Ford v. Georgia

• Decision Date: 19 February 1991
• Docket Number: No. 87-6796,87-6796
• Citation: 111 S.Ct. 850,112 L.Ed.2d 935,498 U.S. 411
• Parties: James A. FORD, Petitioner, v. GEORGIA
• Court: U.S. Supreme Court

498 U.S. 411

111 S.Ct. 850

112 L.Ed.2d 935

James A. FORD, Petitioner,

v GEORGIA.

No. 87-6796.

Argued Nov. 6, 1990.

Decided Feb. 19, 1991.

Syllabus

Petitioner Ford, a black man charged with, inter alia, the murder of a white woman, filed a pretrial "Motion to Restrict Racial Use of Peremptory Challenges," alleging that the county prosecutor had "over a long period of time" excluded black persons from juries where the issues to be tried involved members of the opposite race. In opposing the motion, the prosecution referred to Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, in which this Court recognized that the purposeful exclusion of members of the defendant's race from his petit jury would work a denial of equal protection under the Fourteenth Amendment to the Federal Constitution, but held that the defendant would have to prove a pattern of racial discrimination in prior cases as well as his own to prevail. The trial judge denied the motion, declaring that in "numerous or several" cases he had seen the prosecutor strike prospective white jurors but leave prospective black jurors in trials of black defendants. During jury selection, the prosecution exercised 9 of its 10 peremptory challenges to strike black prospective jurors, leaving 1 black venire member on the jury. After the jury convicted Ford and he was sentenced to death, he moved for a new trial, claiming, among other things, that his Sixth Amendment right to an impartial jury was violated by the prosecutor's racially based exercise of peremptory challenges. The motion was denied, and the Supreme Court of Georgia affirmed the conviction. While Ford's first petition for certiorari was pending in this Court, the Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, which dropped the Swain requirement of proof of prior discrimination by 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 defendant's own case. This Court ultimately vacated Ford's conviction and remanded in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, which decided that Batson' § new evidentiary standard would apply retroactively in cases such as the present. On remand, the State Supreme Court concluded that before his trial Ford had raised a Swain claim that was decided adversely to him on appeal and could not be reviewed again. The court then suggested that a Batson claim was never raised at trial, but held sua sponte that any equal protection claim that Ford might have was untimely under the rule the court had stated in State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658, 659, which, as interpreted by the court requires that a contemporaneous objection to a jury be made under Batson in the period between the jurors' selection and the administration of their oaths. Although Sparks was decided long after Ford's trial, the court regarded the Sparks rule as a "valid state procedural bar" to federal review of Ford's claim under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594.

Held: The Sparks rule is not an adequate and independent state procedural ground that would bar federal judicial review of Ford's Batson claim. Pp. 418-425.

(a) The State Supreme Court erred in concluding that Ford failed to present the trial court with a cognizable Batson equal protection claim. Although Ford's pretrial motion did not mention the Equal Protection Clause, and his new trial motion cited the Sixth Amendment rather than the Fourteenth, the pretrial motion's reference to a pattern of excluding black venire members "over a long period of time" constitutes the assertion of an equal protection claim on the evidentiary theory articulated in Batson's antecedent, Swain. That the Georgia courts, in fact, adopted this interpretation is demonstrated by the prosecutor's citation to Swain in opposing the pretrial motion, by the trial judge's clear implication of Swain in ruling that Ford had failed to prove the systematic exclusion of blacks from petit juries, and by the State Supreme Court's explicit statement on remand that Ford had raised a Swain claim. 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 Swain equal protection violation necessarily states such a violation subject to Batson' § more lenient burden of proof. Pp. 418-420.

(b) The State Supreme Court erred in concluding that the Sparks contemporaneous objection rule can bar federal consideration of Ford's Batson claim as untimely raised. Although the Sparks rule is a sensible one, its imposition here is nevertheless subject to this Court's standards for assessing the adequacy of independent state procedural bars to the entertainment of federal constitutional claims. These include the requirement, under James v. Kentucky, 466 U.S. 341, 348-351, 104 S.Ct. 1830, 1835-1837, 80 L.Ed.2d 346, that only a state practice that is "firmly established and regularly followed" at the time at which it is to be applied may be interposed to prevent subsequent review by this Court of such a claim. To apply Sparks retroactively to bar consideration of a claim not raised between the jurors' selection and oaths would apply a rule that was unannounced at the time of Ford's trial and is therefore inadequate to serve as an independent state ground under James. Indeed, Sparks would not, by its own terms, apply here since that decision declared that its rule would apply only as to cases tried "hereafter." Pp. 421-425.

257 Ga. 661, 362 S.E.2d 764 (1987), reversed and remanded.

SOUTER, J., delivered the opinion for a unanimous Court.

Charles J. Ogletree, Jr., for petitioner.

Paula K. Smith, for respondent.

Justice SOUTER delivered the opinion of the Court.

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.

I

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," ² alleging that the prosecu tor- 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] challengesto 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.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (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. . . . 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...