In Drain v. Woods, ___ F.Supp.2d ___, 2012 WL 5383048 (E.D. Mich. Nov. 2, 2012), the district court ruled that the prosecuting attorney violated Drain’s right to equal protection of the law by using peremptory challenges to excuse prospective jurors on the basis of race. Alternatively, in found that Drain’s trial attorney was ineffective for failing to object to the prosecutor's discriminatory use of peremptory challenges and to the trial court's procedures during voir dire.
The trial court had sua sponte raised Batson after the prosecutor had used seven peremptory challenges out of nine strikes to eliminate African-American venirepersons. The prosecutor voluntarily provided explanations for the strikes and the trial court found a Batson violation. Rather than recalling the African-Americans veniremembers who the prosecutor had eliminated or dismissing the entire jury venire, the trial court instead proceeded with voir dire and instructed the prosecutor to seek permission before striking any additional jurors. The prosecutor then successfully challenged an African-American juror for cause, and voir dire concluded.
On direct appeal, the appellate court found that any Batson error was waived due to trial counsel’s failure to raise the issue or object when the trial court proceeded with voir dire. In post-conviction proceedings, the trial court conceded that it had used an improper remedy for the Batson violation and granted relief on a claim that trial counsel was ineffective in failing to object. The intermediate appellate court reversed, finding that trial counsel did not perform deficiently because there was in fact no Batson violation.
The district court first considered the issue of procedural default. Because respondent did not raise that affirmative defense to either the Batson or ineffective assistance of counsel claim, the district court addressed both on the merits. The district court then found that the state intermediate appellate court acted unreasonably when it rested its denial of relief in part on what is described as the "dubious at best" nature of the prima facie evidence of purposeful discrimination. It was unreasonable because the issue of a prima facie showing was rendered moot after the prosecutor voluntarily provided explanations for her strikes of seven African-American veniremembers. The district court further noted that even if the question of a prima facie case were not moot, a prima facie case of purposeful discrimination had been established by the prosecutor’s use of 78% of her peremptory challenges to excuse African-Americans who made up only 28% of the venire at its inception. The state appellate court’s skepticism about the prima facie showing was contrary to clearly established Supreme Court precedent and unreasonable in that it was relying on the fact that the prosecutor had failed to strike two white veniremembers and had left some African-Americans on the juror.
The state appellate court had also faulted the trial court for purportedly combining steps two and three of the Batson analysis and improperly shifting the burden of proof to the prosecutor. The district court disagreed, finding that "the trial court did not shift the burden of proof to the prosecutor. Instead, the trial court rejected the prosecutor's explanations for reasons supported by the record and implicitly found the prosecutor's explanations to be pretextual." The district court, in concluding that the record did not support the prosecutor’s proffered reason for eliminating one of the prospective juror, conceded that the prosecutor had difficulty remembering precisely what the venireperson had said but responded: "[T]the failure to recall the reason for a peremptory challenge does not satisfy the Batson requirement to articulate a neutral explanation related to the case being tried." The district court also found certain strikes to be pretextual when comparing the characteristics and responses of struck veniremembers with non-African-American prospective jurors who were not struck by the prosecutor. The district court observed: "The [state appellate court] . . . unreasonably concluded that, ‘whenever two veniremen of different races provide the same responses and one is excused and the other is not,’ Batson is not violated." Because the state appellate court’s decision finding no Batson violation was based on an unreasonable determination of the facts, and resulted in an unreasonable application of Batson and its progeny, relief was granted on the Batson claim.
Turning to the related inffective assistance of counsel claim, the district court found that "[c]ounsel's passivity in light of an obvious pattern of strikes against minority prospective jurors fell below an objective standard of reasonableness and amounted to deficient performance." Regarding prejudice, the district court concluded that the more obvious evidence of prejudice was the fact that the state appellate court on direct appeal ruled that the Batson claim had been forfeited due to trial counsel’s failure to object. At the trial level, counsel’s inaction resulted in the trial court applying an incorrect remedy to the constitutional violation. The district court concluded: "But for counsel's failure to object to the Batson error and failure to suggest the proper remedy, there is a substantial probability that the trial court would have followed the proper procedures and ordered a new panel of jurors not previously associated with the case. Since Batson violation is a structural error, no further prejudice is required to be shown. These probabilities are sufficient to undermine confidence in the outcome of the trial." Furthermore, "The state appellate court's conclusion that trial counsel was not ineffective was objectively unreasonable and contrary to Strickland."