# Ford v. Georgia

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United States Supreme Court
498 U.S. 411
Ford v. Georgia
No. 87-6796 Argued: Nov. 6, 1990. --- Decided: Feb 19, 1991
Syllabus
Petitioner Ford, a black man charged with, inter alia, the murder of a white woman, filed a pretrial "Motion to Restrict Racial Use of Peremptory Challenges," alleging that the county prosecutor had "over a long period of time" excluded black persons from juries where the issues to be tried involved members of the opposite race. In opposing the motion, the prosecution referred to Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, in which this Court recognized that the purposeful exclusion of members of the defendant's race from his petit jury would work a denial of equal protection under the Fourteenth Amendment to the Federal Constitution, but held that the defendant would have to prove a pattern of racial discrimination in prior cases as well as his own to prevail. The trial judge denied the motion, declaring that in "numerous or several" cases he had seen the prosecutor strike prospective white jurors but leave prospective black jurors in trials of black defendants. During jury selection, the prosecution exercised 9 of its 10 peremptory challenges to strike black prospective jurors, leaving 1 black venire member on the jury. After the jury convicted Ford and he was sentenced to death, he moved for a new trial, claiming, among other things, that his Sixth Amendment right to an impartial jury was violated by the prosecutor's racially based exercise of peremptory challenges. The motion was denied, and the Supreme Court of Georgia affirmed the conviction. While Ford's first petition for certiorari was pending in this Court, the Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, which dropped the Swain requirement of proof of prior discrimination by holding it possible for a defendant to make out a prima facie equal protection violation entirely by reference to the prosecution's use of peremptory challenges in the defendant's own case. This Court ultimately vacated Ford's conviction and remanded in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, which decided that Batson' § new evidentiary standard would apply retroactively in cases such as the present. On remand, the State Supreme Court concluded that before his trial Ford had raised a Swain claim that was decided adversely to him on appeal and could not be reviewed again. The court then suggested that a Batson claim was never raised at trial, but held sua sponte that any equal protection claim that Ford might have was untimely under the rule the court had stated in State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658, 659, which, as interpreted by the court, requires that a contemporaneous objection to a jury be made under Batson in the period between the jurors' selection and the administration of their oaths. Although Sparks was decided long after Ford's trial, the court regarded the Sparks rule as a "valid state procedural bar" to federal review of Ford's claim under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594.
Held: The Sparks rule is not an adequate and independent state procedural ground that would bar federal judicial review of Ford's Batson claim. Pp. 418-425.
(a) The State Supreme Court erred in concluding that Ford failed to present the trial court with a cognizable Batson equal protection claim. Although Ford's pretrial motion did not mention the Equal Protection Clause, and his new trial motion cited the Sixth Amendment rather than the Fourteenth, the pretrial motion's reference to a pattern of excluding black venire members "over a long period of time" constitutes the assertion of an equal protection claim on the evidentiary theory articulated in Batson's antecedent, Swain. That the Georgia courts, in fact, adopted this interpretation is demonstrated by the prosecutor's citation to Swain in opposing the pretrial motion, by the trial judge's clear implication of Swain in ruling that Ford had failed to prove the systematic exclusion of blacks from petit juries, and by the State Supreme Court's explicit statement on remand that Ford had raised a Swain claim. Because Batson did not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim, it follows that a defendant alleging a Swain equal protection violation necessarily states such a violation subject to Batson' § more lenient burden of proof. Pp. 418-420.
(b) The State Supreme Court erred in concluding that the Sparks contemporaneous objection rule can bar federal consideration of Ford's Batson claim as untimely raised. Although the Sparks rule is a sensible one, its imposition here is nevertheless subject to this Court's standards for assessing the adequacy of independent state procedural bars to the entertainment of federal constitutional claims. These include the requirement, under James v. Kentucky, 466 U.S. 341, 348-351, 104 S.Ct. 1830, 1835-1837, 80 L.Ed.2d 346, that only a state practice that is "firmly established and regularly followed" at the time at which it is to be applied may be interposed to prevent subsequent review by this Court of such a claim. To apply Sparks retroactively to bar consideration of a claim not raised between the jurors' selection and oaths would apply a rule that was unannounced at the time of Ford's trial and is therefore inadequate to serve as an independent state ground under James. Indeed, Sparks would not, by its own terms, apply here, since that decision declared that its rule would apply only as to cases tried "hereafter." Pp. 421-425.
257 Ga. 661, 362 S.E.2d 764 (1987), reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
Charles J. Ogletree, Jr., for petitioner.
Paula K. Smith, for respondent.
Justice SOUTER delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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