Brewer v. Marshall, Sheriff ( 1997 )


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  • USCA1 Opinion










    United States Court of Appeals
    For the First Circuit
    ____________________


    No. 96-2321

    JOEY BREWER,

    Petitioner, Appellee,

    v.

    CLIFFORD MARSHALL,

    Respondent, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Patti B. Saris, U.S. District Judge]

    ____________________

    Before

    Torruella, Chief Judge,

    Boudin and Lynch, Circuit Judges.
    ____________________

    Ellyn H. Lazar , Assistant Attorney General, with whom
    Scott Harshbarger, Attorney General, was on brief, for
    appellant.
    William A. Hahn, with whom Hahn & Matkov was on
    brief, for appellee.


    ____________________
    July 21, 1997
    ____________________





    LYNCH, Circuit Judge. Joey A. Brewer, an

    African American Boston police officer, was charged with the

    1988 kidnapping and rape of a fifteen-year-old minority woman.

    During the jury impanelment for his state court trial, the

    prosecutor exercised three rounds of his peremptory challenges,

    including challenges to four black jurors. At the end of these

    three rounds, and after the prosecutor had announced himself

    satisfied, defense counsel objected on the ground that the

    prosecution had purposefully sought to eliminate black jurors.

    The judge overruled the objection on the ground that it should

    have been made earlier, and thus did not require the

    prosecution to meet the merits of the objection. When the

    prosecution struck a fifth black juror the next day, the

    defense promptly objected that this peremptory challenge was

    racially biased. The prosecution presented a nondiscriminatory

    reason for striking the juror, and the court overruled the

    objection on the merits. Brewer was convicted, and the

    conviction was summarily affirmed on appeal by the

    Massachusetts Appeals Court. The Massachusetts Supreme

    Judicial Court declined further review. In November 1993,

    Brewer filed his petition for habeas review.

    Seven years after the state trial, a federal

    district court issued a writ of habeas corpus, requiring Brewer




    1. The terms "African American" and "black" are used
    interchangeably.

    -2- 2





    to be retried or released. The court ruled that Brewer had, on

    the numbers, made a prima facie case that he had been denied

    his constitutional right to a trial before a jury of his peers,

    which the state no longer had the evidence to rebut, and thus

    there was a violation of Batson v. Kentucky, 476 U.S. 79

    (1986). We reverse.

    I.

    We recount the factual background in the light most

    favorable to the verdict. See Stewart v. Coalter, 48 F.3d 610,

    611 (1st Cir.), cert. denied, 116 S. Ct. 153 (1995).

    While on duty early in the morning of October 22,

    1988, Officer Brewer came upon a young woman and her father in

    a parked car in Franklin Park. The prosecution presented

    evidence that Brewer ordered the father to leave the area, put

    the young woman in his police cruiser, drove to another

    location, and raped her. The father had attempted to follow in

    his car but could not keep up. After the rape, Brewer drove

    the victim home and told her to keep quiet. Instead, she

    immediately told her mother and father, who then reported the

    rape to the police. After being treated at a hospital, the

    victim directed police to the scene of the rape.

    At the scene, police found half of the girl's school

    class schedule on the ground. Police logs also indicated that

    Brewer had failed to respond to four "priority calls" during

    the time period in which the girl claimed to have been raped.



    -3- 3





    Brewer's story was that he interrupted the father having sexual

    intercourse with the daughter, ordered the father to leave, and

    then took the young woman home. Brewer did not arrest the

    father, seek medical attention for the daughter, or file an

    incident report.

    Brewer was charged with kidnapping and rape,

    violations of Mass. Gen. Laws ch. 265, SS 26, 22A. Jury

    impanelment for Brewer's trial began on December 15, 1989.

    During the general voir dire, after six jurors had been excused

    for inability to serve, the trial judge inquired about the race

    of the victim. The judge expressed concern that neither side

    had requested a voir dire on the issue of race, and asked

    whether it was an issue in the case. Both the prosecutor and

    the defense counsel responded that it was not. The judge then

    continued with the general voir dire.

    After excusing five more jurors who were unable to

    serve, the judge again suspended the proceedings and insisted

    that defense counsel ask Brewer himself whether he wanted a

    voir dire on racial bias. The court, at Brewer's request, then

    proceeded with an individual voir dire on racial and ethnic

    bias after excusing the thirteen remaining jurors who were

    unable to serve. The judge asked each juror, out of the




    2. The court may have been prompted to make such an inquiry by
    a juror who volunteered during voir dire that he was prejudiced
    and that when he saw the defendant and the court mentioned
    rape, he had become upset.

    -4- 4





    presence of other jurors, whether they had any bias or

    prejudice for or against black persons or persons of Hispanic

    origin.

    At the end of the individual voir dire, one juror had

    been excused due to racial bias; fourteen of the remaining

    prospective jurors were seated in the jury box. The first

    round of peremptory challenges began with the prosecutor, who

    asked that six jurors be excused. Defense counsel did not

    object to any of the challenges. The clerk then excused those

    six jurors.

    After six new jurors were seated, a second round of

    challenges began. The prosecutor made two more peremptory

    challenges. Defense counsel did not object. These two

    challenged jurors were excused and then replaced. In the third

    round, the prosecutor challenged one juror. Again, with no

    objection from defense counsel, the challenged juror was

    excused and replaced.

    Having challenged nine jurors over three rounds, the

    prosecutor informed the court and defense counsel at side bar

    that the Commonwealth stood content. At this point, defense

    counsel for the first time objected on race grounds, saying

    that four of the nine prospective jurors who had been excused

    were black: "We had a fair representation racially of six and

    now we're down to two."





    -5- 5





    After initially asking the prosecutor to explain his

    reasons for making the challenges, the trial court withdrew its

    request and instructed defense counsel that he should raise his

    objection to a peremptory challenge "at the time the challenge

    is made."

    Although the defense counsel complained that he had

    not seen "the pattern emerge until it was completed," he did

    not create a record of the races of the challenged jurors. The

    judge continued with the impanelment, giving defense counsel

    the opportunity to make his own peremptory challenges. Defense

    counsel's challenges resulted in the exclusion of fourteen more







    3. The relevant colloquy went as follows:
    POMAROLE (prosecutor): The Commonwealth stands content.
    THE COURT: Thank you. Mr. McGee?
    McGEE (defense counsel): At the outset, I'd like to object on
    the record to Mr. Pomarole having taken off four black people
    from the jury. We had a fair representation racially of six
    and now we're down to two.
    THE COURT: Mr. Pomarole --
    POMAROLE: Your honor --
    THE COURT: -- I'm going to ask you give us the reasons for your
    challenges.
    POMAROLE: Your Honor, I'd like to also say at the outset --
    your Honor, I believe I've challenged white people as well as
    black people without respect to gender.
    McGEE: He hasn't responded, judge.
    THE COURT: I know he hasn't yet, sir.
    POMAROLE: I'd have to get my notes, your Honor, with respect
    to the people that I've challenged.
    THE COURT: At this point, Mr. McGee, I'm not going to require
    Mr. Pomarole to give his reasons. But I put you on notice, Mr.
    Pomarole, that, should this issue arise again, sir, I am going
    to ask you to justify your challenge. Mr. McGee, in the future
    you should raise that, sir, at the time the challenge is made.

    -6- 6





    jurors including one man who may have been black, and the

    exhaustion of the jury pool.

    On the second day of jury selection, after the judge

    excused those unable to serve and asked each of the prospective

    jurors about racial bias, the state exercised two peremptory

    challenges. One of the challenged jurors was black. Just

    after that juror was excused and replaced, Brewer's counsel

    objected and then specifically identified the number of the

    black juror at the court's request. The court then, consistent

    with its prior statement, asked the state to explain why it

    made the challenge. The state responded that the juror had two

    children roughly the same age as Brewer and therefore might be

    sympathetic to him. The court rejected the objection. The

    impanelment then continued with defense counsel making the

    remainder of his challenges, and the court excused three more

    jurors.

    In the end, only one African American was on the jury

    panel. This sole black juror was randomly chosen to be an

    alternate and did not engage in deliberations. In sum, a total

    of forty-five potential jurors went through the jury box; seven

    were black. There is no evidence as to the total number of



    4. There was some dispute between the court and defense
    counsel as to whether this juror was black or Hispanic.

    5. These figures are based on four assumptions: that the four
    jurors challenged by the state on day one of jury selection
    were in fact black, that one of the jurors challenged by the
    defense on day two of jury selection was black, that one juror

    -7- 7





    black potential jurors. The government exercised eleven

    peremptory challenges, five of which were against black venire

    members. Brewer used one of his seventeen peremptory

    challenges to strike a black potential juror.

    Before trial, Brewer filed a motion to dismiss for

    prosecutorial misconduct, arguing that the state had failed to

    disclose material and exculpatory evidence in violation of the

    rule articulated in Brady v. Maryland, 373 U.S. 83 (1963).

    Brewer complained that the prosecutor had delayed revealing

    test results that were inconclusive as to whether semen found

    in the victim was in fact Brewer's. At a bench conference on

    the first day of trial, the prosecutor had stated that, if

    Brewer were to introduce evidence that he was not the source of

    the semen, the victim would be forced to testify that the

    source was her boyfriend, with whom she had had sexual

    intercourse before the rape. Defense counsel argued that the

    alleged victim's prior unprotected intercourse with her

    boyfriend was exculpatory for his client, because it suggested

    that she might have a motivation for fabrication. Counsel




    challenged by the state on day two was black, and that one
    alternate juror was black. The race of one juror who was
    excused during peremptory challenges because of scheduling
    problems is unknown. There is no clear record of the race of
    these jurors.
    The Commonwealth questioned petitioner's assertions about
    the number of African American venirepersons, but not until the
    federal proceedings. This challenge would have been better
    received if brought during the state proceedings.


    -8- 8





    asked that if the court refused to dismiss the case, that it

    order the Commonwealth to disclose the boyfriend's identity.

    The trial court denied the motion to dismiss and did not order

    disclosure of the boyfriend's identity on the ground that the

    Massachusetts Rape Shield Law prohibits the introduction of a

    victim's sexual history.

    On the last day of trial, Brewer presented expert

    testimony that he was not the source of the semen. He then

    testified that when he found the victim and her father in the

    car, she was naked and her father's pants were down, thus

    suggesting that the father was the source of the semen. The

    victim testified on rebuttal that she had had unprotected sex

    with her boyfriend suggesting that the semen was his. Defense

    counsel objected, saying that he had asked for the boyfriend's

    name earlier and was now precluded from making a credibility

    argument. The court declined to revisit the issue. After

    trial, Brewer had blood samples from the boyfriend tested. The

    results indicated that the boyfriend was not the source of the

    semen. Brewer then filed a motion for a new trial based on

    this "newly discovered" evidence. The motion was denied on the

    ground that the defendant had already presented expert

    testimony that he was not the source of the semen.

    II.

    Brewer was convicted and sentenced to nine-to-twelve

    years' imprisonment for rape and three-to-five years for



    -9- 9





    kidnapping, to be served concurrently. He appealed his

    conviction to the Massachusetts Appeals Court. Prior to a

    decision on appeal, he filed a motion for new trial with the

    trial court, arguing, inter alia, that the prosecutor had

    impermissibly used peremptory challenges based on race. The

    trial court denied the motion.

    Brewer filed an appeal from the denial of the new

    trial motion, which was consolidated with his direct appeal.

    In response to Brewer's arguments, the state argued that, by

    waiting to object until after all four jurors were dismissed,

    Brewer had failed to object in a timely fashion to the state's

    disputed peremptories. In a one-and-a-half page opinion, the

    Appeals Court upheld Brewer's conviction: "Substantially for

    those reasons set out in the Commonwealth's brief and the trial

    judge's memorandum of decision in denying the defendant's

    motion for a new trial, we conclude that there is no basis for

    disturbing the defendant's convictions."

    Brewer filed an application for leave to obtain

    further appellate review with the Massachusetts Supreme

    Judicial Court. The request was denied without opinion.

    Brewer petitioned for a writ of habeas corpus in the

    United States District Court for the District of Massachusetts

    in November 1993. He argued that the prosecution made racially

    motivated peremptory challenges, thereby violating his

    Fourteenth Amendment rights to equal protection and due process



    -10- 10





    of law as established in Batson v. Kentucky, 476 U.S. 79

    (1986). He also renewed his claim that the state had withheld

    exculpatory evidence in violation of the Brady rule.

    The district court denied relief on the Brady claim,

    but found that Brewer had made a prima facie case of

    discrimination under Batson. The district court gave plenary

    review to the question of racial discrimination and relied

    solely on numbers to conclude that a prima facie case was

    established.

    Engaging in its own statistical analysis, the

    district court concluded that there was a pattern that

    demonstrated a statistical disparity sufficient to establish

    a prima facie case of racial discrimination under Batson. The

    district court noted that when Brewer first made a Batson

    objection, the prosecutor had exercised nine peremptories, four

    of which were used to excuse four out of six black

    venirepersons. In doing this, the court found that the

    prosecutor used 44% of his strikes in the first round to excuse

    66% of the black persons then impanelled.

    There were no statistics available as to the racial

    composition of the venire which had been found to be unbiased

    after voir dire or the racial composition of Suffolk County

    from which the venire was drawn. The district court, however,

    estimated that 15% of the entire venire was black based on the

    fact that out of a total of 45 potential jurors who had passed



    -11- 11





    through the box, seven were black. Thus, the court reasoned,

    the prosecutor's strike rate against blacks in the first round

    (66%) was several times larger than the population of the

    blacks in the venire (15%).

    Applying the new standard of review outlined in the

    Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

    104-132 ("AEDPA"), the court found that the estimated numbers

    based on the "pattern" of strikes alone constituted a prima

    facie case of discrimination under "clearly established"

    Supreme Court law.

    The court then ordered an evidentiary hearing to

    allow the state to offer nondiscriminatory reasons for the

    challenges. The state was unable, seven years after the trial,

    to produce any evidence. The prosecutor said that he could not

    recall the reasons and had long since destroyed his trial

    notes. The court granted the writ on Batson grounds on

    September 30, 1996, but stayed its issuance to allow for an

    appeal.

    Seeking clarification, the state returned to Suffolk

    County Superior Court and filed a request for the original

    trial judge to explain her rulings on Brewer's Batson claims.

    After conducting a hearing, the trial judge issued a memorandum

    stating that she had rejected the initial Batson claim on



    6. In his appellate brief, Brewer agreed, relying upon the
    district court opinion, that numbers alone can establish a
    prima facie case.

    -12- 12





    timeliness grounds. Because the excused potential jurors had

    already left the courtroom, she was unable to observe their

    races and demeanors at the time of the objection. She was

    therefore unable to make a meaningful evaluation of the

    defendant's claim that the prosecutor had made race-based

    peremptory challenges.

    Based on this response, the state filed a motion for

    reconsideration in the federal district court, arguing that

    habeas review was barred by procedural default. The court

    found the state's new argument unpersuasive and denied the

    motion, holding that there was no independent and adequate

    state ground. The Commonwealth appeals, arguing, inter alia,

    that the district court erred in concluding that there was no

    procedural default on the Batson claim. Additionally, Brewer

    contends on appeal that the government's failure to disclose,

    in a timely fashion, the boyfriend's identity deprived him of

    the opportunity to counter the "boyfriend story" in violation

    of his constitutional rights to a fair trial and due process of

    law.



    7. Brewer did not, as requested, file an application for a
    certificate of appealability in this court on this issue. Even
    if we treat his appellate brief as such an application, it is
    a close question whether Brewer even meets the standards for a
    certificate of appealability. Because we reject the claim on
    its merits, we pretermit this initial question. See Norton v.
    Mathews, 427 U.S. 524, 530-31 (1976) (where merits can be
    easily resolved in favor of the party challenging jurisdiction,
    resolution of complex jurisdictional issue may be avoided);
    Birbara v. Locke, 99 F.3d 1233, 1237 (1st Cir. 1996); Caribbean
    Transp. Sys., Inc. v. Autoridad de las Navieras de Puerto Rico ,

    -13- 13





    III.

    The Batson Claim and Limits on Federal Habeas Review

    Independent And Adequate State Grounds

    The state asserts that review is barred under the

    "independent and adequate state ground" doctrine. Under that

    doctrine, federal courts sitting to hear habeas petitions from

    state prisoners are barred from reviewing federal questions

    which the state court declined to hear because the prisoner

    failed to meet a state procedural requirement. Lambrix v.

    Singletary, 117 S. Ct. 1517 (1997). In such cases, the state

    judgment is said to rest on independent and adequate state

    procedural grounds. Harris v. Reed, 489 U.S. 255 (1989);

    Wainwright v. Sykes, 433 U.S. 72 (1977). Considerations of

    comity and federalism bar the federal court's review. Lambrix,

    117 S. Ct. at 1522-23 ("A State's procedural rules are of vital

    importance to the orderly administration of its criminal

    courts; when a federal court permits them to be readily evaded,

    it undermines the criminal justice system."). "[A] habeas

    petitioner who has failed to meet the State's procedural

    requirements for presenting his federal claims has deprived the

    state courts of an opportunity to address those claims in the

    first instance." Coleman v. Thompson, 501 U.S. 722, 732

    (1991). Without the "independent and adequate state ground"



    901 F.2d 196, 197 (1st Cir. 1990) (assuming existence of
    appellate jurisdiction where jurisdiction uncertain and appeal
    lacked substantive merit).

    -14- 14





    doctrine, federal courts would be able to review claims the

    state courts never had a proper chance to consider. Lambrix,

    117 S. Ct. at 1523.

    There are, however, exceptions to the bar on habeas

    review if the prisoner "can demonstrate cause for the default

    and actual prejudice as a result of the alleged violation of

    federal law, or demonstrate that failure to consider the claims

    will result in a fundamental miscarriage of justice." Coleman,

    501 U.S. at 749-50.

    Here, although the state did not raise the procedural

    default issue in the federal habeas court until a motion for

    reconsideration, the district court ruled that it would

    consider the procedural default argument on its merits, in the

    interests of comity. As the district court properly noted, it

    has the authority to consider the procedural default issue sua

    sponte. Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994), cert.

    denied, 513 U.S. 1085 (1995); see also Henderson v. Thieret,

    859 F.2d 492, 493 (7th Cir. 1988). Although belated, the

    Commonwealth did make the argument in the state trial court,

    and the issue was fully briefed both there and here. The

    procedural default issue was also squarely presented to the

    state appellate courts on direct review.

    On the merits of the procedural default argument, the

    district court held: "Because the [Massachusetts] Appeals Court

    gave no plain statement as to its reasons for upholding the



    -15- 15





    conviction, this Court on habeas corpus review presumes that

    there [are] no independent and adequate state grounds barring

    review." The Commonwealth challenges this finding. We start

    with the doctrine of independent and state grounds, focusing

    first on the question of independence.

    Independence

    Generally, a federal habeas court defers to a state

    court's articulation of a state law ground for a decision.

    When the state decision "fairly appears to rest primarily on

    federal law or to be interwoven with federal law," the federal

    court presumes there is no independent and adequate state

    ground for the decision. Coleman, 501 U.S. at 733 (internal

    quotation marks and citation omitted). However, that

    presumption does not apply where, as here, there is no "clear

    indication that [the] state court rested its decision on

    federal law." Id. at 739-40.





    8. There are refinements to that doctrine. If, after deciding
    a party is procedurally barred from raising a claim, the state
    court nonetheless reviews the merits for a miscarriage of
    justice and discusses federal law in that context, that limited
    review does not undercut the adequacy and independence of the
    state grounds. Burks v. Dubois, 55 F.3d 712, 716 n.2 (1st Cir.
    1995); Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir.
    1991).

    9. While a broad reading of the Supreme Court's decision in
    Harris, 489 U.S. 255, might lead to the conclusion that a
    presumption that the state court decision rests on federal
    grounds or on intertwined state and federal ground applies
    here, Harris was limited by the Court's subsequent decision in
    Coleman. See Coleman, 501 U.S. at 735-36.

    -16- 16





    The one-and-a-half page summary order of the

    Massachusetts Appeals Court is the last expression of opinion

    from the state courts. The final state court word on the

    matter refers us to the opinion of the trial court and the

    Commonwealth's state appellate brief. The state appellate

    court denied the appeal "substantially for the reasons set

    forth in the Commonwealth's brief and the trial judge's

    memorandum of decision in denying the defendant's motion for a

    new trial." In Coleman, the state court likewise issued a

    summary order referring to its consideration of all of the

    filed papers, including the briefs of the petitioner and the

    state. The Supreme Court acknowledged that this language

    raised some ambiguity because the briefs referred to federal

    claims. Id. at 744. But the Court held that such ambiguity

    did not warrant application of a presumption that the state and

    federal claims were intertwined. See id.

    The Commonwealth's brief to the Massachusetts

    Appeals Court argued that the defendant had waived his right to

    challenge the first four black jurors by not making his

    challenge in a timely fashion. Additionally, it argued on the










    10. The Supreme Judicial Court denied Brewer's application for
    further review without opinion.

    -17- 17





    merits that striking the fifth black juror did not violate the

    Constitution.

    The trial court's memorandum of decision on Brewer's

    new trial motion was responsive to the arguments presented in

    the motion, which rested "primarily on the grounds of newly

    discovered evidence." Brewer presented only a generalized

    argument about the exclusion of blacks from the jury in his

    motion: "Due to challenges from the prosecution, most black

    jurors were excluded from the jury and none deliberated on the

    verdict." Brewer's motion did not, on its face, challenge the

    earlier ruling that Brewer's objection to the prosecution's

    exercise of peremptories to strike four black venire members

    was untimely. The order of the state judge denying the new

    trial motion may appear at first to be somewhat ambiguous

    because it starts with a statement that the court found no

    support for the contention that the Commonwealth had improperly

    excluded blacks from the jury. However, the part of the state




    11. The state's brief argued as follows:

    The defendant waived his right with
    respect to the four challenged black
    jurors because he did not object after
    each challenge, did not make an offer of
    proof, did not raise the matter until
    after the four jurors were excused and
    left, did not request a hearing and did
    not say anything at all when addressed by
    the judge, told that she was not going to
    ask the prosecutor for reasons and given a
    chance to reply.


    -18- 18





    court opinion dealing with the jury selection procedures only

    concerns the challenge by the prosecution of the fifth black

    juror. There is no discussion of defendant's earlier

    objection. In his application for leave to obtain further

    appellate review from the Supreme Judicial Court, Brewer

    admitted that there was no discussion of the legality of the

    exclusion of the four prospective jurors in the trial judge's

    memorandum addressing the new trial motion.

    There is certainly reason to believe that the basis

    for the ruling as to the timing of the objection to the

    prosecutor's first four peremptories against black jurors was

    an independent state procedural ground. As a result, we

    consider the state's argument that the state appeals court

    ruling rested on the grounds that the challenge to the

    exclusion of the first four jurors was not timely made and that






    12. When the Commonwealth sought clarification in 1996, the
    judge who presided over Brewer's state court trial emphasized
    that her ruling on the objection was a result of the timing of
    defense counsel's objection.
    As the court stated to defendant's
    counsel: "[y]ou should raise that at the
    time the challenge is made." Tr.1-124
    (emphasis added). Because the court was
    foreclosed from effectively assessing the
    challenges and could not ascertain whether
    the reasons were race neutral, the court
    withdrew its request to have the
    Commonwealth explain its challenges. The
    defendant's claim was rejected on
    timeliness grounds.


    -19- 19





    the challenge to the fifth black juror was valid under the

    Batson standard.

    Adequacy

    The "adequacy" of this state procedural ground, for

    federal habeas purposes, is another issue. Batson itself

    declined to decide when an objection must be made in order to

    be timely and left that matter to be resolved by local law.

    Batson, 476 U.S. at 99-100 & n.24. There are no Massachusetts

    Supreme Judicial Court cases establishing precisely when in the

    sequence of events an objection to a peremptory challenge must

    be made.

    Brewer's challenge rests largely on the ground that

    state procedural requirements "cannot be permitted to thwart

    review applied for by those who, in justified reliance on prior

    decisions, seek vindication in state courts of their federal

    constitutional rights." NAACP v. Alabama, 357 U.S. 449, 457-58

    (1958). State rules may not procedurally bar a federal court

    from hearing a Batson claim on timeliness grounds if the rule

    is not "firmly established and regularly followed." Ford v.

    Georgia, 498 U.S. 411, 423 (1991). In Ford, the Supreme Court

    declined to honor a procedural bar where the defense counsel

    had in fact raised the Batson issue prior to jury selection.




    13. It is not necessary that a state court explicitly state
    that it is resting its decision on state procedural grounds in
    order for the decision to be deemed to rest on "independent and
    adequate state grounds." See Coleman, 501 U.S. at 735-36.

    -20- 20





    Ford made clear that state procedures may not

    completely preclude the very opportunity to raise

    constitutional claims. See also James v. Kentucky, 466 U.S.

    341, 348-52 (1984); Michel v. Louisiana, 350 U.S. 91, 93-94

    (1955); cf. Powell v. Nevada, 511 U.S. 79, 83-84 (1994).

    Brewer argues that requiring a defendant to object to a

    challenge on the ground of a pattern of racially exclusionary

    strikes before the pattern emerges raises constitutional

    issues. For example, he says he should not have had to object

    to the strike of the first black juror on the ground of a

    pattern of racial discrimination if he did not see the pattern

    until the strike of the fourth black juror. If that were what

    happened in this case, we would have considerable sympathy for

    the argument. But that is not what happened. As the state

    trial court said in its clarification memo, any pattern emerged

    at the latest with the strike of the fourth juror; the defense

    should have made its objection at that time rather than waiting

    until later:

    The defendant's counsel could have raised
    the issue of impermissible peremptories
    after the Commonwealth indicated a desire
    at side bar to excuse the first six
    jurors, or the next two jurors, or the
    final juror, and before those jurors were
    excused but not after the Commonwealth
    said it was content.

    There is no constitutional impediment to a state procedural

    ruling such as the trial judge stated.




    -21- 21





    Even if there is no constitutional impediment to the

    state procedural rule, the Supreme Court has said that the rule

    must be "firmly established and regularly followed." Ford, 498

    U.S. at 423. The Commonwealth relies on Massachusetts' firmly

    entrenched contemporaneous objection rule. Commonwealth v.

    Fluker, 385 N.E.2d 256, 261 (Mass. 1979). In cases where

    defense counsel fails to make a timely objection, the state

    does not waive the objection, and the appellate decision rested

    on that ground, that is "a classic example of a procedural

    default, and petitioner can succeed in his habeas case only by

    showing cognizable cause for, and cognizable prejudice from,

    his procedural default or, alternatively, by demonstrating that

    the federal court's failure to address the claim on habeas

    review will occasion a miscarriage of justice." Burks v.

    Dubois, 55 F.3d 712, 716 (1st Cir. 1995) (failure to object to

    prosecutor's misstatement of evidence at closing precludes

    habeas review); see also Puleio v. Vose, 830 F.2d 1197, 1199

    (1st Cir. 1987).

    Recognizing the value of contemporaneous objections,

    this court has itself rejected review of Batson claims where

    defense counsel failed to make timely and adequate objection at

    trial. In United States v. Pulgarin, 955 F.2d l (1st Cir.

    1992), we rejected direct review where the defense counsel had

    made an aborted attempt at trial to raise a Batson claim,

    saying:



    -22- 22





    [C]ontemporaneous objection is especially
    pertinent as to Batson claims, where
    innocent oversight can so readily be
    remedied and an accurate record of the
    racial composition is crucial on appeal.

    Pulgarin, 955 F.2d at 1. Important institutional concerns are

    advanced by enforcing the contemporaneous objection rule for

    Batson claims.

    The Commonwealth's common law contemporaneous

    objection rule has a statutory analogue in Rule 22 of the

    Massachusetts Rules of Criminal Procedure, which requires that

    an objection be made at the time of the challenged action.



    14. We note that there may be tactical reasons why counsel may
    choose to wait before asserting an objection to the other
    side's peremptory challenge. A party may want a particular
    black juror challenged by the other side to be excused for his
    own reasons, but still to claim racial bias. Because the court
    on a promptly made objection to a challenge may choose, after
    examination, to seat the juror if the juror is still available,
    a belated objection made after the juror has left may narrow
    the range of remedies available to the court. Commonwealth v.
    Reid, 424 N.E.2d 495, 500 (Mass. 1981) (trial judge has
    discretion to fashion remedy, including disallowing challenge,
    and is not required to dismiss the entire venire). If the
    juror is no longer physically present, the court's remedial
    options may then be limited to a mistrial and impanelling a new
    jury. Enforcement of the contemporaneous objection rule avoids
    allowing a late-objecting party to have his cake and eat it
    too.

    15. Mass. R. Crim. P. 22 provides:

    [I]t is sufficient that a party, at the
    time the ruling or order of the court is
    made or sought, makes known to the court
    the action which he desires the court to
    take or his objection to the action of the
    court, but if a party has no opportunity
    to object to a ruling or order, the
    absence of an objection does not
    thereafter prejudice him.

    -23- 23





    The purpose of the objection requirement of Rule 22 is to

    ensure that the alleged error is "brought clearly to the

    judge's attention so that [s]he may squarely consider and

    decide the question." Commonwealth v. Mosby, 413 N.E.2d 754,

    762 n.4 (Mass. App. Ct. 1980).

    As she stated in her clarification memorandum, the

    state trial judge felt hampered in her ability to fairly

    evaluate the objection to the peremptory challenges by the

    timing and method of the objection. Defense counsel did not

    refer to the four jurors in question by their juror numbers or

    other identification, but only said that they were black. At

    the time of the objection, those jurors had already been

    excused and had left the courtroom. There is no indication

    (because defense counsel created no record) of where in the

    sequence of the prosecutor's nine peremptory challenges these

    four fell or whether the court or counsel had a clear memory of

    who those jurors were. Nor did counsel create a record of the

    race of the jurors. As the trial judge said, working later

    from her memory:

    The race or ethnicity of the jurors cannot
    be definitely known. As defendant's
    counsel stated during impanelment "I have
    no way to distinguish between Hispanic and
    black." Tr. 1-125. The court does recall
    that there were discussions with counsel,
    on and off the record, concerning the race







    -24- 24





    and ethnicity of various members of the
    venire.


    The trial judge commented that the lateness of counsel's

    objection -- after all the jurors at issue had left -- meant

    that she had "no opportunity to observe the demeanor or

    appearance or race of the excused jurors or to evaluate

    meaningfully the Commonwealth's challenges." See also United

    States v. Bergodere, 40 F.3d 512, 517 (1st Cir. 1994).

    At this general level, there is support for the

    Commonwealth's argument that this case involves an application

    of the contemporaneous objection rule. Even before Batson,

    Massachusetts, acting under its own Constitution, prohibited

    the racial use of peremptory challenges in 1979. See

    Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979).

    Subsequent cases made it clear that Soares challenges had to be

    made at a time sufficient to "provide[] the trial judge and

    opposing counsel with an opportunity to address the matter.

    This, in turn . . . created a record which was adequate for

    appellate review." Commonwealth v. Bourgeois, 465 N.E.2d 1180,

    1186 n.11 (Mass. 1984); cf. Commonwealth v. Smith, 532 N.E.2d

    1207, 1209 (Mass. 1989). Bourgeois made the record creation




    16. Our assumption, arguendo, in light of the state's failure
    to raise it as an issue until late, that seven of the jurors
    were black does not affect the trial judge's view at the time
    that there was some dispute as to the racial identity of the
    jurors and that she would have been assisted on this topic of
    racial identification had the objection been promptly made.

    -25- 25





    expectation explicit: "A record in which [the prosecution] has

    not had an opportunity to explain the use of peremptory

    challenges is inadequate to raise a Soares violation."

    Bourgeois, 465 N.E.2d at 1186; see also Commonwealth v. Colon-

    Cruz, 562 N.E.2d 797, 809 (Mass. 1990).

    In reported Massachusetts cases on peremptory

    challenges, state trial judges have often observed and

    questioned the jurors in the course of evaluating the

    challenges. See, e.g., Commonwealth v. Latimore, 667 N.E.2d

    818, 824 (Mass. 1996); Commonwealth v. Green, 652 N.E.2d 572,

    575 (Mass. 1995); Commonwealth v. Paniaqua, 604 N.E.2d 1278,

    1280 (Mass. 1992); Commonwealth v. Harris, 567 N.E.2d 899, 903-

    04 (Mass. 1991); Commonwealth v. Joyce, 467 N.E.2d 214, 218

    (Mass. 1984). This indicates that, in these cases, the


    objections to the challenges were contemporaneously made.

    Nonetheless, this leaves the matter of whether the trial

    judge's procedural ruling is based on "firmly established and

    regularly followed" rules.

    We doubt that the Supreme Court meant that a rule

    could not be "adequate" unless articulated with the level of


    17. Thus this case appears to be distinguishable from others
    where the defendant could not have been "'deemed to have been
    apprised of [the state rule's] existence.'" See Ford, 498 U.S.
    at 423 (quoting NAACP v. Alabama, 357 U.S. 449, 457 (1958)).

    18. Trial courts also consider challenges made to similarly
    situated non-black jurors, for comparison purposes, in
    evaluating challenges in the context of claims of racial bias.
    Green, 652 N.E.2d at 577 n.7.

    -26- 26





    specificity Brewer contemplates. We are satisfied that counsel

    for Brewer was adequately on notice of the general

    contemporaneous objection rule and of the requirement that a

    record be created sufficient to support review of a Batson

    claim. That may be enough to satisfy the "adequacy"

    requirement.

    Brewer, for his part, strenuously contends that the

    trial judge's ruling was not a finding of untimeliness, but a

    determination, on the merits, that he had failed to make a

    prima facie case of discrimination under Batson. We need not

    conclusively resolve whether the trial court's ruling, viewed

    as procedural, would constitute an adequate state ground for

    decision in the sense of being a rule "firmly established and

    regularly followed." Ford, 498 U.S. at 423-24. Even

    interpreting the trial judge's ruling in the way Brewer wishes

    us to, and thereby reaching the merits of his constitutional

    claim, we find that Brewer's petition is doomed.

    Brewer's Batson Claims

    As Brewer urges we do, we view the state trial

    judge's handling of Brewer's Batson claim as a finding that

    Brewer failed to show a prima facie case of discrimination.

    Brewer's habeas petition nonetheless fails.



    19. Brewer relies on language in the order denying Brewer's
    new trial motion:

    I find no support in the contention that
    the Commonwealth improperly excluded

    -27- 27





    Because the new standard of review for habeas

    petitions outlined in AEDPA is not applicable to pending non-

    capital cases like Brewer's, see Lindh v. Murphy, 117 S. Ct. --

    - (1997), we apply the habeas standard of review unaltered by

    AEDPA. Under that standard of review, we review de novo the

    state court decision. Martin v. Bissonette, 1997 WL 374793, at

    *3 (1st Cir. July 11, 1997). Within that standard, deference

    is given to fact-based determinations of the trial court. 28

    U.S.C. S 2254(d) (pre-AEDPA version). Decisions of trial

    courts regarding Batson objections are treated with

    considerable deference. On direct review, the Supreme Court

    has described the ultimate Batson question -- intent to

    discriminate -- "as a pure issue of fact" subject to clear

    error review. Hernandez v. New York, 500 U.S. 352, 364, 369

    (1991) (plurality opinion); id. at 372 (O'Connor, J.,

    concurring). That same clear error standard applies to rulings

    on whether the defendant has made a Batson prima facie case.

    Bergodere, 40 F.3d at 516 (because a Batson determination is

    particularly fact-sensitive, it will be accepted unless shown

    to be clearly erroneous). And there is no convincing reason

    why a more lenient standard should govern pre-AEDPA federal




    minorities from the jury. . . . There was
    no showing that the Commonwealth was
    excluding blacks solely by reason of their
    group membership.



    -28- 28





    habeas review of state court judgments concerning fact-senstive

    Batson determinations. Jones v. Jones, 938 F.2d 838, 842 (8th

    Cir. 1991).

    This deferential approach makes particular sense in

    the Batson context. See Hernandez, 500 U.S. at 365 (plurality

    opinion). The trial judge has heard the juror's answers to

    voir dire questions or bench conferences with the juror (such

    as the individualized voir dire on race bias conducted in this

    very case). The trial judge is thus likely to have a much

    better sense than any appellate panel of whether a particular

    challenge can readily be explained by some reason other than

    race or gender -- for example, other characteristics of the

    juror, the juror's demeanor, or something in the juror's

    background suggesting sympathy for one side or the other. This

    court has recognized that considerable deference is owed to a

    trial judge who observes the voir dire first hand:

    Evaluative judgments concerning juror
    suitability are often made partially in
    response to nuance, demeanor, body
    language, and a host of kindred
    considerations. Thus, the trial judge,
    who sees and hears both the prospective
    juror and the opposing attorneys in
    action, is in the best position to pass
    judgment on counsel's motives.

    Bergodere, 40 F.3d at 517.

    The Supreme Court has not detailed what may

    constitute a prima facie showing under Batson. Instead, in

    Batson itself, the Court said:



    -29- 29





    For example, a "pattern" of strikes against black
    jurors included in the particular venire might give
    rise to an inference of discrimination. Similarly,
    the prosecutor's questions and statements during
    voir dire examination and in exercising his
    challenges may support or refute an inference of
    discriminatory purpose. These examples are merely
    illustrative. We have confidence that trial judges,
    experienced in supervising voir dire, will be able
    to decide if the circumstances concerning a
    prosecutor's use of peremptory challenges creates a
    prima facie case of discrimination against black
    jurors.

    Batson, 476 U.S. at 97. The Supreme Court has directed trial

    judges to consider "all relevant circumstances" in determining

    whether a prima facie case of racial discrimination has been

    established. Id. at 96-97. The Supreme Court has thus largely

    left the question of what constitutes a prima facie case to the

    wisdom of trial judges themselves. Here, the trial judge, in

    light of all the circumstances, did not require the prosecution

    to state a rationale for these strikes, as would have been done

    if the judge had found a prima facie case of discrimination.

    In Bergodere, this court noted, in rejecting a Batson

    claim based on the peremptory challenge of the only black

    venireperson, that "[a] defendant who advances a Batson

    argument ordinarily should 'come forward with facts, not just

    numbers alone.'" Id. at 516 (citing United States v. Moore,

    895 F.2d 484, 485 (8th Cir. 1990) and United States v. Dawn,

    897 F.2d 1444, 1448 (8th Cir. 1990)). The Seventh Circuit has

    similarly expressed reservations about the use of numbers

    alone. McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996),



    -30- 30





    cert. denied, 117 S. Ct. 1320 (1997); see also United States v.

    Ferguson, 23 F.3d 135, 141 (6th Cir. 1994).

    We need not determine whether statistical disparity

    alone can demonstrate a prima facie case, a position adopted by

    many courts. See, e.g., Turner v. Marshall, 63 F.3d 807, 812-

    13 (9th Cir. 1995); United States v. Alvarado, 923 F.2d 253,

    255-56 (2d Cir. 1991); see also 2 LaFave & Israel, Criminal

    Procedure S 21.3, at 257 n.135.7 (Supp. 1991) (citing cases).

    This case in the trial court might have been regarded as fairly

    close, and the facts are such that we might have upheld the

    trial judge if she had found a prima facie case. It is enough

    to say that the numbers here, particularly in the absence of

    circumstances suggesting juror bias, judge insensitivity, or

    improper motive by the state prosecutor, were not so blatant as

    to compel the judge to make such a finding.

    It is the defendant who carries the burden of

    persuasion regarding the existence of a prima facie case. See

    Bergodere, 40 F.3d at 515. Part of that burden includes the

    duty to show circumstances sufficient, when combined with the

    demonstration that the prosecution's challenge was directed at




    20. Here, the numbers at first blush may give one pause,
    since, at the time of Brewer's initial objection, the
    prosecution had used four of its nine challenges against
    blacks, thus excluding four of the six blacks seated in the
    jury box (assuming the race of the jurors as Brewer claimed, a
    fact not established). However, the state trial judge had
    observed the process and apparently saw nothing serious enough
    to demand reasoning from the prosecution.

    -31- 31





    a member of a cognizable racial group and the demonstration

    that the challenge was peremptory, to raise an inference that

    the prosecutor struck the venireperson on account of race. See

    Batson, 476 U.S. at 96; Bergodere, 40 F.3d at 515-16. The

    trial judge here was not persuaded that such an inference of

    discrimination was raised, and having found no clear error in

    the trial judge's decision, neither are we.

    Fundamental Miscarriage of Justice

    We note that Brewer does suggest that he is actually

    innocent of this crime. Although this is not a capital case

    where further review may be required, Sawyer v. Whitley, 112 S.

    Ct. 2514 (1992), we explain why we think this case works no

    fundamental miscarriage of justice. Under Batson, if the

    petitioner had established a prima facie case of

    discrimination, the prosecution would have then been required

    to articulate nondiscriminatory reasons for its challenges.

    Purkett, 115 S. Ct. at 1770-71. Here, the prosecution was not

    required to provide such an explanation at the time and was

    unable to recall its reasons when the habeas petition was

    brought seven years later.

    There is some reason to think there was no infection

    of the process at all. The trial judge was herself quite

    sensitive to issues of bias -- it was she, and not counsel, who

    initially suggested voir dire as to bias, and she returned to

    the point several times. The venire members were, in the end,



    -32- 32





    asked whether they were prejudiced against African Americans or

    Hispanics and one was dismissed for bias. Such a voir dire

    creates a "high probability that the individual jurors seated

    in a particular case were free from bias." Allen v. Hardy, 478

    U.S. 255, 259 (1986) (per curiam). Accordingly, we do not

    think that the factfinding process was tainted, causing a

    miscarriage of justice here. Id.

    Of course, the core Batson principle is that "states

    do not discriminate against citizens who are summoned to sit in

    judgment against a member of their own race." Allen, 478 U.S.

    at 259. This principle "strengthens public confidence in the

    administration of justice." Id. As to the first four jurors,

    we have no evidence that the Commonwealth was discriminating

    against black venire members. But as to the fifth juror, the

    prosecution did have a valid nondiscriminatory reason for the

    challenge.

    The Brady Claim

    As to the claim that the boyfriend's identity should

    have been earlier disclosed, we agree with the district court

    that there was no Brady violation. The trial court correctly

    applied federal law, and her factual determinations were

    certainly not clearly erroneous. See 28 U.S.C. S 2254(d) (pre-

    AEDPA version).

    Brewer did not ask for the boyfriend's identity

    until the first day of trial, and when he did obtain it, he did



    -33- 33





    not ask for a continuance to make full use of the information.

    Most important, as the district court so aptly observed, "there

    is no evidence the government knew that the boyfriend's

    identity was potentially exculpatory prior to trial. . . . The

    government believed the boyfriend was the semen donor and that

    this evidence, in itself, was incriminatory rather than

    exculpatory." The rule in Brady does not typically apply

    unless the prosecutor has knowledge of the exculpatory

    evidence. See, e.g., United States v. Moore, 25 F.3d 563, 569

    (7th Cir. 1994).

    That Brewer later produced evidence that the

    boyfriend was not the source of the semen does not put "the

    whole case in such a different light as to undermine confidence

    in the verdict." Kyles v. Whitley, 115 S. Ct. 1555, 1565

    (1995). Given all the evidence, Brewer has not met his

    burden.

    The grant of the writ of habeas corpus is reversed

    and the writ is vacated.













    21. As the district court noted, the victim testified Brewer
    penetrated her twice, once with a condom and once without, but
    there was no evidence he ejaculated.

    -34- 34