
The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson
challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death.
Following sentencing, Foster renewed his Batson
claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and we denied certiorari, Foster
490 U. S. 1085 (1989)
Foster subsequently sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, again pressing his Batson
claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act, see Ga. Code Ann. §§50–18–70 to 50–18–77 (2002), seeking access to the State’s file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State’s objections, the state habeas court admitted those documents into evidence. They included the following:
(1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” See, e.g.
, App. 253. The letter “B” also appeared next to each black prospective juror’s name. See, e.g., ibid
. According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney’s office during jury selection. That allowed “everybody in the office”—approximately “10 to 12 people,” including “[s]ecretaries, investigators, [and] district attorneys”—to look at them, share information, and contribute thoughts on whether the prosecution should strike a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified, were returned to Lanier before jury selection. Id.,
(2) A draft of an affidavit that had been prepared by Lundy “at Lanier’s request” for submission to the state trial court in response to Foster’s motion for a new trial. Id.,
at 203. The typed draft detailed Lundy’s views on ten black prospective jurors, stating “[m]y evaluation of the jurors are a[s] follows.” App. 343. Under the name of one of those jurors, Lundy had written:
“If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors.” Id
at 345 (paragraph break omitted).
That text had been crossed out by hand; the version of the affidavit filed with the trial court did not contain the crossed-out language. See id
., at 127–129. Lundy testified that he “guess[ed]” the redactions had been done by Lanier. Tr. 203.
(3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as “B#1,” “B#2,” and “B#3,” respectively. App. 295–297. Lundy testified that these were examples of the type of “notes that the team—the State would take down during voir dire to help select the jury in Mr. Foster’s case.” Tr. 208–210.
(4) A typed list of the qualified jurors remaining after voir dire
. App. 287–290. It included “Ns” next to ten jurors’ names, which Lundy told the state habeas court “signif[ied] the ten jurors that the State had strikes for during jury selection.” Tr. 211. Such an “N” appeared alongside the names of all five qualified black prospective jurors. See App. 287–290. The file also included a handwritten version of the same list, with the same markings. Id
., at 299–300; see Tr. 212. Lundy testified that he was unsure who had prepared or marked the two lists.
(5) A handwritten document titled “definite NO’s,” listing six names. The first five were those of the five qualified black prospective jurors. App. 301. The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was “used for preparation in jury selection.” Tr. 215; Tr. of Oral Arg. 45.
(6) A handwritten document titled “Church of Christ.” A notation on the document read: “NO
. No Black
Church.” App. 302.
(7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror’s response indicating his or her race had been circled. Id.,
at 311, 317, 323, 329, 334.
In response to the admission of this evidence, the State introduced short affidavits from Lanier and Pullen. Lanier’s affidavit stated:
“I did not make any of the highlighted marks on the jury venire list. It was common practice in the office to highlight in yellow those jurors who had prior case experience. I did not instruct anyone to make the green highlighted marks. I reaffirm my testimony made during the motion for new trial hearing as to how I used my peremptory jury strikes and the basis and reasons for those strikes.” Id.
, at 169 (paragraph numeral omitted).
Pullen’s affidavit averred:
“I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. I did not rely on the highlighted jury venire list in making my decision on how to use my peremptory strikes.” Id
., at 170–171 (paragraph numeral omitted).
Neither affidavit provided further explanation of the documents, and neither Lanier nor Pullen testified in the habeas proceeding.
After considering the evidence, the state habeas court denied relief. The court first stated that, “[a]s a preliminary matter,” Foster’s Batson
claim was “not reviewable based on the doctrine of res judicata” because it had been “raised and litigated adversely to [Foster] on his direct appeal to the Georgia Supreme Court.” App. 175. The court nonetheless announced that it would “mak[e] findings of fact and conclusions of law” on that claim. Id.,
at 191. Based on what it referred to as a “Batson
. . .
analysis,” the court concluded that Foster’s “renewed Batson
claim is without merit,” because he had “fail[ed] to demonstrate purposeful discrimination.” Id.,
at 192, 195, 196.
The Georgia Supreme Court denied Foster the “Certificate of Probable Cause” necessary under state law for him to pursue an appeal, determining that his claim had no “arguable merit.” Id.
, at 246; see Ga. Code Ann. §9–14–52 (2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari. 575 U. S. ___ (2015).
Before turning to the merits of Foster’s Batson
claim, we address a threshold issue. Neither party contests our jurisdiction to review Foster’s claims, but we “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh
v. Y & H Corp.
546 U. S. 500,
This Court lacks jurisdiction to entertain a federal claim on review of a state court judgment “if that judgment rests on a state law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris
489 U. S. 255,
The state habeas court noted that Foster’s Batson
claim was “not reviewable based on the doctrine of res judicata” under Georgia law. App. 175. The Georgia Supreme Court’s unelaborated order on review provides no reasoning for its decision.[1
] That raises the question whether the Georgia Supreme Court’s order—the judgment from which Foster sought certiorari[2
]—rests on an adequate and independent state law ground so as to preclude our jurisdiction over Foster’s federal claim.
We conclude that it does not. When application of a state law bar “depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our jurisdiction is not precluded.” Ake
470 U. S. 68,
; see also Three Affiliated Tribes of Fort Berthold Reservation
v. Wold Engineering, P. C.
467 U. S. 138,
In this case, the Georgia habeas court’s analysis in the section of its opinion labeled “Batson
claim” proceeded as follows:
“The [State] argues that this claim is not reviewable due to the doctrine of res judicata. However, because [Foster] claims that additional evidence allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court’s ruling [on direct appeal], this court will review the Batson
claim as to whether [Foster] has shown any change in the facts sufficient to overcome the res judicata bar.” App. 192.
To determine whether Foster had alleged a sufficient “change in the facts,” the habeas court engaged in four pages of what it termed a “Batson
. . . analysis,” in which it evaluated the original trial record and habeas record, including the newly uncovered prosecution file. Id.,
at 192–196. Ultimately, that court concluded that Foster’s “renewed Batson
claim is without merit
at 196 (emphasis added).
In light of the foregoing, it is apparent that the state habeas court’s application of res judicata to Foster’s Batson
claim was not independent of the merits of his federal constitutional challenge.[3
] That court’s invocation of res judicata therefore poses no impediment to our review of Foster’s Batson
claim. See Ake
, 470 U. S., at 75.[4
The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder
552 U. S. 472,
(internal quotation marks omitted). Our decision in Batson
476 U. S. 79
, provides a three-step process for determining when a strike is discriminatory:
“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder
, 552 U. S., at 476–477 (internal quotation marks and brackets omitted).
Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson
’s third step. That step turns on factual determinations, and, “in the absence of exceptional circumstances,” we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder
, 552 U. S., at 477.
Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution’s file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a “certif[ied] . . . true and correct copy of 103 pages of the State’s case file” from his 1987 trial. App. 247. The State argues that “because [Foster] did not call either of the prosecutors to the stand” to testify in his state habeas proceedings, “he can only speculate as to the meaning of various markings and writings” on thosepages, “the author of many of them, and whether the twoprosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them.” Brief for Respondent 20. For these reasons, the State argues, “none of the specific pieces of new evidence [found in the file] shows an intent to discriminate.” Ibid.
(capitalization omitted). For his part, Foster argues that “[t]here is no question that the prosecutors used the lists and notes, which came from the prosecution’s file and were certified as such,” and therefore the “source of the lists and notes, their timing, and their purpose is hardly ‘unknown’ or based on ‘conjecture.’ ” Reply Brief 4–5 (quoting Brief for Respondent 27–28).
The State concedes that the prosecutors themselves authored some documents, see, e.g.
, Tr. of Oral Arg. 45 (admitting that one of the two prosecutors must have written the list titled “definite NO’s”), and Lundy’s testimony strongly suggests that the prosecutors viewed others, see, e.g.
, Tr. 220 (noting that the highlighted jury venire lists were returned to Lanier prior to jury selection). There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as “B#1,” “B#2,” and “B#3.” Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving “a determination as to what weight the Court is going to put on any of [them]” in light of the objections urged by the State. 1 Record 20.
We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence. We have “made it clear that in considering a Batson
objection, or in reviewing a ruling claimed to be Batson
error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder,
552 U. S., at 478. As we have said in a related context, “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . . evidence of intent as may be available.” Arlington Heights
v. Metropolitan Housing Development Corp.
429 U. S. 252,
. At a minimum, we are comfortable that all documents in the file were authored by someone
in the district attorney’s office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value.
Foster centers his Batson
claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett. Rather, he decided to strike her only after learning that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause that morning.
Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. Specifically, Lanier objected to Garrett because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire
; (3) gave short and curt answers during voir dire
; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failedto disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service. See App. 55–57 (pretrial hearing); id.
, at 93–98, 105, 108, 110–112 (new trial hearing); Record in No. 45609 (Ga. 1988), pp. 439–440 (hereinafter Trial Record) (brief in opposition to new trial).
The trial court accepted Lanier’s justifications, concluding that “[i]n the totality of circumstances,” there was “no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons” for the strike. App. 143. On their face, Lanier’s justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact.
Lanier’s misrepresentations to the trial court began with an elaborate explanation of how he ultimately came to strike Garrett:
“[T]he prosecution considered this juror [to have] the most potential to choose from out of the four remaining blacks in the 42 [member] panel venire. However, a system of events took place on the morning of jury selection that caused the excusal of this juror. The [S]tate had, in his jury notes, listed this juror as questionable
. The four negative challenges were allocated for Hardge, Hood, Turner and Powell. . . . But on the morning of jury selection, Juror Powell was excused for cause with no objections by [d]efense counsel. She was replaced by Juror Cadle [who] was acceptable to the State. This left the State with an additional strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable
jurors the State had left on the list.” Trial Record 438–440 (brief in opposition to new trial) (emphasis added and citations omitted).
Lanier then offered an extensive list of reasons for striking Garrett and explained that “[t]hese factors, with no reference to race, were considered by the prosecutor in this particular case to result in a juror less desirable from the prosecutor’s viewpoint than Juror Blackmon.” Id.,
Lanier then compared Blackmon to Garrett. In contrast to Garrett, Juror Blackmon
“was 46 years old, married 13 years to her husband who works at GE, buying her own home and [was recommended by a third party to] this prosecutor. She was no longer employed at Northwest Georgia Regional Hospital and she attended Catholic church on an irregular basis. She did not hesitate when answering the questions concerning the death penalty, had good eye contact with the prosecutor and gave good answers on the insanity issue. She was perceived by the prosecutor as having a stable home environment, of the right age and no association with any disadvantaged youth organizations.” Ibid.
Lanier concluded that “the chances of [Blackmon] returning a death sentence were greater when all these factors were considered than Juror Garrett. Consequently, Juror Garrett was excused.” Ibid.
The trial court accepted this explanation in denying Foster’s motion for a new trial. See App. 142–143. But the predicate for the State’s account—that Garrett was “listed” by the prosecution as “questionable,” making that strike a last-minute race-neutral decision—was false.
During jury selection, the State went first. As a consequence, the defense could accept any prospective juror not struck by the State without any further opportunity for the State to use a strike against that prospective juror. Accordingly, the State had to “pretty well select the ten specific people [it] intend[ed] to strike” in advance. Id.
, at 83 (pretrial hearing); accord, ibid.
(“[T]he ten people that we felt very uncomfortable with, we have to know up front.” (Lanier testimony)). The record evidence shows that Garrett was one of those “ten specific people.”
That much is evident from the “definite NO’s” list in the prosecution’s file. Garrett’s name appeared on that list, which the State concedes was written by one of the prosecutors. Tr. of Oral Arg. 45. That list belies Lanier’s assertion that the State considered allowing Garrett to serve. The title of the list meant what it said: Garrett was a “definite
NO.” App. 301 (emphasis added). The State from the outset was intent on ensuring that none
of the jurors
on that list would serve.
The first five names on the “definite NO’s” list were Eddie Hood, Evelyn Hardge, Shirley Powell, Marilyn Garrett, and Mary Turner. All were black. The State struck each one except Powell (who, as discussed, was excused for cause at the last minute—though the prosecution informed the trial court that the “State was not, under any circumstances, going to take [Powell],” Trial Record 439 (brief in opposition to new trial)). Only in the number six position did a white prospective juror appear, and she had informed the court during voir dire
that she could not “say positively” that she could impose the death penalty even if the evidence warranted it. 6 Tr. in No. 86–2218–2 (Super. Ct. Floyd Cty., Ga., 1987), p. 1152 (hereinafter Trial Transcript); see also id.,
at 1153–1158. In short, contrary to the prosecution’s submissions, the State’s resolve to strike Garrett was never in doubt. See also App. 290 (“N” appears next to Garrett’s name on juror list); id.,
at 300 (same).
The State attempts to explain away the contradiction between the “definite NO’s” list and Lanier’s statements to the trial court as an example of a prosecutor merely “misspeak[ing].” Brief for Respondent 51. But this was not some off-the-cuff remark; it was an intricate story expounded by the prosecution in writing, laid out over three single-spaced pages in a brief filed with the trial court.
Moreover, several of Lanier’s reasons for why
he chose Garrett over Blackmon are similarly contradicted by the record. Lanier told the court, for example, that he struck Garrett because “the defense did not ask her questions about” pertinent trial issues such as her thoughts on “insanity” or “alcohol,” or “much questions on publicity.” App. 56 (pretrial hearing). But the trial transcripts reveal that the defense asked her several questions on all three topics. See 5 Trial Transcript 955–956 (two questions on insanity and one on mental illness); ibid.
(four questions on alcohol); id.,
at 956–957 (five questions on publicity).
Still other explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. App. 56 (pre-trial hearing). But he declined to strike three out of the four prospective white jurors who were also divorced. SeeJuror Questionnaire in No. 86–2218–2 (Super. Ct. Floyd Cty., Ga., 1987) (hereinafter Juror Questionnaire), for Juror No. 23, p. 2 (juror Coultas, divorced); id.
, No. 33, p. 2 (juror Cochran, divorced); id.
, No. 107, p. 2 (juror Hatch, divorced); App. 23–24, 31 (State accepting jurors Coultas, Cochran, and Hatch). Additionally, Lanier claimed that he struck Garrett because she was too young, and the “State was looking for older jurors that would not easily identify with the defendant.” Trial Record 439; see App. 55 (pretrial hearing). Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. See Trial Record 439; Juror Questionnaire No. 4, p. 1; id.
, No. 10, p. 1; id.
, No. 23, p. 1; id.
, No. 48, p. 1; id.
, No. 70, p. 1; id.
, No. 71, p. 1; id.
, No. 92, p. 1; id.
, No. 106, p. 1; see App. 22–31. Two of those white jurors served on the jury; one of those two was only 21 years old. See id.,
Lanier also explained to the trial court that he struck Garrett because he “felt that she was less than truthful” in her answers in voir dire
at 108 (new trial hearing). Specifically, the State pointed the trial court to the following exchange:
“[Court]: Are you familiar with the neighborhood where [the victim] lived, North Rome?
“[Garrett]: No.” 5 Trial Transcript 950–951.
Lanier, in explaining the strike, told the trial court that in apparent contradiction to that exchange (which represented the only time that Garrett was asked about the topic during voir dire
), he had “noted that [Garrett] attended Main High School, which is only two blocks from where [the victim] lived and certainly in the neighborhood. She denied any knowledge of the area.” Trial Record 439 (brief in opposition to new trial).
We have no quarrel with the State’s general assertion that it “could not trust someone who gave materially untruthful answers on voir dire.” Foster
, 258 Ga., at 739, 374 S. E. 2d, at 192. But even this otherwise legitimate reason is difficult to credit in light of the State’s acceptance of (white) juror Duncan. Duncan gave practically the same answer as Garrett did during voir dire
“[Court]: Are you familiar with the neighborhood in which [the victim] live[d]?
“[Duncan]: No. I live in Atteiram Heights, but it’s not—I’m not familiar with up there, you know.” 5 Trial Transcript 959.
But, as Lanier was aware, Duncan’s “residence [was] less than a half a mile from the murder scene” and her workplace was “located less than 250 yards” away. Trial Record 430 (brief in opposition to new trial).
In sum, in evaluating the strike of Garrett, we are not faced with a single isolated misrepresentation.
We turn next to the strike of Hood. According to Lanier, Hood “was exactly what [the State] was looking for in terms of age, between forty and fifty, good employment and married.” App. 44 (pretrial hearing). The prosecution nonetheless struck Hood, giving eight reasons for doing so. Hood: (1) had a son who was the same age as the defendant and who had previously been convicted of a crime; (2) had a wife who worked in food service at the local mental health institution; (3) had experienced food poisoning during voir dire
; (4) was slow in responding to death penalty questions; (5) was a member of the Church of Christ; (6) had a brother who counseled drug offenders; (7) was not asked enough questions by the defense during voir dire
; and (8) asked to be excused from jury service. See id.
, at 44–47; id.
, at 86, 105, 110–111 (new trial hearing); Trial Record 433–435 (brief in opposition to new trial). An examination of the record, however, convinces us that many of these justifications cannot be credited.
As an initial matter, the prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual. In response to Foster’s pre-trial Batson
challenge, District Attorney Lanier noted all eight reasons, but explained:
“The only thing I was concerned about
, and I will state it for the record. He has an eighteen year old son which is about the same age as the defendant.
“In my experience prosecuting over twenty-five murder cases . . . individuals having the same son as [a] defendant who is charged with murder [have] serious reservations and are more sympathetic and lean toward that particular person.
“It is ironic that his son, . . . Darrell Hood[,] has been sentenced . . . by the Court here, to theft by taking on April 4th, 1982. . . . [T]heft by taking is basi-cally the same thing that this defendant is chargedwith.” App. 44–45 (pretrial hearing; emphasis added).
But by the time of Foster’s subsequent motion for a new trial, Lanier’s focus had shifted. He still noted the similarities between Hood’s son and Foster, see id.
, at 105 (new trial hearing), but that was no longer the key reason behind the strike. Lanier instead told the court that his paramount concern was Hood’s membership in the Church of Christ: “The Church of Christ people, while they may not take a formal stand against the death penalty, they are very, very reluctant to vote for the death penalty.” Id.
, at 84 (new trial hearing); accord, Trial Record 434–435 (“It is the opinion of this prosecutor that in a death penalty case, Church of Christ affiliates are reluctant to return a verdict of death.” (brief in opposition to new trial)). Hood’s religion, Lanier now explained, was the most important factor behind the strike: “I evaluated the whole Eddie Hood. . . . And the bottom line
on Eddie Hood is the Church of Christ affiliation.” App. 110–111 (new trial hearing; emphasis added).
Of course it is possible that Lanier simply misspoke in one of the two proceedings. But even if that were so, we would expect at least one
of the two purportedly principal justifications for the strike to withstand closer scrutiny. Neither does.
Take Hood’s son. If Darrell Hood’s age was the issue, why did the State accept (white) juror Billy Graves, who had a 17-year-old son? Juror Questionnaire No. 31, p. 3; see App. 24. And why did the State accept (white) juror Martha Duncan, even though she had a 20-year-old son? Juror Questionnaire No. 88, p. 3; see App. 30.
The comparison between Hood and Graves is particu-larly salient. When the prosecution asked Hood if Foster’sage would be a factor for him in sentencing, he answered “None whatsoever.” Trial Transcript 280. Graves, on the other hand, answered the same question “probably so.” Id.
, at 446. Yet the State struck Hood and accepted Graves.
The State responds that Duncan and Graves were not similar to Hood because Hood’s son had been convicted of theft, while Graves’s and Duncan’s sons had not. See Brief for Respondent 34–35; see also App. 135–136 (“While the defense asserts that the state used different standards for white jurors, insofar as many of them had children near the age of the Defendant, the Court believes that [Darrell Hood’s] conviction is a distinction that makes the difference.” (trial court opinion denying new trial)). Lanier had described Darrell Hood’s conviction to the trial court as being for “basically the same thing that this defendant is charged with.” Id.
, at 45 (pretrial hearing). Nonsense. Hood’s son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier. Trial Record 446. Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault. The “implausible” and “fantastic” assertion that the two had been charged with “basically the same thing” supports our conclusion that the focus on Hood’s son can only be regarded as pretextual. Miller
537 U. S. 322,
; see also ibid
. (“Credibility can be measured by, among other factors, . . . how reasonable, or how improbable, the [State’s] explanations are.”).
The prosecution’s second principal justification for striking Hood—his affiliation with the Church of Christ, and that church’s alleged teachings on the death penalty—fares no better. Hood asserted no fewer than four times during voir dire
that he could impose the death penalty.[5
] A prosecutor is entitled to disbelieve a juror’s voir dire
answers, of course. But the record persuades us that Hood’s race, and not his religious affiliation, was Lanier’s true motivation.
The first indication to that effect is Lanier’s mischaracterization of the record. On multiple occasions, Lanier asserted to the trial court that three white prospective jurors who were members of the Church of Christ had been struck for cause due to their opposition to the death penalty. See App. 46 (“[Hood’s] religious preference is Church of Christ. There have been [three] other jurors that have been excused for cause by agreement that belong to the Church of Christ, Juror No. 35, 53, and 78.” (pretrial hearing)); id.,
at 114 (“Three out of four jurors who professed to be members of the Church of Christ, went off for [cause related to opposition to the death penalty].” (new trial hearing)); Trial Record 435 (“Church of Christ jurors Terry (#35), Green (#53), and Waters (#78) [were] excused for cause due to feeling[s] against the death penalty.” (brief in opposition to new trial)).
That was not true. One of those prospective jurors was excused before even being questioned during voir dire
because she was five-and-a-half months pregnant. 5 Trial Transcript 893. Another was excused by the agreement of both parties because her answers on the death penalty made it difficult to ascertain her precise views on capital punishment. See Brief for Respondent 39 (“[I]t was entirely unclear if [this juror] understood any of the trial court’squestions and her answers are equivocal at best.”). And the judge found cause to dismiss the third because she had already formed an opinion about Foster’s guilt. See 3 Trial Transcript 558 (“[Court]: And you have made up your mind already as to the guilt of the accused? A: Yes, sir. [Court]: I think that’s cause.”).
The prosecution’s file fortifies our conclusion that any reliance on Hood’s religion was pretextual. The file contains a handwritten document titled “Church of Christ.” The document notes that the church “doesn’t take a stand on [the] Death Penalty,” and that the issue is “left for each individual member.” App. 302. The document then states: “NO
. NO Black
. The State tries to downplay the significance of this document by emphasizing that the document’s author is unknown. That uncertainty is pertinent. But we think the document is nonetheless entitled to significant weight, especially given that it is consistent with our serious doubts about the prosecution’s account of the strike.
Many of the State’s secondary justifications similarly come undone when subjected to scrutiny. Lanier told the trial court that Hood “appeared to be confused and slow in responding to questions concerning his views on the death penalty.” Trial Record 434 (brief in opposition to new trial). As previously noted, however, Hood unequivocally voiced his willingness to impose the death penalty, and a white juror who showed similar confusion served on the jury. Compare 5 Trial Transcript 1100–1101 (white juror Huffman’s answers) with 2 id.,
at 269–278 (Hood’s answers); see App. 35. According to the record, such confusion was not uncommon. See id.,
at 138 (“The Court notes that [Hood’s] particular confusion about the death penalty questions was not unusual.”); accord, 5 Trial Transcript 994 (“[Court]: I think these questions should be reworded. I haven’t had a juror yet that understood what that meant.”); id.,
at 1101–1102 (“[Court]: I still say that these questions need changing overnight, because one out of a hundred jurors, I think is about all that’s gone along with knowing what [you’re asking].”).
Lanier also stated that he struck Hood because Hood’s wife worked at Northwest Regional Hospital as a food services supervisor. App. 45 (pretrial hearing). That hospital, Lanier explained, “deals a lot with mentally disturbed, mentally ill people,” and so people associated with it tend “to be more sympathetic to the underdog.” Ibid.
But Lanier expressed no such concerns about white juror Blackmon, who had worked at the same hospital. Blackmon, as noted, served on the jury.
Lanier additionally stated that he struck Hood because the defense “didn’t ask [Hood] any question[s] about the age of the defendant,” “his feelings about criminal responsibility involved in insanity,” or “publicity.” Id.,
at 47. Yet again, the trial transcripts clearly indicate the contrary. See 2 Trial Transcript 280 (“Q: Is age a factor to you in trying to determine whether or not a defendant should receive a life sentence or a death sentence? A: None whatsoever.”); ibid.
(“Q: Do you have any feeling about the insanity defense? A: Do I have any opinion about that? I have not formed any opinion about that.”); id.,
at 281 (“Q: Okay. The publicity that you have heard, has that pub-licity affected your ability to sit as a juror in this case and be fair and impartial to the defendant? A: No, it has no effect on me.”).
As we explained in Miller-El
, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.”
545 U. S. 231,
. With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder
, 552 U. S., at 478, 485.[6
Throughout all stages of this litigation, the State has strenuously objected that “race [was] not a factor” in its jury selection strategy. App. 41 (pretrial hearing); but see id.,
at 120 (Lanier testifying that the strikes were “based on many factors and not purely
on race.” (emphasis added) (new trial hearing)). Indeed, at times the State has been downright indignant. See Trial Record 444 (“The Defenses’s [sic
] misapplication of the law and erroneous distortion of the facts are an attempt to discredit the pro-secutor. . . . The State and this community demand an apology.” (brief in opposition to new trial)).
The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” Brief for Respondent 6. Batson
, after all, had come down only months before Foster’s trial. The prosecutors, according to the State, were uncertain what sort of showing might be demanded of them and wanted to be prepared.
This argument falls flat. To begin, it “reeks of afterthought,” Miller-El
, 545 U. S., at 246, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari.
In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it “was actively seeking a black juror.” Brief for Respondent 12; see also App. 99 (new trial hearing). But this claim is not credible. An “N” appeared next to each of the black prospective jurors’ names on the jury venire list. See, e.g., id.,
at 253. An “N” was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the “definite NO’s” list. See id.,
299–301. And a draft affidavit from the prosecution’s investigator stated his view that “[i]f it comes down to having to pick
one of the black jurors, [Marilyn] Garrett, might be okay.” Id
., at 345 (emphasis added); see also ibid.
(recommending Garrett “if we had to pick
a black juror” (emphasis added)). Such references are inconsistent with attempts to “actively see[k]” a black juror.
The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.
The order of the Georgia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.