Case: 15-70012   Document: 00513971738     Page: 1   Date Filed: 04/27/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 15-70012                             FILED
                                                                      April 27, 2017
                                                                     Lyle W. Cayce
LISA JO CHAMBERLIN,                                                       Clerk

             Petitioner - Appellee

v.

MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

             Respondent - Appellant




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      A Mississippi jury convicted Lisa Jo Chamberlin of two counts of capital
murder and sentenced her to death. The district court granted Chamberlin’s
petition for writ of habeas corpus on the ground that the state court erred in
finding that there was no racial exclusion of jurors at her trial. We affirm.
                                       I.
      Even by the standards of capital cases, the double murder in this case
was gruesome. It occurred in Hattiesburg, Mississippi, where Chamberlin and
her then boyfriend, Roger Gillett, had recently moved in with Gillett’s cousin,
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                                 No. 15-70012
Vernon Hulett, and Hulett’s girlfriend, Linda Heintzelman.            After an
argument, Hulett and Heintzelman told Chamberlin and Gillett to move out.
Unwilling to leave, Gillett began beating Hulett and Heintzelman and
demanded that Hulett tell him the combination to a safe in Hulett’s bedroom.
Although Hulett eventually disclosed a combination, no one was able to open
the safe. In an escalating rage, Gillett continued to physically assault Hulett,
and he and Chamberlin physically and sexually assaulted Heintzelman.
      Eventually, Chamberlin told Gillett they should murder Hulett and
Heintzelman and flee. Gillett struck Hulett in the head with a hammer and
slashed his throat. Chamberlin attempted to strangle Heintzelman but was
not strong enough to suffocate her, so Gillett stabbed Heintzelman.
Chamberlin and Gillett left the home to dispose of the knife and hammer.
When they returned, Heintzelman was lying on the floor, still breathing. After
leaving her there for most of the day, the couple finally decided to suffocate
her. They bound her hands with duct tape and put plastic bags over her head
until she stopped breathing.
      The couple put both bodies in Hulett’s freezer, and, taking with them the
freezer and all the evidence they could collect, they left Mississippi. They
ended up in Kansas, where Gillett had family. Almost immediately, Kansas
authorities took them into custody on drug charges and obtained a search
warrant for a farm where authorities suspected the couple was manufacturing
crystal meth. During the search, sheriff’s deputies found the bodies in the
freezer.
      Back in Mississippi, Gillett and Chamberlin were tried separately. Both
trials resulted in death sentences, though Gillett’s sentence was vacated on
state postconviction review.




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                                      No. 15-70012
                                            II.
       Even for the most horrific of crimes with the most culpable of defendants,
there are certain trial errors that are deemed structural and require automatic
reversal. Sullivan v. Louisiana, 

, 281 (1993). The ground on
which the district court granted Chamberlin relief, exclusion of jurors on racial
grounds, is one example. “Discrimination in jury selection . . . causes harms to
the litigants, the community, and the individual jurors who are wrongfully
excluded from participation in the judicial process.” J.E.B. v. Alabama ex rel.
T.B., 

, 140 (1994). Going all the way back to one of its first cases
finding a violation of the Equal Protection Clause (Strauder v. West Virginia,

, 312 (1880)), the Supreme Court thus “has followed an automatic
reversal rule once a violation of equal protection in the selection of jurors has
been proven.” Winston v. Boatwright, 

, 627 (7th Cir. 2011); see
also Scott v. Hubert, 610 F. App’x. 433, 434 (5th Cir. 2015) (“[D]iscrimination
on the basis of race in the selection of . . . jurors is a form of structural error
that voids a conviction.”). 1 And because such error “casts doubt on the integrity
of the judicial process and places the fairness of a criminal proceeding in
doubt,” a defendant may challenge the exclusion of jurors of a different race.
Powers v. Ohio, 

, 406–11 (1991) (internal citations omitted).
       Chamberlin, a white defendant, invokes that rule to challenge the
exclusion of black jurors. After the trial judge narrowed an initial pool of
several hundred prospective jurors to 42 qualified jurors, 31% of whom were
black, both sides exercised peremptory strikes. The prosecutor first went



       1 The Supreme Court recently held that the Ninth Circuit erred by failing to give
appropriate deference when applying harmless error analysis on collateral review. Davis v.
Ayala, 

, 2193 (2015) (applying the Antiterrorism and Effective Death Penalty
Act and Brecht v. Abrahamson, 

(1993)). Ayala involved procedures the trial
court used in connection with a Batson challenge and distinguished cases involving structural
errors which “require[ ] automatic reversal.” 

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                                    No. 15-70012
through the list of qualified prospective jurors in order, striking and accepting
jurors as he went, until the State proffered a prospective jury of twelve. The
defense then had an opportunity to strike or accept the proffered jurors.
      The prosecutor struck two of the first three black jurors and accepted
eleven of the first twelve white jurors, proffering an initial proposed jury of
eleven white jurors and one black juror. After defense counsel struck several
of those jurors, the State continued in the same manner, striking the next five
black jurors (including Thomas Sturgis and David Minor who will become
important), before accepting two black jurors. Even this low number is more
than the State planned to accept. The prosecutor believed the second black
juror had been struck for cause prior to the peremptory phase.
      Ultimately, the prosecutor used eight of his thirteen strikes, 2 or 62%,
against black jurors. Ten white jurors and two black jurors sat on the jury;
both alternates were white.
      Chamberlin objected to the strikes, arguing they constituted a prima
facie case of discrimination under Batson v. Kentucky, 

(1986),
which established a framework for determining if peremptory strikes are
racially motivated. Applying Batson, the court asked the prosecutor if he had
race-neutral reasons for the strikes. For the jurors relevant to this appeal,
Sturgis and Minor, the prosecutor pointed to their answers to three questions
on written questionnaires the jurors had completed before trial.                    The
prosecutor claimed he struck them because of the answers they checked in
response to questions 30, 34, and 35, in which both stated: (1) they were “not
sure” if they were emotionally capable of announcing a verdict of death; (2)
they were “not sure,” because it was a capital case, if they would hold the State



      2 Each side had twelve strikes and two additional strikes for alternates. The State
only exercised one strike when selecting alternates.
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                                        No. 15-70012
to a higher burden of proof than the law requires; and (3) “yes,” because the
defendant faced the death penalty, they would want to be one hundred percent
certain before finding the defendant guilty. 3
      The trial court accepted these race-neutral reasons. Defense counsel
responded by noting that Sturgis generally favored the death penalty and that
Minor had no opinion on the death penalty, and, like other jurors the
prosecutor had accepted, Minor had a relative in law enforcement. Based on
“the totality of their questionnaire[s],” defense counsel argued, “it appears that
they could be absolutely open- and fair-minded jurors on the question of the
death penalty.” Defense counsel also pointed out that the State had not sought
to question Sturgis or Minor individually to follow up on their questionnaires.
Without commenting on the defense’s arguments, the trial court rejected the
Batson claim.
      The court did not conduct a “comparative juror analysis”: an analysis of
whether reasons given by the prosecutor for striking black jurors apply equally
to white jurors the prosecutor accepted. See Reed v. Quarterman, 

,
369 (5th Cir. 2009). Chamberlin did not point out, and the court did not
consider, that a white juror the prosecutor had accepted, Brannon Cooper, gave



      3   The prosecutor offered the following reasons for striking Sturgis, juror 104:
      Prosecutor: No.104. Answer to question 30, “Are you emotionally capable of
      standing up in court and announcing your verdict?” Not sure. “Would you hold
      the state to a greater burden,” on question 34. Not sure. Question No. 35,
      “Would you want to be a hundred percent certain?” Yes. I believe that’s it on
      that one.
      The prosecutor provided the same reasons for striking Minor, juror 106:
      Prosecutor: No. 106 . . . 106 to question 30, not sure [he’s] capable
      emotionally of rendering a verdict. Not sure. That [he] would hold the state
      to a greater burden . . . No. 34, not sure whether they would hold us to a greater
      burden. Question No. 35, would require a hundred percent certainty. I believe
      that’s it on that one.

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                                       No. 15-70012
the same answers as Sturgis and Minor to questions 30, 34, and 35. Like
Sturgis and Minor, Cooper was “not sure” if he was “emotionally capable of
standing up in court and announcing [a] verdict as to the defendant being put
to death.” Like them, he was “not sure” if he would “hold the state to a greater
burden of proof than the law requires because this case is one in which the
death penalty may be imposed.” And, “because this case involves the death
penalty,” he would “want to be 100% certain” of guilt before returning a guilty
verdict.   Despite the three men giving the same answers, the prosecutor
accepted Cooper yet struck Sturgis and Minor. 4
       On direct appeal, Chamberlin claimed she was entitled to relief on six
grounds, including Batson. Chamberlin v. State, 

(Miss. 2008).
Chamberlin again did not compare Sturgis and Minor to Cooper. Without
conducting a comparative juror analysis, the Supreme Court of Mississippi
denied relief, finding with regards to Sturgis and Minor that “the defense did
not meet its burden to show that the facts and circumstances give rise to the
inference that the prosecutor exercised the peremptory challenges with a
discriminatory purpose.” 

5


       4 The defense later struck Cooper. This is “not relevant.” Miller-El v. Dretke, 

, 245 n.4 (2005) (Miller-El II). The “question is not what the defense thought about
[Cooper] but whether the State was concerned about [the stated reason for the strike] when
the juror was not black.” 

state court decision rejecting the Batson claim on direct appeal is what is being

reviewed in this federal petition for postconviction relief. We note, however, that the issue
came up indirectly in the state postconviction proceeding as Chamberlin contended that her
counsel was ineffective for failing to offer a comparative juror analysis in support of her
Batson challenges. The Supreme Court of Mississippi rejected the claim, stating:
       [A] thorough review of the record in this case, including the jury questionnaires
       provided by Chamberlin, discloses that each of the African-American jurors
       struck had at least one response in his or her jury questionnaire that
       differentiated him or her from the white jurors who were accepted by the State.
       Therefore, we are unable to find disparate treatment of the struck jurors.
Chamberlin v. State, 

, 1051–52 (Miss. 2010).

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                                 No. 15-70012
      In her federal petition, Chamberlin asserted she was entitled to relief on
thirteen grounds, including that the state court clearly erred when it found
there was no Batson violation. Chamberlin v. Fisher, 

, at *12
n.3 (S.D. Miss. Mar. 31, 2015). The district court agreed: a Batson violation
had occurred which warranted vacating Chamberlin’s conviction and sentence.

The State appeals.
                                      III.
      The district court granted the writ in a proceeding governed by the
Antiterrorism and Effective Death Penalty Act (AEDPA).           It found that
Chamberlin’s Batson claim warranted federal relief under either of the two
grounds on which a federal court can grant a writ based on a claim that was
decided in state court. Those are when the state court adjudication:
           (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
            (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
28 U.S.C. § 2254(d); see Wiggins v. Smith, 

, 520 (2003).
      The district court held that the legal error subsection (d)(1) describes
existed because the Supreme Court of Mississippi did not conduct the
comparative juror analysis used in Miller-El v. Dretke, 

(2005)
(Miller-El II). It also held that the factual error subsection (d)(2) describes
existed because, after using comparative juror analysis, it concluded that the
state court’s finding of race-neutral strikes for Sturgis and Minor was
unreasonable.
      We need not reach the section 2254(d)(1) question whether the state
court contravened Miller-El II in failing to conduct a comparative juror
analysis. Compare McDaniels v. Kirkland, 

, 777 (9th Cir. 2015)

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                                  No. 15-70012
(en banc) (not deciding whether Miller-El II requires state courts to conduct
comparative juror analysis when reviewing Batson claims), with 

(Ikuta, J., concurring) (arguing that “Miller-El II could not and did not
establish any such rule” requiring state courts to conduct such analysis, though
recognizing that comparative juror analysis may be used in conducting the
section 2254(d)(2) inquiry). That is because we affirm the judgment on the
ground that the Mississippi court’s decision was based on an unreasonable
determination of the facts under section 2254(d)(2). See Miller-El 

, 266 (granting relief under section 2254(d)(2)).        In conducting that
factual review, both the Supreme Court and this court have used the
comparative juror analysis even when state courts rejecting the Batson claim
never did. See 

241 n.2 (conducting comparative analysis on habeas
review despite no such analysis being presented to state courts); 

–73 (same); Woodward v. Epps, 

, 338 (5th Cir. 2009) (same).
      A court may grant relief for the factual error section 2254(d)(2) captures
when it concludes that the state court’s “decision was unreasonable or that the
factual premise was incorrect.” Miller-El v. Cockrell, 

, 340 (2003)
(Miller-El I). The state court’s factual findings are presumed to be sound
unless the petitioner rebuts the “presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). “The standard is demanding but
not insatiable; . . . ‘[d]eference does not by definition preclude relief.’” Miller-
El 

(quoting Miller-El 

).
      We recognize some ambiguity in the district court’s opinion about
whether it applied the deference that section 2254(d)(2) requires. It first states
that because of the legal error it found under section (d)(1), no AEDPA
deference to factual findings was required. In the next breath, however, it
recognizes that Chamberlin “must demonstrate that the state court’s factual
findings were unreasonable in light of the evidence presented” and cited Miller-
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                                       No. 15-70012
El II’s use of the demanding “clear and convincing” standard required to
overcome state court findings. 6 We need not resolve this ambiguity because
we can affirm on any ground supported by the record below.                         Dorsey v.
Stephens, 

, 314 (5th Cir. 2013). Applying AEDPA’s deferential
standard, we conclude that the state court’s rejection of the Batson claim was
based on an unreasonable determination of the facts.
       The Supreme Court and this court have both granted writs based on
findings that state courts had made unreasonable factual determinations in
rejecting Batson claims. Miller-El 

; 

.
In doing so, those cases relied heavily on comparative juror analysis. That
analysis comes into play in the final stage of the Batson inquiry for
determining whether a prosecutor used a peremptory strike in a racially
discriminatory manner. Before that point, the defendant must have first made
a prima facie showing that the prosecutor exercised peremptory challenges on
the basis of race; in response, the prosecutor must have articulated a race-
neutral reason for striking the juror in question. 

–98.
That requires the court to then make the ultimate determination whether the
defendant carried her burden of proving purposeful discrimination. 

–98; see Purkett v. Elem, 

, 768 (1995).
       “When the process reaches this step, the defendant may rely on all
relevant circumstances to raise an inference of purposeful discrimination.”
Fields v. Thaler, 

, 274 (5th Cir. 2009) (quoting Miller–El II, 545



       6 The district court elsewhere further recognized the deference to factual findings
AEDPA requires, noting that “[f]actual findings are presumed to be correct, and the
reviewing court defers to the state court’s factual determinations,” yet “[a] federal court can
disagree with a state court’s credibility determination and, when guided by AEDPA, conclude
the decision was unreasonable or that the factual premise was incorrect by clear and
convincing evidence.” Chamberlin v. Fisher, 

, at *11 (S.D. Miss. Mar. 31,
2015) (quoting Miller-El 

).

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                                       No. 15-70012
U.S. at 240) (internal quotation marks omitted). The pattern of strikes here,
while not dispositive, is compelling evidence of intentional discrimination. See
Miller-El 

; Hayes v. Thaler, 361 F. App’x 563, 570 (5th Cir.
2010). The State struck nearly two times as many black jurors as it accepted
(eight strikes compared to five accepted, including one alternate), while
accepting more than four times as many white jurors as it struck (five strikes
compared to twenty-three accepted, including three alternates). It exercised
62% of its strikes on black jurors, despite black jurors making up only 31% of
qualified prospective jurors.
       In other words, black jurors were more than three times more likely to
be struck by the prosecutor than white jurors. “Happenstance is unlikely to
produce this disparity.” Miller-El 

(quoting Miller-El I, at
342); 

(noting that “seriously disproportionate exclusion”
of black jurors “is itself such an ‘unequal application of the law . . . as to show
intentional discrimination’”).
       The dissent disagrees with the conclusion we draw from these statistics,
but does not call into question the fundamental point that the prosecutor was
far more likely to strike black potential jurors than whites. 7 To distract from
that disparity, the dissent compares the number of black jurors the prosecutor
accepted to the number of spots on the jury. 8 This is not an illuminating


       7  The dissent takes issue with the sample size. But the sample size in this case is the
same as the one used to identify statistical disparities in Miller-El: 42 qualified jurors.
Miller-El 

; Miller-El 

.
        8 The State chose not to strike four black jurors, two of whom were struck by the

defense. If all had been accepted by the defense, the dissent contends, the percentage of black
jurors on the jury would have reflected the percentage of black jurors on the panel. This does
not account for the jury selection procedure used by the trial court. Given that procedure,
and the high rate at which the prosecutor accepted white potential jurors, there was never a
possibility of all four black jurors accepted by the prosecutor being on the jury. For example,
the prosecutor only proffered the fourth black juror after eleven jurors (including nine white
jurors) had already been seated, so, had the defense accepted the first three proffered black
jurors, the jury would have been full.
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                                      No. 15-70012
comparison.      To determine the prosecutor’s pattern of strikes, it is most
probative to compare apples to apples: the number of black jurors the
prosecutor accepted to the total number of jurors he accepted. He did not
accept twelve total jurors. He accepted twenty-four, less than 17% of whom
were black.      The mismatch between the metrics the dissent compares is
apparent when applied to white prospective jurors. The government accepted
twenty white jurors during jury selection, enough to compose a nonsensical
167% of the jury.
       The sequence of the strikes is also telling. The State used the vast
majority of its early strikes against black jurors (seven of its first nine,
including its sixth against Sturgis and its eighth against Minor) and only
later—after defense counsel’s repeated objections and when it was running out
of strikes—accepted the two black jurors who ended up on the jury (the second
in a moment of confusion when the prosecutor believed the juror had already
been struck). See Miller-El 

–50 (finding unpersuasive that,
towards the end of jury selection, the prosecution accepted a black juror, noting
that most of the prosecution’s challenges were gone and the prosecutor “had to
exercise prudent restraint” at that point).
       But “the critical question in determining whether a prisoner has proved
purposeful discrimination at step three is the persuasiveness of the



        Even if the dissent’s hypothetical jury could have existed, proportionate
representation on a jury does not preclude a Batson challenge. Just as Batson does not
guarantee a representative jury, a representative jury does not excuse discrimination against
individual jurors when revealed through highly disproportionate strikes and discredited
reasons for striking those jurors.
        Further, that the defense struck two black jurors does not disprove the prosecutor’s
pattern of discriminatory strikes. See Miller-El 

n.4 (emphasizing that
Batson is concerned with the prosecutor’s intent, determined without regard to “what the
defense thought” about a juror the prosecutor accepted). Had the defense struck every black
juror tendered that would not reduce the probative force of the prosecutor’s disproportionate
strikes.
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                                      No. 15-70012
prosecutor’s justification for his peremptory strike.” Miller-El 

–39. To determine whether a prosecutor’s reason is persuasive, courts
consider whether it was applied in a race-neutral way: “If a prosecutor’s
proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is evidence tending
to prove purposeful discrimination to be considered at Batson’s third step.”
Miller–El 

–41.            Such “side-by-side comparisons,” also
common in employment discrimination cases, 9 are often “[m]ore powerful”
than bare statistics. Miller–El 

.
       This is the comparative juror analysis we have mentioned. It was used
in Miller-El II, in which the state struck a potential black juror purportedly
because he “said that he could only give death if he thought a person could not
be 

. If that were the real reason, the Court
noted, the prosecutor “should have worried about a number of white panel
members he accepted” who expressed similar views. 

Likewise,
although the prosecutor’s purported reason for striking another prospective
juror (that he considered death “an easy way out”) was reasonable on its face,
“its plausibility [wa]s severely undercut by the prosecution’s failure to object
to other panel members who expressed views much like [his.]” 

see also Foster v. Chatman, 

, 1751 (2016) (finding “otherwise
legitimate reason[s]” for striking prospective black jurors “difficult to credit in
light of the State’s acceptance of” white jurors to whom those reasons also
applied); Snyder, 

, 483 (same); 

–73 (same).
       In Miller-El II, the Court found the prosecutor’s reasons to be pretextual
and thus powerful evidence of discrimination, even though other reasons the


       9 See, e.g., Vaughn v. Woodforest Bank, 

, 637 (5th Cir. 2011) (“Disparate
treatment occurs where an employer treats one employee more harshly than other ‘similarly
situated’ employees for ‘nearly identical’ conduct.”).
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                                       No. 15-70012
prosecutor gave for striking black jurors did not also apply to accepted white

. For example, the prosecutor gave an additional reason
for striking two black jurors—that they had relatives who had been convicted
of a crime—which did not apply to the white jurors to whom the Court
compared them. Miller-El 

–47; 

(Thomas, J.,
dissenting). The Court nonetheless rejected the argument that pretext can be
found only when an accepted white juror “match[es] all” of the reasons the
prosecutor gave for striking a black juror. 

n.6 (quoting Thomas, J.,
dissenting). A rule that “no comparison is probative unless the situation of the
individuals compared is identical in all respects” identified by the prosecutor
would, it explained, “leave Batson inoperable; potential jurors are not products
of a set of cookie cutters.” 10 

“identical in all respects” that Miller-El II thought unlikely
exist here. Every reason the prosecutor identified for excluding Sturgis and
Minor applied to Cooper, the white juror who was not struck. 11 All three said
they were “not sure” if they were emotionally capable of announcing a verdict
of death; were “not sure” if they would hold the State to a higher burden of
proof than the law requires given that it was a death penalty case; and “yes,”
they would want to be one hundred percent certain of the defendant’s guilt
before finding her guilty. Comparative juror analysis thus shows that the



       10 Similarly, Reed held that “the black and white jurors that we compare need not be
exactly the same for us to conclude that the prosecution’s proffered reasons for striking the
black prospective jurors were pretexts for 

.
       11 The identical responses are a product of written questionnaires with multiple choice

responses, as opposed to the oral in-court responses considered in Miller-El II that produce
more variety. This makes the comparative juror analysis more compelling evidence of
discrimination than in Miller-El II. Unlike oral responses of numerous jurors that a
prosecutor may forget when later exercising strikes, the written answers memorialize the
responses. The prosecutor had all prospective jurors’ answers in front of him when deciding
whom to strike, a decision he had a night to consider, as the parties exercised peremptory
strikes the day after they finished questioning potential jurors.
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                                  No. 15-70012
prosecutor’s reason for striking Sturgis and Minor could not have been their
answers to questions 30, 34, and 35. Otherwise, he would not have accepted
Cooper who had the same answers the prosecution did not like. The perfect
match among the answers of these jurors means that even more than in the
other cases that have found pretext based on a comparative juror analysis,
“[t]he prosecutors’ chosen race-neutral reasons for the strikes do not hold up
and are so far at odds with the evidence that pretext is the fair conclusion,
indicating the very discrimination the explanations were meant to deny.”
Miller-El 

; 

(“The prosecution’s
proffer of this pretextual explanation naturally gives rise to an inference of
discriminatory intent.”); 

–81 (“[T]he comparative analysis
demonstrates what was really going on: the prosecution used its peremptory
challenges to ensure that African–Americans would not serve.”).
      The State does not contest the obvious—that on the questions the
prosecutor cited during jury selection as his reasons for excluding Sturgis and
Minor, Cooper gave the same responses. Instead, it argues that it should now
be able to identify differences among those prospective jurors on their
responses to other questions. One example is the three prospective jurors’
differing answers to a different question about the death penalty (question 53):
Cooper was strongly in favor of the death penalty whereas Sturgis “generally
favored” it and Minor had “no opinion.” The State and dissent urge us to accept
this justification. The problem is that Miller-El II rejected prosecutors’ ability
to justify their strikes based on reasons not offered during jury selection and
appellate courts’ ability to come up with new rationales on prosecutors’ behalf:
             It is true that peremptories are often the subject of instinct
      and it can sometimes be hard to say what the reason is. But when
      illegitimate grounds like race are an issue, a prosecutor simply has
      got to state his reasons as best he can and stand or fall on the
      plausibility of the reasons he gives. A Batson challenge does not

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                                 No. 15-70012
      call for a mere exercise in thinking up any rational basis. If the
      stated reason does not hold up, its pretextual significance does not
      fade because a trial judge, or an appeals court, can imagine a
      reason that might not have been shown up as 

; see also 

(“We must consider only the
State’s asserted reasons for striking the black jurors and compare those
reasons with its treatment of the nonblack jurors” (citing Miller-El 

)).
      Despite this unequivocal command, the dissent argues we can
nonetheless consider the jurors’ views on questions not cited by the prosecutor
after he was asked to justify the strikes. It first says we should do so because
Miller-El II instructed courts to evaluate whether a prosecutors’ stated reason
is plausible “in light of all evidence with a bearing on 

–52.
But that should not be read to provide an end run around the prohibition on
considering new reasons set forth in the same opinion. Miller-El II shows the
difference between evidence bearing on plausibility, which reviewing courts
should consider, and new reasons, which they may not. In evaluating whether
proffered reasons were plausible, Miller-El II looked to evidence of the
prosecutor’s veracity: did he rely on misrepresentations about stricken jurors’
answers, accept jurors with similar answers to stricken jurors, or give
inconsistent explanations for strikes? 

      In contrast, Miller-El II would not consider a new reason this court
identified on appeal. 

The prosecutor initially had explained a strike
by saying the potential juror thought the death penalty was “too easy on some
defendants.” 

When the defendant pointed out during federal
habeas that the same reason applied to white jurors the state accepted, this
court found the real reason for the strike must have been the struck black
juror’s “general ambivalence about the [death] penalty and his ability to
impose it.” 

Miller-El II rejected this approach, similar to that
                                       15
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                                   No. 15-70012
of the dissent, because the “Court of Appeals’s . . . substitution of a reason . . .
does nothing to satisfy the prosecutor’s burden.” 

      Other circuits conducting comparative jury analysis have also read
Miller-El II as requiring that the “validity of a strike challenged under Batson
must ‘stand or fall’ on the plausibility of the explanation given for it at the
time, not new post hoc justifications.” United States v. Taylor, 

(7th Cir. 2011); see also Love v. Cate, 449 F. App’x 570, 572 (9th Cir. 2011)
(refusing to consider the State’s post-trial explanation that white jurors it
accepted “had non-racial characteristics that distinguished them from the
black venire-member” the State struck because “the prosecutor never stated to
the state trial court that he relied on these characteristics, even though Batson
required him to articulate his reasons”); McGahee v. Alabama Dep’t Of Corr.,

, 1269 (11th Cir. 2009) (faulting the state appellate court for
bolstering the prosecutor’s reason with a new explanation when the “State
never offered such a full explanation”).        In Taylor, the only reason the
prosecutor gave during jury selection for a strike was that the black juror was
unwilling to impose the death penalty on a non-shooter, a position also taken
by accepted white 

, 905. After a remand because of
concerns about the strike, the district court credited a different justification:
the jurors’ differing views about the death penalty—which “the prosecutor did
not say a word about” at trial—explained their disparate treatment. 

In the opinion reversing, Judge Sykes explained that it was clear error
to accept “new, unrelated reasons extending well beyond the prosecutor’s
original justification.” 

       The dissent thinks this prohibition on post-trial justifications can be
overcome by repackaging the argument made by the State about the different
answers to question 53. What the State candidly recognized is a new reason
for striking the black jurors is now a new reason for keeping the white juror.
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                                 No. 15-70012
The dissent presumes the prosecution kept Cooper because of his answer to
question 53, as it “might have alleviated the prosecution’s concerns regarding
his answers to questions 30, 34, and 35” that were identical to those of the
struck black jurors. Dissent at 3. Of course, this is just the other side of the
same coin.   If the difference between the three was question 53, that would
mean Sturgis and Minor were struck not only because of their answers to
questions 30, 34, and 35, but also because of their more lukewarm support of
the death penalty conveyed in response to question 53. As the “comparative
juror analysis” name indicates, the inquiry is a comparative one that requires
differentiating the answers of struck and accepted jurors. That means citing
different answers to the same question as a reason for keeping one juror is the
same as saying the difference was a reason for striking the other juror. To use
a simple example, assume a prosecutor struck Jurors A and B on the ground
that they wore hats in the courtroom. But Juror C was also wearing a hat.
When this is later pointed out, the court speculates that Juror C must have
been kept in the panel despite the hat because she expressed greater support
for the death penalty on a questionnaire than did Jurors A and B. That would
mean that the hat was not the dealbreaker; it alone was not enough for a strike
as shown by the acceptance of Juror C. Jurors A and B thus would have been
struck, per the court’s conjecture, because they wore a hat and were less
supportive of the death penalty. And if that were the case, Miller-El II says
the prosecutor should have cited both of those reasons.
      The dissent’s position that courts may credit new reasons jurors were
kept despite sharing the trait the prosecution claimed justified striking black
jurors—a position for which it cites no authority—would make Miller-El II’s
bar on considering new reasons for strikes meaningless. Take Miller-El II
itself. The new reason for striking the black juror our court offered that the
Supreme Court rejected—his ambivalence about the death penalty—could just
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                                  No. 15-70012
as easily have been treated as a reason for keeping the white jurors: their
firmer support of the death 

–52. Indeed, that is how
the Miller-El II dissent characterized the difference. 

(Thomas, J.,
dissenting).   The Miller-El II majority’s refusal to consider that new
justification, whether framed as a reason for excluding the black juror or in
opposite terms as a reason for keeping the white jurors, binds us.
      The State argues that Miller-El II’s rule against after-the-fact
justifications creates an unfair asymmetry in which it is held to the reasons it
offered at trial whereas the defendant can wait until the appeal to identify
jurors like Cooper who have the same answers as people who were struck.
Whatever the soundness of this complaint, it again is rejected by the leading
decisions employing comparative juror analysis. See Miller-El 

(conducting comparative analysis on habeas review despite no such
analysis being presented to state courts); 

–73 (same);

(same); see also Smith v. Cain, 

, 638
(5th Cir. 2013) (“[A]lthough Smith did not point to specific jurors for
comparative analysis, we have conducted an in-depth review of the record
. . . .”). That Chamberlin’s counsel did not rebut the reasons presented by the
prosecutor during jury selection is also beside the point. See 

(holding in a section 2254 review that a comparative analysis is
appropriate even when defense counsel did not rebut the prosecutor’s stated
reasons for striking jurors at trial) (citing 

)). These and
the other arguments the State makes challenging the impact of comparative
juror analysis also ignore that the approach is utilized only at the final stage
of the Batson inquiry, which a trial court need not reach if it has properly found
that the defendant did not establish a prima facie case of discrimination. And
at that final stage, after the serious accusation of racial discrimination has


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                                       No. 15-70012
been leveled and a prima facie case to support it found, 12 it does not seem too
much to ask prosecutors to list all the reasons justifying their strikes.
       Although Miller-El II and Reed focus on comparative juror analysis in
holding that the state courts’ factual finding of no Batson violation met
AEDPA’s threshold of unreasonableness, those opinions also cite other
evidence that supported that conclusion. In Miller-El II, the prosecutor had
requested multiple jury shuffles, questioned jurors of different races
inconsistently, and the Dallas district attorney’s office had a history of racial
discrimination.      

      Reed involved the same district attorney’s
office and cited its 

–82; see also 

(stating that in addition to a comparative juror analysis “the shifting
explanations, the misrepresentations of the record, and the persistent focus on
race in the prosecution’s file” were evidence of discriminatory motive).
       But both our court (in an unpublished case) and another circuit have
issued writs under AEDPA relying solely on comparative juror analysis to find
a Batson violation. Hayes, 361 F. App’x at 573; see also Drain v. Woods, 595 F.
App’x 558, 571–81 (6th Cir. 2014) (granting writ by finding a Batson violation
relying only on a comparative juror analysis). 13 That is not surprising as we
have recognized since the early years of addressing Batson claims that the



       12  Though no doubt a grave matter, concluding that prosecutors intentionally excluded
jurors because of their race is not tantamount to a finding that they are racist as the dissent
asserts. There is a body of literature and jury consultants focused on using demographics to
predict juror behavior. See Miller-El 

–71 (Breyer, J., concurring) (citing
such sources in concluding that “the use of race- and gender-based stereotypes in the jury-
selection process seems better organized and more systematized than ever before”). Of
course, this more “benign” motive of trying to obtain a strategic advantage still results in a
constitutional violation if jurors are excluded because they are part of a protected
demographic group. 

        13 Both Hayes and Drain granted habeas relief under section (d)(1) because the trial

courts in those cases conducted comparative juror analysis but failed to follow the Supreme
Court’s clearly established protocol for doing so. Hayes, 361 F. App’x. at 570–73; 

.
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                                 No. 15-70012
“decisive question will normally be whether a proffered race-neutral reason
should be believed” because “there will seldom be any evidence that the
claimant can introduce—beyond arguing that the explanations are not
believable or pointing out that similar claims can be made about non-excluded
jurors who are not minorities.” United States v. Bentley-Smith, 

,
1373–74 (5th Cir. 1993); cf. Reeves v. Sanderson Plumbing Prods., Inc., 

, 147 (2000) (explaining that general principles of evidence law allow
a factfinder to “reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose”). When all of a
prosecutor’s reasons are shown to be pretextual, it is hard to see how a court
could reasonably find those reasons credible. See Miller-El 

–
39 (deeming Batson’s “critical question” the credibility of the prosecutor’s
reason).
      In any event, there is more here than just the discrediting of the
prosecutor’s explanation that comparative juror analysis compels us to find.
Jury selection involved a definitive pattern of the prosecution striking black
jurors, resulting in a stark disparity in the percentage of blacks struck as
opposed to whites. And because a seated white juror gave identical answers to
those cited in excluding the two black venire members, there is an absence of
any nonpretextual justification for the strikes. Contrast Miller-El 

–47, 247 n.6 (finding Batson violation even though the struck black
venire member gave answers about rehabilitation and his brother’s criminal
history that were not also provided by the accepted white jurors). Clear and
convincing evidence, including more damning comparative juror analysis than
existed in Miller-El II or Reed, thus rebuts the state court’s finding of no
discrimination. It was unreasonable not to conclude that the strikes of Sturgis
and Minor were “motivated in substantial part by discriminatory intent.”

, 485.
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                                  No. 15-70012
       The dissent argues that we are creating a system that allows adept
prosecutors to avoid comparative juror analysis by giving vague and broad
reasons for their strikes. But in response to such reasons, Batson obligates the
trial judge to require that the prosecutor give a “clear and reasonably specific”
explanation for a 

n.20. More fundamentally, ease of
evasion is not just a criticism of Miller-El II’s comparative juror analysis, it has
been a basis for attacking the Batson framework from the beginning. See

(Marshall, J., concurring); Rice v. Collins, 

, 343 (2006) (Breyer, J., concurring). It would only exacerbate that problem
to ignore Batson violations when the record reveals them.
                                       ***
      “Two peremptory strikes on the basis of race are two more than the
Constitution allows.” 

. Chamberlin is entitled to a
new trial before a jury selected without regard to race. The judgment of the
district court is AFFIRMED




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                                  No. 15-70012
EDITH BROWN CLEMENT, Circuit Judge, dissenting:
      A mixed-race jury convicts a defendant of a heinous capital crime, and
through    its   questionable   characterization    of   certain   essential   facts,
disregarding of others, and misreading of binding precedent, the majority finds
invidious racial discrimination against black prospective jurors where none
existed. The result not only unfairly tarnishes an individual prosecutor’s
reputation, it also puts an impossible burden on all prosecutors and makes
application of the Batson test more difficult going forward. I respectfully
dissent.
      A.     Makeup of the Jury
      The majority makes much of the fact that, within a very small sample
space, the prosecution struck a higher percentage of prospective black jurors
from the venire than white jurors. The majority is not mistaken as a
mathematical matter, but it does paint a misleading picture by ignoring those
statistical facts that do not support its conclusions. The majority notes, for
example, that black jurors made up “31% of qualified prospective jurors,” but
downplays the essential fact that the prosecution ultimately tendered four
black jurors which—had all four been accepted by the defense—would have
constituted 28.5% of the jury (including the two alternates). Thus, the jury
eventually tendered by the prosecution was a near-perfect representation of
the racial makeup of the venire from which it was chosen.
      In attempting to waive off this inconvenient statistical truth, the
majority states in a footnote that, because the fourth black juror was tendered
by the prosecution after eleven jurors had been seated, that fourth juror would
not have been considered were it not for the defense itself striking two black
jurors tendered by the prosecution. But the defense did strike the black jurors,
and the prosecution did tender four black prospective jurors. The majority
attempts to avoid these facts by referencing a footnote in Miller El II to
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                                       No. 15-70012
conclude “that the defense str[iking] some black jurors is not relevant to the
prosecutor’s pattern of discriminatory strikes.” But the cited footnote in Miller-
El II explains that whether the defense strikes a white juror has no bearing on
the question of whether the prosecution discriminated in its use of strikes
against black jurors. See Miller-El II, 

, 244–45 n.4 (2005)
(explaining that the defense striking white juror Witt was “not relevant” to the
question of whether the prosecution’s proffered race-neutral reasons for
striking a black juror were pretextual). Here, by contrast, the defense striking
some black jurors who had been tendered by the prosecution is relevant to the
particular question of how many black jurors were ultimately tendered by the
prosecution in total, because the defense’s strikes clearly impacted the way the
prosecution went about exercising its strikes going forward.
       And, in any case, even if the fourth black juror is not counted, the
prosecution still tendered a jury that was 25% black. To believe the majority,
then, is to believe that the prosecution decided to racially discriminate against
black jurors—but only to the extent necessary to reduce proportional
representation on the jury from 31% to 25%. Tepid invidious discrimination
indeed. 1




       1 The majority argues that these numbers are irrelevant and that the more useful
method is to divide the number of black jurors proffered by the total number of jurors
proffered. Of course, this calculation suffers from precisely the same malady the majority
claims to identify in my calculation: there is no such thing as a twenty-four person jury, so
the total number of jurors proffered is not relevant. Had the defense accepted all of the
prosecution’s proffered jurors, applying the trial court’s jury selection method, the jury
including alternates would have included four black members, or 28.5% of the total. And,
even accepting dubitante the majority’s premise, the prosecution ultimately proffered a jury
pool of twenty-four that was 16.67% black (4/24). Thus, granting the majority’s strained
reasoning, the prosecution evidently was motivated by racial animus to the extent necessary
to reduce black representation in the jury pool from 31% to 16.67%. I reiterate: tepid invidious
discrimination indeed.
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                                 No. 15-70012
      B.     Side-By-Side Comparison
      More egregious errors of law and fact permeate the majority’s discussion
of the district court’s side-by-side comparison of jurors Sturgis and Minor
(black) with Cooper (white).
      When asked to give race-neutral reasons for striking Sturgis and Minor,
the prosecution pointed to their answers to questions 30, 34, and 35 on the
juror questionnaire. Both Sturgis and Minor answered all three questions in
ways that indicated they might be uncomfortable rendering a guilty verdict
resulting in the death penalty, or hold the prosecution to a higher burden of
proof than is legally required. The majority cannot—and does not—dispute
that the prosecution’s proffered explanations are plausible and race-neutral on
their face. Instead, the majority turns to the questionnaire of a white juror,
Cooper, who answered questions 30, 34, and 35 in the same way as Sturgis and
Minor but who was not struck by the prosecution. From this fact alone the
majority concludes “that the prosecutor’s reason for striking Sturgis and Minor
could not have been their answers to [the three questions]. Otherwise, he
would not have accepted Cooper who has the same answers the prosecution did
not like.”
      But if Cooper gave answers to other questions that might have alleviated
the prosecution’s concerns regarding his answers to questions 30, 34, and 35,
then the majority’s conclusion simply does not follow. And that is precisely
what happened here. Cooper answered question 53, which asked jurors to
circle the response that best matched their opinion on the death penalty, by
circling “Strongly Favor” and then writing in by hand “for rape, murder, child
abuse, [and] spousal abuse.” Sturgis and Minor, by contrast, circled “Generally
Favor” and “No Opinion,” respectively. Reviewing the record in its totality,
then, shows that the most logical explanation for the prosecution’s not striking
Cooper was not because he was white while Sturgis and Minor were black, but
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                                    No. 15-70012
 because Cooper was a more favorable juror based on his answers to other
 questions on the questionnaire.
        Indeed, the district court acknowledged that Cooper was a more
desirable juror for the prosecution, yet refused to consider that fact in its
analysis of the prosecution’s supposedly discriminatory intent because Cooper’s
answer to question 53 “was not a rationale offered by the prosecutor.” The
majority agrees with the district court on this point, citing to Miller-El II for the
proposition that prosecutors may not “justify their strikes based on reasons not
offered during jury selection.” On this point, the majority simply misreads the
Supreme Court’s directive in Miller-El II.
        It is true that, as the majority emphasizes, the Court explained in Miller-
 El II that a “prosecutor simply has got to state his reasons as best he can and
 stand or fall on the plausibility of the reasons he gives.” Miller-El 

. But that does not mean that a reviewing court is prohibited from
 looking through the record to decide whether the proffered explanations are,
 in fact, plausible. Indeed, as the Court also explained, when a prosecutor gives
 a reason for striking a black juror, a reviewing court must “assess the
 plausibility of that reason in light of all evidence with a bearing on it.” 

(emphasis added). That makes perfect sense—it would be quite strange
 to suggest that a court must decide the plausibility of a given race-neutral
 explanation, but is not allowed to study the record evidence necessary to make
 that determination.
        In Chamberlin’s case, Cooper’s answer to question 53 is not a new post-
 facto explanation invented by the prosecution. It is rather evidence “bearing
 on” the essential question here: whether or not Sturgis and Minor’s answers to
 30, 34, and 35 could plausibly have been the reason why they were struck. That
 Cooper offered answers to other questions which logically could have assuaged
 any concerns the prosecution may have had regarding his answers to those
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                                  No. 15-70012
specific three questions undermines the majority’s conclusion that the
prosecution’s proffered race-neutral explanations were pretextual. This is
precisely the type of evidence courts should consider in making that
determination.
    The majority argues that “citing different answers to the same question
as a reason for keeping one juror is the same as saying the difference was a
reason for striking the other juror.” The majority is mistaken. Consider this
hypothetical, which closely tracks the scenario before us here:
    1. Prosecutor decides, as a default position, to strike all jurors who
       express concerns about the legal burden of proof.
    2. Prosecutor reviews juror questionnaires and notes that Jurors A, B
       (both black) and C (white) have expressed concerns about the legal
       burden of proof. Consequently, Prosecutor intends to strike all three by
       default.
    3. Upon further review, Prosecutor notes that Juror C alone strongly
       favors the death penalty. Because this is a capital case, Prosecutor
       decides to make an exception to the default rule and retain Juror C
       because of his favorable death penalty views.
    4. Prosecutor strikes Jurors A and B as planned. Responding to a Batson
       challenge, Prosecutor explains that A and B both expressed concerns
       about the legal burden of proof.
    5. Prosecutor never mentions white Juror C because the law does not
       require Prosecutor to explain why he decided to keep any specific juror.
Applying the majority’s reasoning, Juror C’s answer to an entirely separate
question must count as a reason why Jurors A and B were struck. The majority
would therefore require our hypothetical Prosecutor to explain to the trial court
his reasons for keeping white Juror C, or else be vulnerable to the accusation


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                                   No. 15-70012
that he invidiously discriminated against Jurors A and B because they were
black. That is not what Miller-El II requires.
      Furthermore, although the majority stresses one passage in Miller-El II,
it does not properly consider the rest of that opinion. The Miller-El II Court
admittedly acknowledged that side-by-side comparisons can provide useful
“evidence tending to prove purposeful discrimination,” but it emphatically did
not rely exclusively or even primarily on strict side-by-side comparisons in
concluding that the prosecution had discriminated against black prospective
jurors. 

The Court emphasized that the prosecution in Miller-El II
had: (1) intentionally “mischaracterized” the testimony of a black juror who
would otherwise have been an “ideal juror in the eyes of a prosecutor seeking
a death sentence” to exercise a strike against him, 

247; (2) used a
“jury shuffle” to move black jurors to the end of the voir dire line, see 

(3) used differently-worded questions for black jurors designed to elicit
responses indicating a negative feeling towards the death penalty, see 

(4) in some cases used what the Court itself called “trickery” in asking
questions designed to create cause to strike black jurors, see 

and
(5) had “for decades” prior to the case “systematically exclude[d] blacks from
juries.” 

      Absolutely none of these other indicators of discriminatory intent that
the Miller-El II Court relied on are present in Chamberlin’s case. Indeed, so
far as I can tell, the entirety of the majority’s conclusion rests on (1) a
tendentious statistical account of a tiny sample space, and (2) comparing the
answers to three questions out of dozens in a questionnaire by three jurors out
of a pool of 42. It is unlikely that such evidence would be sufficient on de novo
review; to suggest that it constitutes clear and convincing evidence that the
state court’s factual determination was unreasonable is to render entirely
meaningless that standard of review.
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                                       No. 15-70012
       The practical import of the majority’s holding for future prosecutors
seeking to avoid charges of racial discrimination reveals the untenability of the
majority’s ruling. The majority refuses to listen to any argument from the
prosecution as to why it did not strike Cooper because such evidence was not
raised during jury selection. But, as I noted above, there was no reason for the
prosecution to provide detailed reasons for why it decided not to strike him—
because Cooper was not a black juror who was being struck. 2 In other words,
to avoid the result reached by the majority here, during jury selection the
prosecution would not only have had to explain why it struck specific black
jurors—as it did—but also why it did not strike all white prospective jurors as
well. There is nothing in Batson, Miller-El II, or any other case that compels
anything of the sort.
       Even worse, the majority’s opinion has the perverse effect of
incentivizing prosecutors to be less detailed when giving their race-neutral
reasons for striking black jurors. What if the prosecution in Chamberlin’s case
had not honestly pointed to the specific answers on Sturgis’s and Minor’s
questionnaires which gave the government pause? Imagine instead that the
prosecution simply stated that Sturgis’s and Minor’s “answers to the jury
questionnaire as a whole” had led the prosecution to believe “that they were
likely to apply an incorrect standard of review and were uncomfortable with
the death penalty.” In such a case, the formalistic side-by-side comparison the
majority engages in here would be impossible. To insulate themselves from




       2 The district court’s suggestion that the prosecution could have “augment[ed] the
record” to explain why it wanted to keep Cooper is absurd as a practical matter. Such a rule
would compel the prosecution to reveal to the defense key parts of its trial strategy by forcing
the prosecution to explain why it favored certain jurors for the case. Furthermore, there is
nothing in any precedent from the Supreme Court or this court suggesting that the Batson
burden-shifting scheme puts any responsibility on the prosecution to explain why it did not
strike white jurors.
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                                        No. 15-70012
accusations of racism, savvy prosecutors will recognize that the more general
their proffered race-neutral reasons are, the harder it will be for an overzealous
reviewing court to poke holes in them later.
                                            *        *    *
       To be told by a court of law that you have engaged in invidious racial
discrimination is no small thing. To be told that you may not offer essential
evidence to defend against the charge is even worse. With its opinion, the
majority sends a stern message indeed to future prosecutors: be sure to explain
out loud not just every peremptory strike but also every non-strike at jury
selection, or else be labelled a racist by the very courts to which you have
devoted your career. 3 I would strongly urge my colleagues to reconsider
whether that is truly the message we want to send.




       3 The majority suggests in a footnote that being accused of striking jurors on the basis
of their race is not the same as being called a racist, because a prosecutor may simply be
trying to “us[e] demographics to predict juror behavior.” This distinction is facile: the premise
underlying the use of race to predict juror behavior—that the color of one’s skin can be relied
upon to predict how one will view a given piece of evidence or evaluate certain testimony—is
itself fundamentally racist. To be told as a Prosecutor that you have engaged in such
shenanigans is, again, no small thing.
                                                29