Bui v. Haley

• Decision Date: 25 January 2002
• Docket Number: No. 00-15445.,00-15445.
• Citation: 279 F.3d 1327
• Parties: Quang BUI, Petitioner-Appellant, v. Michael HALEY, Commissioner, Alabama Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

279 F.3d 1327

Quang BUI, Petitioner-Appellant, v. Michael HALEY, Commissioner, Alabama Department of Corrections, et al., Respondents-Appellees.

No. 00-15445.

United States Court of Appeals, Eleventh Circuit.

January 25, 2002.

Rehearing Denied February 26, 2002.

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Randall Scott Susskind (Appointed by Dist. Ct.), Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner-Appellant.

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:

Petitioner in this case, an Alabama prison inmate, seeks a writ of habeas corpus setting aside his 1986 murder conviction. The United States District Court for the Middle District of Alabama denied the writ, rejecting, among other claims,¹ petitioner's assertion that the Montgomery County District Attorney who prosecuted his case failed to present race neutral reasons for peremptorily 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). 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.² Bui was arraigned in the Montgomery County circuit court on April 15 and entered a plea of not guilty. The court scheduled his trial for June 9, 1986. One week prior to the trial, at a hearing convened to consider several matters, the court heard argument on a defense motion to enjoin the prosecutor from utilizing his peremptory challenges systematically to exclude blacks from the jury. After counsel presented the motion, the court, without eliciting a response from the State, stated: "I grant the motion to systematically exclude, but if there are reasons, I will hear those reasons later." After the court ruled, Ellen Brooks, an assistant district attorney for Montgomery County, informed the court that Batson v. Kentucky would control the issue. Referring to the Batson decision, James Evans, District Attorney for Montgomery County, then stated that Batson was inapposite because "[Bui] is of oriental distraction; he is not black."

The trial began as scheduled on June 9. The venire summoned for the trial consisted of forty-eight persons, fifteen of whom were black. Representing the State in selecting the jury, and exercising its peremptory challenges, was James Evans.³ Ten challenges for cause were made and granted, after which Evans used nine of the State's thirteen peremptory strikes to remove blacks from the venire, while the defense used one of its peremptory strikes to remove a black from the venire. Of the five remaining black venire members, one male ultimately was seated on the petit jury. At the close of the selection process, the court empaneled a jury consisting of this black male and eleven non-blacks, nine males and two females.⁴ After the jurors were sworn, the court excused them for a lunch break. The defense counsel then objected to the prosecution's use of its peremptory strikes; he contended that Evans had struck the black venire members on account of their race. Evans responded, stating "[w]e struck those who we believed would acquit. Those strikes were not based not [sic] on race but on just our exercising our right to strike jurors we feel would be most favorable to acquit. On that grounds [sic] only." On receiving Evans' response, the court declared a lunch recess. The court never ruled on the defense's objection. When the trial resumed that afternoon, 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 Appeals⁵ and the Alabama Supreme Court⁶ 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 state 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 peremptory 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 become Alabama Attorney General and Brooks was serving as one of his assistants.

The circuit court scheduled the 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 to jury selection and, based on those files, explain why Evans had peremptorily struck nine blacks from the venire. The court granted the continuance and reconvened the hearing on October 2. At that time, Brooks informed the court that she had been unable to locate either the notes she had made during jury selection or those Evans may have made. She had, however, determined Evans' reasons for exercising the State's peremptory challenges by reviewing the trial transcript and juror occupation and criminal history lists provided to the prosecution and defense and then "simply compil[ed] that information by juror to help the court remember and see what happened on that occasion." Based on this review, she represented that Evans exercised the State's strikes on four bases: the jurors' criminal histories, personal knowledge of the defendant, his attorneys or their family members, their employment, and, finally, their ages.

During her presentation, Brooks detailed which of these four factors, or which combination of the four, caused Evans to exercise twelve of the State's thirteen peremptory strikes. She was unable to reconstruct any reason for the State's eleventh strike, that of Emma Rhodes, a forty-year-old black employed female with no criminal history. Regarding this prospective juror, Brooks was forced to admit a total lack of "any of the personal information that [the State] had about Miss Rhodes or why [the State] struck her other than she was forty years of age."⁷ Based on Brooks' testimony alone, the circuit court found that "the State [had] articulated clear, cogent, and sound reasons for its peremptory strikes, all being racially neutral," and thus held that Bui had failed to convince the court of racial discrimination sufficient to warrant granting him a new trial.

Bui appealed the circuit court's ruling to the court of criminal appeals. While the appeal was pending, Brooks informed the court that she had uncovered the notes she had made during jury selection; she asked that the court remand the case to the circuit court so that she could testify from her notes. The court granted her request, and on January 23, 1992, the circuit court heard additional testimony from Brooks pertaining to the State's use of its peremptory strikes in Bui's case.⁸ Although Evans was once again absent, and although Brooks once again did not claim to have actual knowledge of Evans' state of mind at jury selection, the circuit court nonetheless reiterated its finding that the State had presented race neutral reasons for the use of its peremptory strikes, and adhered to its earlier decision denying Bui relief. Brooks remained equally unable to suggest a reason for the State's eleventh strike. Since neither of the court's orders denying Bui relief specifically addressed the State's lack of any reason, race neutral or otherwise, for its eleventh strike, the inference is that the court found the presentation by the State of "clear, cogent, and sound reasons" for the other twelve peremptory strikes made by the State to extend by implication to the unexplained eleventh strike.

II.

A.

On appeal, the Alabama Court of Criminal Appeals determined that the record did not support the factual findings of the circuit court. The court first found error with the circuit court's consideration at the remand hearings of Brooks' testimony in place of that of Evans.⁹ The court found no evidence in the record to support the lower court's finding that Brooks was relating the specific reasons Evans used in striking the jurors, rather than those she would have used had she exercised the strikes. See Bui v. State, 627 So.2d 849, 852 (Ala.Crim.App.1992).

Without any indication that Ms. Brooks and Mr. Evans actually agreed on any specific reason for each strike — rather than ... relying on Ms. Brooks merely being present, observing, and having the same information available to her-it is arguably impossible for us to consider Ms. Brooks's [sic] explanations to be the actual reasons Mr. Evans struck the nine blacks.

See Bui v. State, 627 So.2d 849, 853 (Ala.Crim.App.1992). Alternatively, the court held that even if Brooks' own reasons were acceptable for purposes of...