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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                      No. 15-70012
                                                                               Fifth Circuit

                                                                             FILED
                                                                        March 20, 2018

LISA JO CHAMBERLIN,                                                     Lyle W. Cayce
                                                                             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 STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
HIGGINSON, and COSTA, Circuit Judges. 1


EDITH BROWN CLEMENT, Circuit Judge, joined by JOLLY, JONES,
SMITH, OWEN, ELROD, SOUTHWICK, HAYNES, and HIGGINSON, Circuit
Judges:

       Lisa Jo Chamberlin participated in a heinous double murder in
Mississippi. A jury convicted her of two counts of capital murder. She was



       1 Judge Jolly, now a Senior Judge of this court, participated in the consideration of
this en banc case. Judge Graves is recused and did not participate in this decision. Judges
Willett and Ho also did not participate in this decision.
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                                 No. 15-70012
sentenced to death. Chamberlin, who is white, appealed her conviction,
arguing in part that the prosecution invidiously discriminated against black
prospective jurors during jury selection at her trial in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). Her appeal made its way through the Mississippi
court system, where it was denied at every stage. She then turned to federal
court, petitioning for a writ of habeas corpus. The district court granted
Chamberlin’s petition and ordered the State to give her a new trial, finding
that the Mississippi Supreme Court erred when it concluded that the
prosecution did not discriminate against black prospective jurors at
Chamberlin’s jury selection. Mississippi appealed to a panel of this court,
which affirmed in a split decision. We agreed to hear the case en banc and now
REVERSE the district court.
                                       I
      The gruesome details of Chamberlin’s crimes have been laid out in detail
several times—we need not reiterate them here. The evidence against her was
substantial; she was duly convicted by a jury of her peers of two counts of
capital murder. What is essential to this appeal is not what happened during
the trial, however, but rather what took place before the trial began.
      A. Jury Selection
      Chamberlin’s jury selection began with a pool of 42 qualified jurors,
thirteen of whom—31%—were black. The prosecution and defense were each
entitled to exercise up to fourteen peremptory strikes. The prosecution began
by moving through a batch of prospective jurors, striking or keeping as it went.
The defense then went through the jurors the prosecution had accepted,
exercising its peremptory strikes as it wished. Any jurors that were accepted
by both the prosecution and defense were put on the jury, and the prosecution
then began again with a fresh batch. This procedure continued until twelve
jurors and two alternates were selected. The prosecution exercised thirteen of
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                                No. 15-70012
its peremptory strikes throughout the process; the defense used all fourteen.
Ultimately, Chamberlin’s jury consisted of ten white jurors, two black jurors,
and two white alternates.
      Chamberlin’s counsel objected to the prosecution’s use of peremptory
strikes against black prospective jurors throughout jury selection. The trial
court expressed doubts that Chamberlin had established a prima facie case
under the Batson framework, but asked the prosecution for its race-neutral
reasons for the strikes in any case. The prosecution’s race-neutral reasons for
striking two specific prospective black jurors are pertinent here. When asked
to explain its strikes of black prospective jurors Sturgis and Minor, the
prosecution pointed to their answers to three questions on the jury
questionnaire. Both answered questions 30, 34, and 35 in ways that indicated
they were uneasy with the prospect of announcing a verdict of death and might
hold the government to a higher burden of proof than the law requires. The
defense responded to these proffered race-neutral reasons on general grounds,
arguing that both Sturgis and Minor “could be . . . fair-minded jurors on the
question of the death penalty.” Relevant to this appeal, at no point did
Chamberlin’s counsel seek a comparative juror analysis between black jurors
the prosecution struck and white jurors it accepted, nor did the trial court
conduct such a comparison sua sponte. The trial court rejected Chamberlin’s
Batson argument and the trial proceeded apace. Chamberlin was ultimately
convicted and sentenced to death.
      B. Mississippi Supreme Court
      The Mississippi Supreme Court had two separate opportunities to review
Chamberlin’s Batson claim. It rejected her contentions both times. First was
Chamberlin’s direct appeal, where she argued that the trial court erred in
denying her Batson challenge, focusing on the prosecution’s strikes of seven
black prospective jurors. See Chamberlin v. State, 989 So. 2d 320, 336 (Miss.
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2008). The court concluded that Chamberlin’s argument as to four of the
prospective jurors was procedurally barred. See id. at 339. As for the other
three, the court concluded that “Chamberlin argued reasons why they would
make good jurors but failed to rebut the specific reasons proffered by the State
for striking them.” Id. Accordingly, the court found that, “[c]onsidering the
totality of the evidence, the trial court’s ruling on Chamberlin’s Batson
challenge was neither clearly erroneous nor against the overwhelming weight
of the evidence.” Id. Just as in the trial court, Chamberlin’s counsel never
sought a comparative juror analysis on direct appeal, nor did the Mississippi
Supreme Court perform such an analysis sua sponte.
      Chamberlin’s Batson claim again came before the Mississippi Supreme
Court two years later when she filed a motion for post-conviction relief, arguing
in relevant part that her state trial counsel was ineffective because he failed
to adequately argue her Batson challenge. This time Chamberlin specifically
argued that her counsel “should have performed a comparative jury analysis,
which would have demonstrated disparate treatment of the jurors, indicating
that the State’s strikes were pretextual.” Chamberlin v. State, 55 So. 3d 1046,
1051 (Miss. 2010). In response to this contention, the Mississippi Supreme
Court conducted a “thorough review of the record . . . including the jury
questionnaires provided by Chamberlin,” and concluded that each of the black
jurors struck gave responses “in his or her jury questionnaire that
differentiated him or her from the white jurors who were accepted by the
State.” Id. at 1051–52. The court was therefore “unable to find disparate
treatment of the struck jurors” and concluded that Chamberlin’s Batson claim
was “without merit.” Id. at 1052.
      C. Federal Habeas
      Having failed to get the desired relief from the Mississippi courts,
Chamberlin petitioned for a writ of habeas corpus in federal court. Her petition
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listed thirteen grounds for relief, among them that the Mississippi Supreme
Court clearly erred in denying Chamberlin’s Batson claims. See Chamberlin
v. Fisher (“Chamberlin I”), No. 11CV72CWR, 2015 WL 1485901, at *12 n.3
(S.D. Miss. Mar. 31, 2015).
       The district court granted Chamberlin’s petition, finding that her Batson
claim warranted federal relief under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). AEDPA provides two grounds upon which a federal
court can grant habeas relief for claims decided in state court: if the state court
decision (1) “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1); or (2) “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)(2). The district court concluded that both
grounds for relief applied in Chamberlin’s case.
       First, the district court interpreted the Supreme Court’s decision in
Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231 (2005), as requiring a state
court to conduct a comparative juror analysis between black jurors who were
struck by the prosecution and white jurors who were kept, even where the
defendant had not sought any such comparison. See Chamberlin I, 2015 WL
1485901, at *17. Accordingly, the district court found that “the Mississippi
Supreme Court’s failure to conduct a comparative analysis was contrary to
clearly established federal law requiring that analysis, as announced in Miller-
El [II].” Id.
       The district court further held that the lack of comparative juror analysis
rendered “the state court’s conclusion that there was no showing of purposeful
discrimination . . . incomplete.” Id. It concluded that the lack of comparative
analysis “required by federal law” rendered the Mississippi Supreme Court’s
“factfinding procedures . . . [in]adequate for reaching reasonably correct
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                                        No. 15-70012
results.” Id. (internal quotation marks omitted). The district court thus held
that the Mississippi Supreme Court’s factual findings were not entitled to
AEDPA deference. Id.
       In short, the district court concluded as a matter of law that a state court
must conduct a comparative juror analysis in Batson cases sua sponte. It
reasoned that because the Mississippi Supreme Court failed to do so, its
decision on Chamberlin’s Batson case was both unreasonable as a matter of
law and so infirm as a factual matter so as to not be entitled to the substantial
deference AEDPA would otherwise require. 2
                                                II
       “In reviewing a grant of habeas relief, the Court examines ‘factual
findings for clear error and issues of law de novo.’” Richards v. Quarterman,
566 F.3d 553, 561 (5th Cir. 2009) (quoting Barrientes v. Johnson, 221 F.3d 741,
750 (5th Cir. 2000)).
       This case is governed by AEDPA. As noted above, AEDPA restricts a
federal court’s ability to grant habeas relief after an adjudication on the merits
in state court to only two grounds. Under § 2254(d)(1), a federal court “may
grant relief when a state court has misapplied a governing legal principle to a
set of facts.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). But “[t]he
question under AEDPA is not whether a federal court believes the state court’s
determination       was     incorrect     but        whether   that   determination        was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007). Under § 2254(d)(2), “a federal habeas court must find the
state-court conclusion ‘an unreasonable determination of the facts in light of


       2 It is worth noting also that at no point did the district court address the Mississippi
Supreme Court’s comparative juror analysis conducted in Chamberlin’s postconviction
proceeding. The district court’s only reference to the Mississippi Supreme Court’s
postconviction decision was in passing at the very beginning of its opinion. See Chamberlin
II, 2015 WL 1485901, at *1.
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                                 No. 15-70012
the evidence presented in the State court proceeding.’” Richards, 566 F.3d at
562 (quoting Rice v. Collins, 546 U.S. 333, 338 (2006)). Importantly for present
purposes, “[s]tate-court factual findings . . . are presumed correct; the
petitioner has the burden of rebutting the presumption by clear and convincing
evidence.” Id. (internal quotation marks omitted).
      Chamberlin’s only claim at issue in this appeal stems from the Supreme
Court’s decision in Batson. Batson set up a three-step burden-shifting
framework for determining whether the prosecution has engaged in invidious
racial discrimination during jury selection. “First, the claimant must make a
prima facie showing that the peremptory challenges have been exercised on
the basis of race. . . . [T]he burden [then] shifts to the party accused of
discrimination to articulate race-neutral explanations for the peremptory
challenges. Finally, the trial court must determine whether the claimant has
carried [her] burden of proving purposeful discrimination.” United States v.
Montgomery, 210 F.3d 446, 453 (5th Cir. 2000). “At the second step, unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered should be deemed race-neutral. The proffered explanation need not be
persuasive, or even plausible . . . . The issue is the facial validity of the
prosecutor’s explanation.” Williams v. Davis, 674 F. App’x 359, 363 (5th Cir.
2017) (unpublished) (internal quotation marks and alterations omitted)
(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). Throughout, “[t]he party
making the claim of purposeful discrimination bears the ultimate burden of
persuasion.” Montgomery, 210 F.3d at 453.
      Thus, Chamberlin’s claim faces a formidable twofold hurdle: she must
overcome both the burden placed on her by the Batson framework and the
substantial deference AEDPA requires us to give the state court’s factual
findings.


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                                  No. 15-70012
                                       III
      We must decide whether either of the two grounds for granting habeas
relief under AEDPA applies to Chamberlin’s case. The district court concluded
that both applied. We disagree on both fronts.
      A. Clearly Established Federal Law
      The district court’s interpretation of Miller-El II compelled its conclusion
that the state court’s “failure to conduct a comparative analysis was contrary
to clearly established federal law.” Chamberlin I, 2015 WL 1485901, at *17.
Miller-El II reiterated the three-step Batson framework for determining
whether a party has purposefully discriminated on the basis of race in using
its peremptory strikes of prospective jurors. 545 U.S. at 239. This three-part
inquiry derives from the burden-shifting formula used in Title VII cases;
indeed, the Court cited a Title VII case when discussing the third step. Miller-
El II, 545 U.S. at 241 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000)). Notably, the Court demonstrated that this step requires the
trial court to determine whether, on the record as a whole, the prosecution’s
explanation for the juror strike is “unworthy of credence.” Miller-El II, 545 U.S.
at 241 (quoting Reeves, 530 U.S. at 147 (2000)).
      The Supreme Court in Miller-El II found that the prosecution had
invidiously discriminated in striking ten out of eleven prospective black jurors.
Miller-El II, 545 U.S. at 265-66. As one factor in considering the totality of the
pretrial record, the Court employed a comparative juror analysis. The district
court, however, took this approach to set up as “clearly established law” that
Miller-El II “require[s]” a comparative juror analysis. Chamberlin I, 2015 WL
1485901, at *17. Consequently, the district court held that the Mississippi
Supreme Court’s decision not to conduct a comparative juror analysis violated
this “clearly established law.” Id. This holding is erroneous on two grounds.


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      First, Miller-El II did not clearly establish any requirement that a state
court conduct a comparative juror analysis at all, let alone sua sponte. Judge
Ikuta of the Ninth Circuit recently examined this issue in depth; we find her
analysis compelling. See McDaniels v. Kirkland, 813 F.3d 770, 782–85 (9th Cir.
2015) (Ikuta, J., concurring). Judge Ikuta explained:
       Because Miller-El II considered only whether the state court
       made an unreasonable factual determination, the Supreme
       Court did not discuss, let alone squarely establish, a new
       procedural rule that state courts must conduct comparative
       juror analysis when evaluating a Batson claim. At no point did
       Miller-El II suggest that the state court in that case violated the
       petitioner’s constitutional rights by failing to adhere to such a
       procedural rule. Accordingly, because Miller-El II does not
       provide a clear answer to the question whether a state court
       must conduct comparative juror analysis as part of its Batson
       inquiry, we cannot hold that a state court which fails to conduct
       comparative juror analysis violates clearly established Federal
       law, as determined by Miller-El II.

Id. at 783 (internal quotation marks and citation omitted). This is especially
true where, as here, the defendant never sought a comparative juror analysis.
Nowhere in Miller-El II did the Supreme Court imply—let alone clearly
establish—that a state court must conduct a comparative juror analysis sua
sponte. Cf. United States v. Atkins, 843 F.3d 625, 634 (6th Cir. 2016) (“To begin
with, the government is correct that the district court’s failure to conduct its
own comparative juror analysis is not sufficient to require reversal.”).
      Second, regardless of whether it was required to do so, the Mississippi
Supreme Court did conduct a comparative juror analysis in Chamberlin’s case,
albeit in a postconviction proceeding instead of on direct appeal. Chamberlin’s
Batson claim was inextricably intertwined with the ineffective assistance of
counsel argument she raised at the postconviction proceeding. She argued in
relevant part that her trial counsel was ineffective because he should have

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sought a comparative juror analysis in the trial court. In response to this
contention, the Mississippi Supreme Court stated that it had conducted a
“thorough review of the record . . . including the jury questionnaires provided
by Chamberlin.” Chamberlin, 55 So. 3d at 1051–52. It found no evidence of
“disparate treatment of the struck jurors,” and concluded that the identical
Batson claim that eventually came before the district court was “without
merit.” Id. at 1052.
       The district court thus erred twice as it pertains to the “clearly
established law” ground for habeas relief under AEDPA. First, it erred in
concluding that clearly established federal law required the Mississippi
Supreme Court to conduct a comparative juror analysis sua sponte. Second, it
erred in failing to address the comparative juror analysis the Mississippi
Supreme Court did conduct, albeit in the postconviction context.
       B. Unreasonable Determination of the Facts
       The district court further concluded that the state court’s factual finding
that the prosecution did not invidiously discriminate during jury selection was
an unreasonable determination of the facts in light of the evidence presented.
The district court rested its holding on a comparative juror analysis between
Sturgis/Minor and Cooper alone. 3


       3  The district court did not, in other words, examine the prosecution’s peremptory
strike pattern for racial bias. Nevertheless, the dissent conducts such an investigation sua
sponte. It then misleadingly argues that we, by contrast, “breezily” summarized the
prosecution’s use of strikes. Instead, we merely reviewed the analysis we received from the
district court.
        We note that, in any case, the dissent’s analysis of this data is hardly illuminating.
For one, the dissent makes much of the fact that, if the strikes were made at random, the
probability that eight black jurors would be struck is low. All this proves, however, is that
the jury strikes were not random. Since strikes are made by human choice (that is to say, for
specific reasons), this is not a surprising revelation. It only seems so if one equates random
selection with race-neutral selection. But random selection is neutral as to any potential
reason for a strike—from race, to clothing, to (more importantly) positions on the death
penalty. The dissent’s alternative measure—noting that the odds of being struck were seven
times greater for black jurors than for white jurors—fares no better. See Joseph L. Gastwirth,
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       Before reaching those arguments, however, it is important to stress that
the district court did not grant proper deference to the Mississippi Supreme
Court’s factual findings at the postconviction proceeding. As noted above, the
district court concluded it did not need to defer to the state court’s factual
findings under AEDPA because those findings did not include the requisite
comparative juror analysis. We have already explained that conclusion was
error because there is no requirement to conduct such a comparison,
particularly sua sponte. But even if such a requirement did exist, the
Mississippi Supreme Court’s factual findings during the postconviction
proceeding—findings made pursuant to a comparative juror analysis—would
be entitled to AEDPA deference. We federal courts are required to defer to the
Mississippi Supreme Court’s factual finding that a comparative juror analysis
in Chamberlin’s case produced no evidence of disparate treatment of black
prospective jurors.
       Even if we were not required to defer to the state court’s factual findings,
however, we would still hold that the district court erred in concluding that
Chamberlin established that the prosecution’s proffered race-neutral reasons
were pretextual. To show why this is so, we turn to the comparative juror
analysis.
       The Supreme Court has instructed that, when analyzing Batson
challenges, “bare statistics” are not the be-all and end-all. Miller-El II, 545 U.S.
at 241. “Side-by-side comparisons of some black venire panelists who were
struck and white panelists allowed to serve” can be “[m]ore powerful.” Id. The
crux of the district court’s ruling is its erroneous comparison of black


Statistical Testing of Peremptory Challenge Data for Possible Discrimination, 69 VAND. L.
REV. EN BANC 51, 72–73 (2016) (finding no Batson violation in a case where the odds a black
juror would be struck were nine times greater than those for a non-black juror). In addition,
the dissent’s suggestion that the prosecution might have acted on the assumption that blacks
are more likely to oppose the death penalty is purely speculative.
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                                 No. 15-70012
prospective jurors Sturgis and Minor, who were struck by the prosecution, to
white juror Cooper, who was kept.
      The district court’s determination on this front can be boiled down in this
way: (1) the prosecution said questions 30, 34, and 35 were the reasons Sturgis
and Minor were struck; (2) Cooper answered those questions identically;
therefore (3) questions 30, 34, and 35 could not have been the real reasons
Sturgis and Minor were struck, else Cooper would have been struck as well.
Accordingly, the prosecution’s proffered race-neutral reasons for striking
Sturgis and Minor must have been pretextual.
      But questions 30, 34, and 35 were not the only questions Sturgis, Minor,
and Cooper had to answer. They were rather three questions out of dozens on
a pages-long jury questionnaire. And if Cooper in particular gave other
responses that materially differentiated him from Sturgis and Minor and made
him a more favorable juror for the prosecution, then the district court’s ruling
does not follow.
      Consider, for example, question 53, which asked prospective jurors to
circle the response that best matched their opinion on the death penalty.
Sturgis and Minor circled “Generally Favor” and “No Opinion,” respectively.
Cooper, by contrast, circled “Strongly Favor,” and then wrote in “for rape,
murder, child abuse, [and] spousal abuse” by hand in the margin. Cooper
clearly answered a key question in a way that materially distinguished him
from Sturgis and Minor. Thus, the most logical explanation for the
prosecution’s not striking Cooper was not because he was white while Sturgis
and Minor were black, but because Cooper was a more favorable juror based
on his answers to other questions.
      This conclusion is further confirmed by the existence of an additional
black juror, Carter, who was accepted by the prosecution. Carter gave worse
(from a prosecutor’s perspective) answers to question 30 and 34 than did
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                                  No. 15-70012
Sturgis and Minor, and gave the same answer as they did to question 35. But
she answered question 53 in the same manner as Cooper: circling “Strongly
Favor” and then writing in by hand additional crimes for which she felt the
death penalty was appropriate. And again, Carter—a black prospective juror—
was accepted by the prosecution.
      Indeed, the district court conceded that the prosecution could reasonably
have viewed Cooper as a more favorable juror than Sturgis and Minor in light
of his answer to question 53. But it decisively concluded that it could not
consider Cooper’s answer to question 53, because question 53 was not one of
the race-neutral reasons given by the prosecution for striking Sturgis and
Minor. See Chamberlin I, 2015 WL 1485901, at *6 (“While [his response to
question 53] might have made Cooper a slightly more desirable juror, it was
not a rationale offered by the prosecutor.”). The district court concluded, in
other words, that to look at Cooper’s other answers would be to allow the State
to construct an impermissible post hoc explanation for its strikes of black
jurors. This conclusion was erroneous for a number of reasons.
      First, the district court took out of context the Miller-El II admonition
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 II, 545 U.S. at 252.
The Court was careful to limit its warning only to the prosecutor’s “reason[s]
for striking [a] juror” at the second prong of the Batson test. Id. at 251
(emphasis added). This narrow focus is essential to maintaining the integrity
of the Batson framework, which requires a focus on the actual, contemporary
reasons articulated for the prosecutor’s decision to strike a prospective juror.
The timely expressed neutral reasons, after all, are what must be tested for
veracity by the trial court and later reviewing courts. And this is what the
Supreme Court meant in stating the “stand or fall” proposition: it criticized
both the prosecutor and later reviewing courts for accepting either entirely
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                                  No. 15-70012
different substituted reasons or post hoc reasons for strikes. The Court’s
rationale, however, does not extend to preventing the prosecution from later
supporting its originally proffered reasons with additional record evidence,
especially if a defendant is allowed to raise objections to juror selection years
after a conviction and to allege newly discovered comparisons to other
prospective jurors. Nothing in the “stand or fall” statement means that the
prosecutor would forfeit the opportunity to respond to such contentions.
      In addition, the Court specifically noted that when a prosecutor gives a
facially race-neutral 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.” Id. at 251–52 (emphasis added); see also Snyder v. Louisiana, 552 U.S. 472,
483 (2008) (“We recognize that retrospective comparison of jurors based on a
cold appellate record may be very misleading when alleged similarities were
not raised at trial. In that situation, an appellate court must be mindful that
an exploration of the alleged similarities at the time of trial might have shown
that the jurors in question were not really comparable.”). The Court thus drew
a distinction between: (1) inventing a new reason for a strike after the fact (not
allowed); and (2) reviewing the record to test the veracity of the prosecution’s
reasons already given in their proper time (required). Cooper’s answer to
question 53 is an example of the latter, because it goes directly to the key issue
of whether Sturgis’ and Minor’s responses to questions 30, 34, and 35 were the
real reasons they were struck.
      There is, accordingly, a crucial difference between asserting a new
reason for striking one juror and an explanation for keeping another. They are
not two sides of the same coin, as the dissent asserts. In the former scenario,
the prosecutor effectively concedes that his initial (race-neutral) reasons were
insufficient bases for striking the juror. Miller-El’s “stand or fall” requirement
applies to this situation, blocking such post hoc rationalizations. See Miller-El
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                                       No. 15-70012
II, 545 U.S. at 250–52. In the latter, the prosecutor’s bases for the strike remain
in full effect, so Miller-El’s requirement is not implicated. See United States v.
Wilkerson, 556 F. App’x 360, 365 (5th Cir. 2014) (unpublished) (noting that the
prosecution should be afforded the opportunity to demonstrate “meaningful
distinctions” between asserted comparators). Instead, the prosecutor is
highlighting a crucial difference between the black and non-black jurors that
prevented the non-black juror from being struck despite sharing strike-worthy
characteristics with a black counterpart that was struck. 4
       Second, to hold that the prosecution is not allowed to point to Cooper’s
other jury questionnaire responses is to engage in a bait-and-switch that
vitiates the probative value of the jury comparison in the first place. At jury
selection, the prosecution was asked to explain why it struck black jurors
Sturgis and Minor, as Batson requires. It did so. Then, years later on federal
habeas, the defense altered its approach, and the prosecution was now asked
to explain why it kept white juror Cooper. And yet, despite the change in
inquiry, the prosecution was not allowed to respond, even by pointing to record
evidence it undeniably would have been able to identify had a timely objection
been made—it was stuck with the answer it had given to an entirely different
question during jury selection. Not only is this state of affairs manifestly
unfair, it is inconsistent with the Supreme Court’s directive regarding juror




       4  The dissent finds support for its position from published case law in other circuits,
but we see no conflict with this distinction in those cases. In Taylor, for example, the Seventh
Circuit blocked the prosecution’s effort to raise seven new reasons for striking a juror that
had not been offered during voir dire. United States v. Taylor, 636 F.3d 901, 904–06
(“Accepting new, unrelated reasons extending well beyond the prosecutor’s original
justification for striking [the juror] amounts to clear error under the teaching of Miller–El
II, and the government's reliance on these additional reasons raises the specter of pretext.”
(emphasis added)). Similarly, the Eleventh Circuit rejected the state court’s attempt to more
fully explain the state’s reason for striking a juror that the state had “never offered” before.
McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1269–70 (11th Cir. 2009).
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                                  No. 15-70012
analysis in Snyder. If a court does not consider the entire context in which a
white juror was accepted, then he/she cannot serve as a useful comparator.
      A hypothetical will help to illustrate the point:
      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.

      In this scenario, when Prosecutor strikes Jurors A and B for their
position on the legal burden of proof, Prosecutor has concluded that their
position on the legal burden of proof is a sufficiently strong basis to strike them.
This implies that there are no other overriding reasons to accept A and B as
jurors. Conversely, Juror C is not a comparator because his position on the
legal burden of proof is not sufficiently strong to strike him; instead, his
position on the legal burden of proof is redeemed by his stance on the death
penalty, making him desirable as a juror.
      If the defendant in such a case later raises a comparative jury analysis
between Jurors A, B, and C as part of a Batson challenge, an accurate and
honest assessment of the prosecutor’s motives must allow the prosecution to
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                                       No. 15-70012
point to white Juror C’s view of the death penalty as the reason he was kept.
Otherwise the Batson analysis risks capturing too many false positives,
precisely because Juror C is no longer an accurate comparator to Jurors A and
B.
       Third, consider the related issue of the burden that would be placed on
the prosecution at jury selection going forward if the district court’s reasoning
stands. In order to protect against future comparative juror analysis, the
prosecution will not only have to explain why it struck black jurors—as Batson
requires—but also why it kept white jurors. Indeed, the prosecution will have
to explain why it kept every white juror, because it does not know which white
jurors will be selected as comparators at some later date. In Chamberlin’s case,
for example, the only way the prosecution could have avoided the outcome
dictated by the district court was by explaining why it kept Cooper. But the
prosecution could not have known that Cooper would be the eventual
comparator chosen and not some other juror, so it would have had to explain
why it kept every white juror. 5 Such a requirement would make the jury
selection process impractical, whereas considering the totality of the
circumstances conforms with the Court’s instruction in Batson, Miller-El II,
and Snyder. 6




       5  At oral argument Chamberlin’s counsel explicitly conceded that its argument would
require prosecutors to explain their reasons for keeping white jurors: “I think what Miller-El
[II] should have taught the prosecutor is, if I am excluding black jurors for reasons which
apply identically to white jurors, I ought to think about adding to my explanation of why I’m
excluding the black jurors—to explain that, because otherwise it’s going to be possible, way
down the line, for somebody to take a look at that. I don’t think it’s so hard to do.”
        6 The concern here is not, as the dissent seems to suggest, that no comparative juror

analysis is permitted unless the defendant first raises such an argument at trial. We simply
permit the prosecutor to explain why he accepted alleged non-black comparators at the time
the analysis is undertaken. Having already explained why certain jurors were struck, the
prosecutor need not preemptively show why other, allegedly comparable jurors were not. No
precedent from the Supreme Court or this circuit has required such clairvoyance.
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                                 No. 15-70012
      Fourth, the procedure for conducting a comparative juror analysis
described by the district court creates perverse incentives for both the defense
and the prosecution. For the defense it is better not to raise comparative juror
analysis in the trial court and to wait until much later in the game to point to
a white comparator, because the prosecution will be stuck with whatever
reasons it gave for striking black jurors in the trial court and allowed no other
explanation—no matter how compelling and/or how certain it is that it would
have been raised had a timely objection been made. And for the prosecution, it
might be deemed strategically advantageous to be less detailed when giving
race-neutral reasons in the trial court, because the more general the answers,
the harder it will be to conduct a formal side-by-side comparison down the line.
      Our holding today does not eviscerate Batson protections: We simply
allow a prosecutor the chance to respond whenever the court engages in a
comparative juror analysis. Important limitations on that response remain.
For one, the prosecutor is constrained by the voir dire record, which helps
guard against the fabrication of new distinctions that did not motivate the
initial decision. Moreover, even if the prosecutor provides a supported basis for
keeping a non-black juror, the court must still determine whether that basis
provides an adequately redeeming reason to override the strike-worthy
characteristics the non-black juror shares with the black jurors who were
struck. Perhaps most importantly, allowing this response does not permit the
prosecutor to change his original reasons for striking black jurors. Such
protections will guard against the rare cases in which a Batson violation is
followed by an ongoing, planned concealment of that violation by the various
prosecutors involved in each case.
      Conversely, to hold that a reviewing court cannot look at the totality of
the circumstances in order to determine an accurate comparator when
conducting a comparative jury analysis sua sponte and belatedly on federal
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                                    No. 15-70012
habeas is to invert the Batson framework, rendering it unjust, impractical, and
contrary to its original purpose.
                                    *    *    *
      The prosecution in Chamberlin’s case did what it was supposed to do: it
rejected some black prospective jurors and accepted others, accepted some
white prospective jurors and rejected others. When asked why it struck
individual black prospective jurors, it gave specific race-neutral reasons for the
strikes. The Mississippi Supreme Court found on multiple occasions that the
prosecution did not invidiously discriminate against black prospective jurors.
Then, on federal habeas—where AEDPA deference is the rule—the prosecution
was asked to explain years later why it kept a white juror. Yet, when it tried to
answer that question with reference to record evidence it would have identified
had the defense timely objected, the district court concluded it could not do so.
No case—not Batson, Miller-El II, or any other—has ever suggested, let alone
mandated, this distortion of the Batson regime.
                                        IV
      We find that neither statutory ground for granting federal habeas relief
under AEDPA applies to Chamberlin’s case. Accordingly, we REVERSE the
district court’s order granting Chamberlin’s petition for a writ of habeas
corpus, and VACATE the district court’s order setting aside Chamberlin’s
conviction and sentence.




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                                        No. 15-70012
GREGG COSTA, Circuit Judge, dissenting, joined by STEWART, Chief Judge,
DAVIS, DENNIS, and PRADO, Circuit Judges:

      The jury—the voice of “We the People” in our justice system—was of such
importance to the Founding generation that it is one of only two rights included
in both the Constitution and Bill of Rights. 1 U.S. CONST. art. III; amends. VI,
VII; see also THE FEDERALIST No. 83 (Alexander Hamilton) (“The friends and
adversaries of the plan of the [constitutional] convention, if they agree on
nothing else, concur at least in the value they set upon the trial by jury”). In
the latter, it is the only right that is a focus of two amendments. As is the case
for many of our finest institutions, the greatest obstacle to the jury system’s
achieving its full promise has been racial discrimination. From the earliest
applications of the Equal Protection Clause to the present, that guarantee’s
most prominent role in the criminal justice system has been ferreting out such
discrimination in the composition of juries. See, e.g., Strauder v. West Virginia,
100 U.S. 303 (1879); Neal v. Delaware, 103 U.S. 370 (1880); Norris v. Alabama,
294 U.S. 587 (1934); Patton v. Mississippi, 332 U.S. 463 (1947); Hernandez v.
Texas, 347 U.S. 475 (1954); Batson v. Kentucky, 476 U.S. 79 (1986); Miller-El
v. Dretke, 545 U.S. 231 (2005) (Miller-El II); Snyder v. Louisiana, 552 U.S. 472
(2008); Foster v. Chatman, 136 S. Ct. 1737 (2016). Unlike other trial rights,
the one requiring a jury protects not just those charged with crimes, but all
citizens whose service on the jury is essential to ensuring that a cross section
of the community is making the important, in this case life-or-death, decisions
our justice system confronts. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140
(1994) (“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.”); Powers v. Ohio, 499 U.S. 400, 406 (1990)


      1   Venue for criminal trials is the other. U.S. CONST. art. III; amend. VI.
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                                      No. 15-70012
(“Batson recognized that a prosecutor's discriminatory use of peremptory
challenges harms the excluded jurors and the community at large.”).
       The problem of racial discrimination in the makeup of juries is now
largely one about the exercise of peremptory strikes. It has been three decades
since the Supreme Court recognized that discriminatory use of a strike violates
the Constitution. Batson, 476 U.S. at 84. Even though a high proportion of
the recent cases in which the Supreme Court has found a Batson violation come
from states in our circuit, 2 you can count on one hand the number of cases from
this court finding the discriminatory use of a preemptory strike. It appears
that only two of the hundreds of Batson decisions in our circuit have ever found
that a strike was discriminatory (a few others vacated convictions based on
procedural error in application of the Batson framework). See Hayes v. Thaler,
361 F. App’x. 563 (5th Cir. 2010); Reed v. Quarterman, 555 F.3d 364 (5th Cir.
2009). Yet the concern today is that a decision affirming the district court’s
finding of discriminatory strikes, which would put us at a once-a-decade rate
of finding Batson violations, would impose too much of a “burden . . . on the
prosecution.” Maj. Op. at 17.
       The two cases in which we have found discrimination both relied in large
part on comparative juror analysis. Today’s opinion saps most of the force out
of this one tool that has ever resulted in us finding a Batson violation. Despite
the only reasons cited at trial for striking two black jurors applying equally to
an accepted white juror, the majority rejects the direct conclusion to be drawn


       2 About a decade ago, a justice serving on the Supreme Court of Texas counted all the
reported state cases addressing Batson and concluded that: “All these problems [associated
with peremptory strikes]—discriminating against minorities, disrupting trial, and discarding
perfectly good jurors—are particularly acute in Texas. Whether because of the state’s
diversity, the generous allowance of peremptory strikes, or something else, Batson challenges
are far more frequent here than anywhere else.” Davis v. Fisk Elec. Co., 268 S.W.3d 508, 531
(Tex. 2009) (Brister, J., conurring) (counting 1,364 Texas state cases addressing Batson,
which was more than double the number in the state with the next highest number).
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                                 No. 15-70012
from this inconsistency that the proffered reasons could not have been the real
reasons for the strikes. If this case in which the compared jurors are identical
with respect to the reasons stated at trial is not enough (the standard only
requires that they be similarly situated), it is difficult to see how comparative
analysis will ever support a finding of discrimination.
      What is even more troubling is that we have been down this road before.
The way the majority opinion gets around the identical comparison is to
differentiate the jurors based on reasons not cited during the Batson inquiry
at trial. In Miller-El II, the Supreme Court found error in our application of
comparative juror analysis that did the same thing: “substitution of a reason”
for the strike that was not offered at trial. Miller-El II, 545 U.S. at 252. The
Court set forth the following rule in unmistakable terms:
      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 in 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
      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 false.
Id. (citation omitted); see also Reed, 555 F.3d at 376 (“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 II, 545 U.S.
at 252)).   Yet that is exactly what the majority opinion does: it uses the
answers to questions not identified at trial as the basis for overturning the
district court’s finding that clear and convincing evidence of discrimination
exists. As will be explored further, this approach used to avoid the clear import
of a direct comparison of the reasons stated at trial is the same rejected



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                                        No. 15-70012
analysis of our Miller-El II opinion and the Supreme Court dissent. It is one
thing to make a mistake; it is quite another to not learn from it. 3
                                            I.
       Before getting to those critical errors in the majority opinion’s
comparative juror analysis, it is important to note the revealing pattern of
discriminatory strikes. The majority opinion does not even mention the highly
disproportionate strikes of black prospective jurors. Instead it breezily says
the prosecution “rejected some black prospective jurors and accepted others,
accepted some white prospective jurors and rejected others.” Maj. Op. at 19.
It is no wonder the majority opinion does not details those “some”s and
“others”; they are nothing alike.
       The prosecution struck seven of the first eight black venire members it
considered, which included the challenged strikes of Sturgis and Minor. The
inverse was true for the first eight white jurors the prosecution considered: it
accepted seven of eight (and ended up accepting nine of the first ten whites).
Only after defense counsel started raising Batson objections and the
prosecution was running out of strikes did it accept the two black jurors who
ended up on the jury, and the second was only accepted in a moment of
confusion when the prosecutor believed the juror had already been struck. Cf.
Miller-El II, 545 U.S. at 249–50 (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).




       3  The Supreme Court reversed twice in the Miller-El litigation. Once after we found
that the Batson claim was not even debatable among jurists of reason and thus denied a
certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (Miller-El I). The
second time after we rejected the merits of the claim after the first reversal. Miller-El II, 545
U.S. at 237.
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                                      No. 15-70012

       Even including those late, post-objection decisions, the overall numbers
evince discrimination. The prosecution 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.
       This racial breakdown of the strikes is even more telling when compared
with the results random strikes would predict. Given the demographics of the
venire, the probability that random, race-neutral strikes would result in 8 of
the 13 struck jurors being black was about 1 in a 100. See generally Joseph L.
Gastwirth, Statistical Testing of Peremptory Challenge Data for Possible
Discrimination, 69 VAND. L. REV. EN BANC 51, 59–62 (2016); Joseph L.
Gastwirth, Case Comment: Statistical Tests for the Analysis of Data on
Peremptory Challenges, 4 L. PROBABILITY & RISK 179, 182 (2005) (both showing
how to complete this analysis). That probability of roughly 0.01 is “smaller
than 0.05, the most frequently used probability level for determining statistical
significance, which is equivalent to the two-standard deviation criterion” that
the Supreme Court found to be the point at which the possibility of a race-
neutral explanation was “suspect” in a case challenging exclusion of Hispanic
grand jurors in south Texas. Gastwirth, Statistical Testing of Peremptory
Challenge Data, at 60; Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977).
Looking at the strikes in terms of odds rather than probability reveals another
stark statistic: a black juror had more than seven times the odds of being struck
that a white juror did. Id. at 66. 4



       4For each potential black juror the prosecutor considered, the odds of being struck by
the prosecutor ended up being 8/5 (that is, 8 were struck, 5 were not). For each white juror,
the odds of being struck by the prosecutor was 5/23 (5 were struck, 23 were not). The more
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                                    No. 15-70012

      When the Supreme Court has considered statistical evidence of
discrimination in jury selection, it has focused on this demographic breakdown
of strikes. Miller-El I, 537 U.S. at 331 (“African–Americans were excluded
from petitioner’s jury in a ratio significantly higher than Caucasians were”).
As to those strikes, the majority opinion cannot dispute that the prosecutor
was far more likely to strike black potential jurors than white venire members.
This assessment of a lawyer’s overall strikes is not just part of the prima facie
case that makes up the first stage of Batson. As common sense would dictate,
disproportionate strike rates involving the entire venire are also relevant in
considering the ultimate question whether a particular strike was
discriminatory. Miller–El II, 545 U.S. at 265 (considering statistics of overall
strikes in concluding that discrimination existed); Miller–El I, 537 U.S. at 342
(“[T]he statistical evidence alone raises some debate as to whether the
prosecution acted with a race-based reason when striking prospective jurors.”);
Hayes, 361 F. App’x at 570 (recognizing that the prosecutor’s using 8 of 11
strikes against black jurors is “indicative of discriminatory intent”); Fields v.
Thaler, 588 F.3d 270, 274 (5th Cir. 2009) (explaining that at the final Batson
step “the defendant may rely on all relevant circumstances to raise an
inference of purposeful discrimination”); cf. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148-49 (2000) (recognizing in the analogous burden
shifting framework for employment discrimination cases that the “strength of
the plaintiff’s prima facie case” remains relevant to the ultimate question).
      That two blacks ended up on the jury—one only because the prosecutor
mistakenly though the juror had already been struck—does not overcome the




direct comparison just involves the grade school technique of finding the least common
denominator. The black jurors’ odds of being struck were 184/115 and white jurors’ were
25/115. Twenty-five goes into 184 seven times with a little left over it.

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                                 No. 15-70012

strong inference to be drawn from the disproportionate strikes. Other courts
of appeals have explained why this is the case:
     The final composition of the jury . . . offers no reliable indication of
     whether the prosecutor intentionally discriminated in excluding a
     member of the defendant’s race. . . . “[A] Batson inquiry focuses on
     whether or not racial discrimination exists in the striking of a
     black person from the jury, not on the fact that other blacks may
     remain on the jury panel.”
Holloway v. Horn, 355 F.3d 707, 728–29 (3d Cir. 2004) (quoting United States
v. Johnson, 873 F.2d 1137, 1139 n.1 (8th Cir. 1989)). Commentators have also
criticized looking at the final makeup of the jury rather than strikes, with one
stating this is “not so much a method as an excuse” in that it “fails to address
the primary purpose of the Batson rule—the protection of individual jurors.”
Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson
and Peremptory Challenges, 71 NOTRE DAME L. REV. 447, 475 (1996); see also
Gastwirth, supra, at 56 (finding the approach unreasonable because it ignores
the prosecutor’s peremptory strikes). Indeed, academic authority—not just
that of law professors, but also statisticians—recognizes that the rate at which
the prosecutor struck black jurors as compared to nonblack jurors is the most
probative metric in Batson cases. See David C. Baldus, et al., Statistical Proof
of Racial Discrimination in the Use of Peremptory Challenges, 97 IOWA L. REV.
1425, 1455 (2012) (“[T]he most probative measures are based on contrasts
between the prosecutorial strike rates of black and nonblack venire
members.”); Gastwirth, Statistical Testing of Peremptory Challenge Data, at 60
(considering the comparative strike rates for black and nonblack jurors and the
difference between the number of minorities struck by the prosecutor to the
number expected if those challenged were a random sample).
      In terms of those strikes, it is worth repeating that a black juror was
more than seven times as likely to be struck as a white one and the random
chance that so many blacks would be struck is a remote 1 in a 100.

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                                        No. 15-70012

“Happenstance is unlikely to produce this disparity.” 5 Miller-El II, 545 U.S. at
241 (quoting Miller-El I, 537 U.S. at 342).
                                            II.
                                            A.
       Comparative juror analysis is a tool that helps determine whether this
disproportionate exclusion of black jurors was the extraordinary coincidence it
would take to defy these odds. An understanding of probability is not needed
to see the mistake the majority opinion’s approach makes with this inquiry;
the most routine judicial task of reading precedent reveals it.
       The rationale for comparative juror analysis is this: “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 II, 545 U.S. at 241.              Such “side-by-side comparisons” can be
“powerful” evidence of discrimination because they reveal that a lawyer’s race-
neutral reasons are pretext. Miller–El II, 545 U.S. at 241. To put it in the



       5 As other courts have noted, discriminatory strikes need not be the product of “racial
animosity.” Davis, 268 S.W.3d at 525 (Jefferson, C.J.). A lawyer of any race “will seek jurors
favorably inclined to his client’s position, and race may even serve as a rough proxy for
partiality.” Id. (citing Batson, 476 U.S. at 139 (Rehnquist, J., dissenting)); see also Miller-El
II, 545 U.S. at 270–71 (Breyer, J. concurring) (citing materials from jury consultants and
lawyers recommending that lawyers consider race and gender among the demographic
factors that can be useful in predicting a prospective juror’s favorability to one side). The
impulse to rely on that proxy is likely to be particularly strong in capital cases as the racial
breakdown of views on the death penalty is well known. See, e.g., Andrew Dugan, Solid
Majority Continue to Support Death Penalty, GALLUP NEWS, (October 15, 2015),
http://news.gallup.com/poll/186218/solid-majority-continue-support-death-penalty.aspx
(finding 68% of white Americans supported the death penalty, while only 39% of African–
Americans did); Support for Death Penalty Lowest in More than Four Decades, PEW
RESEARCH       CENTER,       (September     28,    2016),     http://www.pewresearch.org/fact-
tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/ft_16-09-
30_deathpenalty2/ (finding 57% of white Americans favored the death penalty, while only
29% of African-Americans did); Mark Peffley and Jon Hurwitz, Persuasion and Resistance:
Race and the Death Penalty in America, 51 AM. J. POL. SCI. 996, 1002 (2007).

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                                  No. 15-70012

practical context of jury selection, the idea is that if a lawyer is so troubled by
a juror’s views on certain issues that the concern leads to striking that juror,
then one would expect to see the same concern with another juror expressing
the same views.       In a jury selection like this one involving written
questionnaires, if the lawyer highlighted answers on one juror’s form as
troubling, the same answers on another juror’s form should also be highlighted.
If those highlighted answers are later cited by the lawyer in response to a
Batson challenge for which the trial court has found prima facie support and
thus requested an explanation, it should not be hard for the lawyer to see and
consider all the questionnaires with that answer highlighted.
      Miller-El II shows how this analysis can reveal pretext. 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 rehabilitated.” 545 U.S. at 243. 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. Id. at 244–45. 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.]” Id. at 247–48; see also Foster, 136 S. Ct. at 1751 (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, 552 U. S. at 483 (same); Reed, 555 F.3d at 372–
73 (same).
      The Miller-El II comparison revealed the prosecutor’s reasons to be
pretextual and thus powerful evidence of discrimination even though other
reasons the prosecutor gave for striking black jurors did not also apply to
accepted white jurors. 545 U.S. at 247. For example, the prosecutor gave an

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                                      No. 15-70012

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 II, 545 U.S. at 246–47; id. at 290–91
(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. Id. at 247 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.” Id.
       The jurors “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. 6 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
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


       6 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

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 II, 545 U.S. at 265; Snyder, 552 U.S. at 485 (“The prosecution’s
proffer of this pretextual explanation naturally gives rise to an inference of
discriminatory intent.”); Reed, 555 F.3d at 380–81 (“[T]he comparative analysis
demonstrates what was really going on: the prosecution used its peremptory
challenges to ensure that African–Americans would not serve on Reed’s jury.”).
                                       B.
      How does the majority opinion try to avoid the implication of pretext that
is stronger in this case than those in which the Supreme Court and our court
have used comparative analysis to find Batson violations? It first does so by
invoking AEDPA deference. That deference is substantial in allowing a federal
court to grant postconviction relief only if the state court’s rejection of the claim
“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)(2). And
a 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 II, 545 U.S. at 240 (quoting Miller-El
I, 537 U.S. at 340). And in Miller-El II and Reed, comparative juror analysis
less compelling than the identical comparison in this case helped meet that
standard. See id. at 240, 266 (granting relief under section 2254(d)(2)); Reed,
555 F.3d at 372–73 (same). Indeed, courts 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.

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2014) (granting writ by finding a Batson violation relying only on a
comparative juror analysis); cf. United States v. Taylor, 636 F.3d 901, 906 (7th
Cir. 2011) (Sykes, J.) (relying on striking comparative juror analysis to find
discrimination under the also deferential “clearly erroneous” standard that
governs review of federal trial court rulings). Here the damning comparative
juror analysis does not stand alone. It is reinforced by the pattern of overall
strikes, which makes it highly unlikely as a statistical matter that the
disproportionate striking of black jurors was “mere happenstance.” Miller-El
II, 545 U.S. at 241. There is also the absence of follow-up questions about the
responses that supposedly motivated the prosecutor’s strikes of Sturgis and
Minor that one would expect if those were real concerns. See, e.g., Miller-El II,
545 U.S. at 246 (citing Ex parte Travis, 776 So. 2d. 874, 881 (Ala. 2000)); Davis
v. Fisk Elec. Co., 268 S.W.3d 508, 519 (Tex. 2009); Jackson v. Stroud, -- S.W.3d
--, 2017 WL 6519913, at *5 (Tex. App.—Houston [1st Dist.], Dec. 21, 2017) (all
explaining that a “failure to engage in any meaningful voir dire examination
on the issues that he claims concerned him suggests that his explanation on
appeal is pretextual”).
      The majority opinion defers to findings of the state court in rejecting an
ineffective assistance of counsel claim, rather than its findings on direct appeal
rejecting the Batson claim. This is curious. The Mississippi Supreme Court’s
rejection of the Batson claim on direct appeal did not address comparative juror
analysis (as will be discussed below, that makes it no different than most of
the cases in which the Supreme Court or our court have conducted comparative
juror analysis during federal habeas). Chamberlin v. State, 989 So. 2d 320
336–39 (Miss. 2008). At the state postconviction stage, Chamberlin raised the
ineffective assistance claim challenging her trial counsel’s failure to conduct a
comparative analysis during jury selection. Chamberlin v. State, 55 So. 3d
1046, 1051–52 (Miss. 2010). If a claim of ineffective assistance of counsel that

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relates to an underlying Batson issue is the relevant state court ruling for
AEDPA purposes on the direct Batson claim, then does a defendant who fails
to bring a direct Batson claim in state court nonetheless exhaust that claim for
purposes of federal review by bringing it on state habeas in the context of a
Strickland claim? Can a habeas petitioner resuscitate a procedurally defaulted
Batson claim by raising a Strickland claim in state court challenging the
attorney’s conduct during jury selection?        That would seem to be the
implication given the majority opinion’s treatment of the ruling on the Sixth
Amendment claim as the direct Batson “claim” for purposes of AEDPA review.
28 U.S.C. § 2254(d) (granting deference to state court “adjudication of the
claim”).
        In any event, reliance on the state habeas ruling only puts the error of
the state court’s and majority opinion’s comparative juror analysis front and
center:
        • This is what the Supreme Court of the United States has said cannot
          be done in comparing the jurors: “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 false.” Miller-El II, 545 U.S. at 252.

        • This is what the Supreme Court of Mississippi said in concluding that
          the comparison would not show discrimination: “[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 questionnaire that
          differentiated him or her from the white jurors who were accepted by
          the State.” Chamberlin, 55 So. 3d at 1051–52.

Conducting a “thorough review” of the entire record to identify as reasons for
the     strikes   distinctions   among    the   comparators    that   were    not
contemporaneously cited violates Miller-El II.     As the stand-or-fall principle
recognizes, such differences will just about always exist when every possible
characteristic is fair game. The state habeas court’s use of comparative juror
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analysis is thus “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” in Miller-El II. 28 U.S.C. § 2254(d)(1). If the state habeas ruling
on ineffective assistance is indeed the Batson decision we are reviewing, then
its plain legal error makes this is an even easier case than I thought.
       But regardless of whether the Mississippi court committed AEDPA legal
error under section 2254(d)(1) and whether the state court must conduct a
comparative juror analysis as the district court concluded, the Supreme Court
has made clear that a federal habeas court can consider comparative juror
analysis in its section 2254(d)(2) review of whether a state court Batson ruling
was based on an “unreasonable determination of the facts.” 7 Miller-El II, 545
U.S. at 240. As will be discussed further, it can do so even when the defense
made no comparison at any level in state court. See id. at 241 & n.2; Reed, 555
F.3d at 372–73; Woodward v. Epps, 580 F.3d 318, 338 (5th Cir. 2009) (all
conducting comparative analysis as part of the section 2254(d)(2) analysis even
though no comparison was identified in state court).
                                           C.
       At least as a general matter, the majority opinion recognizes that a
federal habeas court reviewing a Batson claim can consider comparative juror
analysis not raised at trial because it engages in that inquiry. But in doing so,
the majority opinion makes the same mistake as the Mississippi habeas court
in relying on juror differences not identified at trial. It cannot contest the
obvious: that on the questions the prosecutor cited during jury selection as his
reasons for excluding black jurors Sturgis and Minor, accepted white juror


       7There is some ambiguity in the district court opinion about whether it applied the
deference to factual findings that section 2254(d)(2) requires. That does not warrant reversal,
however, because the appropriately deferential factual review of the Batson claim reveals
AEDPA error, as it did in Miller-El II, Reed, and Hayes.

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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. The example is the three prospective jurors’ differing answers
to a separate 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.” Maj. Op. at 12.
      So how does the majority opinion get around Miller-El II’s command that
a prosecutor has to “stand or fall on the plausibility of the reasons he gives”?
545 U.S. at 252; see also Reed, 555 F.3d at 376 (“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 II, 545 U.S.
at 252)).   It thinks the Supreme Court’s emphatic 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 recognizes
in its briefing is a new reason for striking the black jurors is now a new reason
for keeping the white juror.
      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 its name demonstrates, 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. See, e.g., United States v. Taylor, 636 F.3d 901,
906 (7th Cir. 2011) (properly framing the key question as the reason “for
striking [the black juror] but not [the white juror],” which recognizes that the
reasons for striking a black juror and keeping a white one are inseparable). To

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use a simple example, assume a prosecutor struck Jurors A and B on the
ground that they wore hats in the courtroom (this is sometimes cited as a
reason for strikes on the ground that it shows a lack of respect for the process).
But Juror C was also wearing a hat. When this is later pointed out, the
reviewing 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. If the court were able to read the
prosecutor’s mind and this were in fact the real reason for the disparate
treatment, then that would mean the hat was not the deal breaker; 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 in
fact the case, Miller-El II says the prosecutor had to cite both of those reasons.
      The view that courts may credit new reasons jurors were kept despite
sharing the trait the prosecution claimed justified striking black jurors—a
novel position as the en banc court cites no other example of a court doing
this—would make meaningless Miller-El II’s bar on considering new reasons
for strikes. Whether labelled as reasons for striking the black juror or ones for
keeping the comparators, allowing new explanations years after trial turns the
Batson inquiry into a “mere exercise in thinking up any rational basis” as there
is no way to ensure the post-trial justification is what actually motivated the
decisions made during jury selection. Miller-El II, 545 U.S. at 252. Today’s
decision demonstrates this as it does not even try to test the genuineness of
the new explanation the state offers in its brief by, for example, requiring a
hearing at which the prosecutor who selected the jury would testify. See infra
Section IV.
      Miller-El II shows why the distinction between reasons for striking and
keeping comparators is empty. The new reason for striking the black juror our

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court offered that the Supreme Court rejected—his ambivalence about the
death penalty—could just as easily have been treated as a reason for keeping
the white jurors: their firmer support of the death penalty. 545 U.S. at 250–
52; Miller-El v. Dretke, 361 F.3d 849, 856–57 (5th Cir. 2004). Indeed, that is
how the Miller-El II dissent characterized the difference: a white juror was
likely kept because the juror “was adamant about the value of the death
penalty for callous crimes.” 545 U.S. at 294 (Thomas, J., dissenting). As the
dissent explained more fully:
      In explaining why veniremen Hearn, Witt, and Gutierrez were
      more favorable to the State than Fields, the majority faults me for
      ‘focus[ing] on reasons the prosecution itself did not offer.’ The
      majority’s complaint is hard to understand. The State accepted
      Hearn, Witt, and Gutierrez. Although it is apparent from the voir
      dire transcript why the State wanted to seat these veniremen on
      the jury, it was never required to ‘offer’ its reasons for doing so.
Id. at 306 n.4 (Thomas, J., dissenting) (emphasis in original). The Supreme
Court majority rejected this attempt to offer never-before-cited reasons for
keeping white jurors, viewing it as a violation of the stand-or-fall principle:
“The dissent offers other reasons why these nonblack panel members who
expressed views on rehabilitation similar to Field’s were otherwise more
acceptable to the prosecution than he was. In doing so, the dissent focuses on
reasons the prosecution itself did not offer.” Id. at 245 n.4. Today’s opinion is
thus directly at odds with how Miller-El II treated new reasons, even those for
“keeping white jurors”: it did not consider them. The Supreme Court’s refusal
to consider new justifications, whether framed as a reason for excluding the
black juror or in mirror-image terms as a reason for accepting nonblack jurors,
binds us.
      The majority also says we can look at answers to questions other than
the three cited at trial because Miller-El II instructed courts to evaluate
whether a prosecutors’ stated reason is plausible “in light of all evidence with

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a bearing on it.” 545 U.S. at 251–52. But that should not be read to provide
an end run around the same opinion’s emphatic prohibition on considering new
reasons. And what matters most is what Miller-El II actually did: refuse to
consider reasons for differential treatment not mentioned in the trial court.
Miller-El II shows the way to reconcile these two principles.            There is a
difference between evidence bearing on the plausibility of the prosecutor’s
stated reason, 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 other than just the juror
comparisons: did he rely on misrepresentations about stricken jurors’ answers,
probe jurors about the areas of concern, or give inconsistent explanations for
strikes? Id. at 244–51. All of these inquiries kept the focus on the reasons for
the strikes asserted at trial.
      In contrast, Miller-El II refused to consider a new reason this court had
identified on appeal. Id. at 252. The prosecutor initially had explained a strike
by saying the potential juror thought the death penalty was “too easy on some
defendants.” Id. at 250. When the defendant pointed out during federal
habeas that the same reason applied to white jurors the state accepted, our
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.” Id. at 248–51; see Miller-El, 361 F.3d at 856–57. Miller-El II
rejected this approach, similar to that of today’s opinion, because the “Court of
Appeals’s . . . substitution of a reason . . . does nothing to satisfy the prosecutors
burden.” 545 U.S. at 252. If that new reason our court offered was just part of
evaluating whether a prosecutor’s stated reason was plausible “in light of all
evidence,” the Supreme Court would not have ruled it off limits.
      Other circuits conducting comparative jury analysis have also read
Miller-El II as requiring that the “validity of a strike challenged under Batson

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must ‘stand or fall’ on the plausibility of the explanation given for it at the
time, not new post hoc justifications.” Taylor, 636 F.3d at 902; 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., 560 F.3d 1252,
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 nonshooter, a position also taken by accepted white jurors. 636
F.3d at 903, 905. After a remand because comparative juror analysis raised
concerns about the strike, the district court credited a different justification: it
concluded that the comparators’ differing views about the death penalty—
which “the prosecutor did not say a word about” at trial—explained their
disparate treatment. Id. at 905–06. Those after-the-fact explanations could
be characterized as reasons for keeping the white jurors just as much as they
could be treated as reasons for striking the black juror. Yet 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.” 8 Id. at 906. So it is today.


       8The full analysis of Judge Sykes is worth quoting because it speaks to the same error
the majority opinion makes:
      [W]hen the Batson challenge was made, the only reason offered by the
      prosecutor to justify striking Watson was [that Watson said she was not able
      to impose the death penalty on a non-shooter]. As such, on remand the court
      should have limited its inquiry and analysis to exploring that very question.
      But the remand hearing went much further. The government compared
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       None of these others circuits or the Supreme Court has said that Miller-
El II’s stand-or-fall rule applies only at the second step of Batson when the
challenged lawyer must state race-neutral reasons. Maj. Op. at 13. The
Supreme Court said just the opposite about the placement of the pretext
inquiry: “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 II, 545 U.S. at 240–41 (emphasis added). The
whole point of comparative juror analysis is to flush out pretext. As it is in the
analogous framework for deciding summary judgment in employment
discrimination cases, pretext is directly related to the ultimate question of
discrimination. The second step requires nothing more than the assertion of a
race-neutral reason; the third step tests the legitimacy of that offered reason
with comparative analysis playing a key role. Batson, 476 U.S. at 98. Of
course, the ease of manipulation via post-trial rationalizations that motivates
the stand-or-fall principle could happen just as easily in any of the Batson
steps. If it is just a “step 2” concern as the majority says, why didn’t the



       Watson to jurors Nowak, Evans, and Wills against the backdrop of seven new
       reasons unrelated to the jurors’ willingness to impose the death penalty on a
       non-shooter. And the district court factored several of these new reasons into
       its analysis. For instance, the court accepted the government’s explanation for
       striking Watson while keeping Nowak and Evans in the pool by closely
       examining the written responses of all three jurors to death-penalty questions
       on their juror questionnaires. But at the time the Batson challenge was made,
       the prosecutor did not say a word about striking Watson because of her
       answers on her juror questionnaire. Similarly, in crediting the government’s
       explanation for striking Watson but not Wills, the court looked beyond their
       responses to the non-shooter question and analyzed their attitudes toward gun
       control and how they might evaluate the defendants’ backgrounds when
       deciding whether to recommend the death penalty. But when the Batson
       challenge was made, the prosecutor never tried to justify striking Watson
       based on her views of either of these issues.
Taylor, 636 F.3d at 905–06 (emphasis in original).

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Seventh Circuit in Taylor allow consideration of the comparators’ differing
death penalty views as part of “step 3”?        Why didn’t Miller-El II allow
consideration at step 3 of the differences our court and Justice Thomas
identified among the comparators? If prosecutors and courts had free reign at
Batson’s third step to compare jurors as to characteristics not cited as a
contemporaneous reason for the strike, one would expect to see cases allowing
that. There are none.
                                        D.
      As no other court applying Miller-El II has relied on reasons beyond
those given at trial when comparing jurors, the majority is forced to somehow
show that this case is unique. It emphasizes that defense counsel did not
identify the comparison at trial. The glaring problem with this is that the same
was true in Miller-El II, as well as in most of the subsequent cases faithfully
applying its stand-or-fall command. As there is nothing unusual about this
procedural posture of the Batson challenge—indeed it is the norm—there is no
basis for the majority opinion’s new rule that says a prosecutor “is allowed to
explain why he accepted non-black comparators at the time the analysis is
[first] undertaken.” Maj. Op. 17 n.6.
      There was no invocation of comparative analysis at Miller-El’s trial. 545
U.S. at 241 n.1. He did not point out comparable white jurors until federal
habeas review. Id. at 241 n.2. This did not go unnoticed. Justice Thomas
objected that in state court the petitioner “did not even attempt to rebut the
State’s racially neutral reasons” and instead “presented no evidence and made
no arguments” in response to the prosecutor’s stated justifications. Id. at 278
(Thomas, J. dissenting). He protested that the majority’s reliance on “theories
that Miller–El never argued to the state courts” and, like Mississippi and the
majority opinion does here, argued that “AEDPA does not permit habeas
petitioners to engage in this sort of sandbagging of state courts.” Id. at 279.

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But the Miller-El II majority rejected this position, holding that the
“comparisons of black and nonblack venire panelists” was a “theor[y] about
th[e] evidence” properly raised for the first time on federal habeas review to
support the petitioner’s preserved Batson claim. Id. at 241 n.2. Importantly,
although no objection put the prosecutor on notice that his reason applied
equally to comparable white jurors, the Miller-El II court held the state to his
reasons. Id. at 252. The prosecutor gave specific reasons—for example a
potential juror thought the death penalty was “too easy on some defendants,”
id. at 250—so the state could not rely on other dissimilarities fixed in the
record even though they related to the same general topic of views on the death
penalty, see id. (not considering a juror’s “general ambivalence about the
[death] penalty”); id. at 290, 293–94 (Thomas, J., dissenting) (noting the
majority refused to consider that one comparable white juror “was adamant
about the value of the death penalty for callous crimes”).
      Until today, we have likewise recognized that Miller-El II’s command
that prosecutors are stuck with the reasons they cited during voir dire applies
when the defense does not identify comparators at trial. See Reed, 555 F.3d at
372–73 (holding that under Miller-El II and Snyder the federal habeas court
was required to consider the comparative analysis no matter that the
petitioner did not identify comparators at trial); see also Woodward, 580 F.3d
at 338 (holding a comparative analysis was not waived although not raised at
trial and conducting such an analysis focused on justifications the prosecutor
offered at trial); United States v. Wilkerson, 556 F. App’x 360, 363–65 (5th Cir.
2014) (affirming this court “must consider only the [Government’s] asserted
reasons for striking the black jurors and compare those reasons with its
treatment of the nonblack jurors” while noting the petitioner’s failure to point
to similarities at trial “robb[ed] the Government of the opportunity to
demonstrate other meaningful distinctions”). In fact, when we have engaged

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in comparative juror analysis, more often than not the comparison was not
raised at trial. See, e.g., Reed, 555 F.3d at 369–75; Woodward, 580 F.3d at 338;
Smith v. Cain, 708 F.3d 628, 638 (5th Cir. 2013); Stevens v. Epps, 618 F.3d 489,
497 (5th Cir. 2010); Hayes, 361 F. App’x at 571; Wade v. Cain, 372 F. App’x
549, 553 (5th Cir. 2010). 9 And as we observed in Reed, Texas appellate courts
also routinely conduct comparative juror analyses when defendants did not
contemporaneously identify comparators. See, e.g., Vargas v. State, 838 S.W.2d
552, 556 (Tex. Crim. App. 1992) (en banc); Blackman v. State, 414 S.W.3d 757,
765, 765 n.31 (Tex. Crim. App. 2013); Blanton v. State, 2004 WL 3093219, at
*10 (Tex. Crim. App. June 30, 2004); Adair v. State, 336 S.W.3d 680, 689 “(Tex.
App.—Houston [1st. Dist.] 2010, pet. ref’d). Today’s conclusion that Miller-El
II’s stand-or-fall rule is inapplicable or weakened when a petitioner did not
identify comparators during voir dire is unprecedented and contravenes that
Supreme Court decision and federal and state cases applying it.
       Snyder v. Louisiana, 552 U.S. 472 (2008), also shows this error. In that
case, Justice Thomas again voiced his view that comparative juror analysis
should not be used to find a Batson violation when the defense “never
mentioned [the inconsistent treatment] in the argument before the trial court.”
Snyder, 552 U.S. at 489 (2008) (Thomas, J., dissenting). Over this objection,
the Court found a Batson violation based on a comparative juror analysis never
raised in state court, focusing only on the reasons the prosecutor
contemporaneously gave. Id. at 485–86.
       The majority cites to Snyder’s cautioning “that a retrospective
comparison of jurors based on a cold appellate record may be very misleading


       9In contrast, a search of the term “comparative juror analysis” in Fifth Circuit caselaw
turns up only two cases in which it appears the comparison was identified in the trial court.
See United States v. Brown, 553 F.3d 768, 793 (5th Cir. 2008); Simmons v. Thaler, 440 F.
App’x 237, 238 (5th Cir. 2011).

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when alleged similarities were not raised at trial” so “an appellate court must
be mindful that an exploration of the alleged similarities at the time of trial
might have shown that the jurors in question were not really comparable.” Id.
at 483. But Snyder explains that the trial court had explored “the shared
characteristic” that the prosecutor had stated was important—“concern about
serving on the jury due to conflicting obligations”—with the relevant jurors, so
the record enabled the appellate court to compare those jurors as to that cited
characteristic. Id. The “cold appellate record” comment merely points out that
how persuasive a comparative juror analysis is depends on how clear the record
is about whether prospective jurors were similar as to the prosecutor’s stated
justification.   Id.   When the record is not clear about that similarity, a
comparison is not helpful. See, e.g., Puckett v. Epps, 641 F.3d 657, 664 (5th
Cir. 2011) (relying on Snyder in refusing to find a Batson violation because the
record did not reveal whether jurors who “arguably would have fallen” into
categories identified by the prosecutor as problematic actually did so). Indeed,
the Sixth Circuit recently explained the lesson to draw from Snyder is that
conclusions can fairly be made from an appellate record when:
       (i) the government purportedly strikes a venireperson because of
      an answer to a question posed during voir dire; (ii) venirepersons
      relevant to the comparison were asked the same question during
      voir dire; (iii) the relevant venirepersons actually answered that
      question in similar depth; and (iv) the purpose of the analysis is to
      show that the government treated jurors with similar answers
      differently.
United States v. Atkins, 843 F.3d 625, 636 (6th Cir. 2016). That is this case.
      The Snyder concern about an undeveloped record on “substantial
similarity” analysis is not present here.         Because the prosecutor relied
exclusively on three specific answers to questions on juror questionnaires, we
are able to fully compare the jurors as to the only characteristics the prosecutor
identified as relevant, and they are identical.   This case thus does not confront

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the issue that is often the focus of the “substantial similarity” analysis and that
Snyder’s “cold record” comment was addressing. The explanation a lawyer
offers for a strike is usually much more general than the identical answers to
specific questions identified here. A prosecutor may, for example, say a juror
was struck because she “seemed to be anti-law enforcement.”                            That
explanation, and whether it applies equally to accepted jurors of a different
race, likely does not just implicate answers to a single question. A host of
matters in the jury selection record may inform whether the struck juror is
similar to an accepted juror as to a general characterization like “anti-law
enforcement.” Relevant to that assessment might be answers to questions
asking about one’s views on criminal justice issues, as well as whether anyone
in a person’s family has been charged with a crime and the reaction to that
experience, or whether a relative works in law enforcement. It is that situation
in which Snyder raises a concern about being able to conduct a similarity
inquiry on a cold record. As the D.C. Circuit has recognized, that concern is
not present when prosecutors’ stated reasons are narrow and specific as they
are here. See United States v. Gooch, 665 F.3d 1318, 1330 (D.C. Cir. 2012).
Snyder demonstrates this: “There was only one alleged shared characteristic
at issue in Snyder—jurors’ concerns over having to commit to jury duty in the
face of conflicting obligations. It was easy for the Court to sort out this one
shared characteristic even on a cold appellate record.” Id. (citing Snyder, 552
U.S. at 483). It is easy too for the three specific answers cited for striking
Sturgis and Minor. 10




       10 It may be that Snyder’s observation creates an incentive for lawyers facing Batson
challenges to give vague and broad reasons to justify a strike. But ease of evasion, a common
critique of the Baston framework, does not support ignoring discriminatory strikes when the
record reveals them.
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      The State and majority opinion further contend that Miller-El II’s rule
against after-the-fact justifications creates an unfair asymmetry in which the
prosecution 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 is
rejected by the leading decisions applying comparative juror analysis. See
Miller-El II, 545 U.S. at 240–41 (conducting comparative analysis on habeas
review despite no such analysis being presented to state courts); see also Reed,
555 F.3d at 372–75 (same); Woodward, 580 F.3d at 338 (same); Smith, 708 F.3d
at 638 (“[A]lthough Smith did not point to specific jurors for comparative
analysis, we have conducted an in-depth review of the record . . . .”). A fear
that the prosecution will frequently have to explain “why it kept [a] white
juror,” Maj. Op. at 15, also ignores that the prosecutor only has to offer reasons
of any type after a court has found a prima facie case of discrimination. At
that stage, after the serious accusation of racial discrimination has been
leveled and a preliminary case to support it recognized by the court, it does not
seem too much to ask prosecutors to list all the reasons motivating their
strikes. Miller-El II, 545 U.S. at 252 (“But when illegitimate grounds like race
are in 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.”). If a concern about a
black juror was important enough to be cited as a reason for the challenged
strike, a white juror with the same problematic characteristic should also be
on the prosecutor’s mind or, even more easily detectable when the Batson claim
was raised in this case, subject to the prosecutor’s highlighter.
                                     ***
      To sum up the discussion of comparative juror analysis, every one of the
grounds on which the majority opinion tries to avoid the inescapable conclusion
of pretext that flows from a comparison properly limited to the reasons stated

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at trial was also true of Miller-El II. It was a case involving AEDPA deference.
It was a case in which the comparative juror analysis was not advanced by the
defense at trial or on direct appeal. It was a case in which there were many
differences between the struck and accepted jurors not cited at trial but that
appellate judges could identify and speculate were reasons for either striking
a comparator or for keeping another one. Yet the Supreme Court still found
that our application of comparative juror analysis was in error. It is once
again.
                                      III.
      Beyond its fundamental error of repeating our violation of Miller-El II’s
stand-or-fall principle, the majority opinion does not even follow the new
approach it creates. It says the prosecutor should be given a “chance to respond
whenever the court engages in a comparative juror analysis.” Maj. Op. 18.
That opportunity can include providing a “supported basis for keeping a non-
black juror” that was not articulated at trial. Id.
      But the prosecutor who exercised the challenged strikes at Chamberlin’s
trial has never responded to the comparison of the jurors who are identically
situated as to the reason stated at trial. The majority opinion instead slams
the door on the Batson claim based on speculative reasons offered in a brief by
appellate attorneys who work in a different office than the trial lawyer who
picked the jury. That is at odds with the majority opinion’s explanation that a
court would have to assess if the new, post-trial justification “provides an
adequately redeeming reason to override the strike-worthy characteristics the
non-black juror shares with the black jurors who were struck.” Id. As with
any inquiry into intent, that determination would seemingly have to include a
credibility assessment of the new reasons the prosecutor cites for “keeping” the
white juror. That evaluation of credibility has never happened in this case.
Nor will it ever. The majority opinion does not remand for a hearing on the

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                                  No. 15-70012

supposed reasons for “keeping” the white juror who gave identical answers to
the struck black jurors on Questions 30, 34, and 35. It just accepts what is said
in an appellate brief without the prosecutor who made the strikes ever having
to provide an explanation or without any explanation ever having been tested
in an adversarial process and then evaluated by a factfinder. As a result, there
is nothing to ensure that the new, post-trial justification is anything more than
an “afterthought.” Miller-El II, 545 U.S. at 246.
                                       IV.
        Chamberlin’s crime was horrific. But for even the most gruesome of
crimes with the most culpable of defendants, there are certain trial errors that
so fundamentally infect the process (“structural error” is the legal term) that a
new trial is required regardless of how strong the evidence against the
defendant is. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). Discrimination
in jury selection is one. Scott v. Hubert, 610 F. App’x. 433, 434 (5th Cir. 2015)
(“[A] Batson violation would be a structural error” (analogizing to Vasquez v.
Hillery, 474 U.S. 254, 261–64 (1986))). Eliminating discrimination from jury
selection does even more than guarantee a fair trial as important as that goal
is; it also promotes confidence in the criminal justice system by ensuring that
people of all backgrounds have the role in our courts the Constitution gives
them.
        Comparative juror analysis plays a crucial role in rooting out this
discrimination under the Batson framework, which the Supreme Court has
recognized may not fully capture discrimination:
        Although the move from Swain to Batson left a defendant free to
        challenge the prosecution without having to cast Swain’s wide net,
        the net was not entirely consigned to history, for Batson’s
        individualized focus came with a weakness of its own owing to its
        very emphasis on the particular reasons a prosecutor might give.
        If any facially neutral reason sufficed to answer a Batson


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         challenge, then Batson would not amount to much more than
         Swain.
Miller-El II, 545 U.S. at 239–40; see also id. at 270–71 (Breyer, J., concurring)
(citing numerous 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”). Comparative juror analysis is an attempt to
rectify this weak link in the Batson framework: the risk that it “would become
a ‘mere exercise in thinking up any rational basis.’” Davis, 268 S.W.3d at 525
(Jefferson, C.J.) (quoting Miller-El II, 545 U.S. at 252). As mentioned at the
outset, comparative juror analysis is the only tool that has ever enabled this
court to find a Batson violation. It is largely neutered if an appellate court can
come up with “any rational basis” that distinguishes jurors to undo a clear
implication of pretext drawn from the reasons the lawyer provided at trial.
With a precarious framework like Batson, any loosening of the reins can result
in an empty harness.
         More than mere loosening results from today’s decision that defies
precedent on the following important questions:
         1. Whether the racial makeup of the overall strikes is relevant to the
            ultimate Batson discrimination inquiry concerning a particular
            strike.
         2. Whether Miller-El II’s stand-or-fall principle applies only at step 2 of
            Batson or also in making the final assessment of discriminatory
            intent.
         3. Whether Miller-El II’s stand-or-fall principle only bars new post-trial
            reasons for striking a minority juror but allows new reasons for
            accepting white jurors.
         4. Whether Miller-El II’s stand-or-fall principle applies only when
            defense counsel identified the comparison at trial.

Correction on these questions that are essential to the Batson framework is
needed given the number of these claims raised in our circuit, often in capital
cases.

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      In one of a series of criminal procedure cases the Supreme Court has
recently decided that address discrimination in our justice system—three
involving either jury selection or deliberations—it observed that “[t]he Nation
must continue to make strides to overcome race-based discrimination.” Pena-
Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017) (jury deliberations); see also
Tharpe v. Sellers, 138 S. Ct. 545 (2018) (same); Buck v. Davis, 137 S. Ct. 759
(2017) (racial testimony of an expert witness); Foster v. Chatman, 136 S. Ct.
1737 (2016) (jury selection). Today’s decision strides in a different direction.




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