From the 11th Circut Court of Appeals, August 5, 2014, courtesy of


MADISON V. COMMISSIONER, ALABAMA DOC, CASE 13-12348 (There is quite the procedural history on this case)

This case involves a death row inmate’s federal habeas corpus appeal involving whether the prosecutor engaged in racially discriminatory jury selection practices, by excluding all black jurors from serving on the jury, violating Batson v. Kentucky 476 U.S. 79, 106 S.Ct. 1712 (1986) and the Fourteenth Amendment to the U.S. Constitution.  Batson prohibits the use of preemptory challenges to exclude people from serving on a jury based on race, which is a violation of the Equal Protection Clause of the 14th Amendment.


Steps to deciding Batson violation:

1. There must be a prima facie case by showing the facts give rise to a discriminatory purpose.

2. State must explain the racial exclusion by giving race-neutral justifications for the strikes.

3.  If the race-neutral explanation is tendered, the court must decide whether the Defendant has proved purposeful racial discrimination.

Johnson v. California, 125 S.Ct. 2410, 2416 (2005).


Relevant Facts:

1. Jury venire had 60 prospective jurors

2. 15 of the 60 were black

3. 13 qualified black jurors were left after the strikes for cause.

4. 6 of 18 pre-emptory strikes were used on the qualified black jurors.

5. Upon objection from the defense, the prosecutor was to provide a race-neutral justification and failed to do so.  Instead, he protested that Madison failed to establish a prima facie case.  He then erroneously responded that Madison had to show the State had a history of racial discrimination.


This was the requirement under Swain v Alabama, 85 S. Ct. 824 (1965), which was overruled by Batson  as too onerous. All of this was brought to the attention of the trial judge, who  denied the motion because Madison had not proved bias on the part of the State.  The Court of Appeals affirmed, stating Madison failed to show purposeful racial discrimination.  Madison, 718 So.2d 102.  The Court of Appeals held that the trial court reached a decision contrary to clearly established federal law in that it increased Madison’s burden beyond Batson.  677 F.3d at 1337-38.


Mr. Cherry took detailed notes as to why he struck each of the black jurors, though he admitted race was in his mind at the time.  Based on his testimony as to those notes, the Court found that Madison failed to prove purposeful discrimination or pretext.

After very thorough discussion, the Court affirmed judgment denying Mr. Madison’s Batson claims on the merits.



In a case where the Court states that it could go either way, as in this case, and discriminatory intent could be a possibility, deference should be given to the Defendant out of an abundance of caution.  This case does nothing to help the current death penalty case I am preparing to argue against the Court of Appeals.  However, it appears from the current cases that Defense counsel tried everything they could to help their client.  The 11th Circuit exercised their discretion and unfortunately sided with the State.  I do think more in-depth questioning should have been rendered when the prosecutor refused to answer the question requiring to state his reasons for striking all of the black jurors when asked by the Judge to articulate them at trial.  Perhaps had he been forced to answer the question on his toes, the outcome for Madison would have been different.

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