Bui v. Haley, No. 00-15445.

Decision Date19 February 2003
Docket NumberNo. 00-15445.
Citation321 F.3d 1304
PartiesQuang BUI, Petitioner-Appellant, v. Michael HALEY, Commissioner, Alabama Department of Corrections, et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Beth Jackson Hughes, Montgomery, AL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

On February 26, 2002, we denied the State's petition for rehearing but retained jurisdiction of the case. We now withdraw the prior opinion of this panel, Bui v. Haley, 279 F.3d 1327 (11th Cir.2002), and substitute this opinion in its place.

Petitioner in this case, an Alabama prison inmate, seeks a writ of habeas corpus setting aside his 1986 conviction for capital murder.1 The United States District Court for the Middle District of Alabama denied the writ, rejecting, among other claims, petitioner's assertion that the Montgomery County District Attorney who prosecuted his case failed to present any race-neutral reasons for striking nine blacks from the venire summoned for petitioner's trial, thereby denying petitioner equal protection of the law as recognized by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).2 We conclude that the State failed to carry its burden under Batson, a failure which violated petitioner's right to equal protection. We therefore reverse the district court's ruling and direct the court to issue a writ of habeas corpus conditioned on the State's right to retry petitioner.

I.
A.

Petitioner, Quang Ngoc Bui, a Vietnamese citizen, arrived in the United States in 1975 and married an American woman, with whom he had three children. On April 9, 1986, a Montgomery County grand jury indicted Bui for the capital murder of these three children.3 Bui was arraigned in the Montgomery County Circuit Court on April 15 and entered a plea of not guilty. He was scheduled to go to trial on June 9, 1986. On May 8, over a month before the scheduled trial date, Bui moved the court for an "order enjoining the prosecutor from using his peremptory challenges to systematically exclude blacks from the jury." His motion recited the following facts:

1. The Defendant is a non-white.

2. The prosecutor in this county[, James Evans,] routinely utilizes his peremptory challenges to systematically exclude blacks from the jury panel.

3. The prosecutor will no doubt follow that pattern in this case and utilize his peremptory challenges to systematically exclude blacks from the jury panel so as to insure that the Defendant will be tried by an all-white jury.4

The court heard Bui's motion on June 9, moments before jury selection began. Richard Shinbaum and William Abell appeared for the defendant; James Evans, the Montgomery County District Attorney, appeared for the State, assisted by Eleanor Brooks and Randall James, assistant district attorneys. The following exchange occurred when the court took up the motion:

Court: [Turning now to] Defendant's motion to enjoin the prosecutor from utilizing his peremptory challenges to systematically exclude blacks from the jury panel. I don't see where that would happen, but everybody is aware of the law on this particular issue now.

Evans: Definitely.

Court: I grant the motion to systematically exclude, but if there are reasons, I will hear those reasons later.

Brooks: We intend to cite Batson v. Kentucky.

...

Evans: Let me put in the record that the defendant is of oriental distraction; he is not black.

Court: Well, he is a minority.

Shinbaum: That's not a requirement, that he be black to raise the motion.

After disposing of Bui's motion and some other pre-trial matters, jury selection began. We describe the jury selection process in considerable detail because the Batson issue cannot properly be resolved without first understanding the circumstances in which it arose.

The court summoned forty-nine venire persons for Bui's case. Jury selection took approximately three and a half hours, without a single recess for the court, counsel, or the defendant. The court began by questioning all forty-nine venire persons together, using questions submitted by the parties and some of its own. The court then sent the venire to another room, informing the jurors that it would call them back to the courtroom twelve or thirteen at a time. After being brought to the courtroom, each group was questioned by the court and counsel. Evans did all of the questioning for the State.

The court entertained challenges for cause in chambers after all forty-nine venire persons had been examined as described above. Ten were excused, reducing the qualified venire to thirty-nine persons. (Nine of these ten remained with the venire, unaware of the proceedings in chambers or that they had been excused; the tenth, a police officer, was permitted to leave the courthouse.) After the clerk informed the court that an odd number of qualified venire members remained, the court ordered that the qualified venire be further reduced to thirty-eight by striking the venire person with the highest number (Juror # 81).

The court then returned to the courtroom and recessed the venire for ten minutes. Anyone who "in the past or in the present [had received] any psychological treatment" was instructed to come to chambers during the recess. The court saw four persons in chambers, all in the presence of counsel and the defendant. One had already been struck for cause, but had not been so informed, and the court found the other three individuals qualified to serve.

After this, the court, counsel and the defendant returned to the courtroom, and the entire venire, now outwardly numbering forty-eight (including the ten who had been excused for cause but were still unaware of their removal), was brought in. The venire persons were asked to stand and identify themselves, their spouses, and their places of employment. As soon as this was done, the court retired to chambers with counsel and the defendant to strike the jury.

The court and parties knew the identity of the thirty-eight venire persons who were qualified to sit and from whom the twelve-person jury would be chosen. Evans struck for the State and Abell for the defendant; each side had thirteen strikes. Evans led off, and in rapid succession — meaning that there was no time for Evans to consult Brooks or James, or for Abell to confer with Shinbaum or the defendant—the two sides, alternating, reduced the venire to the twelve-person jury. Evans excused blacks with strikes one through six, eight, eleven, and twelve. Abell used his tenth strike to eliminate a black member of the venire. The twelve venire persons remaining, one black male and eleven nonblacks, nine males and two females, constituted the jury.5 Once everyone returned to the courtroom and the jury was sworn, the court informed the jurors that they would be sequestered and that the trial would begin at 2:30 p.m., after they returned from lunch.

Once the jurors had left the courtroom, defense counsel objected on racial grounds to Evans's striking of nine African-Americans from the venire:

Abell: We need to enter an objection to the systematic exclusion of blacks before the court and we ask for a ruling on that.

Court: Anybody want to argue that?

Evans: We don't—we haven't put on any evidence. There is no offer of proof for systematic exclusion.

Court: Why [sic] do you say to that?

Abell: Well, your honor, their first three strikes were blacks, the fourth strike was a white, the next three or four were blacks. They struck two black females. And as far as a panel, we have—there aren't enough blacks in proportionate [sic] to the jury venire.6

Evans: We struck those who we believed would acquit. Those strikes were not based on race but on just our exercising our right to strike jurors we feel would be most favorable to acquit. On that grounds only.

Court: All right. Thank you for how each of you efficiently did that. I'll see everybody at 2:30.

The court declared the recess without ruling on Abell's objection. When court reconvened at 2:30 p.m., the prosecution and defense made their opening statements and the State began its case in chief.

Three days later, on June 12, the jury found Bui guilty of capital murder and recommended a death sentence. On July 11, 1986, the court accepted the jury's recommendation and sentenced Bui to death. The Alabama Court of Criminal Appeals7 and the Alabama Supreme Court8 affirmed the conviction and sentence.

B.

The United States Supreme Court vacated both appellate decisions and remanded the case for reconsideration in light of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that a criminal defendant can bring a third party challenge to the peremptory striking of jurors based on race whether or not he is of the same race as the jurors who are struck). See Bui v. Alabama, 499 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991). The Alabama Supreme Court in turn remanded the case to the court of criminal appeals, with the instruction that it remand the case to the Montgomery County Circuit Court for a hearing on the State's use of its strikes to remove black persons from the venire. See Ex parte Bui, 627 So.2d 848 (Ala.1991); Bui v. State, 627 So.2d 849 (Ala.Crim.App.1991). By this time, Evans had left the Montgomery District Attorney's Office to become Alabama Attorney General and Brooks was serving as one of his assistants.

The circuit court scheduled the Batson hearing for September 19, 1991. Brooks appeared for the State and informed the court that Evans would not appear for the State, either as counsel or as a witness. She requested a continuance so that she could locate the prosecution's files relating...

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