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Subject: X, FORD v. GEORGIA


SUPREME COURT OF THE UNITED STATES


No. 87-6796



AJAMES A. FORD, PETITIONER v. GEORGIA


Bon writ of certiorari to the supreme court of georgia

C[February 19, 1991]



A Justice Souter delivered the opinion of the Court.

B Petitioner alleges that the State of Georgia applied the impermissible
criterion of race to exclude venire members from the petit jury that
convicted him.  The Supreme Court of Georgia held petitioner's equal
protection claim procedurally barred as untimely under Georgia law, and we
are now called upon to review the adequacy of the State's procedural rule
to bar consideration of the constitutional issue raised.  We reverse.
NI
D In September 1984, a grand jury in Coweta County, Georgia, indicted
petitioner James A. Ford, a black man, for the kidnaping, rape, and murder
of a white woman. {1}  The State notified petitioner of its intent to seek
the death penalty and identified the statutory aggravating circumstances it
would try to prove.
    Before trial, petitioner filed a "Motion to Restrict Racial Use of
Peremptory Challenges,"9 {2} alleging that the prosecutor for Coweta County
had "over a long period of time" excluded black persons from juries "where
the issues to be tried involved members of the opposite race."  The motion
stated that petitioner "anticipated" the prosecutor would continue the
pattern of racial exclusion in this case because of the different races of
the accused and the victim.  Petitioner requested an order forbidding the
State to use "its peremptory challenges in a racially biased manner that
would exclude members of the black race from serving on the Jury."  App.
3-4.
    At a pretrial hearing on the motion, petitioner's counsel said that his
experience had been, "and the Court is aware[,] that the district attorney
and the other assistant district attorneys have a history and a pattern
when you have a defendant who is black, of using their per-emptory [sic]
challenges to excuse potential jurors who are also black."  Petitioner's
counsel asked the trial judge to discourage further resort to this alleged
practice by requiring "the district attorney, if he does use his
per-emptory [sic] challenges to excuse potential black jurors, to justify
on the record the reason for his excusing them."  Any failure of the
prosecutor to offer such a justification on the record, petitioner's
counsel argued, "would evidence the fact that he is using [his peremptory
challenges] in a discriminatory manner."  App. 10.
    The prosecution opposed the motion, denying that petitioner could prove
that prosecutors in previous cases had challenged black jurors
impermissibly.  "[I]n practically every trial we have in this county," the
prosecutor observed, "there are always blacks on trial juries, and an all
white jury is rare in any county."  He directed the judge's attention to
this Court's decision in Swain v. Alabama, 380 U.9S. 202 (1965), and argued
that under Swain "it would be an unreasonable burden to require an attorney
for either side to justify his use of per-emptory [sic] challenges."  App.
10-11.
    The trial judge responded that on "numerous or several" occasions "I've
seen cases in which there are, have been black defendants and the district
attorney's office has struck perspective (sic) white jurors and left
perspective (sic) black jurors on the jury.9.9.9.  I have seen it done and
I can't sit here and document them and I have not documented them, but it's
been on more than one occasion."  The trial judge concluded that he was
"taking that [observation] into consideration among other things and
denying the motion to restrict racial use of per-emptory [sic] challenges."
Id., at 11-12.
    The trial began 10 days later.  Although the jury selection on the
first day was not transcribed, it is undisputed that the prosecution
exercised 9 of its 10 peremptory challenges to strike black prospective
jurors, leaving 1 black venire member seated on the jury.  A black
potential alternate juror was challenged not by the State but by
petitioner. {3}
    On the second day of the trial, both petitioner and respondent made
their opening statements, after which the State presented eight witnesses
before the noon recess.  At the start of the afternoon session, the trial
judge called a conference in chambers to discuss, among other things,
petitioner's prior motion about "the State's using all their strikes to
strike blacks from being on the jury."9 {4}  Although the judge noted that
the State had not used all of its peremptory challenges to strike black
venire members and had left a black person on the jury, petitioner's
counsel observed for the record that the State had used 9 of its 10
challenges to strike black venire members.  The trial judge concurred:
"That's what happened in the jury selection process.  I just think that
needs to be put in since that motion was made.  Of course, the motion has
been denied.9.9.9."  The prosecutor asked the court whether he needed to
make any showing of the reasons he had exercised the State's challenges.
The trial judge answered that he was not asking for any, and none was made.
Id., at 15-16.
    After the jury had convicted petitioner on all counts and he had been
sentenced to death, his counsel moved for a new trial claiming, inter alia,
that petitioner's "right to an impartial jury as guaranteed by Sixth
Amendment to the United States Constitution was violated by the
prosecutor's exercise of his peremptory challenges on a racial basis."
Id., at 7-8.  The motion was denied.
    On appeal, the Supreme Court of Georgia at one point interpreted
petitioner's claim as one "that the prosecutor's use of peremptory strikes
to remove 9 of 10 possible black jurors denied Ford his right to a jury
comprised of a fair crosssection of the community."  Although the court
thereby referred to the Sixth Amendment concept of a "fair crosssection of
the community," see, e.9g., Taylor v. Louisiana, 419 U.9S. 522, 526-533
(1975), it also found that petitioner had failed to prove the "9`systematic
exclusion of black jurors'9" from service, and thus alluded to the standard
for establishing an equal protection violation first described in Swain v.
Alabama, supra.  Ford v. State, 255 Ga. 81, 83, 335 S.9E. 2d 567, 572
(1985) (quoting Moore v. State, 254 Ga. 525, 529, 330 S.9E. 2d 717, 721
(1985)).  The court found no error and affirmed petitioner's conviction.
    Petitioner filed his first petition for certiorari with this Court on
January 22, 1986.  While it was before us, we held in Batson v. Kentucky,
476 U.9S. 79 (1986), that a black criminal defendant could make a prima
facie case of an equal protection violation with evidence that the
prosecutor had used peremptory challenges in that case to strike members of
the defendant's race from the jury.  Although we soon held in Allen v.
Hardy, 478 U.9S. 255 (1986), that Batson's new evidentiary standard would
not be applied retroactively on collateral review of convictions that had
reached finality before Batson was announced, we subsequently held in favor
of the new standard's retroactive application to all cases pending on
direct review or not yet final when Batson was decided.  Griffith v.
Kentucky, 479 U.9S. 314, 328 (1987).  We then granted the petition for
certiorari in this case and vacated and remanded for further consideration
in light of Griffith.  Ford v. Georgia, 479 U.9S. 1075 (1987).
    On remand, the Supreme Court of Georgia held sua sponte, without
briefing or arguments from the parties, that petitioner's equal protection
claim was procedurally barred.  257 Ga. 661, 362 S.9E. 2d 764 (1987).  The
court concluded that before his trial petitioner had raised a Swain claim
that was "decided adversely to him on appeal, [and] cannot be reviewed in
this proceeding."  257 Ga., at 663, 362 S.9E. 2d, at 766.  The court then
suggested that a Batson claim was "never raised at trial," 257 Ga., at 662,
362 S.9E. 2d, at 765 (emphasis omitted), but went on to consider whether
any such claim raised either in petitioner's pretrial motion or during the
chambers conference on the second day of the trial could be treated as
timely.  The court applied the state procedural rule announced in State v.
Sparks, 257 Ga. 97, 98, 355 S.9E. 2d 658, 659 (1987), that a Batson claim
must "be raised prior to the time the jurors selected to try the case are
sworn."  Reading Sparks as requiring a contemporaneous objection to a
defendant's jury "after it was selected and before the trial commenced,"
the court concluded that petitioner had failed make such an objection, with
the result that any Batson claim was barred by a valid state procedural
rule.  257 Ga., at 663-664, 362 S.9E. 2d, at 766.  A dissenting opinion
took issue with the court's conclusion that petitioner "never raised a
Batson-type claim," and with the court's application of a state procedural
rule that had not been announced when petitioner's motion was filed in
1984.  Id., at 664, 362 S.9E. 2d, at 767.
    We granted certiorari to decide whether the rule of procedure laid down
by the Supreme Court of Georgia in Sparks was an adequate and independent
state procedural ground that would bar review of petitioner's Batson claim.
495 U.9S. Z (1990).
NII


A
D The threshold issues are whether and, if so, when petitioner presented
the trial court with a cognizable Batson claim that the State's exercise of
its peremptory challenges rested on the impermissible ground of race in
violation of the Equal Protection Clause of the Fourteenth Amendment.  We
think petitioner must be treated as having raised such a claim, although he
certainly failed to do it with the clarity that appropriate citations would
have promoted.  The pretrial motion made no mention of the Equal Protection
Clause, and the later motion for a new trial cited the Sixth Amendment, not
the Fourteenth.
    The pretrial motion did allege, however, that the prosecution had
engaged in a pattern of excluding black persons from juries "over a long
period of time," and petitioner argued to this effect at the hearing on
this motion as well as at the hearing on his motion for a new trial.  This
allegation could reasonably have been intended and interpreted to raise a
claim under the Equal Protection Clause on the evidentiary theory
articulated in Batson's antecedent, Swain v. Alabama, 380 U.9S. 202 (1965).
The Court in Swain recognized that an equal protection violation occurs
when the state uses its peremptory challenges for the purpose of excluding
members of a black defendant's race from his petit jury, id., at 209;
Batson v. Kentucky, supra, at 90; but Swain also established a rigorous
standard for proving such a violation, holding it "permissible to insulate
from inquiry the removal of Negroes from a particular jury on the
assumption that the prosecutor is acting on acceptable considerations
related to the case he is trying .9.9.9."  380 U.9S., at 223.  That
assumption could not be overcome, and the state required to justify its use
of peremptory challenges in a particular case, without proof that the
prosecutor, "in case after case, whatever the circumstances, whatever the
crime and whoever the defendant or the victim .9.9. [, was] responsible for
the removal of Negroes who ha[d] been selected as qualified jurors by the
jury commissioners and who ha[d] survived challenges for cause, with the
result that no Negroes ever serve on petit juries."  Id., at 223-224.
    Our interpretation of petitioner's reference to a pattern of excluding
black venire members "over a long period of time" as the assertion of a
Swain claim was, in fact, adopted in the Georgia courts.  The prosecutor
himself cited Swain to the trial court in opposing the pretrial motion; the
trial judge clearly implicated Swain in ruling that petitioner had failed
to prove the systematic exclusion of blacks from petit juries; and the
second opinion of the Supreme Court of Georgia in this case explicitly
stated that petitioner had raised a Swain claim, upon the merits of which
he had lost on his first appeal.  257 Ga., at 663, 362 S.9E. 2d, at
765-766.
    The State, indeed, concedes that petitioner properly raised a Swain
claim in his pretrial motion, Tr. of Oral Arg. 40, but in proceeding to
argue that the motion was insufficient to raise a claim under Batson, the
State assumes a distinction between the holdings in those two cases that
does not exist.  Both Swain and Batson recognized that a purposeful
exclusion of members of the defendant's race from the jury selected to try
him would work a denial of equal protection.  To prevail on such an equal
protection claim under Swain, as just noted, this Court indicated that a
defendant must show a pattern of racial discrimination in prior cases as
well as in his own.  Because the petitioner in Swain had failed to prove
purposeful racial discrimination in prior instances of jury selection, we
held that he had "not laid the proper predicate for attacking the
peremptory strikes as they were used in [his] case."  380 U.9S., at 226.
Batson dropped the Swain requirement of proof of prior discrimination,
holding it possible for a defendant to make out a prima facie equal
protection violation entirely by reference to the prosecution's use of
peremptory challenges in the circumstances of the defendant's own case.
476 U.9S., at 92-98.
    Because Batson did not change the nature of the violation recognized in
Swain, but merely the quantum of proof necessary to substantiate a
particular claim, it follows that a defendant alleging a violation of equal
protection of the law under Swain necessarily states an equal protection
violation subject to proof under the Batson standard of circumstantial
evidence as well.  Thus, from the determination by the Supreme Court of
Georgia that petitioner raised a claim under Swain, it follows that he
raised an equal protection claim subject to the more lenient burden of
proof laid down in Batson. {5}
NB
D We now face the question whether Georgia can bar consideration of that
Batson claim as untimely raised.  If we were to focus only on the fact of
the state court's conclusion that petitioner had raised a Swain claim, the
issue of the Batson claim's timeliness under state law could be resolved
with the simplicity of a syllogism.  Under Georgia precedent, its Supreme
Court will review a constitutional claim on the merits only if the record
is clear that the claim "was directly and properly made in the court below
and distinctly passed upon by the trial judge."  Atlanta v. Columbia
Pictures Corp., 218 Ga. 714, 719, 130 S.9E. 2d 490, 494 (1963) (emphasis
added).  The fact that the court reviewed petitioner's Swain claim on the
merits, as noted in the court's second opinion, therefore presupposes the
claim's timeliness.  Because Batson merely modified the allegations and
evidence necessary to raise and prove the equal protection claim in
question, it would be reasonable to conclude that the state court's
concession of timeliness under Swain must govern its treatment of the
Batson claim as well.
    The Supreme Court of Georgia, nonetheless, rested its contrary
conclusion on the rule announced in State v. Sparks, that "hereafter, any
claim under Batson should be raised prior to the time the jurors selected
to try the case are sworn."  257 Ga., at 98, 355 S.9E. 2d, at 659.
Although this language clearly sets the time after which a Batson claim
would be too late, it did not so clearly set a time before which such a
claim would be premature.  The second Georgia opinion in this case,
however, makes it obvious that the court understood Sparks to require an
objection to be raised after the jurors are chosen.  Thus, the court noted
that petitioner made "no contemporaneous objection to the composition of
the jury as selected,"  257 Ga., at 663, 362 S.9E. 2d, at 766, and "no
objection to the composition of the jury after it was selected and before
the trial commenced."  Id., at 664, 362 S.9E. 2d, at 766.  We assume that
these observations by the court announced no new refinement of Sparks, but
merely reflected the better reading of its opinion as originally written.
In any event, the Georgia court regarded Sparks as so interpreted to be a
"valid state procedural bar" to petitioner's claim, citing our decision in
Wainwright v. Sykes, 433 U.9S. 72 (1977), thus apparently deciding the
federal question whether the Sparks procedural rule bars federal review of
petitioner's claim. {6}
    The requirement that any Batson claim be raised not only before trial,
but in the period between the selection of the jurors and the
administration of their oaths, is a sensible rule.  The imposition of this
rule is nevertheless subject to our standards for assessing the adequacy of
independent state procedural grounds to bar all consideration of claims
under the national Constitution.  A review of these standards reveals the
inadequacy of Georgia's rule in Sparks to foreclose consideration of the
Batson claim in this case.
    The appropriateness in general of looking to local rules for the law
governing the timeliness of a constitutional claim is, of course, clear.
In Batson itself, for example, we imposed no new procedural rules and
declined either "to formulate particular procedures to be followed upon a
defendant's timely objection to a prosecutor's challenges," or to decide
when an objection must be made to be timely.  476 U.9S., at 99-100.
Instead, we recognized that local practices would indicate the proper
deadlines in the contexts of the various procedures used to try criminal
cases, and we left it to the trial courts, with their wide "variety of jury
selection practices," to implement Batson in the first instance.  Id., at
99, n.924.  Undoubtedly, then, a state court may adopt a general rule that
a Batson claim is untimely if it is raised for the first time on appeal, or
after the jury is sworn, or before its members are selected.
    In any given case, however, the sufficiency of such a rule to limit all
review of a constitutional claim itself depends upon the timely exercise of
the local power to set procedure.  "Novelty in procedural requirements
cannot be permitted to thwart review in this Court applied for by those
who, in justified reliance upon prior decisions, seek vindication in state
courts of their federal constitutional rights."  NAACP v. Alabama ex rel.
Patterson, 357 U.9S. 449, 457-458 (1958).  In the NAACP case, we declined
to apply a state procedural rule, even though the rule appeared "in
retrospect to form part of a consistent pattern of procedures," because the
defendant in that case could not be "deemed to have been apprised of its
existence."  Id., at 457.  In James v. Kentucky, 466 U.9S. 341 (1984), we
held that only a "firmly established and regularly followed state practice"
may be interposed by a State to prevent subsequent review by this Court of
a federal constitutional claim.  Id., at 348-351; see also Barr v. City of
Columbia, 378 U.9S. 146, 149 (1964) (state procedural rules "not strictly
or regularly followed" may not bar our review); NAACP v. Alabama ex rel.
Flowers, 377 U.9S. 288, 297 (1964) (procedural rule no bar to our review
when state court had never applied it with the "pointless severity shown
here").
    The Supreme Court of Georgia's application of its decision in Sparks to
the case before us does not even remotely satisfy the requirement of James
that an adequate and independent state procedural bar to the entertainment
of constitutional claims must have been "firmly established and regularly
followed" by the time as of which it is to be applied.  At the time of
petitioner's trial, Georgia's procedural law was just what it was when the
Sparks defendant was tried, for Sparks was decided more than two years
after petitioner in this case filed his motion on the prosecution's use of
peremptory challenges and long after petitioner's trial was over.  When
petitioner filed his pretrial motion, he was subject to the same law that
had allowed the defendant in Sparks to object even after the jury had been
sworn.  The very holding in Sparks was that the defendant was not
procedurally barred from raising a Batson claim after the jury had been
sworn and given preliminary instructions, and after the trial court had
held a lengthy hearing on an unrelated matter.  The court entertained the
claim as having been raised "relatively promptly" because no prior decision
of the Supreme Court of Georgia had required an earlier objection.
    To apply Sparks retroactively to bar consideration of a claim not
raised between the jurors' selection and oath would therefore apply a rule
unannounced at the time of petitioner's trial and consequently inadequate
to serve as an independent state ground within the meaning of James.
Indeed, the Georgia court itself in Sparks disclaimed any such effect for
that decision.  It was only as to cases tried "hereafter [that] any claim
under Batson should be raised prior to the time the jurors selected to try
the case are sworn."  257 Ga., at 98, 355 S.9E. 2d, at 659 (emphasis
added).  This case was not tried "hereafter," and the rule announced
prospectively in Sparks would not, even by its own terms, apply to
petitioner's case.  Since the rule was not firmly established at the time
in question, there is no need to dwell on the further point that the state
court's inconsistent application of the rule in the petitioner's case and
Sparks would also fail the second James requirement that the state practice
have been regularly followed. {7}
NIII
D The Supreme Court of Georgia erred both in concluding that petitioner's
allegation of an equal protection violation under Swain failed to raise a
Batson claim, and in apparently relying on Wainwright v. Sykes, 433 U.9S.
72 (1977).  The Sparks rule, adopted long after petitioner's trial, cannot
bar federal judicial review of petitioner's equal protection claim.  The
judgment below is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

GIt is so ordered.


T






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1
    9The indictment included five counts: murder (count 1); rape (count 2);
kidnaping (count 3); armed robbery (count 4); and burglary (count 5).

2
    9Petitioner's motion, filed on October 9, 1984, reads:
    "Now comes JAMES FORD, the Defendant in the above styled action, and
moves the Court to restrict the Prosecution from using its peremptory
challenges in a racially biased manner that would exclude members of the
black race from serving on the Jury.  In support of this Motion, the
Defendant shows:
"1.  "The Prosecutor has over a long period of time excluded members of the
black race from being allowed to serve on the Jury where the issues to be
tried involve members of the opposite race.
"2.  "This case involves a black accused and the victim is a member of the
white race.
"3.  "It is anticipated that the Prosecutor will continue his long pattern
of racial discrimination in the exercise of his peremptory strikes.
"4.  "The exclusion of members of the black race in the Jury when a black
accused is being tried is done in order that the accused will receive
excessive punishment if found guilty, or to inject racial prejudice into
the fact finding process of the jury.  See McCray vs. New York, [461 U.9S.
961 (1983)].  Taylor vs. Louisana (sic), 419 U.9S. 522 (1975)."  App. 3-4.

3
    9By statute, Georgia allots 20 peremptory challenges to "[e]very person
indicted for a crime or offense which may subject him to death or to
imprisonment for not less than four years."  Ga. Code Ann. 915-12-165
(1990).  The State is allotted 10 peremptory challenges in such cases.
Ibid.

4
    9Petitioner and respondent disagree on whether, at the time of jury
selection, petitioner renewed his motion alleging the prosecution's use of
racially discriminatory peremptory challenges.  Its renewal during jury
selection is not a fact necessary to our decision, and we therefore assume
for purposes of discussion that petitioner did not press the motion again.

5
    9The Supreme Court of Georgia's second opinion includes the statement
that petitioner's "pre-trial motion was not an objection to the jury as
selected."  257 Ga. 661, 663, 362 S.9E. 2d 764, 766 (1987).  This suggests
the possibility that the state court did not read Swain v. Alabama, 380
U.9S. 202 (1965), as requiring an objection to the particular jury selected
to try the objecting defendant, and raises the question whether the Supreme
Court of Georgia might now hold that petitioner's objection was
insufficiently specific to his own jury to raise either a Swain or a Batson
v. Kentucky, 476 U.9S. 79 (1986), claim.  We think such a reading of
petitioner's motion and the proceedings below would be as impermissible as
a reading of Swain without the requirement of proving discrimination in the
selection of an objecting defendant's own jury.  Swain described a
defendant's burden to prove systematic discrimination as a predicate to
attacking the use of peremptory challenges in his own case, 380 U.9S., at
226, and the anticipation of unconstitutional challenges in his own case
was the focus of petitioner's pretrial motion.  What petitioner did not,
and could not, do by anticipatory objection was allege the exact number of
impermissible challenges or any other details of the jury selection that
might support an inference of discriminatory purpose.  But the State has
never argued that the pretrial motion, which correctly anticipated
challenges to a substantial proportion of the black venire members, was
inadequate for either or both of these reasons.  The State has, in fact,
conceded that the trial judge was not misled into thinking that petitioner
objected to anything other than the use of racially discriminatory
peremptory challenges in the selection of the jury in this case.  Tr. of
Oral Arg. 31-32.

6
    9We do not read the opinion of the Supreme Court of Georgia as
announcing a refusal to entertain the Batson claim in the Georgia courts in
the event of our holding that a claim was raised and is open to federal
consideration.

7
    9The defendant in State v. Sparks, 257 Ga. 97, 355 S.9E. 2d 658 (1987),
was in an even less compelling posture than petitioner in this case because
the Sparks defendant did not raise his claim before trial as did petitioner
here.  Thus, petitioner asserted his objection more promptly than the
defendant in Sparks at a time when there was no special rule in Georgia on
when a Batson-type claim must be raised.