Sotomayor, J., dissenting
“questioned [the jurors who expressed opposition to interracial marriage] to the extent necessary.” Trial counsel’s unusual, subsequently filed affidavits on behalf of the State are contradicted by the record: Trial counsel claims to have questioned the potential jurors who declared opposition to interracial marriage, but the record shows that counsel did not ask any questions at all related to interracial marriage of three of the four who expressed opposition. That alone demonstrates ineffectiveness. There are numerous ways to broach sensitive but necessary subjects during voir dire without invoking the ire of jurors.[1]
It is no doubt true that there may sometimes be strategic reasons not to examine jurors for racial bias, but counsel cited none here. To the contrary, the hostility the jurors expressed in their questionnaires strongly suggested that their presence would infect the proceedings with racial bias. Counsel’s subsequent affidavits therefore “resembl[e] more a post hoc rationalization of counsel’s conduct than an accurate description of their” strategic decisions during voir dire. Wiggins v. Smith, 539 U. S. 510, 526–527 (2003).
Because the Court of Appeals erred at the first Strickland prong, it did not reach the second. It is plain, however, that the state habeas court’s perfunctory conclusion that “[petitioner] has not demonstrated that any alleged error prejudiced [the] defense,” App. to Pet. for Cert. 373a, violated clearly established law. As we have often recognized, seating even one biased juror infringes on a criminal defendant’s Sixth Amendment right. See Parker v. Gladden, 385
- ↑ For instance, defense counsel could have posed something like the following question: “Thank you for your honest response to the question about your feelings toward interracial marriage. Many people have strong feelings on the matter. For some people it can be hard to put those feelings aside in judging evidence for a verdict, or especially in determining an appropriate punishment. Is there any possibility that your personal feelings about interracial marriage could influence you in this case in any way? If there is, although you may be the perfect juror for many other cases, you may not be a great fit for this case.”
