Amy Hebert v. James Rogers, Warden
Opinion
This habeas case is about a woman who, awaking in the night to an alleged voice telling her to kill her children, grabbed several kitchen knives and repeatedly stabbed her young children, leaving them to bleed to death. Upon being charged with first degree murder, she pled not guilty by reason of insanity. The jury found her guilty but did not sentence her to death. After exhausting all forms of direct or collateral relief in Louisiana, Amy Hebert filed a petition for habeas relief in federal court. The district court denied relief but granted a certificate of appealability. Hebert raises two issues before us: (1) defense counsel provided ineffective assistance by failing to object to the State's allegedly discriminatory peremptory strikes; and (2) a rational jury could not have found that Hebert was sane at the time of the killings. We affirm.
Facts and Proceedings
Amy Hebert had two children, a nine-year old girl named Camille and a seven-year old boy named Braxton. In 2005, Hebert and her husband, Chad, separated. In 2006, they divorced after she learned about Chad's affair with a woman from work, Kimberly. Over the next year, Chad's relationship with Kimberly became more serious, and they started to plan a wedding, which was set for 2008. The children also had been developing a closer relationship with Kimberly, a fact that Hebert observed and resented. Chad began building a new home, where both children would have their own room.
In the late summer of 2007, Hebert stabbed both of her children to death at their home in Matthews, Louisiana. Both children suffered dozens of stabs wounds in the chest, back, and scalp, and ultimately bled to death. After killing both children, Hebert placed their bodies in her bed. She then killed the family dog, made a pot of coffee, wrote two notes, and attempted to take her own life. She slashed her wrists until she exposed her tendons; punctured her lungs, collapsing them; and inflicted cuts to her legs, skull, neck, and eyelids. Then, Hebert lay down in her bed to die beside her children.
Hebert's former father-in-law discovered this grisly scene the next morning, and he summoned the police. When the authorities arrived and entered the master bedroom, Hebert lifted a large knife and yelled, "Get the f- - - out." The police subdued her with a taser. The authorities' attempts to resuscitate the children were unsuccessful. Hebert was taken to the hospital.
The police discovered the two notes that Hebert had written. The first note was addressed to Chad. It stated:
Monday 8-20-07
Chad,
You wanted your own life. You got it. I'll be damned if you get the kids, too. Your *218 ambition & greed for money won out over your love for your family. The hell you put us through & I do mean all of us because you don't know what the kids used to go through because of course you weren't here. This is no kind of life for them to live. I sure hope you two lying alduttering [sic] home wrecking whores can have more kids because you can't have these. Actually I hope you can't because then you'll only produce more lying homewrecking adultering [sic] whores like yourselves. Maybe you can buy some with all of your money you will make from this house & the life insurance benefits you'll get from the kids.
The second note, which was addressed to Hebert's former mother-in-law, stated:
Monday 8-20-07
Judy,
You run from the very thing you support! Monica pairs up with a married man, becomes a kept woman & your response is maybe she is in love with him-so that makes it okay? How stupid! Your sons have affairs bring these whores home & you welcome them all in. I guess its okay for them to hurt the family as long as it is not you. Well when you started delivering my kids to that whore, Kimberly, that was the last straw! To all my friends thanks for all the help & support you tried to give me. I love you all, Sorry Daddy, Celeste & Renee I love you all too.
Upon her arrival at the hospital, Hebert received treatment for her physical wounds along with mental treatment from Dr. Alexandra Phillips, a psychiatrist. Initially, Hebert was unresponsive. A few days after the children's deaths, Hebert informed Dr. Phillips that she had been hearing "the words of Satan for a long time." In response to a question from Dr. Phillips, Hebert said that "Satan was in the room and was laughing at her." Hebert then proceeded to scream, and Dr. Phillips concluded that Hebert was "completely psychotic" and prescribed anti-psychotic medicine for her.
The State of Louisiana charged Hebert with first-degree murder of her children. Hebert pled not guilty by reason of insanity. A trial was held in Lafourche Parish, Louisiana.
The jury venire comprised 200 people, 112 of whom were women. Both parties received 12 peremptory strikes and two alternate juror peremptory strikes. Before the final jury was selected, 23 women and 10 men were randomly selected to sit on the jury. The court struck four men for cause or hardship, and Hebert used four peremptory strikes on men, which left just two men on the panel. The State used 11 peremptory strikes and one alternate peremptory strike against women. Hebert's counsel did not object. The final jury included 10 women and two men, together with three men and one woman as alternate jurors.
The jury heard testimony from six experts during the guilt phase of the trial. The defense called four experts: Dr. Alexandra Phillips, Dr. David Self, Dr. Glenn Ahava, and Dr. Phillip Resnick. Dr. Phillips prescribed anti-psychotic medication for Hebert after concluding that she was "completely psychotic" when she claimed that she saw and heard Satan in the hospital room. Dr. Resnick opined that Hebert was psychotic 1 when she killed her children because she was having auditory hallucinations in which she heard the voice of Satan commanding her to kill the children and then commit suicide to keep the family together. The voice, according to Hebert, *219 then instructed her to write the notes left at the scene of the crime. Dr. Ahava, an expert in forensic psychology, testified that Hebert was psychotic and likely could not distinguish right from wrong on the day of the offense based on her history of mental health problems and the excessive number of stabs wounds on the children. Dr. Self, an expert in forensic psychiatry, diagnosed Hebert as suffering from major depression with recurrent and severe psychosis. He further concluded that Hebert must have been psychotic because "only the most psychotic people attack their own eyes."
In response, the State called two rebuttal experts: Dr. Rafael Salcedo and Dr. George Seiden. Dr. Salcedo, an expert in clinical and forensic psychology, conceded at trial that Hebert suffered from a psychotic disorder but concluded that Hebert was still able to distinguish right from wrong. In reaching this conclusion, Dr. Salcedo relied on Hebert's notes, which he opined revealed the logical mental process of someone seeking revenge through a retribution killing. Dr. Seiden, an expert in general and forensic psychiatry, opined that Hebert was capable of telling right from wrong because there was no evidence that Hebert exhibited psychosis before killing her children. He also relied on the notes as evidence of Hebert's mental state, and he opined that the line "Sorry Daddy, Celeste & Renee" showed Hebert understood the wrongfulness of her actions.
The jury returned a verdict of guilty. The jury was unable to reach a unanimous verdict on the death penalty, and the court sentenced Hebert to life imprisonment. Hebert filed a direct appeal to the Louisiana First Circuit Court of Appeals, which affirmed her conviction and sentence. Hebert then unsuccessfully pursued habeas relief in state court. In response to a claim that its peremptory strikes discriminated against women, the State provided gender-neutral reasons for using its peremptory strikes. After exhausting all other avenues of relief, Hebert filed a habeas corpus petition in the United States District Court for the Eastern District of Louisiana. The district court denied her petition for relief, but it granted a COA on all issues raised. Hebert timely appealed.
Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") prohibits a federal court from granting habeas relief unless the decision of the state court "(1) ... was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."
"Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning."
Harrington v. Richter
,
In an appeal from the denial of habeas relief, we review legal conclusions de novo and factual findings for clear error.
Perez v. Cain
,
Discussion
I. Ineffective Assistance of Counsel
Hebert argues that her counsel provided ineffective assistance because he failed to object to the State's use of its peremptory strikes against qualified female venire members in a manner that she alleges was discriminatory. We apply the legal standard articulated in
Strickland v. Washington
when evaluating the effectiveness of Hebert's trial counsel.
In the habeas context, attorney performance is scrutinized under a "doubly" deferential standard.
The Equal Protection Clause prohibits a prosecutor from intentionally discriminating against a potential juror based on race or gender.
J.E.B. v. Alabama ex rel. T.B.
,
Hebert raised her allegation of ineffective assistance of counsel for failing to object to gender discrimination on state *221 post-conviction review. The state trial court denied her claim without performing an analysis under J.E.B. v. Alabama ex rel. T.B. , instead simply citing the State's proffered gender-neutral explanations for striking the female jury members:
Of the jurors stricken, there were many sufficiently gender-neutral explanations for the use of peremptory challenges including: religious, moral or ethical considerations, self-employed business owners, jurors with medical or psychiatric problems, jurors with family members that had psychiatric problems, one juror who knew the defendant, and those jurors that had misgivings about imposing the death penalty.
The state court concluded that "[t]he record in this matter reflects that petitioner's counsel used their experience and training in the most skillful manner to properly defend petitioner against the charges." The Louisiana Supreme Court adopted the trial court's reasons when denying Hebert's petition.
Acknowledging that the state court addressed her ineffective assistance of counsel claim on the merits, Hebert contends that it-and the district court-failed to articulate the
J.E.B.
legal framework, failed to consider relevant facts, and unreasonably applied the law and facts. As previously noted, a state court's decision does not need to be thorough or directly address Supreme Court's cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them."
Early
,
To determine whether the reasoning and result of the state court's opinion comport with Supreme Court precedent, we undertake the
J.E.B.
analysis as it is relevant to Hebert's ineffective assistance of counsel claim. The
J.E.B.
framework employs the same analysis as a
Batson
claim.
See
J.E.B.
,
Hebert argues that the State violated her constitutional rights when it exclusively used its peremptory strikes to remove qualified women from the jury. In support of this argument, Hebert observes that the State used 11 of its primary peremptory strikes against women and then used one of its alternate peremptory strikes against another woman. Hebert then concludes that the State acted discriminatorily because 100% of the peremptory strikes used by the State were against qualified women.
Of all the venire members randomly selected before a final jury was chosen, there were only two men left on the jury after four men were dismissed for cause and Hebert struck the other four men with her peremptory strikes. Thus, as the district court noted, the State's strikes against qualified women is hardly surprising or alarming. The State also provided gender-neutral reasons for its strikes, and thus the initial step requiring proof of a prima
*222
facie case is moot.
See
Hernandez
,
When the State offered gender-neutral reasons for its strikes, the primary question became whether the reasons were plausible.
See
Miller-El v. Cockrell
,
We have previously drawn three principles from the Supreme Court's analysis in
Miller-El II
.
Reed
,
Hebert argues that "the preemptively offered gender-neutral reasons provided by the State were demonstrably implausible." She specifically identifies the following female potential jurors as examples where the State discriminated based on gender: J.L., M.M., H.P., E.U., F.R., A.O., C.L., and T.F. She compares these women to B.J., J.O., and T.G.-three men who sat on the final jury.
During voir dire , the State asked each member of the venire to rate their views on the death penalty using a 1-5 scale. The prosecutor described how this 1-5 scale worked: "[1], death is the only appropriate sentence for first degree murder. [2], you favor death but can impose life. [3], you're equally open to either. [4], you favor life but could impose death. And, [5], life is the only appropriate sentence for first degree murder." To help view the relevant individuals' answers to this question side-by-side, here is a chart:
*223DEATH PERSON REASON FOR STRIKE PENALTY WOMEN J.L. 4, favored life bipolar, suffered depression M.M. 4, favored life brother was schizophrenic H.P. 4, favored life believed Hebert mentally ill E.U. 4, favored life sympathetic to mental illness F.R. 3, neutral more friendly with defense A.O. 3, neutral more friendly with defense C.L. 4, favored life strongly opposed death penalty T.F. 4, favored life concerned about mental illness MEN B.J. 2, favored death served as an alternate juror J.O. 4, favored life served on the jury T.G. 3, neutral served on the jury
While a comparator-juror is not required to be identical in all regards, the comparator-juror must be similar in the relevant characteristics. Hebert argues that male juror B.J. "had moral objections to imposing the death penalty, and he was never rehabilitated by the State." It is true that, in his questionnaire, B.J. indicated a moral opposition to the death penalty. But the State asked him about this during voir dire . In response to the State's questioning, B.J. admitted he had misunderstood the questionnaire because he actually favors the death penalty. ("I guess I understood it the opposite way.") Furthermore, when asked during voir dire about his views on the death penalty, B.J. said "correct" to the statement that he "favor[ed] imposing the death penalty but [he] could consider life." This directly contradicts Hebert's argument that B.J. was not rehabilitated. As someone who favored the death penalty, B.J. was an ideal juror for the State.
More importantly for the issue presented on appeal, B.J. was not a proper comparator for the women struck from the jury because he favored the death penalty, unlike all of the women struck from the jury panel who indicated they were either neutral or against it. Thus, the comparison to B.J. is not valid because he is dissimilar to all the women on perhaps the most important factual point, views on the death penalty.
Hebert's comparison to male juror J.O. is similarly unpersuasive. Hebert argues that J.O. indicated that he could not impose the death penalty on his questionnaire and in his voir dire answers. Near the end of the voir dire questioning, however, J.O. admitted in response to a question about whether he could impose the death penalty that "[i]n the most extenuating circumstances, I could, if it came down to it, but I do favor life."
More importantly, J.O. is also distinguishable as a comparator in light of another highly relevant fact. Unlike all of the women who were struck from the panel, the State had a personal connection to J.O. because his aunt was an Assistant District Attorney, a fact disclosed and explored during voir dire . Thus, the comparison to J.O. is also not appropriate because he is factually distinguishable on a highly relevant characteristic from the women who were struck from the panel.
That leaves T.G. as the only remaining male comparator-juror identified by Hebert.
*224 T.G. indicated that he was neutral on the death penalty. From among the women that Hebert identified as victims of gender discrimination, F.R. and A.O. were the only ones who were neutral on the death penalty. All the other women favored life over death. Thus, T.G. is not a valid comparator to those women.
This leaves two remaining potential comparisons: T.G. to F.R. and A.O. The State claims that it struck F.R. and A.O. because they seemed friendlier with defense counsel. Unless pretext for gender or racial discrimination, this is a completely valid basis for exercising a peremptory strike because "a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried."
Batson
,
We conclude that Hebert has not met her burden to prove that the State used its peremptory strikes with the intent to discriminate against women in violation of J.E.B. Without showing a violation of J.E.B. , Hebert has failed to show that her attorney's representation was prejudicial when he did not object to the State's use of its peremptory strikes. Yet, even if Hebert could show prejudice, she fails to show that her attorney's representation was incompetent or objectively unreasonable. On appeal, Hebert acknowledges that "the State's delay in using all of its strikes made it more difficult to decipher that the strikes were not supported by legitimate reasons." This acknowledgement supports the conclusion that her counsel provided effective assistance. Although the state court did not mention J.E.B. in its analysis of her claim, its rejection of her ineffective assistance of counsel claim was not contrary to Supreme Court precedent and was not objectively unreasonable. The district court was correct to deny habeas relief on this ground.
II. Insanity
Hebert claims that she overcame the presumption that she was sane so convincingly that that no rational jury could have found her guilty. In Louisiana, there is a rebuttable presumption that the defendant is sane at the time the offense is committed.
State v. Roy
,
As we have previously held, "the question under the
Jackson
sufficiency standard is whether ... any rational trier of fact could have found beyond a reasonable doubt that [the defendant] did not prove by a preponderance of the evidence that he was insane at the time of the
*225
offense."
Perez
,
Hebert argues that no rational juror could have found beyond a reasonable doubt that she failed to prove insanity by a preponderance of the evidence because she presented twice as many experts as the State, and there was more than enough evidence from those experts for the jury to conclude she was insane. She further argues that the factual basis the State's experts relied upon was incomplete. She contends that "[i]f a suicidal and clinically depressed person's belief that two children with promising futures would be better off dead does not represent an 'inability to distinguish right from wrong due to mental disease or defect,' then legal insanity under Louisiana law has little meaning at all."
The State responds that the evidence was sufficient for a rational juror to find that Hebert failed to prove by a preponderance of evidence that she was insane. Contending that this court cannot sit as a "thirteenth juror," the State argues this court should not "substitute [its] analysis of the evidence for that of the jury."
The leading case in our circuit on this issue is
Perez v. Cain,
Perez
stands for the proposition that a rational jury cannot reject unanimous expert testimony if there is no objective reason to reject it. It does not follow from this holding, of course, that-when the jury had objective reasons to reject expert testimony-a federal habeas court may
*226
discard the findings of the jury merely because it disagrees with the jury's conclusion.
Weeks v. Scott
,
After reviewing the record, we conclude that the jury had objective reasons to reject the expert testimony from the four defense experts. A rational juror could have found the testimony of Dr. Salcedo and Dr. Seiden, the State's expert witnesses, to be more credible. That determination, as we stated in
Garcia
, is the exclusive province of the jury and should not be disturbed on appeal.
The jury also could have found that the factual assumptions underlying the defense experts' opinions were inadequate. For example, Dr. Phillips admitted that she reached her opinion without knowing about Hebert's religious beliefs. Furthermore, there is evidence in the record and argument on appeal that Hebert's statement about hearing Satan was fabricated and self-serving. The record indicates that Hebert did not mention hearing a voice tell her to kill her children until several weeks after the killings. Hebert also did not initially "ascribe an identity to th[e] voice" and only concluded retrospectively that it must have been Satan that spoke to her that night. At trial, the prosecution argued in closing that Hebert lied about hearing Satan when she killed her children. This evidence and argument provided the jury with an objective reason to conclude that Hebert was sane when she killed her children.
Dr. Resnick testified that Hebert was insane, in part, because the number of stab wounds on the children was excessive, but he admitted that there was no evidence that Hebert continued to stab the children after they died. The trial record also indicates that Hebert went into the children's room twice and was unable to stab them, which the jury could have found as evidence that Hebert knew her actions were wrong. The jury could have found that the defense experts improperly dismissed the significance of the notes Hebert wrote and the indications from those notes that Hebert knew her actions were wrong. The jury also could have found it significant that there was no evidence Hebert was psychotic prior to when she killed the children, a fact at least one of the defense experts acknowledged in his testimony. ("Q. But you've not seen anything in any medical records where prior to August, 20, 2007, defendant was diagnosed as being psychotic? A. That's correct.") The jury could have understood Dr. Resnick as testifying that Hebert had only had one auditory hallucination-the night she killed her children-and found that her theory of insanity was implausible given the rest of the record.
Dr. Ahava, another expert for the defense, testified that a "central" factual basis for his opinion was information Hebert provided. The jury could have found that Dr. Ahava relied too much on Hebert's characterization of the facts, which may have been skewed because she had been charged with first degree murder at the time she relayed those facts to him. For example, he relied on Hebert's statement that she had a history of mental issues to conclude that she was psychotic when she killed her children. But he also admitted that there were no records of mental health providers treating Hebert for mental health problems from twenty years prior, as she originally claimed.
Dr. Self, also a defense expert, admitted that it gave him pause when Hebert told him that she had never had any hallucinations before the night she killed her children. Although Dr. Self. followed up on *227 that admission with an explanation, a juror could have found that it seemed implausible for a person who had never previously had a hallucination to suddenly have one on such a tragic night. Dr. Self admitted that a factual basis for his opinion was Hebert's own statements about her history of depression, which could have led a juror to disregard Dr. Self's opinion because it was based on a self-serving factual basis provided by Hebert. Dr. Self also stated that Hebert's weight loss from July to August 2007 indicated a major depression, but her medical records indicated that her weight remained nearly the same throughout that entire period. Although the record does show that the night Hebert killed her children and attempted suicide she weighed about twenty pounds less than her last previous medically-observed weight, a juror could have found that Hebert's weight loss was more likely from a loss of blood than major depression.
In sum, this case is distinguishable from
Perez
, where there was no objective reason to disregard the expert testimony.
Conclusion
For the reasons stated above, we AFFIRM the district court.
CARL E. STEWART, Chief Judge, specially concurring:
The majority opinion accurately identifies the two issues before us on appeal: (1) whether Hebert received ineffective assistance of counsel; and (2) whether the evidence sufficiently supported the jury's finding that Hebert was not insane. I agree with the majority opinion's well-reasoned analysis regarding Hebert's insanity claim. However, I write separately to express my view that the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the record support a different ineffective assistance of counsel analysis.
The majority opinion concluded that Hebert's counsel's performance was not deficient. However, before doing so, it conducted a comparative juror analysis to determine that the State did not discriminate in using all of its peremptory strikes against women. Using the reasons the State proffered five years after voir dire in its response to Hebert's post-conviction Strickland claim, the majority opinion holds that Hebert failed to prove intentional discrimination because there were sufficient differing characteristics to render the men who served as jurors as inadequate comparators to the stricken women. These reasons were not a part of the trial record because Hebert did not object to the State's strikes at voir dire. As a result, the State did not have the opportunity to provide a contemporaneous nondiscriminatory explanation. Instead, it offered the reasons five years later when Hebert first raised ineffective assistance of counsel in her application for post-conviction relief, arguing a Batson violation as the basis.
Without thoroughly analyzing the substance of her discrimination argument, the state court found that Hebert's ineffective assistance of counsel claim should be denied *228 because her counsel's performance was not unconstitutionally deficient. Instead of evaluating whether this decision was an erroneous application of the law or was based on an erroneous determination of the facts, the majority opinion undertakes a J.E.B. / Batson analysis because it is "relevant." I, however, would follow the path AEDPA requires of us and evaluate the actions of the state court without conducting a Batson analysis because the State's nondiscriminatory explanations were proffered five years after voir dire and because the state court correctly determined the substantive claim: Hebert's counsel was not ineffective.
I.
After her conviction on May 14, 2009, Hebert unsuccessfully filed a direct appeal with the Louisiana First Circuit Court of Appeal.
State v. Hebert
, No. 2010-KA-0305,
Following a hearing, the state trial court found "there were many sufficiently gender-neutral explanations for the use of peremptory challenges ...." Ultimately, the trial court determined Hebert's claim had no merit because the record showed her "counsel used their experience and training in the most skillful manner to properly defend [her] against the charges." Hebert sought writ of review which was denied without written opinion by the Louisiana First Circuit Court of Appeal.
State v. Hebert
, No. 2015-KW-0289, 2015 La. App. Lexis 783, at *1 (La. App. 1st Cir. April 20, 2015). In the last-reasoned state court opinion, the Louisiana Supreme Court denied Hebert's claim because she "fail[ed] to show she received ineffective assistance of trial counsel."
State v. Hebert
,
II.
A federal habeas court cannot disturb a state court's decision denying habeas relief unless the state court's adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
*229
Woodfox v. Cain
,
In order to prevail on a claim for ineffective assistance of counsel, a party must prove-by a preponderance of the evidence-her counsel performed deficiently and that deficient performance caused her prejudice.
See
Strickland
,
III.
The state court did not conduct a
Batson
analysis. It instead disposed of Hebert's substantive claim employing the
Strickland
framework and determining her counsel's performance was not deficient. This was a reasonable application of
Strickland
. As determined by the state court, Hebert's claim has no merit because her counsel's decision not to object was not marred by incompetence so serious she was effectively denied her Sixth Amendment right to counsel.
See
Strickland
,
IV.
In this circuit, a failure to lodge a
Batson
challenge is fatal.
See
United States v. Skilling
,
*230
(citing
Dawson v. Wal-Mart Stores
,
There is little guidance on whether a trial court must evaluate deficient performance before prejudice. With good reason, that process is left to the discretion of the trial courts. Here, given the facts and circumstances of this case, the road to prejudice seems much more arduous: (1) there were no Batson objections lodged at voir dire; (2) the State was not given the opportunity to proffer contemporaneous reasons and instead developed its explanation five years later; and (3) even the State contested the use of the long-delayed reasons as juror comparators. Furthermore, Hebert's Batson argument is not her substantive claim. It is evidence of her substantive claim that her counsel provided ineffective assistance by failing to object. Logically, the state and district courts judiciously took the path of greatest logic and least resistance.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must prove deficient performance and prejudice.
See
Strickland
,
But here there were no contemporaneous reasons to test for veracity because there were no
Batson
objections. What the state court had-to no fault of the State-were reasons mulled over and rendered five years after voir dire, "reek[ing] of
*231
afterthought."
Cf.
Miller-El
,
Notably, Hebert did not make a prima facie showing of discrimination. At the state and district courts, in making her substantive ineffective assistance claim, Hebert contended prejudice was presumed "[w]here trial counsel fails to object to a prima facie case of discrimination" because discrimination in jury selection is a "structural error that requires automatic reversal." 2 Analyzing this argument, the state court found there was no prima facie case of prejudice and "petitioner's counsel used their experience and training in the most skillful manner to properly defend petitioner against the charges." Hebert argued that because the State offered reasons for why it may have struck the women, her requirement to make a prima facie case of discrimination was waived. The majority opinion seems to agree with this point. Also citing Hernandez , Hebert argues "once the prosecution has proffered gender-neutral reasons, the question of whether a prima facie case existed becomes moot." This simplification misinterprets and misapplies Hernandez because: (1) the Supreme Court decision in Hernandez illuminates the discretionary power the trial court holds in Batson claims; and (2) Hernandez is distinguishable from the facts of this case.
In
Hernandez
, after nine jury members were empaneled, defense counsel objected to the prosecutor's use of its peremptory strikes against Latino venire members.
The facts and circumstances surrounding this case are completely distinguishable, and thus the question whether Hebert presented a prima facie case is not moot. Unlike in
Hernandez
, here, Hebert did not timely object, so the State did not offer a contemporaneous explanation. Furthermore, when Hebert raised this argument in her post-conviction application, the trial court had not yet ruled on intentional discrimination. Thus, she maintained the burden of making a prima facie showing of discrimination.
Cf.
Hernandez
,
V.
As such, I would have accorded deference to this determination and held the trial court did not act unreasonably in not reaching the prejudice prong and evaluating Hebert's Batson argument because Hebert failed to prove by the preponderance of the evidence that her counsel performed deficiently. Nevertheless, I specially concur in the judgment denying relief.
Dr. Resnick defined "psychosis" as being out of touch with reality.
The district court phrased the inquiry as being whether "any rational trier of fact could have found that Hebert had not proven by a preponderance of the evidence that she was insane at the time of the offense" with all evidence viewed in the light most favorable to the state. This interpretation conflicts with our precedent stating that "the question under the
Jackson
sufficiency standard is whether ... any rational trier of fact could have found
beyond a reasonable doubt
that [the defendant] did not prove by a preponderance of the evidence that he was insane at the time of the offense."
Perez
,
The timeliness of the reasons are important in analyzing whether the explanation is pretextual.
Cf.
Miller-El
,
This narrow focus is essential to maintaining the integrity of the Batson framework, which requires a focus on the actual, contemporaneous 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.
Chamberlin
,
This circuit previously refrained from holding that "a structural error alone is sufficient to warrant a presumption of prejudice in the ineffective assistance of counsel context."
See
Virgil v. Dretke
,
Reference
- Full Case Name
- Amy HEBERT, Petitioner-Appellant v. James ROGERS, Warden, Louisiana Correctional Institute for Women, Respondent-Appellee
- Cited By
- 8 cases
- Status
- Published