Supreme Court, U.S.FILED

OFFICE OF THE CLEI~KIN THE SUPREME COURT OF THE UNITED

STATES

JAMES DUNN,

Petitioner,

V.

STATE OF LOUISIANA,

Respondent.

PETITION FOR A WRIT OF CERTIORARITO THE SUPREME COURT

FOR THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

CAPITAL CASE

Kyla Blanchard-Romanach, La. Bar No. 25576Counsel of Record for James Dunn

DavidW. Price La. Bar No. 08733BatonRouge Capital Conflict Office525 Florida Street Suite 310Baton Rouge, Louisiana 70801Telephone: (225)338-0235E-mail: kyla@brcco.org

LEGAL PRINTERS LLC, Washington DC ¯ 202-747-2400 ¯ legalprinters.com

Blank Page

CAPITAL CASE

QUESTION PRESENTEDIn this Louisiana capital case, involving an

African-American defendant and two white victims,where 82% of the venire was white, the defense wasforced to seat a juror predisposed towards the deathpenalty because the trial court inverted theBatson/McCollum analysis and required thedefendant to carry the burden of proof to establishthat his strike of a white juror was race-neutral.This inversion of the Batson shield gives rise to thefollowing question:

Whether the Louisiana court’s modification ofthe three-step Batson analysis, requiring the defenseto prove that the Defense’s strikes were notmotivated by race- while simultaneously requiringthe defense to prove that the State’s strikes weremotivated by race violates the 6th and 14th

Amendments.

TABLE OF CONTENTS

QUESTION PRESENTED .........................................i

TABLE OF CONTENTS ............................................ii

INDEX OF APPENDICES ........................................iii

TABLE OF AUTHORITIES .....................................iv

PETITION FOR A WRIT OF CERTIORARI ............1

OPINIONS BELOW ...................................................1

JURISDICTION .........................................................1

RELEVANT CONSTITUTIONAL PROVISIONS ... 2

STATEMENT OF THE CASE ...................................3

REASONS FOR GRANTING THE WRIT .................9

I. Three-part Batson test .....................................10

II. The trial court eliminated the first part of thethree-part Batson test ...........................................12

III. The trial court unreasonably applied the

second part of the three-part Batson test ............13

IV. The trial court eliminated the third part of the

three-part Batson test ...........................................15

V. The trial court’s ruling was not based on the

juror’s or the attorney’s demeanor, but on an

improper application of the law ...........................17

VI. This was not a one-time misapplication of

Batson ....................................................................20

VII. This case is distinguishable from Hernandez

v. New York ...........................................................26

ii

VIII. The elimination of parts one and three of the

three-part Batson test and the unreasonable

application of part two of the test resulted in a

violation of the United States Constitution .........27

CONCLUSION .........................................................31

INDEX OF APPENDICES

APPENDIX A, State v. Dunn, 01-1635 (La. 05/11/10)2010 La. LEXIS 1218 .............................................. A-1

APPENDIX B, State v. Dunn, 01-1635 (La. 11/01/02)831 So.2d 86 .......................................................... A-57

APPENDIX C, State v. Dunn, 01-1635 (La.6/25/10)(Unpublished denial of rehearing) ........A- 114

iii

TABLE OF AUTHORITIES

CasesBatson v. Kentucky, 476 U.S. 79 (1986) ............passimClark v. Roemer, 777 F. Supp. 471

(D. La. 1991) .........................................................24Georgia v. McCollum, 505 U.S. 42 (1992) ......i, 11, 19Hernanclez v. New York, 500 U.S. 352 (1991)..passimJohnson v. California, 545 U.S. 162 (2005) ............28Miller-El v. Cockrell, 537 U.S. 322 (2003) .........11, 20Miller-El v. Dretke, 545 U.S. 231 (2005) ...........11, 19Morgan v. Illinois, 504 U.S. 719 (1992) ...................19Powers v. Ohio, 499 U.S. 400 (1991) ..................11, 29Purkett v. Elem, 514 U.S. 765 (1995) ................12, 14Rice v. Collins, 546 U.S. 333 (2006) ........................12Rivera v. Illinois, 129 S.Ct. 1446 (2009) .................20Smith v. Texas, 311 U.S. 128 (1940) ........................28Snyder v. Louisiana, 552 U.S. 472 (2008) .........11, 18State v. Cross, 93-1189

(La. 6/30/95) 658 So.2d 683 ..................................20State v. Miller, 23rd Judicial District,

Case No. 11533 ...............................................23, 25State v. Scott, 2004-1312 (La. 01/19/06) 921 So.2d

904 ................................................................... 23, 25State v. Spencer, 631 So.2d 1363 (La. App. 5 Cir.

]_993) ......................................................................25Strauder v. West Virginia, 100 U.S. 303

(1880) ............................................................. 27, 29Summerchase Ltd. Ptshp. I v. City of Gonzales, 970

F. Supp. 522 (M.D. La. 1997) ...............................24Swain v. Alabama, 380 U.S. 202 (1965) ............29, 30United States v. Sheriff of Assumption Parish, 1995

U.S. Dist. LEXIS 15017; 69 Fair Empl. Prac. Cas.(BNA) 129 (E.D. La. 1995) ................................... 25

iv

Wainwright v. Witt, 469 U.S. 412 (1985) ...........18, 19Witherspoon v. Illinois, 391 U.S. 510 (1968) ...........19

Statutes18 U.S.C. § 243 .........................................................1128 U.S.C. § 2254 (e)(1) .............................................20

Other AuthoritiesHoward Castay, Certain Proms Still Dance to the

Beat of Separation and Segregation, The LouisianaWeekly, May 12, 2003 ..........................................24

Joe Gyan, Consent Decree Ends Sex Bias Suit withSheriff, The Advocate, March 8, 1996, at 6B .......24

Constitutional ProvisionsU.S. Const. amend. VI .........................................2, 15U.S. Const. amend. XIV .................................2, 15, 20

V

PETITION FOR A WRIT OF CERTIORARIPetitioner James Dunn respectfully petitions

for a writ of certiorari to review the judgment of theSupreme Court of Louisiana in this case.

OPINIONS BELOWThe opinions below include an opinion

affirming Mr. Dunn’s conviction for the murders ofJacqueline Guillot Blanchard and Lisa Dupuis,pretermitting "review of the penalty phase ofdefendant’s trial and remand[ing] to the districtcourt for a hearing in conformity with this opinion todetermine whether or not defendant is mentallyretarded." See Appendix B, State v. Dunn, 01-1635(La. 11/01/02); 831 So.2d 862. The opinions belowalso include an opinion by the Supreme Court ofLouisiana affirming the trial court’s ruling that Mr.Dunn is not mentally retarded and affirming hisconviction and sentence of death. See Appendix A,State v. Dunn, 01-1635 (La. 05/11/10); 2010 La.LEXIS 1218. Finally, the opinions below include thedenial of rehearing, which is unpublished and isreproduced at Appendix C.

JURISDICTIONThe Supreme Court of Louisiana issued its

initial opinion affirming Mr. Dunn’s conviction onNovember 1, 2002. However, at that time theLouisiana Supreme Court remanded the case to thetrial court for a hearing to determine whether Mr.Dunn suffers from mental retardation. The

Louisiana Supreme Court affirmed Mr. Dunn’sconviction and sentence on May 11, 2010¯ Thatdecision became final on June 25, 2010, when Mr.Dunn’s application for rehearing was denied. ThisCourt has jurisdiction pursuant to 28 U.S.C. 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

This case involves the following constitutionalprovisions:

The Sixth Amendment to the United StatesConstitution provides in pertinent part:

In all criminal prosecutions, the accusedshall enjoy the right to a speedy andpublic trial, by an impartial jury...

The Fourteenth Amendment to the UnitedStates Constitution provides in pertinent part:

¯ . . No State shall make or enforce anylaw which shall abridge the privileges orimmunities of citizens of the UnitedStates; nor shall any state deprive anyperson of life, liberty, or property,without due process of law; nor deny toany person within its jurisdiction theequal protection of the laws.

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STATEMENT OF THE CASEJames Dunn, a black man, was sentenced to

death by a jury of ten whites and two blacks. Mr.Dunn attempted to exercise a peremptory strikeagainst Juror Robert Anderson, a white man. Thetrial court created its own rule that if either partyexercised three or more strikes against jurors of anyparticular race, that party must thereafter providerace-neutral reasons for its peremptory strikes.When asked to provide a race-neutral reason forstriking Mr. Anderson, defense counsel cited Mr.Anderson’s eagerness to impose the death penalty inthis particular case. The trial court apparentlyconfused this Court’s three-step Batson analysiswith the analysis used to determine whether a jurorshould be struck for cause and found that this wasnot a race-neutral reason for striking Mr. Anderson.Without any basis for finding that the defendant wasexercising his peremptory strikes on the basis ofrace, the trial court seated Mr. Anderson as a juror.The Louisiana Supreme Court apparently sufferedfrom the same confusion as the trial court and,deferring to the trial court’s decision, affirmed theconviction.

During voir dire, the court had the followingcolloquy with Mr. Anderson regarding the deathpenalty:

Q: In regards to the death penalty, yousaid you’re in favor of the death penalty?

A: In most circumstances, yes.

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Q: Do you have any general oppositionto the death penalty?

A: Yes.

Q: You have opposition to theimposition?

A: I don’t think I could do that insomething like a violent - - like a mercykilling or you know, something like that,I don’t think that would be warranted.

Q: Well, what I’m asking you is this. Ifyou were selected as a juror in this case,would your makeup, knowing you, doyou feel that you would be against thedeath penalty?

A: Not in this situation.

Q: I’m sorry?

A: Not in this situation, I don’t think Iwould be against it.

Q: Now, you said not in this situation?

A: In this situation, I could go by - - Icould see the death penalty.

Q: Now, I’m going to walk this line realcarefully. Have you heard anythingabout this case, other than what’s been

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mentioned in this courtroom? Don’t tellme if you have heard anything.

A: No, I haven’t heard anything otherthan what’s been in here.

Q: Okay.

A: But, like they said, there weresome graphic pictures and itsounded violent to me.

Q: Okay. Have you formed an opinionalready on this case?

A: No.

Q: Okay. Would you keep an open mindprior to making any decision?

A: Yes.

Q: So, would you automatically vote toimpose the death penalty?

A: No, sir.

Q: Would you considerall of themitigating circumstancesduring thepenalty phase, prior tomaking adecision as to death by lethal injectionor life imprisonment without benefit ofprobation, parole or suspension ofsentence?

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A: Yes.

Q: Would you give more weight to anaggravating circumstance than amitigating circumstance?

A: No.

R. 2400-02. This is the only substantiveconversation Mr. Anderson had with the court orcounsel during voir dire other than his admission tothe prosecutor that he was being facetious when hewrote on his juror questionnaire that he admires BillClinton. R. 2433

When the defendant attempted to exercise aperemptory strike against Mr. Anderson, the Statesaid, "we request that it’s a continuing Batsonchallenge at this point." The trial court never ruledthat the state made a prima facie case of racialdiscrimination. Rather, the trial court was simplyapplying its own three-strike rule, which the defensehad objected to. R. 2651-52. The following colloquyis the entirety of the discussion and rulingconcerning the defense’s attempted peremptorystrike of Mr. Anderson:

MR. PASTOR [Defense counsel]: Mr.Anderson not only said that he favorsthe death penalty, but in fact he favorsthe death penalty in mostcircumstances. I feel that he’s morethan ready to vote for death. I had a

6

few challenges left, I chose not to havehim on my jury.

MS. O’BANNON [The prosecutor]: YourHonor, this guy is Catholic, and hisreligion his religious organizationbelieves that the death penalty is wrong.He said that he can vote for death, buthe wouldn’t automatically do so, that hewould consider mitigatingcircumstances, and it just depends onthe situation. I don’t think Mr.Anderson said or did anything thatwould indicate that he would beanything but a fair and impartial juror,and I believe he’s excluded based onrace.

MR. PASTOR [Defense counsel]: Can Imake one more comment? Mr. Noltinghas some notes I didn’t have. Mr.Nolting’s notes also reflect that he - -and I forgot, I didn’t write this down, Ihad very limited space - - but that thesituations that it was not warranted in --the death penalty was not warranted - -would be in the mercy killing. That hecould give the death penalty in asituation where there was a violentdeath.

MR. NOLTING [Defense counsel]: Hesaid in this situation.

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MR. PASTOR [Defense counsel]: In thissituation. That he has no problemgiving the death penalty let’s say in thissituation.

MR. NOLTING [Defense counsel]: Inthis case.

THE COURT: Well, that’s not thecriteria. I remember this particularjuror’s response, as I went through thatclearly with him. I don’t see anywherein there where this individual wouldrefuse to look at all the circumstancesand consider any lesser included offenseso far as this particular charge isconcerned. I don’t see anything in hisresponses, in totality, so far as thepenalty phase is concerned, that hewould not consider all mitigatingcircumstances and aggravatingcircumstances. Your argument so far asa race neutral reason under Batson,when considering the argument of theState, your argument and the responsesof Mr. Anderson, I do not find that youstated a race neutral reason for Mr.Anderson. Therefore, Mr. Anderson willbe Juror No. 6.

MR. PASTOR [Defense counsel]: Noteour objection, Your Honor.

R. 2482-84. The trial court did not require the state

8

to make a prima facie showing that the defensediscriminated on the basis of race, grosslymisinterpreted the second step of the Batson inquiry,and did not require the State to bear the burden ofproving racial discrimination as required by thethird part of the Batson test.

Nonetheless, the Supreme Court of Louisianaheld:

Given the responses of Anderson to thequestions of counsel and the court andconsidering the great deference affordedthe trial court relative to the evaluationof discriminatory intent, we areconvinced the trial court did not err indetermining that counsel for defendantengaged in discrimination by exercisinga peremptory challenge againstAnderson.

State v. Dunn, 01-1635 (La. 11/01/02); 831 So.2d 862,872. Neither the trial court nor the LouisianaSupreme Court provided any reason for believingthat the peremptory strike against Mr. Andersonwas based on his race. Rather, they apparentlyfound that Mr. Dunn failed to prove that theperemptory strike was not based on race. Thisshifting of the burden to the party exercising aperemptory strike is inconsistent with this Court’sprior decisions and should be reversed.

REASONS FOR GRANTING THE WRITPetitioner James Dunn respectfully asks this

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Court to grant the writ of certiorari to review thejudgment of the Supreme Court of Louisiana in thiscase, to vacate the judgment below, and tosummarily grant relief in this case of obviousconstitutional error. The Louisiana Supreme Courtupheld the trial court’s decision to adopt its own rulein place of this Court’s three-step Batson analysis,which led to the absurd result of a juror being seatedagainst the defense’s will without any evidence thatthe defense was exercising the strike on the basis ofrace. Batson was designed to shield against thedanger of minority jurors being intentionallyexcluded from juries. It is patently offensive to theConstitution to allow the State to turn the shield ofBatson into a sword to not only stack the jury withwhite jurors but also to force a particular white juroronto the jury against Mr. Dunn’s will at a time whenMr. Dunn had not exercised all of his peremptorychallenges. This Court should grant certiorari toconsider whether a trial court may relieve theopposing party of its burden of proving purposefuldiscrimination by creating its own system ofewfluating Batson objections rather than using thisCourt’s well-established three-part Batson test. Thisis of particular concern in a case such as this, wherethe defendant is a black man attempting for race-neutral reasons to strike a particular white manfrom a jury that is already overwhelmingly white.

I. Three-part Batson test

Since the enactment of the Civil Rights Act of1875, it has been illegal to exclude persons fromjury service on the basis of their race. See 18 U.S.C.

10

§ 243. Powers v. Ohio, 499 U.S. 400, 402 (1991).Since at least about this time, if not longer,lawmakers in Louisiana have set about to managethe exclusion of African-Americans from the pollsand the jury box. In recognition of the constitutionalviolations and societal harm involved in excludingjurors on the basis of race, this Court has held thatneither the State nor the Defendant may exercise itsperemptory challenges on the basis of the race of thejuror. See. e.g. Batson v. Kentucky, 476 U.S. 79(1986); Georgia v. McCollurn, 505 U.S. 42 (1992).Batson provides the three-step process a trial courtis to use in determining whether a peremptorychallenge was based on race:

First, a defendant must make a primafacie showing that a peremptorychallenge has been exercised on thebasis of race[;s]econd, if that showinghas been made, the prosecution mustoffer a race-neutral basis for striking thejuror in question[;and t]hird, in light ofthe parties’ submissions, the trial courtmust determine whether the defendanthas shown purposeful discrimination.Miller-E1 v. Dretke, supra, at 277, 125S.Ct. 2317, 162 L.Ed.2d 196 (Thomas,J., dissenting)(quoting Miller-El v.Cockrell, 537 U.S. 322, 238-329, 123S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

Snyder v. Louisiana, 552 U.S. 472 (2008).The third step of the Batson analysis "involves

evaluating ’the persuasiveness of the justification’

11

proffered by the prosecutor, but ’the ultimate burdenof persuasion regarding racial motivation rests with,and never shifts from, the opponent of the strike.’Purkett, supra, at 768, 115 S.Ct. 1769, 131 L.Ed.2d834." Rice v. Collins, 546 U.S. 333, 338 (2006). ThisCourt has placed the burden of persuasion squarelyon the opponent of the peremptory strike to proveracial motivation rather than on the party exercisingthe peremptory strike to prove a lack of racialmotivation.

II. The trial court eliminated the first part ofthe three-part Batson test

For reasons unbeknownst to counsel, the trialcourt chose not to apply this well-known three-stepanalysis in this capital case. Instead, the trial courtmade its own rule that if either party exercised threeor more peremptory strikes against a juror of anyparticular race, that party must thereafter provide arac, e-neutral reason for its peremptory challenges.R. 2481, 2651-53. The first effect of this court-created rule is to eliminate the requirement that theparty opposing the peremptory strike make a primafacie case of racial discrimination.

This, of course, also means that with a jurypool that is 82.5% white, the parties will certainlyhave to justify their challenges of white jurors, asthe vast majority of jurors who could potentially bestruck peremptorily are white. When the defensepointed out the problem with the small number ofblack jurors in the jury pool and argued, "If she’ssaying that I can’t exclude somebody because theyare white, then I might as well not have any

12

challenges at all" the prosecutor responded, "Well,that’s your problem." R. 2470. That should not havebeen Mr. Dunn’s problem. Had the trial courtapplied the three-step analysis from Batson, it wouldhave been the state’s problem to prove purposefuldiscrimination. The trial court’s ad hoc ruleimproperly placed the burden on the defense toprove that the strikes he exercised against whitejurors were not exercised on the basis of race withoutthe State having to offer any evidence whatsoeverthat the strikes were exercised on the basis of race.

III. The trial court unreasonably applied thesecond part of the three-part Batson test

In addition to eliminating the first part of theBatson test that would have required the State tomake a prima facie case of racial discrimination, thetrim court incorrectly applied the second part of theBatson test. This Court has explained:

The second step of this process does notdemand an explanation that ispersuasive, or even plausible. "At this[second] step of the inquiry, the issue isthe facial validity of the prosecutor’sexplanation. Unless a discriminatoryintent is inherent in the prosecutor’sexplanation, the reason offered will bedeemed race neutral." Hernandez, 500U.S. at 360 (plurality opinion); id., at374 (O’CONNOR, J., concurring injudgment).

13

Purkett v. Elern, 514 U.S. 765, 767-68 (1995). "Whatit means by a ’legitimate reason’ is not a reason thatmakes sense, but a reason that does not deny equalprotection." Purkett v. Elem, 514 U.S. at 769(citations omitted). Contrary to the trial court’sruling, defense counsel certainly provided a race-neutral reason for peremptorily striking Mr.Anderson.

Any lawyer well-versed in capital defense hasalmost assuredly been trained to select jurors in acapital case almost exclusively on the basis of theirattitudes toward the death penalty. That isprecisely what counsel for Mr. Dunn attempted to doin this case. Mr. Dunn’s counsel had every reason tobelieve that Mr. Anderson was predisposed toimpose the death penalty in this case. Mr. Andersonsaid so himself. He said that he might have aproblem imposing the death penalty upon someoneguilty of a mercy killing, which is not much of aconcession, since a mercy killing would not be acapital case. However, he said where there is aviolent killing he believes in imposing the deathpenalty.

Arguably Mr. Anderson could have beenchallenged for cause, as every genuine capital caseinvolves a violent killing. Mr. Anderson, withouthaving heard any evidence in this case, stated thathe would not have a problem imposing the deathpenalty in this case, as he heard in jury selectionthat there were gruesome photographs. In light ofMr. Anderson’s responses, it would be irresponsiblefor a defense attorney who has peremptorychallenges still remaining not to exercise one of themon Mr. Anderson. Reading between the lines, it is

14

clear that Mr. Anderson would vote to impose thedeath penalty in any case that is genuinely a capitalcase. In fact, Mr. Anderson ultimately did vote toimpose the death penalty upon Mr. Dunn.

Given the racial composition of the pool ofpotential jurors, no lawyer in his right mind couldhave thought that he could keep whites from servingon the jury or even from constituting the vastmajority of the jury. Elementary mathematicalprinciples would reveal to even the most simple-minded lawyer that he must select among jurors onsome basis other than race with a jury pool that is82.5% white.

Without a doubt, a juror’s predisposition toimpose the death penalty for a violent killing is arace-neutral reason for the exercise of a peremptorystrike in a capital case. For the Louisiana SupremeCourt to uphold the trial court’s decision holdingotherwise was a violation of the Equal Protectionand Due Process Clauses of the FourteenthAmendment as well as of Mr. Dunn’s SixthAmendment right to a fair trial before an impartialjury.

IV. The trial court eliminated the third part ofthe three-part Batson test

Just as the trial court eliminated the first stepof the Batson inquiry, the trial court also eliminatedthe third step of the Batson inquiry, which requiresthe trial court to determine whether the opponent ofthe strike has carried its burden of provingpurposeful discrimination. This is the entirety of thetrial court’s ruling and explanation regarding its

15

ruling on the defense’s peremptory strike of Mr.Anderson:

Well, that’s not the criteria. [Whetherthe juror stated that he had no problemimposing the death penalty in thisparticular case.] I remember thisparticular juror’s response, as I wentthrough that clearly with him. R. 2483.I don’t see anywhere in there where thisindividual would refuse to look at all thecircumstances and consider any lesserincluded offense so far as this particularcharge is concerned. I don’t seeanything in his responses, in totality, sofar as the penalty phase is concerned,that he would not consider allmitigating circumstancesandaggravating circumstances.Yourargument so far as a race neutral reasonunder Batson, when considering theargument of the State, ,your argumentand the responses of Mr. Anderson, I donot find that you stated a race neutralreason for Mr. Anderson. Therefore, Mr.Anderson will be Juror No. 6." R. 2484

The State never provided any reason forbelieving that the defense was exercising itsperemptory strikes on the basis of race. The"argument of the State" that the court is referencingis not an argument by the State presenting itsreasons for believing that the peremptory challengewas based on race. It is simply an argument by the

16

State that Mr. Anderson did not say that he wouldautomatically impose the death penalty. This is theentirety of the State’s argument regarding the strikeof Mr. Anderson:

Your Honor, this guy is Catholic, andhis religion - - his religious organizationbelieves that the death penalty is wrong.He said that he can vote for death, buthe wouldn’t automatically do so, that hewould consider mitigatingcircumstances, and it just depends onthe situation. I don’t think Mr.Anderson said or did anything thatwould indicate that he would beanything but a fair and impartial juror,and I believe he’s excluded based onrace. R. 2483.

At no point did the State provide a reason forbelieving that the defense was exercising itsperemptory strikes on the basis of race. The Statewas not even asked to provide such a reason, as thetrial court had established the "three strike" rule, arule that was utterly unfair to the defense given theoverwhelming number of whites in the jury pool.

V. The trial court’s ruling was not based onthe juror’s or the attorney’s demeanor, but onan improper application of the law

This Court has stated that race-neutralreasons for peremptory challenges often involve ajuror’s demeanor, making the trial court’s

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observations of the juror even more important.

In this situation, the trial court mustevaluate not only whether theprosecutor’s demeanor belies adiscriminatory intent, but also whetherthe juror’s demeanor can credibly besaid to have exhibited the basis for thestrike attributed to the juror by theprosecutor. We have recognized thatthese determinations of credibility anddemeanor lie "peculiarly within a trialjudge’s province," ibid. (quotingWainwright v. Witt, 469 U.S. 412, 428,105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)),and we have stated that "in the absenceof exceptional circumstances, we woulddefer to [the trial court]," 500 U.S. at366, 111 S. Ct. 1859, 114 L. Ed. 2d 395(plurality opinion).

Snyder v. Louisiana, 552 U.S. 472, 477 (2008).However, in this case the trial court was silent ondemeanor. He stated that he relied on the juror’sresponses. R. 2483-2484. Moreover, the reasongiven by the defense for striking Mr. Anderson doesnot require firsthand observation of Mr. Anderson’sdemeanor or of the defense attorney’s demeanor. Itis clear from a cold reading of the record that Mr.Anderson was predisposed to impose the deathpenalty in this particular case. He said that hewould not have a problem imposing the deathpenalty in this particular case, as it sounded like aviolent killing with gruesome photographs. He said

18

this without having seen any of the photographs orhearing any of the evidence. This is simply not acase that turns on the demeanor of the juror or theattorney. Thus, the deference given by theLouisiana Supreme Court to the trial court is notappropriate in this situation.

Deference to the trial court is particularlyinappropriate in light of the trial court’s admissionthat he never read Georgia v. McCollum,I the onlycase which would have possibly authorized him toseat a juror who had been peremptorily struck by thedefense. R. 2656-2657. It is also inappropriate forthis Court to give deference to a trial court thatchose to create its own rule for determining Batsonissues rather than applying this Court’s well-established three-part Batson test. As this Courtstated in Johnson v. California, 545 U.S. 162, 168(2005), "Those three Batson steps should by now befamiliar." It is unclear from the record of this trialwhether the trial court ever read Batson or thisCourt’s other cases interpreting Batson. The trialcourt did state that this was his first capital case. R.1999. Thus, this was the court’s first time dealingwith Batson issues in the context of Witherspoon v.Illinois, Wainwright v. Witt, and Morgan v. Illinois.

It is evident that the trial court did not evenrecognize a juror’s death penalty views as a race-neutral reason for excluding that juror peremptorily.This Court stated in Miller-E1 v. Dretke, 545 U.S.231, 240 (2005), "Thus, we presume the D court’sfactual findings to be sound unless [the defendant]rebuts the ’presumption of correctness by clear and

1"Well, I haven’t read the case." (referring to Georgia v.McCollum) R 2656-2657.

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convincing evidence.’ § 2254 (e)(1). The standard isde~manding but not insatiable; as we said the lasttime this case was here, ’deference does not bydefinition preclude relief.’ Miller-E1 v. Cockrell, 537U.S. at 340, 154L. Ed. 2d 931, 123S. Ct. 1029." TheLouisiana Supreme Court erred in deferring to thetrial court’s decision when the trial court neitherread nor applied the applicable law.

VI. This was not a one-time misapplication ofBatson

In Rivera v. Illinois,~ 129 S.Ct. 1446, 1455(2009), this Court observed, "To hold that a one-time,good faith misapplication of Batson violates dueprocess would likely discourage trial courts andprosecutors from policing a criminal defendant’sdiscriminatory use of peremptory challenges. TheFourteenth Amendment does not compel such atradeoff." This was not a one-time misapplication ofBatson.

The trial court chose, for whatever reason, tocreate its own three-strike rule in place of thisCourt’s well-established three-part Batson test. It is

2In Rivera v. Illinois, this Court held that there is not arule of automatic reversal when a court improperly seats ajuror that a defendant attempted to strike peremptorily, asstate law controls the consequences of an erroneous denial of aperemptory challenge. Unlike Illinois law, Louisiana lawprovides for automatic reversal where a peremptory challengeis wrongfully denied. See, e.g., State v. Cross, 93-1189 (La.6/30/95); 658 So.2d 683, 686. This case is distinguishable fromRivera in that this case involves the erroneous interpretation ofBatson, not the constitutionality of the state court remedy forthe wrongful denial of a peremptory challenge.

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not too much to ask a state court to at least read andmake a genuine effort to follow this Court’sestablished precedents when ruling on a criminaldefendant’s alleged discriminatory use of peremptorychallenges. The trial court acted in an arbitrary andirrational manner in shifting the burden to thedefense to prove a lack of discriminatory intent andthen applying a cause analysis to a peremptorystrike to determine whether the strike was made ona discriminatory basis. Under these circumstances,this Court should reverse the decision of theSupreme Court of Louisiana affirming the trialcourt’s arbitrary and irrational misapplication ofBatson.

The arbitrariness of the trial court’s decisionis obvious from a side-by-side comparison of the trialcourt’s treatment of the state’s peremptory exclusionof black juror Mr. Robert Thomas versus thedefense’s attempted peremptory exclusion of whitejuror Mr. Anderson. When asked to give a race-neutral reason for its peremptory strike of Mr.Thomas, the state responded:

Your Honor, again, although this jurorstated that he does not oppose the deathpenalty, now obviously that is notour standard, there was a couple ofreasons that the State felt that he wouldnot be fair and impartial in thisparticular case. When the Court wasquestioning him about his views on thedeath penalty and mitigatingcircumstances, he indicated that drugsand alcohol to him would be an excuse -

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- well, not an excuse but a circumstancein which he would impose the lifesentence. I don’t know whether or notthat’s evidence that Mr. Pastor or Mr.Nolting intend to present, that thisdefendant was under drugs or alcohol,but my impression was that thatmitigating circumstance would be givensuch great weight that this juror couldnot fairly consider the death penalty asan option. I also was concerned becausehis wife was against the death penaltyand I was concerned that perhaps hisfeelings about the death penalty werenot perhaps as strong as the ability toactually impose it, should he be facedwith that decision. So, for those reasonsI excluded him. R. 2669-2670.

The defense stated at that point that the defense hadno intention of introducing evidence of drug oralcohol use and had already so informed the state.R. 2670. The trial court’s ruling with respect to theState’s peremptory challenge of Mr. Thomas was asfollows:

Well, based on the response of the Stateand considering both the argument ofdefense and the State and also Batson,so far as race neutral reasons areconcerned, that the case really isliberal so far as the race neutralreasons are concerned. I mean,they’ve given instances where I may not

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agree with so far as the reason that theyallow the exclusion of a particularperson or class of individual from a jury.The Court feels that in this particularcase the State has stated a race neutralreason pursuant to Batson. R. 2672.

Thus, when ruling on the State’s peremptorychallenge of a black juror, the trial court recognizedthat this Court has a liberal interpretation of race-neutral reasons and that a juror’s views on the deathpenalty constitute a race-neutral reason forexcluding the juror. However, when ruling on thedefense’s peremptory strike of Mr. Anderson, a whitejuror, the trial court found that a juror’s views on thedeath penalty are not a race-neutral reason forexcluding that juror. Thus, the trial court not onlycreated its own rule instead of applying this court’sthree-step Batson analysis but also applied the rulearbitrarily and irrationally.

Nor is this the first time this particular judgehas erred in this way. A review of the voir dire ofthe last three capital cases involving Judge AlvinTurner and Assistant District Attorney RobinO’Bannon shows a troubling pattern ofdiscrimination against potential black jurors. Inthese cases, the court, on the State’s urging, hascompelled black defendants to accept white jurorsthus limiting the possible seats on the jury availableto black jurors. In the present case and State v.Scott, 2004-1312 (La. 01/19/06); 921 So.2d 904, andState v. Miller, 23rd Judicial District, Case No.11533, the trial court compelled the black defendantsto accept a total of eight white jurors in spite of

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defense peremptory challenges.A review of reported cases fails to reveal a

single 23rd Judicial District case in which a defenseBatson challenge was granted in spite of the factthat the parish governments in the district haveengaged in consistent patterns of race and genderdiscrimination in other areas. See e.g. Joe Gyan,Consent Decree Ends Sex Bias Suit with Sheriff, TheAdvocate, March 8, 1996, at 6B (Assumption ParishSheriffs Office settled a sex discrimination lawsuitwith a female deputy); Howard Castay, CertainProms Still Dance to the Beat of Separation andSegregation, The Louisiana Weekly, May 12, 2003(U.S. Department of Education’s Civil RightsDepartment investigating segregated proms inAssumption Parish public high schools);Summerchase Ltd. Ptshp. I v. City of Gonzales, 970F. Supp. 522 (M.D. La. 1997)(Gonzales city officials’revocation of building permits was done with theintent to discriminate against minorities and had adiscriminatory effect on minorities in violation of theFHA.); Clark v. Roemer, 777 F. Supp. 471 (D. La.1991) (voting practices and districts in AssumptionParish "affords black citizens ’less opportunity thanother members of the electorate to participate in thepolitical process and to elect representatives of theirchoice.’")

Significantly, Anthony Falterman, who wasthe 23rd Judicial District Attorney at the time of Mr.Dunn’s arrest and trial, was the Assumption ParishSheriff during the time in which the sexualdiscrimination in the Sheriffs Office was found tohave occurred. United States v. Sheriff ofAssumption Parish, 1995 U.S. Dist. LEXIS 15017; 69

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Fair Empl. Prac. Cas. (BNA) 129 (E.D. La. 1995).This review revealed at least one other case in

which the 23rd Judicial District Attorney’s Office,tried by District Attorney Falterman, compelled ablack defendant to accept white jurors overperemptory challenges. State v. Spencer, 631 So.2d1363, 1365-66 (La. App. 5 Cir. 1993) (blackdefendant is compelled to accept three white jurorsover peremptory challenges).

Given the history of racial discrimination inthe 23rd Judicial District, it is difficult to believe thatpoor black defendants are discriminating againstwhite jurors and that the District Attorney and hisassistants, who have been found to discriminate inother areas, are conducting voir dire without regardto the race of the jurors. It is also difficult to believethat whites were being intentionally excluded from ajury that ultimately consisted of ten whites and twoblacks.

Across these three cases, defendants wereonly presented with five black veniremembers thatthe State did not successfully cause challenge orperemptory challenge. Thus, though the defendantshad only five opportunities to use their collective 36peremptory challenges against blackveniremembers, the court found that they haddiscriminated against eight white veniremembersand they were compelled to accept them as jurors(There were four white jurors foisted on the blackdefendant in Miller, three in Scott and one in thiscase). This trend of suppressing minorityrepresentation on juries by compelling parties toaccept white jurors will undoubtedly continue andexpand unless courts and prosecutors are given a

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clear indication that this sort of backhandeddiscrimination will not be tolerated.

VII. This case is distinguishable fromHernandez v. New York

In Hernandez v. New York, 500 U.S. 352, 359(1991), this court stated, "Once a prosecutor hasoffered a race-neutral explanation for theperemptory challenges and the trial court has ruledon the ultimate question of intentionaldiscrimination, the preliminary issue of whether thedefendant had made a prima facie showing becomesmoot." However, this case is distinguishable. InHernandez, as soon as the defense objected to theperemptory strikes on the basis of race theprosecutor began offering a race-neutral explanationfor the strikes without waiting for the trial court torule whether a prima facie case of discriminationhad been established. However, once the prosecutoroffered a race-neutral explanation for the strikes, thecourt held the defense to its burden, as the opponentof the peremptory strike, of proving that theprosecutor was exercising the strikes on the basis ofrace. This Court’s decision in Hernandez does notauthorize a trial court to shift the burden from theopponent of the strike to the proponent of the strike,as was done in this case by the trial court’s three-strike rule.

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VIII. The elimination of parts one and three ofthe three-part Batson test and theunreasonable application of part two of thetest resulted in a violation of the United StatesConstitution

This Court has, on multiple occasions,explained the constitutional interests involved whenrace infects the jury selection process.

The constitutional interests Batsonsought to vindicate are not limited tothe rights possessed by the defendant ontrial, see 476 U.S., at 97, 90 L. Ed. 2d69, 106 S. Ct. 1712, nor to those citizenswho desire to participate "in theadministration of the law, as jurors,"Strauder v. West Virginia, 100 U.S. 303,308, 25 L. Ed. 664 (1880). Undoubtedly,the overriding interestdiscrimination frominstitutions suffersindividual is excludedsignificant contributionon account of his race.from discriminatory

in eradicatingour civic

whenever anfrom making ato governanceYet the "harm

jury selectionextends beyond that inflicted on thedefendant and the excluded juror totouch the entire community. Selectionprocedures that purposefully excludeblack persons from juries underminepublic confidence in the fairness of oursystem of justice." Batson, 476 U.S. at87, 90 L. Ed. 2d 69, 106 S. Ct. 1712; seealso Smith v. Texas, 311 U.S. 128, 130,

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85 L. Ed. 84, 61 S. Ct. 164 (1940). ("Forracial discrimination to result in theexclusion from jury service of otherwisequalified groups not only violates ourConstitution and the laws enactedunder it but it is at war with our basicconcepts of a democratic society and arepresentative government" (footnoteomitted)).

Johnson v. California, 545 U.S. 162, 171-172 (2005).The three-step process serves the public purposesBatson is designed to vindicate while alsoencouraging prompt rulings on objections toperemptory challenges without substantiallydisrupting the jury selection process. Johnson v.California, 545 U.S. 162, 172-73 (2005), citingHernandez v. New York, 500 U.S. 352, 358-359(1991)(opinion of Kennedy, Jr.).

The result of the trial court’s erroneousapplication of Batson was the seating of a jurormerely on the basis of his race. Although the Statedid not even attempt to make a prima facie showingthat the defense was excluding jurors on the basis ofrace and the court did not provide any basis forfinding that the defense was excluding jurors on thebasis of race, Mr. Anderson was forced into serviceon this jury against the wishes of Mr. Dunn and Mr.Anderson3 merely because he was white. Had Mr.

3Mr. Anderson made it very clear after being selectedthat he did not wish to serve on the jury. R 2487. Heexplained that he worked for a small hospital pharmacy thatwas having staffing problems and that his service on this jury"cal:~ sincerely cause public endangerment." R 2490.

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Anderson not been white, Mr. Dunn would havebeen allowed to strike him on the basis of his viewson the death penalty. While Mr. Dunn "has no rightto a ’petit jury composed in whole or in part ofpersons of [his] own race,’ Strauder 100 U.S., at 305,he H does have the right to be tried by a jury whosemembers are selected by nondiscriminatory criteria."Powers v. Ohio, 499 U.S. 400, 404 (1991). It was aviolation of the equal protection clause of theFourteenth Amendment to seat Mr. Anderson overMr. Dunn’s objection merely on the basis of Mr.Anderson’s race. It was particularly offensive inlight of the fact that Mr. Anderson is white and Mr.Dunn is a black man who was ultimately tried by ajury consisting of ten whites and only two blacks.

This Court’s original concern in Swain v.Alabama, 380 U.S. 202 (1965) and Batson v.Kentucky was that peremptory strikes were being"used to discriminate against black jurors." Batson,476 U.S. 79, 99. While there is certainly a richhistorical basis for this concern, there is no suchhistorical basis for any concern that whites are beingsystematically excluded from juries. When thisCourt decided in Georgia v. McCollum, 505 U.S. 42(1992), that it was a violation of the equal protectionclause for a white criminal defendant tointentionally exclude blacks from a jury, JusticeThomas stated in his concurring opinion,"Eventually, we will have to decide whether blackdefendants may strike white veniremen." Georiga v.McCollum (Thomas, concurring), 505 U.S. 42, 62.While this Court has not yet addressed this issuedirectly, many state courts, including the SupremeCourt of Louisiana in this case, have presumed that

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the answer is that black defendants may not strikewhite veniremen on the basis of race.

It is important to note how far we have comefrom the original concerns of Swain and Batson innow presuming that a black defendant violates thedue process clause when he excludes whiteveniremen. Whether this Court ultimately agreeswith that result, the attempted application of thatprinciple by the trial court in this case led to anabsurd and unconstitutional result. Mr. Dunn, ablack man, who was convicted and sentenced todeath by a jury consisting of ten whites and twoblacks, was denied his right to a peremptorychallenge of a white juror merely on the basis thatthe juror was white. The trial court relied on federallaw to deny Mr. Dunn’s state constitutional right toa peremptory challenge because Mr. Dunnattempted to strike a white juror, despite the factthat the jury was already overwhelmingly white andthe juror that Mr. Dunn sought to strike had pre-determined that he believed in the death penalty inthis particular case. Under these circumstances, itis hard to imagine how this is not a violation of Mr.Dunn’s right to due process of law and to a fair trialby an impartial jury. Nonetheless, it is certainly aviolation of the equal protection rights of theminority jurors who might have otherwise served onthis jury had Mr. Anderson, a white man, not beenforced onto the jury as a result of the trial court’serroneous interpretation of Batson v. Kentucky.

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CONCLUSION

For the foregoing reasons, Petitioner JamesDunn respectfully asks this court to grant the writ ofcertiorari to review the judgment of the SupremeCourt of Louisiana in this case, to vacate thejudgment below, and to summarily grant relief inthis case of obvious constitutional error.

RESPECTFULLY SUBMITTED,

Kyla Blanchard-Romanach La. Bar No. 25576Counsel of Record for James Dunn

DavidW. Price La. Bar No. 08733BatonRouge Capital Conflict Office525 Florida Street Suite 310Baton Rouge, Louisiana 70801Telephone: (225)338-0235Fax: (225)338-1948E-mail: kyla@brcco.org

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