As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22. Time permitting–and that is a big “if”—this will be the first of what I hope will be several dull posts.
To begin with, it’s not entirely clear what cases the Court relisted at its January 22 conference, because it hasn’t updated the dockets of many cases that were on for that conference—the last entry still states that they’re on for conference January 22. But because the Court has updated the dockets of cases in which cert was denied, it seems a safe bet that the other cases have been relisted (or are being held for another case).
First up is Thaler v. Haynes, 09-273, on cert to the Fifth Circuit (panel consisting of Jolly, Dennis, and Clement). This case was relisted at the 11/30, 12/4, 1/15, and (apparently) 1/22 conferences; on December 7, the Court called for the record, which arrived on December 31 and January 11. This case involves a convicted murderer’s challenge to the prosecution’s allegedly race-based use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986). A different trial judge (who, respondent states, was cleaning two pistols on the bench at the time—the case is, after all, from Texas) handled the individual questioning of venire members, so the judge who did the group questioning and conducted the Batson hearing did not also observe the conduct that the prosecutor says precipitated the peremptory strikes.
The Fifth Circuit panel held that, because the judge who assessed the Batson challenge was not the same judge who had questioned the individual venire members, the Texas state courts were not able to perform the sort of factual inquiry Batson requires (which the panel throught includes considering the demeanor of both the rejected juror and the prosecution). Perhaps more significantly, the panel refused to grant the state court decision deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which requires that habeas relief not be granted unless the state court proceeding resulted in “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” The Fifth Circuit reasoned that, because the judge who presided over the Batson hearing had not observed the individual questioning of venire members, “we cannot * * * apply AEDPA deference to the state court, because the state courts engaged in pure appellate fact-finding for an issue that turns entirely on demeanor.”
The Court has observed that Batson “involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor,” Rice v. Collins, 546 U.S. 333, 338 (2006), and there is language in Hernandez v. New York, 500 U.S. 352 (1991), and, to a lesser extent, Rice v. Collins, that the “best evidence often will be the demeanor of the attorney who exercises the [peremptory] challenge,” Hernandez, 500 U.S. at 365 (plurality opinion of Kennedy, J.). The judge in question evidently concluded the strikes were not raced-based after observing the prosecutor’s demeanor in explaining the strikes, even if he did not also observe the witness’s demeanor. Texas SG Jim Ho argues that that is enough under Batson and that summary reversal is appropriate. Texas asks the Court to clarify that language in Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008) (which Texas calls “dicta”) that “the trial court must evaluate * * * whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor” does not mean that a judge other than the original trial judge cannot adjudicate a Batson hearing.
It might be that someone is simply writing a dissent from denial of cert, although the fact that the Court called for the record suggests that the Court might be considering summary reversal; the Court certainly summarily reverses with some frequency in habeas cases because of the deferential standard of review required by AEDPA. If the Court goes the summary reversal route, I suspect it will do so by reasoning that the grounds of relief relied on by the Fifth Circuit were not yet clearly established in Supreme Court precedent, and there is no textual basis for failing to apply the forgiving AEDPA standard of review simply because the factfinder did not personally observe all the conduct. I think the Supreme Court will be most interested in reversing the statement that state court decisions aren’t entitled to deference under AEDPA unless they’re based on firsthand assessment of demeanor.
Time permitting, I hope to be back in the next couple of days to discuss Los Angeles County v. Humphries, 09-350 (relisted on 1/8/10, 1/15, and, apparently, 1/22), and Harrington v. Richter, 09-587 (relisted on 1/15 and, apparently, 1/22).
UPDATE: Today (Feb. 16) the Supreme Court finally updated its docket to reflect the January 22 relists.