Howard v. Senkowski, 305

• Citation: 986 F.2d 24
• Decision Date: 17 February 1993
• Docket Number: D,No. 305,305
• Parties: Clifford HOWARD, Petitioner-Appellant, v. Daniel A. SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent-Appellee. ocket 92-2289.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 24

986 F.2d 24

61 USLW 2536

Clifford HOWARD, Petitioner-Appellant, v. Daniel A. SENKOWSKI, Superintendent of Clinton Correctional

Facility, Respondent-Appellee.

No. 305, Docket 92-2289.

United States Court of Appeals, Second Circuit.

Argued Oct. 20, 1992.

Decided Feb. 17, 1993.

Brian P. Schechter, Hempstead, N.Y. (Matthew Muraskin, Kent V. Moston, Alfred O'Connor, on the brief), for petitioner-appellant.

John F. McGlynn, Asst. Dist. Atty., Mineola, N.Y. (Denis Dillon, Dist. Atty., Peter A. Weinstein, Asst. Dist. Atty., on the brief), for respondent-appellee.

Before OAKES, NEWMAN, and MAHONEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal presents an issue concerning the application of the Batson rule barring discriminatory use of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The precise issue is whether in the infrequent case where a court finds that race was a factor in a prosecutor's exercise of peremptory challenges, the dual motivation principle applies such that the prosecutor bears the burden of proof to persuade the trier that the challenges would have been exercised for race-neutral reasons even if race had not been a factor. The issue arises on an appeal by Clifford Howard from the April 24, 1992, judgment of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Chief Judge), dismissing his petition for habeas corpus to challenge his state court conviction for robbery and related offenses. Because we conclude that the dual motivation principle applies to resolution of Batson challenges and was not applied in this case, we vacate the judgment and remand.

Facts

Howard, who is Black, was convicted on June 5, 1984, in Nassau County Court of robbery, possession of stolen property, and unauthorized use of a motor vehicle. During jury selection, defense counsel moved for a mistrial on the ground that the prosecutor had used peremptory challenges to strike the only two Black members of the venire. The prosecutor responded only by saying that "neither peremptory challenge was exercised solely on the basis of race." The mistrial motion was denied, and an all-White jury was empaneled. Howard was convicted on all charges.

While Howard's direct appeal to the Appellate Division was pending, the Supreme Court ruled in Batson that a prosecutor's use of racially motivated peremptory challenges violated a defendant's right to equal protection of the laws. The Court subsequently held that Batson applied retroactively to decisions pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Applying Batson, the Appellate Division concluded that Howard had made a prima facie showing of discrimination, and remanded the case to the Nassau County Court for an evidentiary hearing on the prosecutor's reasons for striking the two jurors. People v. Howard, 128 A.D.2d 804, 513 N.Y.S.2d 506 (2d Dep't 1987).

The hearing was held on May 27-28, 1987, before Judge Jules E. Orenstein, the Judge who had tried the case having retired. The prosecutor, relying on memory and notes taken during voir dire, conceded that race had been a factor in his peremptory challenge decisions, but suggested other factors that he claimed had been more significant. His acknowledgment of some reliance on race was explicit:

Q You did state that race was a factor?

A Yes.

Q Race itself was a factor?

A Right.

Q Not simply those jurors taken together, but race was a factor?

A Yes.

Q You did believe their race, the fact that they were black, was bad for your case?

A My feeling was they [sic ] made them sympathetic to the defendant.

The prosecutor also said that race had not been an "overriding" or a "major" factor.

Endeavoring to articulate race-neutral explanations, the prosecutor said that he had challenged one Black member of the venire, Mrs. DuBose, because her inability, when reading from a chart, to pronounce correctly the word "prejudice" indicated to him that she lacked the educational level and ability he thought necessary to comprehend the State's case. He said that he had challenged the other Black member of the venire, Mrs. Herring, because she had limited work experience; had five children and therefore might be sympathetic to the defendant; had expressed no opinion about mental illness, which might be relevant to one of the trial witnesses; and had no connection with law enforcement, either as a juror in prior cases, as a crime victim, or as a friend of those in law enforcement. The defendant countered that Mrs. DuBose's mispronunciation was not significant and that the reasons proffered for challenging Mrs. Herring were not credible in view of the prosecutor's willingness to accept a White member of the venire with similar characteristics.

The County Court endeavored to resolve the Batson challenge by applying the analysis of Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which the Court specifically cited. Burdine outlined the familiar three-part analysis for what is usually called a "pretext" claim: the claimant must present a prima facie case sufficient to establish an inference of improper motivation; the party accused of discrimination must then articulate race-neutral reasons for the challenged action; the claimant then bears the ultimate burden of persuasion to show that the articulated reasons are pretextual and that the "real" reason is the impermissible one. Id. at 252-53, 101 S.Ct. at 1093; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Judge Orenstein found that race had been "part of a totality of factors" for the prosecutor's challenges, that the prosecutor had articulated neutral explanations, and that the explanations were not pretextual. People v. Howard, #56387, slip op. at 5 (Nassau Cty. Ct. Nov. 6, 1987). He concluded that there had been "a failure on the part of the defendant to establish purposeful discrimination." Id. His ruling was affirmed by the Appellate Division, People v. Howard, 143 A.D.2d 943, 533 N.Y.S.2d 404 (2d Dep't 1988), and leave to appeal to the New York Court of Appeals was denied, People v. Howard, 73 N.Y.2d 892, 538 N.Y.S.2d 805, 535 N.E.2d 1345 (1989).

Howard then sought habeas corpus relief in the District Court. For reasons similar to those relied on by the state courts, the District Court held that Howard was not entitled to relief under Batson, and entered judgment dismissing the petition. Though endorsing Judge Orenstein's fact-finding, which had found Howard to have failed to sustain his burden of showing discriminatory motivation, the District Court analyzed the issue in slightly different terms. Chief Judge Platt said the issue, once a prima facie case had been established, was whether "the prosecutor's explanations were sufficiently race-neutral to rebut the prima facie showing of discrimination." Howard v. Senkowski, No. 90-CV-3735, slip op. at 9 (E.D.N.Y. Apr. 18, 1992).

Discussion

Howard contends that the prosecutor's admission that race was "a factor" in exercising the peremptory challenges precluded a finding that the prosecutor had articulated a race-neutral explanation. Though we disagree with that precise contention, it serves to pose the underlying issue in this case. The acknowledgment that race was part of the prosecutor's motivation, or even a finding to that effect unaided by an acknowledgment, is not inconsistent with the existence of some other race-neutral explanation for the prosecutor's action. A person may act for more than one reason. Where more than one reason motivates challenged action, the issue is what standards apply in determining whether the action is invalid because of the partially improper motivation.

In the realm of constitutional law, whenever challenged action would be unlawful if improperly motivated, the Supreme Court has made it clear that the challenged action is invalid if motivated in part by an impermissible reason but that the alleged offender is entitled to the defense that it would have taken the same action in the absence of the improper motive. See Mt. Healthy City School Board of Education v. Doyle, 429 U.S. 274, 284-87, 97 S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270 n. 21, 97 S.Ct. 555, 566 n. 21, 50 L.Ed.2d 450 (1977). ¹ The issue we must decide is whether this so-called "dual motivation" analysis applies to claims of discrimination in the use of peremptory challenges.

We start our inquiry with the Supreme Court's major modern consideration of establishing racial discrimination for equal protection purposes in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Court there ruled that racial discrimination under the Equal Protection Clause requires "a racially discriminatory purpose," id. at 239, 96 S.Ct. at 2047, and that a racially "disproportionate impact," id. at 246, 96 S.Ct. at 2051, will not suffice.

The Court emphasized the requirement of a racially discriminatory purpose the following year in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 264-65, 97 S.Ct. at 562-63. However, in Arlington Heights, the Court elaborated upon the ascertainment of discriminatory purpose and stated two crucial rules. First, the Court noted that "Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes." Id. at 265, 97 S.Ct. at 563. Rather, the Court said, the test is whether "a discriminatory purpose has been a motivating factor in the decision." Id. at 265-66, 97 S.Ct. at 563 (emphasis added). See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (" 'Discriminatory purpose' ... implies that the decisionmaker ... selected a...