{"id":10473,"date":"2017-03-31T16:46:30","date_gmt":"2017-03-31T20:46:30","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10473"},"modified":"2017-07-26T19:33:19","modified_gmt":"2017-07-26T23:33:19","slug":"smoking-guns-the-supreme-courts-willingness-to-lower-procedural-barriers-to-merits-review-in-cases-involving-egregious-racial-bias-in-the-crimnal-justice-system","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/smoking-guns-the-supreme-courts-willingness-to-lower-procedural-barriers-to-merits-review-in-cases-involving-egregious-racial-bias-in-the-crimnal-justice-system\/","title":{"rendered":"Smoking Guns: the Supreme Court\u2019s Willingness to Lower Procedural Barriers to Merits Review in Cases Involving Egregious Racial Bias"},"content":{"rendered":"

Guest post by Professor Carrie Leonetti.* Professor Leonetti is a professor of criminal and constitutional law at the University of Oregon School of Law and the Director of the Oregon Criminal Justice Advocacy Project. \u00a0She was the Executive Technical Editor of CR-CL in 1999-2000. This post is an abbreviated version of Professor Leonetti’s full-length article of the same name, forthcoming in 101\u00a0Marquette L. Rev. (Fall 2017).<\/em><\/p>\n

 <\/p>\n

INTRODUCTION<\/strong><\/p>\n

The last several decades have seen a lockstep march by Congress and the Supreme Court to foreclose federal-court review of even meritorious federal constitutional challenges to state criminal-justice procedures.[1]<\/a> The current iteration of the federal habeas-corpus<\/em> statute,[2]<\/a> the vehicle by which most federal constitutional challenges to state criminal adjudication arrive in (or are kept from) federal court precludes federal-court review of the constitutionality of the conduct of state trials for a host of reasons, including: a strict statute of limitations,[3]<\/a> bars to review arising from the failure to exhaust state remedies[4]<\/a> and the default of independent state procedural rules,[5]<\/a> strict limits on when federal habeas<\/em> courts may hold evidentiary hearings,[6]<\/a> and a highly deferential standard of review for state court rulings.[7]<\/a> The result is that a review on the merits of an inmate\u2019s claim that a state court violated the federal constitution in adjudicating a criminal case is the unicorn of federal jurisdiction: lots of people dream of seeing one, but almost no one ever does.<\/p>\n

Last term, the Supreme Court appeared to open the door a crack to addressing claims of racial bias in the criminal-justice system in the context of a claim of racially motivated jury selection that was arguably barred by procedural default. This term, the Supreme Court reversed on the merits two more cases involving challenges to apparent racial bias in the criminal-justice system that lower courts had found, repeatedly, to be procedurally barred. Are these isolated anomalies? Or is the Court signaling a willingness to tackle head on issues of racial bias in the criminal-justice system, even when doing so requires it to elide serious concerns about the procedural posture of the state criminal cases that it is being asked to review? And, if so, will that willingness extend to the more subtle, hidden, and systemic implicit biases that plague the system?<\/p>\n

LAST TERM: RACIALLY MOTIVATED USE OF JUROR STRIKES<\/strong><\/p>\n

The State of Georgia charged Timothy Foster with capital murder, charges for which he was ultimately convicted and given a death sentence.[8]<\/a> When the time came for the parties to exercise their \u201cperemptory challenges\u201d \u2013 the discretionary strikes of eligible jurors at the discretion of the parties \u2013 there remained a pool of forty-one qualified jurors.[9]<\/a> Four of the forty-one remaining jurors were black.[10]<\/a> The State had ten juror strikes available to it.[11]<\/a> It used four to strike the four black jurors in the pool, until an all-white jury remained.[12]<\/a><\/p>\n

When Foster objected, the State offered a host of facially race-neutral explanations for striking each of the jurors. Collectively, however, the State\u2019s explanations suffered from a host of credibility defects. Many of the explanations were subjective or vague: the failure to make eye contact,[13]<\/a> being \u201ccurt,\u201d[14]<\/a> seeming nervous,[15]<\/a> responding to voir dire<\/em> questions too slowly,[16]<\/a> equivocating in answering questions about views on the death penalty.[17]<\/a> Other explanations, while facially neutral, seemed only to apply to black prospective jurors. Other explanations were flatly inconsistent with one another.<\/p>\n

After he was convicted by the all-white jury, Foster discovered documents relating to the prosecutors\u2019 conduct of jury selection, including the juror list, juror questionnaires, and prosecutors\u2019 personal notes from jury selection.[18]<\/a> All of the documents were explicitly coded for race: the juror list had handwritten \u201cB\u201ds next to each black prospective juror\u2019s name; the race of prospective black jurors was circled on each of their questionnaires; and the handwritten notes included comments like \u201cNo black churches!\u201d next to Black jurors\u2019 names.[19]<\/a><\/p>\n

The Georgia state courts affirmed Foster\u2019s conviction on two alternative grounds: (1) that his Batson<\/em> claim was not reviewable because it had already been rejected during a previous appeal; and (2) that he had offered insufficient evidence of intentional racial discrimination.[20]<\/a> The latter holding (the rejection of Foster\u2019s discrimination claim on its merits) presented a question of federal constitutional law for the Supreme Court to review. The former holding (that state procedural rules precluded revisiting Foster\u2019s discrimination claim), however, was arguably an independent and adequate state-law ground that would preclude the Supreme Court from reviewing the federal constitutional discrimination question.[21]<\/a> Rather than punting by finding that it lacked jurisdiction, however, the Supreme Court found (after some stretching) that the Georgia courts\u2019 first holding was rendered legally void when it rejected Foster\u2019s discrimination claim on its merits.[22]<\/a> The Court then proceeded to reverse the Georgia courts\u2019 federal constitutional holding, finding that the fact that the State\u2019s \u201cshifting explanations,\u201d \u201cmisrepresentations of the record\u201d and the \u201cpersistent focus on race in the prosecution\u2019s file\u201d combined to be powerful \u201ccircumstantial evidence that bears upon the issue of racial animosity\u201d requiring the conclusion \u201cthat the strikes of [two black jurors] were motivated in substantial part by discriminatory intent.\u201d[23]<\/a><\/p>\n

THIS TERM: CLAIMS OF RACIAL BIAS IN CRIMINAL ADJUDICATION<\/strong><\/p>\n

It was possible that Foste<\/em>r was simply an anomaly or was motivated by federal-jurisdiction principles rather than a desire to talk about race and the criminal-justice system, but the Court unearthed two more analogous cases involving racial animus this term out from underneath what seemed to be high procedural hurdles and, in doing so, echoed themes from Foster<\/em>. The State of Texas convicted Duane Buck of the capital murder of his ex-girlfriend and her male friend.[24]<\/a> During the penalty phase of the case, the State sought to execute Buck primarily on the ground that he posed to high a risk of future dangerousness to be spared the death penalty. During Buck\u2019s court-appointed attorney\u2019s direct examination of his psychiatric expert, Dr. Walter Quijano, the attorney elicited answers from Quijano about the individual components of the actuarial model that he used to predict future risk, including race.[25]<\/a> In response, Quijano opined: \u201cIt\u2019s a sad commentary that minorities, Hispanics and black people, are over represented in the Criminal Justice System.\u201d[26]<\/a> The prosecutor followed up on the defense attorney\u2019s line of inquiry on cross-examination, asking Quijano to make explicit the implicit import of his direct examination testimony \u2013 namely, that Buck was more likely to pose a danger, because he was Black, than a similarly situated white man.[27]<\/a><\/p>\n

The case history in Buck<\/em> is multilayered and complicated, but what follows is as brief a summary as possible of its relevant components. In 1997, Buck asked the Texas state courts to overturn his death sentence, but his new attorney failed to challenge the admission of the race-based dangerousness testimony at his sentencing proceeding at that time.[28]<\/a><\/p>\n

In 2000, in an unrelated case, the Texas Attorney General admitted to the Texas Court of Criminal Appeals that permitting experts to testify in death-penalty cases that race increased certain defendants\u2019 likelihood of future dangerousness was unconstitutional.[29]<\/a> In doing so, the State identified several other cases in which it had elicited similar testimony, including Buck,<\/em> and notified the respective defense attorneys in those cases.[30]<\/a><\/p>\n

In 2002, Buck returned to the Texas state courts, asking them again to overturn his death sentence, this time on the ground that his attorney had given him constitutionally inadequate representation by eliciting the race-based testimony.[31]<\/a> At the request of the State (and despite its earlier pledge not to do so), the Texas Court of Criminal Appeals dismissed Buck\u2019s claim because he had missed his chance to raise the attorney-competency claim in 1997.[32]<\/a><\/p>\n

In 2004, sought relief in federal court on the ground that his sentencing counsel\u2019s ineffective assistance violated the Sixth Amendment to the United States Constitution.[33]<\/a> The federal courts denied Buck relief on the ground that he could not raise the attorney-competency claim in federal court because he had failed to raise it in a timely fashion in the Texas state courts.[34]<\/a><\/p>\n

In 2013, Buck returned to state court.[35]<\/a> While his litigation there was ongoing, the United States Supreme Court decided a case called Trevino v. Thaler,[36]<\/a><\/em> which found Texas\u2019s provision of postconviction attorneys to Texas inmates was so inadequate that its courts could not refuse to hear claims that were filed outside of the usual procedural routes because earlier attorneys had missed them. Despite Trevino,<\/em> the Texas Court of Criminal Appeals, in a narrowly decided 4-3 decision, still refused to hear Buck\u2019s jury-discrimination claim.[37]<\/a><\/p>\n

In 2014, Buck returned to federal court again, and was again turned away, this time rejecting his claim that his case was so extraordinary that the federal courts should intervene.[38]<\/a> Buck asked the Supreme Court to review the lower federal courts\u2019 refusal to entertain his jury-discrimination claim.<\/p>\n

Technically, the Supreme Court was being asked to review the strictness of the standard under which a federal appellate court should decide whether to review a lower federal court\u2019s refusal to entertain the merits of a prisoner\u2019s constitutional claim, but the oral arguments before the Court focused primarily on the underlying merits of Buck\u2019s jury-discrimination claim: the significant and pervasive impact that the impact that using Buck\u2019s race as an indicator of danger may have had on his sentencing jury. Chief Justice Roberts questioned the Texas Solicitor General at length about the possibility that the jury may have condemned Buck to death because it \u201chad this evidence that he was, by virtue of his race, likely to be dangerous.\u201d[39]<\/a><\/p>\n

The Court not only reversed the lower federal courts refusal to hear the merits of Buck\u2019s race-discrimination claim,[40]<\/a> it went ahead and did it, in the first instance, itself, reasoning, extraordinarily, that, because the parties had briefed the issues, it was \u201cproper to meet the decision below and the arguments of the parties on their own terms.\u201d[41]<\/a> On the issue of Buck\u2019s attorney-incompetence claim, the Court found that Buck\u2019s sentencing counsel was incompetent.[42]<\/a> The Court also found that counsel\u2019s incompetence was so extreme that, without it, there was a good chance that the jury would not have sentenced him to death.[43]<\/a> Rejecting the State\u2019s suggestion that the impact of these brief, cryptic references to race was \u201cde minimis,<\/em>\u201d the Court concluded:<\/p>\n

[A]ccording to Dr. Quijano, that immutable characteristic carried with it an \u201c[i]ncreased probability\u201d of future violence. Here was hard statistical evidence\u2014from an expert\u2014to guide an otherwise speculative inquiry.\u2028And it was potent evidence. Dr. Quijano\u2019s testimony appealed to a powerful racial stereotype\u2014that of black men as \u201cviolence prone.\u201d In combination with the substance of the jury\u2019s inquiry, this created something of a perfect storm. Dr. Quijano\u2019s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.<\/p>\n

* * *<\/p>\n

[W]hen a jury hears expert testimony that expressly makes a defendant\u2019s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.[44]<\/a><\/p><\/blockquote>\n

The Court then addressed the procedural hurdle to Buck\u2019s success on these merits: whether Buck could reopen in federal court a case that had already been so extensively and conclusively litigated in the state courts. The Court concluded that Buck<\/em> presented \u201cextraordinary circumstances\u201d justifying extraordinary relief and that the district court had abused its discretion in deciding otherwise.[45]<\/a> The Court explained:<\/p>\n

Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. . . . This departure from basic principle was exacerbated because it concerned race. \u201cDiscrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.\u201d. . . Regardless of which party first broached the subject, race was . . . put to the jury \u201cas a factor . . . to weigh in making its determination.\u201d[46]<\/a><\/p><\/blockquote>\n

In the second case, the State of Colorado charged Miguel Pena-Rodriguez, who is Chicano, with harassing and assaulting two teenage girls in a women\u2019s room at the racetrack where he worked.[47]<\/a> In his defense, he offered alibi testimony from a friend and coworker, who is also Chicano, that they were working together at the time of the alleged attack.[48]<\/a> After the jury found Pena guilty of some of the charges, jurors came forward to report that, during deliberation, one juror, who self-identified as a former police officer, had claimed, relying on previous investigative experience, \u201cI think he did it because he\u2019s Mexican and Mexican men take whatever they want.\u201d[49]<\/a><\/p>\n

Unfortunately for Pena, however, Colorado, like most jurisdictions, has a jury verdict non-impeachment rule, which prohibits its courts from hearing a challenge to a jury\u2019s verdict based on evidence about anything that happened during jury deliberations.[50]<\/a> The Colorado courts refused to consider the juror\u2019s racism and rejected Pena\u2019s claim that their refusal was unconstitutional under the circumstances because it denied him the right to a fair and impartial jury.[51]<\/a><\/p>\n

The United States Supreme Court has had two fairly recent occasions to visit the constitutionality of jury non-impeachment rules and upheld them both times, despite troubling facts. The first case was Tanner v. United States<\/em>.[52]<\/a> Tanner\u2019s jury apparently mistook his federal criminal trial for a booze cruise, drinking to excess and even smoking marijuana and snorting cocaine while on breaks.[53]<\/a> Some jurors were so inebriated that they passed out at one point during the trial.[54]<\/a> When Tanner sought to overturn his guilty verdict on jury-misconduct grounds, the lower courts refused to consider affidavits from concerned jurors describing the drug and alcohol consumption of their peers.[55]<\/a> The Supreme Court affirmed the denial on the basis of the importance of the \u201cpolicy considerations\u201d that underlay jury secrecy, namely the need for the \u201c[f]ull and frank discussion in the jury room\u201d of difficult and controversial issues.[56]<\/a> The Court also expressed concern about whether any jury deliberation would live up to searching scrutiny, commenting: \u201cIt is not at all clear . . . that the jury system could survive such efforts to perfect it.\u201d[57]<\/a><\/p>\n

The second case was Warger v. Shauers,[58]<\/a><\/em> which upheld the constitutionality of the federal jury non-impeachment rule to bar evidence that a juror had lied during voir dire,<\/em> a scenario that a majority of federal courts of appeal had previously held to constitute strong evidence of jury bias (theorizing that the only reason that a juror would like about a disqualifying bias during voir dire<\/em> was to get on a jury knowing that s\/he could not decide the case impartially).<\/p>\n

The oral arguments in Pena<\/em> focused almost entirely over whether and to what extent race was \u201cdifferent\u201d in a way that warranted an exception to the ordinary rules of verdict non-impeachment.[59]<\/a> Justice Sotomayor expressed her belief that \u201cthe most pernicious and odious discrimination in our law is based on race\u201d and advocated finding non-impeachment rules unconstitutional as applied only to issues of race.[60]<\/a> Justice Breyer noted that \u201crace is a special problem\u201d when it comes to the issue of the systemic fairness of criminal justice.[61]<\/a> Justice Kagan asserted the possibility that \u201c the interests in preventing unfairness of this kind are much greater; . . . verdicts based on race discrimination pose a [fundamentally different] harm tha[n] verdicts based on other kinds of unfairnesses . . . \u201d and argued that \u201cit seems artificial not to think about the Sixth Amendment [right to a fair and impartial jury] as [being] informed by the principles of the Equal Protection Clause.\u201d[62]<\/a> She noted the special nature of race in the criminal-justice system, explaining: \u201cthere’s a special kind of harm in . . . punishing people because of their race. And maybe especially because race is so associated with particular stereotypes respecting criminality, . . . it’s also the worst thing that you can suggest about the criminal justice system, that it allows that to happen.\u201d[63]<\/a><\/p>\n

In its opinion, the Court found that the right to a fair and impartial jury had to trump jury non-impeachment rules in the context of evidence of racial animus in jury deliberations.[64]<\/a> In reaching its decision, the Court emphasized the \u201cdistinct\u201d role of racism in the criminal trial process, requiring \u201cadded precaution,\u201d noting what it termed the \u201cimperative to purge racial prejudice from the administration of justice\u201d because \u201cracial discrimination in the jury system posed a particular threat . . . to the integrity of the jury trial.\u201d[65]<\/a> The Court found that \u201cthe Tanner <\/em>safeguards may be less effective in rooting out racial bias than other kinds of bias.\u201d[66]<\/a> The Court concluded: \u201cThe unmistakable principle underlying [the Court\u2019s] precedents [prohibiting state-sponsored racial discrimination in the jury system] is that discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.\u201d[67]<\/a> The Court described \u201cracial bias\u201d as \u201ca familiar and recurring evil that, if left unaddressed, would risk systemic injury\u201d and that \u201cimplicates unique historical, constitutional, and institutional concerns.\u201d[68]<\/a><\/p>\n

CONCLUSION<\/strong><\/p>\n

That the Court simply removed otherwise insurmountable procedural barriers in these cases is clear. Justice Breyer\u2019s comments during the oral arguments in Buck<\/em> are particularly illustrative:<\/p>\n

We do know that the prosecutor asked the expert witness is it correct that the race factor, black, increases the future dangerousness for various complicated reasons. And he says, yes. . . .\u00a0\u00a0 [T]he issue here is, is there some good reason why this person shouldn’t have been able to reopen his case? I mean, that’s the question. What’s the reason?<\/p>\n

* * *<\/p>\n

[[W]ouldn’t it seem pretty straightforward to say, okay, maybe he’s right, maybe he’s wrong, but at least he’s made a substantial showing. Let’s give him a Certificate of Appealability, and then we’ll go through the normal procedures on the merits?[69]<\/a><\/p><\/blockquote>\n

Dissenting in Buck,<\/em> Justice Thomas complained:<\/p>\n

Having settled on a desired outcome, the Court bulldoze[d] procedural obstacles and misapplie[d] settled law to justify it. . . . [A]fter chastising the Court of Appeals for making an end run around the COA standard in order to reach the merits of petitioner\u2019s Rule 60 (b) claim, the Court d[id] precisely that. Astonishingly, the Court also decide[d] the merits of petitioner\u2019s Sixth Amendment claim \u2014 an issue that was not even addressed by the Fifth Circuit. . . . This unapologetic course reversal \u2014 made without so much as a hint of the irony \u2014 is striking. . . . Permitting a defendant to file a Rule 60(b) motion years after the fact functionally eviscerates the statute of limitations [for federal habeas<\/em> review of state convictions].[70]<\/a><\/p><\/blockquote>\n

Dissenting in Pena,<\/em> Justice Alito similarly complained that \u201cthe majority barely bother[ed] to engage with the policy issues implicated by no-impeachment rules.\u201d[71]<\/a><\/p>\n

One thing that unites these three cases \u2013 Foster, Buck,<\/em> and Pena <\/em>\u2013 is that they do not involve subtle or debatable issues of implicit bias or dog-whistle racism. They involve explicit, intentional appeals to racial bias \u2013 as close to a smoking gun as one is ever likely to see in a contested racial-equality challenge in the twenty-first century. Justice Alito described the race-based dangerousness testimony in Buck<\/em> as \u201cindefensible\u201d[72]<\/a> and the juror\u2019s remarks in Pena<\/em> as \u201cvery blatant.\u201d[73]<\/a> Justice Thomas described the testimony in Buck as \u201cexplicitly racial.\u201d[74]<\/a> Justice Kagan described the remarks in Pena<\/em> as \u201ca screaming race bias in the jury room . . . the best smoking gun evidence you\u2019re ever going to see about race bias in the jury room.\u201d[75]<\/a> The majority in Pena <\/em>expressly limited its decision to \u201covert racial bias\u201d and described the juror comments at issue as \u201cegregious and unmistakable in their reliance on racial bias.\u201d[76]<\/a><\/p>\n

The deeper question that remains, therefore, is whether this willingness to bend the procedural rules and open the Court to claims of racial bias, if that is what the Court is exhibiting, will extend to the more nefarious, systemic, and common implicit biases that pervade the system. What about credibility determinations that are infused with stereotype-congruent responses to witnesses or parties of color \u2013 e.g.,<\/em> a jury\u2019s determination of whether a defendant acted in self-defense, a judge\u2019s determination of the legally permissible amount of force in apprehending a putatively \u201cdangerous\u201d suspect of color, or a lawyer\u2019s use of subconscious stereotypes during the exercise of peremptory challenges? How should courts deal with well-documented implicit biases in the criminal-justice system like racially biased \u201cmisremembering\u201d and the \u201cshooter bias\u201d?[77]<\/a><\/p>\n

Justice Alito reformulated this Essay\u2019s question about whether the Court is prepared to take on these subtler, more implicit forms of racism into a slippery-slope argument in his dissenting opinion in Pena<\/em>:<\/p>\n

Attempting to limit the damage worked by its decision, the Court says that only \u201cclear\u201d expressions of bias must be admitted, but judging whether a statement is sufficiently \u201cclear\u201d will often not be easy. Suppose that the allegedly biased juror in this case never made reference to Pe\u00f1a-Rodriguez\u2019s race or national origin but said that he had a lot of experience with \u201cthis macho type\u201d and knew that men of this kind felt that they could get their way with women. Suppose that other jurors testified that they were certain that \u201cthis macho type\u201d was meant to refer to Mexican or Hispanic men.[78]<\/a><\/p><\/blockquote>\n

Of course, this Author hopes that the Court will go down that slippery slope, but the extent of the Court\u2019s willingness to address these bigger \u2013 and more prevalent \u2013 issues of implicit, dog-whistle biases remains to be seen.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

*<\/a>\u00a0Associate Professor & Dean\u2019s Distinguished Faculty Fellow, University of Oregon School of Law. The author wishes to thank Erik Girvan, Margie Paris, Leslie Harris, Ofer Raban, Stuart Chinn, Mike Quillin, Rebekah Hanley, Megan Flynn, Mindy Witkoff, and Jen Reynolds for their assistance. Their help was brilliant. Any mistakes are mine.<\/p>\n

[1]<\/a> See, e.g.,<\/em> 28 U.S.C. \u00a7 2254 (d) (1996); Cullen v. Pinholster, 563 U.S. 170 (2011); Harrington v. Richter, 562 U.S. 86 (2011); Schriro v. Landrigan, 550 U.S. 465 (2007); Lockyer v. Andrade, 538 U.S. 63 (2003); Woodford v. Visciotti, 537 U.S. 19 (2002); Woodford v. Garceau, 538 U.S. 202 (2003).<\/p>\n

[2]<\/a> See <\/em>\u00a7 2254.<\/p>\n

[3]<\/a> See <\/em>28 U.S.C. \u00a7 2244 (d) (1996).<\/p>\n

[4]<\/a> See<\/em> \u00a7 2254 (b) (1).<\/p>\n

[5]<\/a> See<\/em> \u00a7 2254 (c).<\/p>\n

[6]<\/a> See<\/em> \u00a7 2254 (e) (2).<\/p>\n

[7]<\/a> See<\/em> \u00a7 2254 (d).<\/p>\n

[8]<\/a> See See <\/em>Foster v. Chatman, 136 S. Ct. 1737, 1742 (2016).<\/p>\n

[9]<\/a> See id.<\/em> at 1743.<\/p>\n

[10]<\/a> See id.<\/em> at 1742, 1750.<\/p>\n

[11]<\/a> See id.<\/em> at 1743, 1750; see also<\/em> Ga. Code Ann. \u00a7 15\u201312\u2013165 (1985).<\/p>\n

[12]<\/a> See id.<\/em> at 1743.<\/p>\n

[13]<\/a> See Foster,<\/em> 136 S. Ct. at 1748<\/p>\n

[14]<\/a> Id.<\/em><\/p>\n

[15]<\/a> See id.<\/em><\/p>\n

[16]<\/a> See id.<\/em> at 1751.<\/p>\n

[17]<\/a> See id.<\/em> at 1754.<\/p>\n

[18]<\/a> See Foster, <\/em>136 S. Ct. at 1743-44.<\/p>\n

[19]<\/a> Id.<\/em> at 1744.<\/p>\n

[20]<\/a> See id.<\/em> at 1745-46.<\/p>\n

[21]<\/a> See id.<\/em>; see, e.g.,<\/em> Walker v. Martin, 562 U.S. 307 (2011) (holding that California\u2019s time limitation on applications for habeas corpus<\/em> relief was an independent and adequate state-law ground sufficient to bar federal habeas <\/em>review); Beard v. Kindler 558 U.S. 53 (2009) (holding that Pennsylvania’s fugitive forfeiture rule could provide an adequate basis in state law to bar federal habeas <\/em>review of Kindler\u2019s conviction); Sochor v. Florida, 504 U.S. 527, 534 (1992) (holding that the Supreme Court lacked jurisdiction to address Sochor\u2019s claim that his sentencing court instruction to his capital sentencing jury about \u201cheinousness\u201d as an aggravating factor violated the federal constitution because the Florida Supreme Court’s decision affirming his death sentence rested on the adequate and independent state-law ground that he had not preserved the claim for appellate review); Coleman v. Thompson, 501 U.S. 722 (1991) (holding that the dismissal of Coleman\u2019s state-court appeal because the notice of appeal was untimely was based on an independent state-law ground that precluded federal-court review of his conviction on habeas corpus<\/em>).<\/p>\n

[22]<\/a> See Foster,<\/em> 136 S. Ct. 1746-47.<\/p>\n

[23]<\/a> Id.<\/em> at 1754.<\/p>\n

[24]<\/a> See<\/em> Buck v. Stephens, 623 Fed. Appx. 668, 669 (5th<\/sup> Cir. 2015).<\/p>\n

[25]<\/a> See id<\/em>. at 669.<\/p>\n

[26]<\/a> Id.<\/em><\/p>\n

[27]<\/a> See id.<\/em><\/p>\n

[28]<\/a> See id.<\/em><\/p>\n

[29]<\/a> See id.<\/em><\/p>\n

[30]<\/a> See id.<\/em><\/p>\n

[31]<\/a> See id.<\/em> at 670.<\/p>\n

[32]<\/a> See id.<\/em><\/p>\n

[33]<\/a> See id.<\/em><\/p>\n

[34]<\/a> See id.<\/em><\/p>\n

[35]<\/a> See id.<\/em> at 671.<\/p>\n

[36]<\/a> 133 S. Ct. 1911 (2013).<\/p>\n

[37]<\/a> See Buck,<\/em> 623 Fed. Appx. at 671.<\/p>\n

[38]<\/a> Buck,<\/em> 623 Fed. Appx. at 671, 673-74.<\/p>\n

[39]<\/a> Transcript of Oral Argument, Buck v. Davis, U.S.S.C. No. 15-8049, Oct. 5, 2016, at 30, available at: https:\/\/www.supremecourt.gov\/oral_arguments\/argument_transcripts\/2016\/15-8049_4f15.pdf (last visited October 21, 2016).<\/p>\n

[40]<\/a> See <\/em>Buck v. Davis, U.S.S.C. No. 15-8049, Feb. 22, 2017, slip op. at 2.<\/p>\n

[41]<\/a> Id.<\/em> at 15.<\/p>\n

[42]<\/a> See id.<\/em> at 17 (citation omitted).<\/p>\n

[43]<\/a> Id.<\/em> at 17-18.<\/p>\n

[44]<\/a> Id. <\/em>at 19-20 (internal citations omitted).<\/p>\n

[45]<\/a> Id.<\/em> at 21.<\/p>\n

[46]<\/a> Id.<\/em> at 21-23 (internal citations omitted).<\/p>\n

[47]<\/a> See<\/em> Pena-Rodriguez v. People, 350 P.3d 287, 288 (Colo. 2015).<\/p>\n

[48]<\/a> See id.<\/em> at 288 n.3.<\/p>\n

[49]<\/a> Id.<\/em> at 289.<\/p>\n

[50]<\/a> See<\/em> Colo. R. Evid. 606 (b).<\/p>\n

[51]<\/a> Pena,<\/em> 350 P.3d at 289-93.<\/p>\n

[52]<\/a> 483 U.S. 107 (1987).<\/p>\n

[53]<\/a> See id.<\/em> at 115-16.<\/p>\n

[54]<\/a> See id.<\/em> at 116.<\/p>\n

[55]<\/a> See id.<\/em> at 115.<\/p>\n

[56]<\/a> Id.<\/em> at 119-20.<\/p>\n

[57]<\/a> Id.<\/em> at 120.<\/p>\n

[58]<\/a> 135 S. Ct. 521 (2014).<\/p>\n

[59]<\/a> See<\/em> Transcript of Oral Argument, Pena-Rodriguez, U.S.S.C. No. 15-606, Oct. 11, 2016 (available at: https:\/\/www.supremecourt.gov\/oral_arguments\/argument_transcript.aspx) (last visited October 21, 2016).<\/p>\n

[60]<\/a> Id.<\/em> at 6.<\/p>\n

[61]<\/a> Id.<\/em> at 20.<\/p>\n

[62]<\/a> Id.<\/em> at 29-30.<\/p>\n

[63]<\/a> Id.<\/em> at 30-31.<\/p>\n

[64]<\/a> Pe\u00f1a-Rodriguez v. Colorado, U.S.S.C. No. 15\u2013606 (March 6, 2017), slip op. at 17.<\/p>\n

[65]<\/a> Id.<\/em> at 13, 16-17.<\/p>\n

[66]<\/a> Id.<\/em> at 16-17.<\/p>\n

[67]<\/a> Id.<\/em> at 15 (quotation omitted).<\/p>\n

[68]<\/a> Id. <\/em>at 15-16.<\/p>\n

[69]<\/a> Transcript of Oral Argument, Buck,<\/em> at 31, 35-36.<\/p>\n

[70]<\/a> Buck,<\/em> No. 15-8049 (Thomas, J., dissenting), slip op. at 1-9 (quotations & citations omitted).<\/p>\n

[71]<\/a> Id.<\/em> at 22 (Alito, J., dissenting).<\/p>\n

[72]<\/a> Transcript of Oral Argument, Buck, <\/em>at 10.<\/p>\n

[73]<\/a> Transcript of Oral Argument, Pena,<\/em> at 26.<\/p>\n

[74]<\/a> Buck,<\/em> No. 15-8049 (Thomas, J., dissenting), slip op. at 10.<\/p>\n

[75]<\/a> Transcript of Oral Argument, Pena,<\/em> at 44.<\/p>\n

[76]<\/a> Pe\u00f1a,<\/em> slip op. at 17-18.<\/p>\n

[77]<\/a> See<\/em> Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering,<\/em> 57 Duke L.J. 345, 357 (2007) (\u201cThe \u201cshooter bias\u201d refers to participants’ propensity to shoot Black perpetrators more quickly and more frequently than White perpetrators and to decide not to shoot White bystanders more quickly and frequently than Black bystanders.\u201d)<\/p>\n

[78]<\/a> Pe\u00f1a,<\/em> slip op. at 19 (Alito, J., dissenting).<\/p>\n","protected":false},"excerpt":{"rendered":"

Guest post by Professor Carrie Leonetti.* Professor Leonetti is a professor of criminal and constitutional law at the University of 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