dretke director texas department criminal justice correctional institutions division argued december decided june dallas county prosecutors used peremptory strikes qualified black venire members jury selection petitioner capital murder trial objected claiming strikes based race presumed legitimate since district attorney office history excluding blacks criminal juries trial denied request new jury trial ended death sentence appeal pending decided batson kentucky discrimination prosecutor selecting defendant jury violated fourteenth amendment remand trial reviewed voir dire record heard prosecutor macaluso justifications strikes explained voir dire found showing prospective black jurors struck race state criminal appeals affirmed subsequently federal district denied federal habeas relief fifth circuit denied certificate appealability reversed finding merits batson claim least debatable jurists reason cockrell fifth circuit granted certificate appealability rejected batson claim merits held entitled prevail batson claim thus entitled habeas relief pp consistently repeatedly reaffirmed racial discrimination state jury selection offends equal protection clause georgia mccollum rub practical difficulty ferreting discrimination selections discretionary nature subject myriad legitimate influences batson held defendant make prima facie case discriminatory jury selection totality relevant facts prosecutor conduct defendant trial showing made burden shifts state come forward neutral explanation trial must determine defendant shown purposeful discrimination light relevant circumstances since case review denial habeas relief since texas trial prior determination state explanations true factual determination may obtain relief showing trial conclusion unreasonable determination facts light evidence presented state proceeding pp prosecutors used peremptory strikes exclude eligible black venire panelists disparity unlikely produced happenstance cockrell powerful bare statistics comparisons black venire panelists struck white ones prosecutor proffered reason striking black panelist applies well white panelist allowed serve evidence tending prove purposeful discrimination details two panel member comparisons bear observation prosecution reason exercising peremptory strikes black panel members appeared apply equally white jurors strong similarities differences billy jean fields black venireman expressed unwavering support death penalty struck similarly situated nonblack jurors differences seem far significant particularly reading fields voir dire testimony entirety upon reading fields ideal juror eyes prosecutor seeking death sentence prosecutors explanations strike fields vote death rehabilitation possible mischaracterization testimony reasonably accepted nonblack veniremen expressing comparable views rehabilitation struck prosecution reason fields brother prior convictions creditable light failure enquire matter prosecution proffered reasons striking joe warren another black venireman comparably unlikely fact reason striking thought death easy way defendants made suffer also applied nonblack panel members selected evidence pretext suggestion pretext moreover mitigated macaluso explanation warren struck state afford liberal using remaining peremptory challenges explanation striking warren later accepting similar panel members prosecutors struck white panel member jenkins examined accepted warren despite similar views macaluso explanation also weakens suggestion state acceptance woods one black juror shows race play selected eighth juror state used peremptory challenges black panel members record shows least remaining venire panel opposed capital punishment prosecutors exercise prudent restraint decision accept black panel member willing impose death penalty neutralize decision challenge comparable venireman warren fifth circuit substituted reason elimination warren general ambivalence penalty erroneous matter fact law fact macaluso said nothing general ambivalence warren answer several questions impose death penalty law batson rule provides prosecutor opportunity give reason striking juror requires judge assess reason plausibility light evidence call mere exercise thinking rational basis prosecutor responsible reason gave fifth circuit substitution reason excluding warren nothing satisfy prosecutors burden stating racially neutral explanation actions comparing warren strike treatment panel members similar views supports conclusion race significant determining challenged pp prosecution broader patterns practice jury selection also support case discrimination texas law permits either side shuffle cards bearing panel member names rearrange order questioned members seated back may escape voir dire questioned end week dismissed prosecution shuffled cards number black members seated front panel beginning second week third week shuffled first four members black placing back defense reshuffled cards black members reappeared front denied prosecution request another shuffle racially neutral reason shuffling ever offered nothing stops suspicion discriminatory intent rising inference contrasting voir dire questions posed respectively black nonblack panel members also indicate state trying avoid black jurors prosecutors gave bland description death penalty white venire panel members asking individual feelings subject used script describing imposition death penalty graphic terms black venire members argument prosecutors used graphic script weed ambivalent panel members simply fit facts black venire members likely receive script regardless expressions certainty ambivalence death penalty state chosen explanation failed four eight black panel members received two received clearly stating opposition death penalty two received even though unambiguously favored penalty state explanation misses mark four five times regard nonblacks received graphic description ambivalent black panel members also likely receive graphic script nonblack ambivalent ones state attempt rationalization fails explain prosecutors explanation prosecutors first object use graphic script make case excluding black panel members opposed ambivalent death penalty persuasive state explanation reasonable inference race major consideration prosecution chose follow graphic script true another kind disparate questioning prosecutors asked black panel members opposed ambivalent death penalty low sentence consider imposing murder without telling state requires minimum prosecutors put question white panel members expressed similar views final body evidence confirming conclusion dallas county district attorney office decades followed specific policy systematically excluding blacks juries prosecutors notes race panel member show took direction jury selection manual included racial stereotypes pp fifth circuit conclusion failed show clear convincing evidence state finding wrong unsupportable dismissive strained interpretation evidence disapproved deciding entitled certificate appealability supra ten eleven black venire members peremptorily struck least two ostensibly acceptable prosecutors seeking death penalty prosecutors chosen reasons strikes hold far odds evidence pretext fair conclusion selection process replete evidence prosecutors selecting rejecting potential jurors race prosecutors took cues manual jury selection emphasis race blinks reality deny state struck fields warren black facts correlate nothing well race state contrary conclusion unreasonable well erroneous pp reversed remanded souter delivered opinion stevens kennedy ginsburg breyer joined breyer filed concurring opinion thomas filed dissenting opinion rehnquist scalia joined thomas joe petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice souter delivered opinion two years ago ordered certificate appealability issued habeas petitioner affording review district rejection claim prosecutors capital murder trial made peremptory strikes potential jurors based race today find entitled prevail claim order relief course robbing holiday inn dallas texas late accomplices bound gagged two hotel employees shot killing one severely injuring jury selection trial capital murder prosecutors used peremptory strikes qualified black venire members objected strikes based race presumed legitimate given history excluding black members criminal juries dallas county district attorney office trial received evidence practice alleged found systematic exclusion blacks matter policy office app therefore entitlement relief swain alabama case defining marking limits relief racially biased jury selection denied request pick new jury trial ended death sentence capital murder appeal pending decided batson kentucky replaced swain threshold requirement prove systemic discrimination fourteenth amendment jury claim rule discrimination prosecutor selecting defendant jury sufficed establish constitutional violation texas criminal appeals remanded matter trial determine whether show prosecutors case peremptorily struck prospective black jurors race state trial found demonstration reviewing voir dire record explanations given challenged strikes hearing one prosecutors paul macaluso give justification previously unexplained trial accepted stated reasons strikes judge called completely credible sufficient grounds finding purposeful discrimination findings fact conclusions law upon remand criminal appeals state crim dist dallas county pp app criminal appeals affirmed stating found ample support voir dire record explanations offered prosecutors peremptory strikes state per curiam app sought habeas relief pressing batson claim among others us district denied relief johnson civil nd june app appeals fifth circuit precluded appeal denying certificate appealability johnson granted certiorari consider whether entitled review batson claim cockrell reversed appeals examining record extensive evidence purposeful discrimination dallas county district attorney office trial found appeal order since merits batson claim least debatable jurists reason cockrell granting certificate appealability fifth circuit rejected batson claim merits granted certiorari reverse ii well known prejudices often exist particular classes community sway judgment jurors therefore operate cases deny persons classes full enjoyment protection others enjoy strauder west virginia see also batson kentucky supra defendants harmed course racial discrimination jury selection compromises right trial impartial jury strauder west virginia supra racial minorities harmed generally prosecutors drawing racial lines picking juries establish group stereotypes rooted reflective historical prejudice alabama ex rel harm confined minorities government choice jurors tainted racial bias overt wrong casts doubt obligation parties jury indeed adhere law throughout trial powers ohio integrity courts jeopardized prosecutor discrimination invites cynicism respecting jury neutrality undermines public confidence adjudication georgia mccollum edmonson leesville concrete batson kentucky supra century consistently repeatedly reaffirmed racial discrimination state jury selection offends equal protection clause georgia mccollum supra see strauder west virginia supra norris alabama swain alabama supra batson kentucky supra powers ohio supra rub practical difficulty ferreting discrimination selections discretionary nature choices subject myriad legitimate influences whatever race individuals panel jurors selected swain alabama tackled problem quantum proof necessary show purposeful discrimination eye preserving side historical prerogative make peremptory strike challenge nature traditionally without reason stated swain tried relate peremptory challenge equal protection presuming legitimacy prosecutors strikes except face longstanding pattern discrimination case case whatever circumstances blacks served juries giving even widest leeway operation irrational suspicions antagonisms appear purposes peremptory challenge perverted swain demand make continuity discrimination time however turned difficult point unworkable batson kentucky recognized requirement show extended pattern imposed crippling burden proof left prosecutors use peremptories largely immune constitutional scrutiny arlington heights metropolitan housing development accordingly held defendant make prima facie case discriminatory jury selection totality relevant facts prosecutor conduct defendant trial batson kentucky defendant makes prima facie showing burden shifts state come forward neutral explanation challenging jurors within arguably targeted class although may number bases prosecutor reasonably might believe desirable strike juror excusable cause prosecutor must give clear reasonably specific explanation legitimate reasons exercising challeng internal quotation marks omitted trial duty determine defendant established purposeful discrimination although move swain batson left defendant free challenge prosecution without cast swain wide net net entirely consigned history batson individualized focus came weakness owing emphasis particular reasons prosecutor might give facially neutral reason sufficed answer batson challenge batson amount much swain stated reasons false although false reasons shown within four corners given case sometimes may sure unless looks beyond case hand hence batson explanation defendant may rely relevant circumstances raise inference purposeful discrimination case comes us review denial habeas relief sought following texas trial prior determination fact state explanations true see purkett elem per curiam batson kentucky supra antiterrorism effective death penalty act may obtain relief showing texas conclusion unreasonable determination facts light evidence presented state proceeding thus presume texas factual findings sound unless rebuts presumption correctness clear convincing evidence standard demanding insatiable said last time case eference definition preclude relief cockrell iii numbers describing prosecution use peremptories remarkable black members venire panel trial served although excused cause agreement peremptorily struck prosecution prosecutors used peremptory strikes exclude eligible venire members happenstance unlikely produce disparity powerful bare statistics however comparisons black venire panelists struck white panelists allowed serve prosecutor proffered reason striking black panelist applies well nonblack permitted serve evidence tending prove purposeful discrimination considered batson third step cf reeves sanderson plumbing products employment discrimination cases roof defendant explanation unworthy credence simply one form circumstantial evidence probative intentional discrimination may quite persuasive develop comparative juror analysis last time note prosecution reasons exercising peremptory strikes black panel members appeared equally point white jurors served cockrell supra details two panel member comparisons bear prosecution used second peremptory strike exclude billy jean fields black man expressed unwavering support death penalty questionnaire filled panel members individual examination stand fields said believed capital punishment joint lodging questioning disclosed belief state acts god behalf imposes death penalty therefore state exacts death app testified religious philosophical reservations death penalty death penalty deterred crime twice averred without apparent hesitation sit jury make decision impose penalty although one point questioning fields indicated possibility rehabilitation might relevant likelihood defendant commit future acts violence responded ensuing questions saying although believed anyone rehabilitated belief stand way decision impose death penalty ased prosecutor said far crime goes two things rendered death life prison reason testimony warrant death life imprisonment give individual opportunity rehabilitate know said jurors opportunity make personal decision matter reference thought felt based questions according way law handed alteration omitted fields also noted questionnaire brother criminal history joint lodging questioning prosecution went tell little bit arrested convicted number occasions possession controlled substance dallas yes involved trials anything like suppose sorts really know much ever convicted yeah served time feel way interfere service jury app fields struck peremptorily prosecution prosecutor james nelson offering reason concern reference statements death penalty said give death thought person rehabilitated later made comment person rehabilitated find god introduced god fact concern religious feelings may affect jury service case alteration omitted thus nelson simply mischaracterized fields testimony represented fields said vote death rehabilitation possible whereas fields unequivocally stated impose death penalty regardless possibility rehabilitation perhaps nelson misunderstood unless ulterior reason keeping fields jury think proceeded differently light fields outspoken support death penalty expect prosecutor cleared misunderstanding asking questions getting point exercising strike indeed fields thoughts rehabilitation make prosecutor uneasy worried number white panel members accepted evident reservations sandra hearn said believed death penalty criminal rehabilitated continues commit type crime hearn went far express doubt penalty phase capital case conclude convicted murderer probably commit criminal acts violence future people change said making hard assess risk someone future dangerousness evidence awful strong ibid prosecution respond hearn way fields without delving views rehabilitation question raised objection serving jury white panelist mary witt said take possibility rehabilitation account deciding penalty phase trial defendant probability future dangerousness record voir dire hereinafter record prosecutors asked question views reformation accepted juror latino venireman fernando gutierrez served jury said consider death penalty someone rehabilitated app prosecutors question view sum nonblack jurors whose remarks rehabilitation well signaled limit willingness impose death sentence questioned drew objection prosecution expressed apprehension black juror belief possibility reformation even though repeatedly stated approval death penalty testified impose according state legal standards even alternative sentence life imprisonment give defendant like everyone else world opportunity unlikelihood position rehabilitation anything peremptory strike fields underscored prosecution response lawyer pointed prosecutor misrepresented fields responses subject moment earlier prosecutor finished misdescription fields views potential rehabilitation words reasons exercising strike time defense counsel called misstatement neither defended said withdrew strike instead suddenly came fields brother prior conviction another reason strike difficult credit state new explanation reeks afterthought appeals tried bolster observation seated juror fields position respect brother readiness accept state substitute reason ignores pretextual timing reasons rendering implausible fields testimony indicated close brother app really know much prosecution asked nothing influence brother history might fields probably done family history actually mattered see ex parte travis state failure engage meaningful voir dire examination subject state alleges concerned evidence suggesting explanation sham pretext discrimination good reason doubt state afterthought fields brother anything makeweight appeals judgment fields strike unsupportable reason state first explanation unsupportable appeals description fields voir dire testimony mentioned statements everyone rehabilitated failing note fields affirmed give death penalty law evidence called regardless possibility divine grace appeals made mention fact prosecution mischaracterized fields saying give death rehabilitation possible sum look nonblack jurors similarly situated fields find strong similarities well differences seem far significant particularly read fields voir dire testimony entirety upon reading fields ideal juror eyes prosecutor seeking death sentence prosecutors explanations strike reasonably accepted see cockrell credibility reasons given measured reasonable improbable explanations whether proffered rationale basis accepted trial strategy prosecution proffered reasons striking joe warren another black venireman comparably unlikely warren gave answer asked death penalty accomplished know really hard say know sometimes feel might help deter crime feel person really suffering taking suffering away like said sometimes mixed feelings whether punishment know relieving personal punishment app record prosecution said nothing remarks struck warren panel prosecutor paul macaluso referred answer first reasons testified later batson hearing thought warren statements voir dire inconsistent responses one point says know basis another point said well think got impression least suggested death penalty easy way made suffer app face explanation reasonable state point view plausibility severely undercut prosecution failure object panel members expressed views much like warren kevin duke served jury said sometimes death better prison like dying every day prison life hope parole soon prison rest life troy woods one black panelist serve juror said capital punishment easy think quick relief feel like hard labor punishment putting sleep sandra jenkins state accepted struck defense testified thought harsher treatment life imprisonment parole leta girard accepted state also struck defense gave opinion living sometimes worse worse dying fact macaluso reason also applied panel members white none struck evidence pretext suggestion pretext moreover mitigated much macaluso explanation warren struck state peremptory challenges left afford liberal using explanation striking warren later accepting panel members thought death easy prosecutors struck sandra jenkins examined accepted warren indeed disparate treatment remarkable fact prosecutors repeatedly questioned warren capacity willingness impose sentence death elicited statements ability evidence supported result answer special question yes whereas record us discloses attempt determine whether jenkins able vote death spite view easy convict yet prosecutors accepted white panel member jenkins struck black venireman warren macaluso explanation prosecutors grew sparing peremptory challenges jury selection wore however weaken suggestion state acceptance woods one black juror shows race play woods eighth juror qualified fifth week jury selection joint lodging state accepted peremptory strikes gone used strike black panel members juror questionnaires show least three members venire panel yet questioned stand opposed capital punishment janice mackey paul bailey anna keaton least three remaining panel members highly undesirable state prosecutors exercise prudent restraint using strikes decision accept black panel member willing impose death sentence therefore neutralize decision challenge comparable venireman warren fact prosecutors going accept black juror obscure otherwise consistent pattern opposition seating one time getting appeals pretermitted difficulties stating prosecution reason striking warren general ambivalence penalty ability impose dissent presses explanation post rationalization erroneous matter fact matter law fact macaluso said nothing general ambivalence simply alluded possibility warren might think death penalty easy defendants saying nothing warren ability impose penalty appeared contrary though warren indeed questioned extent death penalty served purpose society app explained position response next question qualm imposing society generally deems harshest punishment concern death penalty might severe enough ibid warren asked whether impose death penalty said thought told answering yes special issue questions tantamount voting death said give yes answers evidence supported law rule batson provides opportunity prosecutor give reason striking juror requires judge assess plausibility reason light evidence bearing cockrell true peremptories often subjects instinct batson kentucky marshall concurring sometimes hard say reason illegitimate grounds like race issue prosecutor simply got state reasons best stand fall plausibility reasons gives batson challenge call mere exercise thinking rational basis stated reason hold pretextual significance fade trial judge appeals imagine reason might shown false appeals dissent substitution reason eliminating warren nothing satisfy prosecutors burden stating racially neutral explanation actions whole voir dire testimony subject consideration casts prosecution reasons striking warren implausible light comparing strike treatment panel members expressed similar views supports conclusion race significant determining challenged case discrimination goes beyond comparisons include broader patterns practice jury selection prosecution shuffling venire panel enquiry views death penalty questioning minimum acceptable sentences indicate decisions probably based race finally appearance discrimination confirmed widely known evidence general policy dallas county district attorney office exclude black venire members juries time jury selected first clue prosecutors intentions distinct peremptory challenges resort voir dire procedure known texas jury shuffle state criminal practice either side may literally reshuffle cards bearing panel members names thus rearranging order members venire panel seated reached order established panel members seated back likely escape voir dire altogether questioned end week dismissed previously explained prosecution decision seek jury shuffle predominant number seated front panel along decision delay formal objection defense shuffle new racial composition revealed raise suspicion state sought exclude jury concerns amplified fact state also apparently ignored testimony demonstrating dallas county district attorney office admission used process manipulate racial composition jury past cockrell supra case prosecution defense shuffled cards beginning first week voir dire record reflect changes order app beginning second week number black members seated front panel prosecution record beginning third week first four panel members black prosecution shuffled black panel members ended back defense shuffled black panel members appeared front prosecution requested another shuffle trial refused app finally defense shuffled beginning fourth fifth weeks voir dire record reflect panel racial composition shuffles record state notes brief might racially neutral reasons shuffling jury brief respondent suppose might racially neutral reason ever offered case nothing stops suspicion discriminatory intent rising next body evidence state trying avoid black jurors contrasting voir dire questions posed respectively black nonblack panel members two different subjects first prosecutors statements preceding questions potential juror thoughts capital punishment prefatory statements cast general terms followed graphic script describing method execution rhetorical clinical detail intended contends prompt expression hesitation consider death penalty thus elicit plausibly neutral grounds peremptory strike potential juror subjected strike cause graphic script given higher proportion blacks whites evidence prosecutors often wanted blacks jury absent neutral extenuating explanation pointed last time white venire panel members prosecutors gave bland description death penalty asking individual feelings subject cockrell abstract account went something like feel like fair tell position case state texas actively seeking death penalty case thomas joe anticipate able present jury quantity type evidence necessary convict capital murder quantity type evidence sufficient allow jury answer three questions affirmative yes answer questions results automatic death penalty judge mcdowell app white venire panelists black heard different description death penalty asked feelings example graphic script feel like right know right front position kinne macaluso representing people dallas county state texas actively seeking death penalty thomas joe anticipation death penalty assessed point thomas joe man sitting right taken huntsville put death row point taken death house placed gurney injected lethal substance dead result proceedings case basically position going thing state concedes disparate questioning occur argues use graphic script turned panelist race expressed ambivalence death penalty preliminary prosecutors trying argument goes weed noncommittal uncertain jurors black jurors white venire members expressed opposition death penalty questionnaires read graphic script feelings already clear state says giving graphic script panel members antagonized brief respondent argument however first advanced dissent case last cockrell supra opinion thomas later adopted state appeals simply fit facts looking answers questionnaires voir dire testimony expressly discussing answers find black venire members likely nonblacks receive graphic script regardless expressions certainty ambivalence death penalty state chosen explanation graphic script fails cases four eight black panel members received two janice mackey anna keaton clearly stated opposition death penalty received graphic black panel members wayman kennedy jeannette butler unambiguously got graphic description state explanation even worse instances five nonblacks received graphic script missing mark four times five vivian sztybel filemon zablan received although unambiguously favor death dominick desinise clara evans unambiguously opposed given graphic state purported rationale fails look treatment ambivalent panel members ambivalent black individuals likely receive graphic description ambivalent nonblacks three nonblack members venire indicated ambivalence death penalty questionnaires one fernando gutierrez received graphic four black panel bers expressed got graphic state attempt rationalization thus simply fails explain prosecutors posit instead prosecutors first object use graphic script make case excluding black panel members opposed ambivalent death penalty much tighter fit fact nonblacks whose questionnaires expressed ambivalence received graphic seven blacks expressed ambivalence heard graphic state ambivalence explanation racial one race much better reasonable inference race major consideration prosecution chose follow graphic script true another kind disparate questioning might fairly called trickery prosecutors asked members panel low sentence consider imposing murder potential jurors first told texas law provided minimum term five years members panel panel member insisted minimum five years prosecutor suppress normal preference tough jurors claim cause strike two terms ago described disparate questioning correlated race percent whites informed statutory minimum sentence compared twelve half percent explanation proffered statistical disparity pierre louisiana fact testimony challenged evidence appropriately direct brushed aside evidence obtainable contradict disprove testimony offered petitioner assumed state refrained introducing quoting norris alabama indeed petitioner appeal pending texas criminal appeals found batson violation precise line disparate questioning mandatory minimums employed one prosecutors tried instant case chambers state tex crim app cockrell state concedes manipulative minimum punishment questioning used create cause strike brief respondent offers extenuation prosecutors omitted information basis race stated opposition death penalty ambivalence questionnaires voir dire testimony state identification black panel members opposed ambivalent asked trick state rationale flatly fails explain white panel members expressed similar opposition ambivalence subjected entirely true state argues prosecutors struck number nonblack members panel well black members cause agreement reached point standard voir dire sequence question minimum punishment answer nonblack individuals voiced opposition ambivalence asked acceptable minimum told state law hence nonblacks questioned subject expressed views subjected trick question black members implication race prosecutors choice questioning explained final body evidence confirms conclusion know decades leading time case tried prosecutors dallas county office followed specific policy systematically excluding blacks juries explained last time case although witnesses presented swain hearing denied existence systematic policy exclude others disagreed dallas county district judge testified served district attorney office superior warned fired permitted serve jury similarly another dallas county district judge former assistant district attorney testified believed office systematic policy excluding juries importance defense presented evidence district attorney office adopted formal policy exclude minorities jury service manual entitled selection criminal case sometimes known sparling manual distributed prosecutors contained article authored former prosecutor later judge direction superiors district attorney office outlining reasoning excluding minorities jury service although manual written remained circulation later available least one prosecutors trial cockrell prosecutors marked race prospective juror juror cards appeals concluded failed show clear convincing evidence state finding discrimination wrong whether evidence viewed collectively separately find conclusion unsupportable dismissive strained interpretation evidence disapproved decided entitled certificate appealability see cockrell supra true course points significance evidence open judgment calls evidence issues raised viewed cumulatively direction powerful conclude anything discrimination course drawing jury try black defendant qualified black venire panel members peremptorily struck least two fields warren ostensibly acceptable prosecutors seeking death verdict fields ideal prosecutors chosen reasons strikes hold far odds evidence pretext fair conclusion indicating discrimination explanations meant deny strikes drew incredible explanations occurred selection process replete evidence prosecutors selecting rejecting potential jurors race least two jury shuffles conducted state make sense except efforts delay consideration black jury panelists end week might even reached state fact never offered explanation state denied disparate lines questioning pursued black panelists nonblacks questioned graphic script meant induce qualms applying death penalty thus explain strike blacks nonblacks subjected trick question minimum acceptable penalty murder meant induce disqualifying answer state attempts explain prosecutors questioning particular witnesses nonracial grounds fit evidence less well racially discriminatory hypothesis anything needed undeniable explanation going history supplies prosecutors took cues old manual tips jury selection shown notes race potential juror time jury chosen state peremptorily challenged qualified nonblack panel members eliminated black ones blinks reality deny state struck fields warren included black strikes correlate fact well correlate race occurred selection infected shuffling disparate questioning race explains better reason advanced state state pretextual positions confirm claim prosecutors notes proclaim sparling manual emphasis race minds considered every potential juror state conclusion prosecutors strikes fields warren racially determined shown wrong clear convincing degree state conclusion unreasonable well erroneous judgment appeals reversed case remanded entry judgment petitioner together orders appropriate relief ordered thomas joe petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice breyer concurring batson kentucky adopted rule designed ferret unconstitutional use race jury selection separate opinion justice thurgood marshall predicted rule achieve goal way end racial discrimination peremptories inject process concluded eliminat peremptory challenges entirely concurring opinion today case reinforces justice marshall concerns begin case illustrates practical problems proof justice marshall described opinion makes clear marshaled extensive evidence racial bias despite strength claim challenge resulted years largely unsuccessful protracted litigation including different judicial proceedings different judicial opinions involving judges found batson standard violated contrary complexity process reflects difficulty finding legal test objectively measure inherently subjective reasons underlie use peremptory challenge batson seeks square circle requiring defendants establish prima facie case discrimination asking prosecutors offer explanation use peremptory requiring defendants prove neutral reason offered pretextual see ante batson embodies defects intrinsic task batson first step litigants remain free misuse peremptory challenges long strikes fall prima facie threshold level see per curiam see also beards look importantly step three batson asks judges engage awkward sometime hopeless task prosecutor instinctive judgment underlying basis may invisible even prosecutor exercising challenge see marshall concurring noting unconscious internalization racial stereotypes may lead litigants easily conclude prospective black juror even though characterization sprung mind prospective juror white see also page batson unconscious stereotyping peremptory challenge rev ubtle forms bias automatic unconscious escape notice even notice enacting quoting fiske category responsibility intent avoidability bias outgroups social psychology good evil miller ed circumstances may impossible trial courts discern peremptory challenge reflects racial stereotype batson marshall concurring quoting rehnquist dissenting given inevitably clumsy fit objectively measurable standard subjective decisionmaking issue surprised find studies anecdotal reports suggesting despite batson discriminatory use peremptory challenges remains problem see baldus woodworth zuckerman weiner broffitt use peremptory challenges capital murder trials legal empirical analysis const capital trials philadelphia prosecutors struck black jurors nonblack jurors defense counsel struck black jurors nonblack jurors uses prosecutorial peremptories declined batson rose peremptory challenge accused race gender discrimination data one county law human behavior one north carolina county excused black jurors removed prosecution excused white jurors removed defense tucker moore trials excluded jurors fit racial pattern washington post apr murder case spanning four trials prosecutors excused blacks minorities whites defense counsel struck whites black venire members mize legal discrimination juries supposed picked basis race sex happens time washington post authored judge superior see also melilli batson practice learned batson peremptory challenges notre dame rev finding batson challenges success rates lower peremptories used strike black rather white potential jurors brand equal protection jury selection denying race still matters rev examining judicial decisions concluding batson challenges succeed note batson kentucky alabama ex rel peremptory challenge still preeminent boston college rev montoya future peremptory challenge voir dire questionnaire blind peremptory challenge reform nn reporting attorneys views difficulty proving batson claims ii practical problems proof side peremptory challenges seem increasingly anomalous judicial system one hand widened deepened batson basic constitutional rule applied batson antidiscrimination test use peremptories criminal defendants georgia mccollum private litigants civil cases edmonson leesville concrete prosecutors defendant excluded juror different races powers ohio recognized constitution protects defendants jurors held equal protection principles prohibit excusing jurors account gender see alabama ex rel lower courts extended batson rule religious affiliation well see brown state hodge stafford suggesting see also davis minnesota thomas dissenting denial certiorari see casarez state tex crim app en banc declining extend batson religious affiliation state davis hand use stereotypes process seems better organized systematized ever see post loaded box stereotypes despite race gender play big roles jury nat apr pp discussing common reliance race gender jury selection example one guide counsels attorneys perform demographic analysis assigns numerical points characteristics age occupation marital status addition race well gender see starr mccormick jury selection ed thus hypothetical dispute white landlord tenant authors suggest awarding two points venire member subtracting one point white counterpart example bar journal article counsels lawyers rate potential jurors demographically age gender marital status etc mark stereotypical circumstances natural enemies allies drake art litigating deselecting jurors like pros md bar emphasis original example materials legal convention noting nationality less important thought emphasizing answers prospective juror gives questions much valuable still point tereotypically italian french spanish origin thought well minorities mexican jewish ersons german scandinavian swedish finnish dutch nordic british scottish oriental russian origin thought better defense always considered good plaintiff ore politically conservative minorities likely lean toward defendants blue mirroring proxemics nonverbal communication psychological tools advocacy track psychology trial association trial lawyers america annual convention reference materials ann available westlaw database june example trial consulting firm advertises new technology whether trying civil case criminal case likely determined exact demographics age race gender education occupation marital status number children religion income type jurors select type strike smartjury product information http visited june available clerk case file examples reflect professional effort fulfill lawyer obligation help client cf supra concurring observing jurors race gender may inform perspective nevertheless outcome terms jury selection motive less benign long law antidiscrimination command peremptory system permits encourages use stereotypes work finally jury system without peremptories longer unthinkable members legal profession begun serious consideration possibility see allen florida app hubbart concurring broderick peremptory challenge abolished temp rev authored senior judge district eastern district pennsylvania hoffman peremptory challenges abolished trial judge perspective chi rev authored colorado judge altschuler jury voir dire peremptory challenges review jury verdicts chi rev amar reinventing juries ten suggested reforms rev melilli notre dame page england jurisdiction eliminated peremptory challenges continues administer fair trials based largely random jury selection see criminal justice act ch halsbury statutes ed reissue see also jury service victoria final report ch study english barristers showed majority support system without peremptory challenges iii recognize peremptory challenges long historical pedigree may help reassure party fairness jury long ago blackstone recognized peremptory challenge arbitrary capricious species challenge blackstone commentaries laws england used express stereotypical judgments race gender religion national origin peremptory challenges betray jury democratic origins undermine representative function see de tocqueville democracy america reeve transl institution jury raises people bench judicial authority invests direction society amar bill rights describing founders vision juries venues democratic participation see also stevens foreword symposium jury crossroad american experience rev citizens denied opportunity serve jurors unless impartial judge reason denial strike cause scientific use peremptory challenges may also contribute public cynicism fairness jury system role american government see juries may broke fix chautauqua institution lecture july course right jury free discriminatory taint constitutionally protected right use peremptory challenges see stilson see also ross oklahoma defendant loss peremptory challenge violate right impartial jury justice goldberg dissenting swain alabama wrote necessary make absolute choice right defendant jury chosen conformity requirements fourteenth amendment right challenge peremptorily constitution compels choice former see also batson marshall concurring edmonson kennedy race stereotypes price acceptance jury panel fair price high meet standard constitution case suggests need confront choice light considerations mentioned believe necessary reconsider batson test peremptory challenge system whole qualification join opinion thomas joe petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice thomas chief justice justice scalia join dissenting early morning hours november petitioner thomas joe accomplice kennard flowers robbed holiday inn dallas texas flowers bound gagged hotel employees donald hall doug walker laid face floor flowers refused shoot shot twice back killing walker rendering hall paraplegic convicted capital murder jury composed seven white females two white males black male filipino male hispanic male nearly years contended prosecutors peremptorily struck potential jurors basis race time seven state six federal judges reviewed evidence found error concludes otherwise relies evidence never presented texas state courts evidence much less clear ly convincing ly show state racially discriminated potential jurors however even consider deciding whether grant relief may look evidence presented state proceeding majority ignores restriction review grant relief respectfully dissent requests federal habeas relief judgment hence review controlled antiterrorism effective death penalty act aedpa stat claim racial discrimination jury selection adjudicated merits texas state aedpa directs writ habeas corpus shall granted unless state decision based unreasonable determination facts light evidence presented state proceeding emphasis added obtain habeas relief must show based evidence texas state courts reasonable conclusion prosecutors racially discriminated prospective jurors even come close showing state courts held two hearings despite ample opportunity presented little evidence discrimination occurred jury selection view evidence actually presented texas courts conclusion state discriminate eminently reasonable close look proceedings reveals majority relies almost entirely evidence never presented texas state jury selection trial took place five weeks february march process blacks venire panel seated jury dismissed cause dismissed parties agreement peremptorily struck prosecutors objected strikes asserting prosecutors discriminating black veniremen time prosecutors proffered reason exercising challenge trial permitted venireman removed remaining black venireman troy woods served jury convicted completion voir dire moved strike jury decision swain alabama required prove systematic exclusion black persons use peremptories period time powers ohio pretrial swain hearing march presented three types documentary evidence juror questionnaires black veniremen struck state excerpts series newspaper articles racial bias jury selection manual jury selection criminal cases authored former dallas county prosecutor voir dire transcript part official record however introduced none juror questionnaires juror cards evidence related jury shuffling see ante also presented nine witnesses five spent time prosecutors dallas county district attorney office five current former judges dallas county testimony made three things clear first office never officially sanctioned promoted racial discrimination jury selection several witnesses testified including county chief public defender well one first black prosecutors serve office app baraka tait entz kinkeade second witnesses testified despite absence official policy individual prosecutors almost certainly excluded blacks particular cases hampton baraka tait kinkeade third important witness testified prosecutors trial norman kinne paul macaluso jim nelson ever engaged racially discriminatory jury selection baraka entz kinkeade trial concluded although racial discrimination may done individual prosecutors individual cases evidence systematic exclusion blacks matter policy district attorney office tried convicted sentenced death appeal pending decided batson kentucky batson announced new process evaluating claims prosecutor used peremptory challenges strike prospective jurors race first defendant must make prima facie showing peremptory challenge exercised basis race econd showing made prosecution must offer basis striking juror question hird light parties submissions trial must determine whether defendant shown purposeful discrimination cockrell texas criminal appeals remanded case hearing held batson batson hearing may judge presided trial sought establish prosecutors trial struck potential jurors basis race make prima facie case reintroduced presented two years earlier swain hearing testimony nine witnesses juror questionnaires excerpted newspaper articles app instructed state explain strikes peremptory strikes issue prosecutors already explained trial response objections state therefore called paul macaluso one prosecutors conducted voir dire testify regarding reasons striking veniremen paul bailey joe warren macaluso testified struck bailey bailey seemed firmly opposed death penalty even though bailey tempered stance voir dire accurate bailey expressed forceful opposition death penalty questioned macaluso see record voir dire hereinafter record believe capital punishment like said juror questionnaire believe anyone right take another person life saying felt ery strongly state impose death penalty later however questioned defense counsel bailey said impose death penalty state proved necessary aggravating circumstances trial overruled state challenge cause state exercised peremptory challenge macaluso next testified dismissed venireman warren warren gave inconsistent answers regarding ability apply death penalty warren brother recently convicted app macaluso conceded warren clearly unfavorable state bailey nevertheless macaluso struck warren early jury selection process state plenty remaining peremptories remove marginal jurors macaluso candidly stated might removed warren fewer peremptories available state presented nonracial reasons strikes focus shifted batson third step whether carried burden proving purposeful discrimination purkett elem per curiam batson supra point stood swain evidence app evidence bore whether dallas county prosecutors discriminated generally past years none evidence indicated prosecutors trial kinne macaluso nelson discriminated selection jury moreover none generalized evidence came close demonstrating state explanations pretextual particular trial even attempt rebut state racially neutral reasons hearing presented evidence made arguments nevertheless majority concludes trial judge unreasonable finding factual matter state discriminate black veniremen ante light evidence presented state proceeding scanty evidence presented trial least reasonable conclude purposeful discrimination occur means state determination effect must stand early packer per curiam ii even majority willing argue evidence state shows state discriminated black veniremen instead bases decision juror questionnaires juror cards new attorneys unearthed federal habeas proceedings never presented state ante worse still majority marshals documents support theories never argued state courts aedpa permit habeas petitioners engage sort sandbagging state courts majority discusses four types evidence alleged similarity black veniremen struck prosecution white veniremen apparent disparate questioning black white veniremen respect views death penalty ability impose minimum punishment use jury shuffle prosecution evidence historical discrimination office selection juries last ever put texas courts prove constitutional violation occurred trial majority discussion types evidence relies documents like juror questionnaires juror cards added record district majority willingness reach outside record embrace evidence never presented texas state courts hard fathom aedpa mandates reasonableness state factual findings assessed light evidence presented state proceeding also circumscribes ability federal habeas litigants present evidence failed develop state courts williams taylor argue disparate treatment disparate questioning batson hearing reason submit juror questionnaires cards trial however developed presented evidence batson consequently must satisfy requirements adduce evidence federal something williams supra federal courts sitting habeas alternative forum trying facts issues prisoner made insufficient effort pursue state proceedings instance doubt supplemental material previously discovered exercise due diligence ii last term summarily reversed appeals sixth circuit granting habeas relief basis evidence presented state see holland jackson per curiam reaffirmed whether state decision unreasonable must assessed light record slip see also etitioner must demonstrate state factual determination unreasonable light record majority reverses appeals fifth circuit failing grant habeas relief basis evidence state crediting evidence never placed state courts majority flouts aedpa plain terms encourages habeas applicants attack state judgments collaterally evidence never tested original triers fact majority presents three arguments ignoring aedpa requirement decision unreasonable light evidence presented state proceeding none persuasive first without briefing argument question majority hints may ignore aedpa limitation record parties ignored ante majority quickly retreats expressly decide question ibid retreat inexplicable advance unless waivable parties waived majority consider evidence outside proceedings concededly majority venture beyond record indefensible even jurisdictional see lindh murphy rehnquist dissenting shares salient characteristic jurisdictional statutes commands addressed courts rather individuals section speaks directly federal courts habeas application state prisoner shall granted except specified conditions emphasis added ibid rehnquist dissenting strictures discretionary waivable aedpa congress sought ensure federal courts defer judgments state courts wishes litigants nevertheless need decide whether may waived state waived contrary majority assertions ante state argued bars review certain evidence state trial brief respondent last appearance see brief respondent pp majority correct state argued precludes consideration juror questionnaires juror cards particular ante majority assert state may selectively invoke favorable evidence lies outside record majority next suggests supplemental material particularly juror questionnaires might expand state trial knew since judge presided voir dire swain hearing batson hearing jury questionnaires subjects reference voir dire ante incorrect batson hearing introduced evidence questionnaires black veniremen peremptorily struck state app questionnaires veniremen including many majority relies never introduced evidence otherwise placed trial judge state copies trial judge yet majority insinuates questionnaires effectively state subjects reference voir dire ante extremely misleading facts case although counsel state questioned witnesses partially basis questionnaire responses lawyers references questionnaires scattered sporadic even majority attempt show specific questionnaire responses relies called trial attention clearly called trial attention time mattered batson hearing majority insinuation doubly misleading coupled insistence transcript voir dire state courts ante arguments gave state reason go leafing voir dire transcript voir dire trial lasted five weeks transcript occupies volumes numbering pages think two years fact trial dredge initiative passing references unseen questionnaires references buried transcript less unrealistic demands state courts taken task basis evidence presented state proceeding questionnaires parties unlike questionnaires entered evidence presented state majority also asserts considering questionnaires attempting help state state claims disparate questioning treatment black white veniremen resulted questionnaires respective races majority sees questionnaires properly us state substantiate defense startling repudiation batson aedpa strong presumption validity attaches trial factual finding batson third step hernandez new york plurality opinion concurring judgment see also batson presumption doubly strong batson finding collateral attack habeas thus burden prove racial discrimination batson burden prove clear convincing evidence aedpa without questionnaires never submitted trial comes nowhere near establishing race motivated disparate questioning treatment precisely majority must strain include questionnaires within record needs juror questionnaires clearer light batson hearing unfolded offering racially neutral reasons strikes state remained silent however state pointed among things disparate questioning black white veniremen based answers given juror questionnaires voir dire process app state noted never alleged disparate treatment black white veniremen dispute state assertions need state enter juror questionnaires record nothing argue presented generalized evidence historical discrimination office one believes sufficient prove batson violation state marshaled supplemental material federal habeas proceedings without evidence prove never attempted prove years ago state justifications strikes pretext discrimination finally majority suggests delay voir dire batson hearing reason weakened deference see ante argument setting aside limit record relaxing level deference due state courts factual findings presumption correctness afforded factual findings habeas review however depend manner trial reaches factual findings reasons explained supra dissenting opinion majority leaves arguments unanswered majority argument implausible face usual risks imprecision distortion passage far greater years ante quoting supra majority backward passage time aedpa requires held counsels favor deference less least trial unlike benefit gauging witnesses prosecutors credibility swain batson hearings supra deference necessary reviewing analyzes transcripts voir dire well positioned trial make credibility determinations see also hernandez supra plurality opinion batson supra iii even taken terms cumulative evidence come remotely close clearly convincingly establishing state factual finding unreasonable discuss turn four types evidence alleged disparate treatment disparate questioning black white veniremen prosecution jury shuffles historical discrimination office selection juries although type evidence open judgment calls ante majority finds succession unpersuasive arguments amounts compelling case end majority opinion best refutation strains demonstrate instead patently obvious majority devotes bulk opinion comparison white panelists allowed serve two black panelists struck billy jean fields joe warren ante majority argues prosecution reasons striking fields warren apply equally whites permitted serve thus reasons must pretextual voir dire transcript reveals majority mistaken worth noting outset however claims always moving target black veniremen trial struck cause parties agreement served jury claimed batson hearing remaining black veniremen dismissed account race number dropped appeal federal habeas proceedings black veniremen found debatable entire lot struck based race supra however carrol boggess roderick bozeman wayman kennedy edwin rand dismissed reasons race majority effectively concedes ante supra scalia concurring majority focuses exclusively fields warren warren obviously equivocal death penalty end majority case reduces single venireman fields reading voir dire transcript ambiguous best antithesis clear convincing evidence outset questioning warren specify vote impose death penalty asked prosecutor paul macaluso ability impose death penalty warren stated cases agree know others record macaluso explained length types crimes qualified capital murder texas law asked whether warren able impose death penalty types heinous crimes warren continued hedge say depends case circumstances involved time offered sense circumstances lead conclude death penalty appropriate punishment macaluso changed tack asked whether warren believed death penalty accomplished social purpose warren proved impossible pin yes sometimes think sometimes think sometimes mixed feelings things like macaluso focused death penalty accomplished cases warren believed useful ibid even warren expressed firm view know really hard say know sometimes feel might help deter crime feel person really suffering taking suffering away like said sometimes mixed feelings whether punishment know relieving personal punishment ibid warren ambivalence driven uncertainty death penalty severe enough ante beside point throughout examination warren gave indication whether prefer death penalty forms punishment specifically life imprisonment record prosecutors seeking death penalty reason warren ambivalence irrelevant voir dire dispute prosecution struck warren race ambivalence death penalty attorneys object state strikes warren paul bailey though objected removal every black venireman bailey warren shared characteristic clear based questionnaires voir dire testimony impose death penalty see supra fact bailey clearly struck nonracial reasons never objected removal stage case also question batson hearing prosecution struck warren macaluso testified thought warren statements voir dire inconsistent responses one point says know basis another point said well think got impression least suggested death penalty easy way made suffer app addition macaluso noted warren brother recently convicted crime involving food stamps suggested warren might sympathetic defendants jurors macaluso quite candid warren obviously disfavorable state bailey macaluso stated might exercised peremptory warren later jury selection macaluso used peremptory challenges warren according majority macaluso testified struck warren statement death penalty easy way ante quoting app ambivalence death penalty ante grossly mischaracterizes record macaluso specifically testified batson hearing troubled inconsisten cy warren responses app emphasis added macaluso speaking warren ambivalence death penalty reason wholly unrelated race macaluso stated reason macaluso stand fall plausibility reason one concocted majority ante majority points four panel members kevin duke troy woods sandra jenkins leta girard supposedly expressed views much like warren struck state ante according majority evidence pretext majority premise faulty none veniremen difficult pin death penalty warren instance duke supported death penalty app always believed death penalty think serves purpose ibid mean sad thing see kill someone done things sometimes deserve killed feel answer three questions yes feel done crime worthy death penalty yes give death penalty contrast warren never expressed firm view one way troy woods black served jury even supportive death penalty duke majority suggests prosecutors might allowed woods serve jury running low peremptories wanted obscure pattern discrimination ante rank conjecture serve clear convincing evidence error right also belied record woods said capital punishment quick defendants feel pain app asked sort punishment defendants receive woods said honey stake ant bed ibid testified mete sentences defendants survive length time enough punishment alteration omitted woods also testified lifelong believer death penalty impose death generally juror impose death murder course robbery specific crime stood accused ibid beyond cavil state accepted woods juror impose punishment sought state nevertheless even assuming veniremen expressed views similar warren duke woods girard questioned much later jury selection process state fewer peremptories spare sandra jenkins questioned early voir dire process thus jenkins even arguably similarly situated warren however jenkins warren different important respects jenkins expressed doubt whatsoever death penalty testified researched death penalty high school said response questioning parties strongly believed death penalty value deterrent crime record alone explains state accepted jenkins juror struck addition jenkins relative convicted crime warren batson hearing macaluso testified struck warren warren inconsistent responses regarding death penalty brother conviction supra majority thinks prove pretext pointing white veniremen match one state proffered reasons striking warren ante defies situated mean matching one several reasons prosecution gave striking potential juror means matching title vii civil rights act discrimination occurs employee treated manner person sex different quoting los angeles dept water power manhart given limited peremptories prosecutors often must focus potential jurors likely disfavor case ignoring totality reasons prosecutor strikes particular venireman majority treats potential jurors products set cookie cutters ante potential jurors share among many traits must treated avoid batson violation course jurors must identical respects gauge pretext ante isolate race variable jurors must comparable respects prosecutor proffers important mean defendant win batson claim unless exactly identical white juror ibid means defendant support batson claim comparing veniremen different races unless veniremen truly similar second black venireman majority relies billy jean fields fields expressed support death penalty app fields also expressed views called question ability impose death penalty fields deeply religious man prosecutors feared religious convictions might make reluctant impose death penalty fears confirmed fields view people rehabilitated introduced god fear special force considering questions necessary impose death penalty texas one questions asked whether probability defendant engage future violence threatened society reached question macaluso fields following exchange macaluso word probability mean connotation fields well means possibility defendant continue lead type life rehabilitated intend make ambition macaluso let ask fields feel though people simply rehabilitated fields macaluso think everyone rehabilitated fields yes thus fields indicated possibility rehabilitation relevant whether defendant might commit future acts violence light view understandable prosecutors doubted whether vote impose death penalty fields testify impose death penalty even defendant rehabilitated majority shows state reason pretextual ante course fields said fairly consider death penalty answered otherwise challengeable cause point fields earlier answers cast significant doubt whether impose death penalty purpose peremptory strikes allow parties remove potential jurors suspect prove may exhibit particular bias see swain concurring based fields voir dire testimony perfectly reasonable prosecutors suspect fields might swayed penitent defendant prosecutors may worried nothing fields religious sentiments mean instead worried fields race warren majority attempts point similarly situated nonblack veniremen struck state efforts miss mark several reasons first majority better begin white veniremen struck state instance skips penny crowson white panelist expressed firm belief death penalty also stated probably impose death penalty believed chance defendant rehabilitated ante record state struck crowson demonstrates concerned views rehabilitation venireperson black ante second nonblack veniremen majority points sandra hearn mary witt fernando gutierrez favorable state fields various instance sandra hearn adamant value death penalty callous crimes app course shot cold blood two men lying bound gagged addition hearn father special agent federal bureau investigation job put daily contact police officers expressed utmost admiration likely state accepted hearn challenged cause fact appeal counsel say hearn ever ever venireperson excluded cause jury case capital murder jury venirewoman hearn hoped lord save us future jurors type thinking beliefs emphasis added alteration omitted see also juror counsel found repugnant transformed majority revisionist history juror objectionable state fields ante mary witt even views rehabilitation fields testified commonplace view people rehabilitated record moreover witt expressed strong support death penalty testified death penalty appropriate crime murder course robbery convict released prison committed murder previously twice spent time prison armed robberies likely state accepted witt struck finally fernando gutierrez testified impose death penalty brutal crimes record fact issue voir dire whether gutierrez apply texas lenient penalties severe ones questioned gutierrez length ultimately accepted parties seated jury third hearn witt gutierrez similarly situated fields even apart views death penalty fields dismissed views rehabilitation also brother several drug convictions served time prison app hearn witt gutierrez relatives significant criminal histories thus additional reason dismiss fields simply true jurors surely state need expend peremptories veniremen expressed faith rehabilitation avoid violating batson majority dismisses makeweight state justification fields brother ante majority arguments contrived state questioned fields voir dire brother drug offenses offenses occurred whether brother tried whether brother convicted whether brother criminal history affect fields ability serve jury app state fail engage voir dire examination majority contends ante quoting ex parte travis majority also contends state justification fields brother illustrates pretext state first pointed fields views rehabilitation reason strike ante timing state explanation unexceptional context state discussed fields brother essentially time discussed fields religious views entire exchange state counsel took place couple minutes app thus call state second reason afterthought ante ignores obvious even cold record state simply offered reasons quick succession claims disparate questioning also fit facts argues majority accepts prosecution asked different questions voir dire black nonblack veniremen two subjects manner execution minimum punishment allowed state law last time case refuted claim prosecutors disparate questioning evinced racial bias explained even entitle certificate appealability dissenting opinion time majority shifted gears claiming different set jurors demonstrates state racial bias majority new claim flawed last state questioned panelists differently questionnaire responses indicated ambivalence death penalty racial disparity questioning resulted reality nonblack veniremen favored death penalty willing impose veniremen given generic description death penalty outset voir dire examinations questioned graphic script detailed texas method execution ante according majority prosecutors used graphic script create cause removing black veniremen ambivalent opposed death penalty ante incorrect jury questionnaires asked two questions directly relevant death penalty question asked believe death penalty offered panelists chance circle yes asked lease explain answer provided space joint lodging question asked moral religious personal beliefs prevent returning verdict ultimately result execution another human offered panelists chance circle yes ibid according state veniremen took consistent stand death penalty either receive graphic script prospective jurors either answered question yes question meaning believe death penalty qualms imposing answered yes question question meaning believe death penalty qualms imposing potential jurors answered inconsistently thereby indicating ambivalence death penalty received graphic script questionnaires bear distinction fifteen blacks questioned voir dire eight received graphic script eight given ambivalent questionnaire answers regarding ability impose death penalty question veniremen baker bailey boggess woods butler ambivalent questionnaire answers see ante record majority claims keaton kennedy mackey ambivalent ante nn questionnaire answers show otherwise instance keaton circled question indicating believe death penalty wrote punished sic anyone joint lodging however circled question indicating qualms imposing death penalty ibid likewise mackey indicated believe death penalty wrote thou shall kill explanation space mackey said qualms religious otherwise imposing death penalty even though quoted one ten commandments ibid keaton mackey answers reconciled majority makes attempt ante kennedy wrote questionnaire impose death penalty nly extreme cases multiple murders joint lodging left prosecutors uncertain whether kennedy impose death penalty murdered one person though paralyzed another seven blacks receive graphic script six took stand death penalty either questionnaires need use graphic script clarify positions veniremen bozeman fields rand warren answered yes question indicating believed death penalty question indicating qualms imposing bozeman fields rand warren venireman mosley opposite said opposed death penalty record definitely impose appears true venireman smith adamantly opposed death penalty throughout voir dire struck cause apparent exception venireman carter said believed death penalty wrote questionnaire yes depend person done answered question indicating difficulties imposing death penalty ibid despite ambivalence carter receive full graphic script prosecutors told executed lethal injection huntsville thus far state explanation use graphic script fares far better majority questionnaire answers explain prosecutors use graphic script blacks contrast race explains use script veniremen majority nuanced explanation likewise inferior state hypothesizes script used remove black veniremen ambivalent opposed death penalty ante explanation accounts veniremen majority explain prosecutors use script mosley smith opposed death penalty carter ambivalent majority account veniremen like carter also mischaracterizes veniremen like keaton kennedy mackey arrives different percentages clear convincing evidence racial bias state explanation also accounts treatment nonblack veniremen whites hispanic filipino majority relies granted difficult draw conclusions nonblack veniremen blacks questionnaires available nonblacks number plummets veniremen discussed state see supra nevertheless questionnaires voir dire permit tentative conclusions first five nonblacks received graphic script desinise evans gutierrez sztybel zablan four ambivalent questionnaire gutierrez answered believed death penalty qualms imposing joint lodging sztybel zablan averred believed death penalty impose written answers question made unclear circumstances vote impose death desinise closer call genuinely undecided ability impose death penalty parties struck agreement record five nonblacks received graphic script evans one steadfastly opposed death penalty seven nonblacks allegedly receive graphic script four strongly opposed death penalty see thomas dissenting berk hinson nelson opposed struck cause holtz struck state opposed unless policeman fireman murdered ibid administering graphic script potential jurors useless trial lawyer willingly antagonize potential juror ardently opposed death penalty extreme portrait implementation remaining three nonblacks majority correct moses ambivalent questionnaire responses record although certain vickery neither received graphic script however final nonblack girard confirms state explanation clear girard questionnaire whether stand prosecutor nelson started abstract script quickly became apparent girard real sure ability impose death penalty testified decided value form punishment point nelson gave graphic script reason discern basic reaction succeed girard testified want serve capital jury attorney also used graphic script questioned girard counsel using graphic script state discern potential juror true feelings create cause removing venireman girard views favorable event state explanation fares well state explanation accounts prosecutors choice abstract graphic scripts nonblack veniremen moses vickery likely ambivalent receive graphic script evans opposed death penalty receive however majority theory accounts state treatment nonblacks majority explain jurors like moses vickery receive graphic script believes state using graphic script primarily blacks opposed ambivalent death penalty ante majority explain state use script opposed nonblack like evans ambivalent nonblacks like desinise girard gutierrez sztybel zablan finally majority take refuge supposed disparity use graphic script ambivalent black nonblack veniremen ante state gave graphic script ambivalent blacks ambivalent nonblacks hardly much difference however majority lumps veniremen opposed death penalty disparity increases state gave graphic script ambivalent opposed blacks ambivalent opposed nonblacks reason increased disparity race state maintains veniremen opposed death penalty receive graphic script sum state explain treatment potential jurors majority account state treatment potential jurors far cry clear convincing evidence racial bias also alleges state employed two different scripts basis race asking questions imposition minimum sentence argument even flawed last one evidence confirms state argues prosecutors used different questioning minimum sentences create cause strike veniremen ambivalent opposed death penalty brief respondent blacks given minimum punishment script mps expressed ambivalence death penalty either questionnaires baker boggess kennedy voir dire bozeman fields rand warren woods expressed ambivalence questionnaire voir dire testimony made clear superb juror state see supra thus woods receive mps reason give mps butler carter mosley smith dismissed cause agreement parties leaves bailey keaton mackey adamantly opposed death penalty voir dire state attempted remove cause record bailey keaton mackey state believed already grounds strike potential jurors need mps disqualify however even assuming state used mps veniremen state explanation still accounts ambivalent blacks majority seriously contest ante instead contends state used mps less often nonblacks demonstrates mps ruse remove blacks true state used mps often ambivalent nonblacks otherwise removable cause agreement nonblacks reached point voir dire sequence mps typically administered majority points alleges ambivalent received script ante three veniremen gibson gutierrez holtz given mps like many blacks four remaining eight veniremen moses salsini vickery witt favorable enough state peremptorily struck state interest disqualifying jurors two remaining four veniremen hearn mazza indicated impose death penalty questionnaires voir dire state likewise interest disqualifying jurors assuming state used mps two remaining veniremen crowson whaley state explanation still accounts ambivalent nonblacks evidence even minimally persuasive much less clear convincing argument prosecutors shuffled jury remove blacks pure speculation batson hearing raise discussion topic jury shuffling racial tactic record shows state shuffled jury first three weeks jury selection shuffled jury five weeks evidence proves prosecutors sought eliminate blacks jury proves sought eliminate whites even often thomas dissenting notes state twice shuffled jury second third weeks number blacks seated front panel ante according majority gives rise inference prosecutors discriminating ibid asking draw inference asking examine clear convincing proof inference even strong one know nonblacks near front shared characteristics blacks near front providing reasons shuffles also know racial composition panel first week state shuffled fourth fifth weeks important number characteristics race apparent prosecutors visual inspection jury panel see ladd state tex crim app granted know whether prosecutors relied racially neutral reasons ante never asked batson hearing burden prove racial discrimination evidence provide proof majority speculation complete however without discussion history discrimination office nothing guilt association unsupported record witnesses swain hearing testify individual prosecutors discriminated ante however one testified prosecutors trial norman kinne paul macaluso jim nelson ever among engage racially discriminatory jury selection supra majority tars prosecutors manual entitled jury selection criminal case hereinafter manual sparling manual authored john sparling former dallas county prosecutor evidence however kinne macaluso nelson ever read manual written almost two decades reason evidence question never asked entire batson hearing mention sparling manual never questioned macaluso never questioned kinne nelson majority simply assumes dallas county prosecutors racist remained way majority rely manual anything show manual contains single admittedly stereotypical line race minority races almost always empathize defendant app yet manual also tells prosecutors select anyone close friend relative prosecuted state true warren fields yet majority cavalierly dismisses makeweight state justification warren fields struck related individuals convicted crimes ante manual attributed kinne macaluso nelson attributed entirety majority point black venireman even arguably dismissed account race finally majority notes prosecutors race prospective juror juror cards ante quoting supra suffers problems evidence prosecutors mark juror cards jurors race sex juror number idea even majority bring speculate whether done merely identification purposes nefarious reason reason idea juror cards never introduced state courts thus prosecutors never questioned use thomas joe charges racism swayed aedpa restrictions stand way established much less established clear convincing evidence prosecutors racially discriminated selection jury certainly done basis evidence presented texas courts basis facts law rather sentiments merit writ respectfully dissent footnotes many explanations offered contemporaneously state trial occasion judge credibility explanations time equal protection jurisprudence dictated swain require cockrell hearing offered two years trial subject usual risks imprecision distortion passage time dissent contends comparisons black nonblack venire panelists along arguments prosecution disparate questioning black nonblack panelists use jury shuffles properly put texas courts post opinion thomas dissent conflates difference evidence must presented state courts considered federal courts habeas proceedings theories evidence see state factfinding must assessed light evidence presented state proceeding cockrell habeas petitioner must show unreasonability light record state question transcript voir dire recording evidence bases arguments base result state courts dissent contend fairly presen batson claim state courts picard connor juror questionnaires information cards question state courts unlike dissent see post reach decision whether limitation evidence waiveable see infra hearn give death penalty murder defendant committed prior offense robbery case judge according situation app thought death penalty might appropriate offenses like xtreme child abuse ibid witt ultimately serve peremptorily struck defense record fact witt venire members discussed peremptorily struck defense relevant point defense make decision exercise peremptory prosecution decided whether accept reject accepted prosecution ultimately struck defense underlying question defense thought jurors whether state concerned views rehabilitation venireperson black dissent offers reasons nonblack panel members expressed views rehabilitation similar fields otherwise acceptable prosecution see post dissent focuses reasons prosecution offer see infra prosecutors exercise peremptory strikes penny crowson charlotte whaley expressed views rehabilitation similar witt gutierrez app dissent contends white panelists similarly situated fields panel member joe warren imilarly situated mean matching one several reasons prosecution gave striking potential juror means matching post quoting cockrell thomas dissenting none cases announces rule comparison probative unless situation individuals compared identical respects reason accept one nothing combination fields statements rehabilitation brother history discredits grounds inferring purported reasons pretextual per se rule defendant win batson claim unless exactly identical white juror leave batson inoperable potential jurors products set cookie cutters black peremptorily struck state woods acceptance unclear whether prosecutors knew black prior voir dire questioning stand though indication prosecutors noted race panelist juror cards cockrell even panelists never questioned individually week ended turn pretextual indication mitigated macaluso reason warren convicted crime food stamps make restitution app macaluso never questioned warren errant relative fields brother failure ask undermines persuasiveness claimed concern warren brother criminal history comparable relatives panel members struck prosecutors cheryl davis husband convicted theft received seven years probation chatta nix brother involved fraud noad vickery sister served time penitentiary several decades ago even macaluso actually explained exercised strike warren diffident imposing death hard square explanation prosecution tolerance number ambivalent white panel members juror marie mazza example admitted concern associates might think sat jury called death penalty ronald salsini accepted prosecution struck defense worried gave death penalty might problem future done witt another panel member accepted state struck defense said know give sentence record appeals also found ambivalence warren statement asked felt generally death penalty cases agree know others app quoted look warren next answers shows meant sorts cases impose maybe things happen avoided choice kill impose killing self defense sometimes app death penalty sought murder committed time another felony warren thought depends case circumstances involved time none responses exceptionable number venire members struck state including seated jury offered version uncontroversial responsible view imposition death penalty depend circumstances see joint lodging marie mazza seated juror filemon zablan seated juror app colleen moses struck defense mary witt struck defense record max struck defense black members venire struck purportedly ambivalence death penalty capacity impose argues must actually struck race none expressed ambivalence white jurors mazza hearn think closer calls however edwin rand said points impose death penalty also said right say tomorrow might app alterations omitted wayman kennedy testified impose death penalty questionnaire voir dire specific saying believed death penalty mass murder joint lodging arguably fernando gutierrez accepted prosecution expressed similar view offered example defendant merited death penalty criminally insane person rehabilitated app perhaps prosecutors took gutierrez mean example roderick bozeman stated thought vote death penalty really know finally carrol boggess expressed uncertainty whether go giving death penalty although later averred decide whether white jurors expressed ambivalence much black members venire panel need go instances prosecutors treatment fields warren supports stronger arguments batson violated procedure conducted tex code crim proc art vernon supp statute says clerk conduct shuffle request either party transcripts case make clear side shuffles see app first panel members prosecution shuffled black second black third black black among last panel members record appeals declined give much weight evidence racially motivated jury shuffles shuffled jury five times prosecutors shuffled jury twice shuffles flatly irrelevant question whether prosecutors shuffles revealed desire exclude blacks appeals statement also inaccurate prosecution shuffled jury three times far tell voluminous record us many juror questionnaires along juror information cards added habeas record filing petition district see supplemental briefing claim based previously unavailable evidence record state raised objection receipt supplemental material district fifth circuit state joined proposing consider material providing additional copies joint lodging apparently alternative costly printing part joint appendix neither party referred provision reasonableness determination judged evidence state clear extent lodged material expands upon state judge knew judge presided voir dire swain hearing batson hearing jury questionnaires subjects reference voir dire last time case state expressly relied questionnaires one arguments brief respondent cockrell although objected consideration evidence state courts object either questionnaires juror cards time around state relies jury questionnaires argument prosecution disparate questioning based race occasion reach question waiver worth noting excluded lodged material case state arguments fare even worse panel members cards answers questionnaires items information prosecutors appearances reaching point choosing whether employ graphic script excluded consideration questionnaires state left basis even argue extenuation extreme racial disparity use graphic script confine analysis sources questionnaires testimony answers provided information available prosecutors venire members views death penalty decided whether use graphic script dissent conducted similar statistical analysis contends supports state argument graphic script used expose true feelings jurors professed ambivalence death penalty questionnaires see post examples suffice show dissent conclusions rest characterizations panel members questionnaire responses consider implausible dissent analysis example keaton mackey ambivalent despite keaton questionnaire response believe death penalty felt punish anyone joint lodging mackey response hou shall ot kill believe neither fairly characterized someone might turn juror acceptable state upon pointed questioning dissent also characterizes questionnaires vivian sztybel filemon zablan dominick desinise revealing ambivalence sztybel questionnaire stated believed death penalty person found guilty murder crime without valid defense hey may continue also reported moral religious personal belief prevent imposing death penalty ibid zablan stated questionnaire able impose death penalty supported law crime fits punishment desinise reported voir dire stated questionnaire opposition death penalty app app mackey keaton kennedy said believed death penalty apply extreme case one involving multiple murders joint lodging ambivalence questionnaire responses butler questionnaire available affirmed voir dire said questionnaire believed death penalty moral religious personal beliefs prevent imposing death penalty reported questionnaire believe death penalty crime committed concerning child beating death form harsh physical abuse innocent victim life taken record see also app butler kennedy sztybel zablan joint lodging sztybel zablan neither questionnaire available desinise evans confirmed voir dire questionnaire stated opposition death penalty app desinise evans desinise evans answering question whether moral religious personal beliefs might prevent giving death penalty colleen moses confirmed voir dire said know depend record noad vickery confirmed voir dire reported questionnaire sure believed death penalty fernando gutierrez reported questionnaire believed death penalty crimes answered yes question whether moral religious personal beliefs might prevent imposing joint lodging app gutierrez moses record vickery linda baker joint lodging paul bailey carrol boggess troy woods app boggess baker woods bailey dissent posits prosecutors use graphic script panel members opposed death penalty antagonized see post answer offered question prosecutor take care feelings panel member excuse cause strike yet antagonize ambivalent member whose feelings wanted smoke might turn acceptable juror john nelson record james holtz moses linda berk desinise app vickery record gene hinson app girard evans gutierrez joint lodging desinise app evans gutierrez jerry mosley record baker bailey keaton mackey boggess woods mosley app state puts number black panel members expressed opposition ambivalence seven received minimum punishment ruse bozeman fields warren rand boggess kennedy baker woods state argues revealed questioning supporter death penalty accordingly told five years statutory minimum explained supra fields warren neither ambivalent opposed analysis black venire members opposed ambivalent received trick question along two proponents capital punishment moses confirmed voir dire reported questionnaire know answer question record although express support death penalty app subjected manipulative script crowson said chance rehabilitation probably go death prosecution used peremptory strike employ manipulative minimum punishment script record vickery said know felt death penalty subjected manipulative script salsini thought problem future voted impose death sentence app subjected script mazza worried people think imposed death penalty subjected script witt said know give death penalty record subjected script whaley thought give death penalty without proof premeditation even though texas law require subjected script hearn said death penalty given rehabilitated app subjected script three nonblacks expressed ambivalence opposition subjected script james holtz margaret gibson fernando gutierrez record dissent reaches different statistical result supports state explanation see post two flaws calculations first excises calculations panel members struck cause agreement theory prosecutors knew rid panel members without resorting minimum punishment ruse see post prosecution calculation whether ask manipulative questions occurred prosecutors asked trial strike panel members cause frequently prosecutors defense counsel reached agreement removal unlikely prosecutors assured able remove certain panel members cause agreement forgo chance create additional grounds removal employing ruse second analysis panelists receiving graphic script dissent characterizes certain panel members ways judgment unconvincing example purposes analysis dissent considers colleen moses noad vickery panelists favorable prosecution need resort ruse post yet dissent acknowledged moses vickery ambivalent questionnaire responses discussion graphic script post material omitted quotation includes excerpt circular given prosecutors district attorney office state points evidence state trial sparling manual however state state claimed oral argument prosecutors tracking jurors races sure avoiding batson violation tr oral arg batson course decided month tried footnotes supplemental material appears joint lodging submitted parties includes state copies questionnaires prospective jurors served trial state juror cards members venire panel juror questionnaires possession since swain hearing attorneys used voir dire argue disparate treatment questioning batson hearing attorneys reason submit questionnaires trial juror cards requested point texas public information act see supplemental briefing claim based previously unavailable evidence record majority argues prosecutors mischaracterized fields testimony struck ante partially true wholly irrelevant counsel suggested fields strike related race prosecutor jim nelson responded certainly exercising preemptory strike fields race case concern reference statements death penalty said give death thought person rehabilitated later made comment person rehabilitated find god introduced god fact concern religious feelings may affect jury service case app alteration omitted nelson partially misstated fields testimony fields said give death penalty person beyond rehabilitation said person rehabilitated introduced god precisely prosecutors concerned fields religious feelings might affect jury service explaining veniremen hearn witt gutierrez favorable state fields majority faults focus ing reasons prosecution offer ante majority complaint hard understand state accepted hearn witt gutierrez although apparent voir dire transcript state wanted seat veniremen jury never required offer reasons majority instead means focus whether veniremen opposed death penalty whether relatives significant criminal histories precisely reasons offered state strike fields majority recitation voir dire transcript captures butler ambivalence ante butler said qualms imposing death penalty record impose death penalty crime committed concerning child beating death form harsh physical abuse innocent victim life taken state concerns fields warren stemmed questionnaire responses subsequent voir dire testimony supra joint lodging sztybel person found guilty murder crime taken someone else life without valid defense may continue even sentenced jail released keep happening zablan law crime fits punishment girard answer question belief death penalty record indicated answer question personal beliefs prevent imposing death penalty making decision whether employ mps prosecutors rely questionnaires substantial voir dire testimony minimum punishment questioning occurred much later voir dire questioning death penalty thomas dissenting moses gave ambivalent answers questionnaire perhaps vickery supra however moses vickery indicated voir dire testimony impose death penalty record thus questioned minimum sentences see ante judge larry baraka one first black prosecutors serve office testified best recollection manual longer used attended training course app