SCOTUS denies cert. while Justice Sotomayor encourages Court in a future case to correct lower courts’ improper standard for assessing prejudice for IAC claims based on Batson.
Clark v. Mississippi, USSC No. 25-6846, 6/8/2026, denying petition for certiorari; Scotusblog page (with links to briefs and commentary)
SCOTUS denied Tony Terrell Clark’s petition for a writ of certiorari from the Mississippi Supreme Court’s decision affirming his conviction at a capital trial. Clark argued he received ineffective assistance of counsel during jury selection because his trial lawyer did not adequately raise a Batson challenge when the State struck black jurors at a rate five times more than white jurors. Justice Sotomayor joined the Court’s decision to deny certiorari because Clark did not argue his counsel’s performance was deficient, but explained in an accompanying statement why the Court needs to address the conflict among state and federal courts regarding the standard to evaluate prejudice for a Batson claim.
Two approaches have developed in state and federal courts to determine whether a defendant shows prejudice from counsel’s deficient performance raising a Batson claim. Mississippi and some federal courts of appeals require the defendant to show the Batson claim would have succeeded and would have produced a different outcome at trial. (J. Sotomayor Statement at p. 3). Other courts, including the Wyoming Supreme Court and the Second Circuit Court of Appeals, only assess whether the Batson challenge would have been successful but for counsel’s deficient performance. (J. Sotomayor Statement at p. 3).
Justice Sotomayor considered Mississippi’s approach “almost certainly wrong” to “the extent it requires a criminal defendant to show that a competently presented Batson challenge would have produced a different trial outcome.” (J. Sotomayor Statement at p. 3). The justice explained that Batson, when treated as a standalone claim and not part of a claim for ineffective assistance of counsel, is a structural error and not subject to harmless-error review. (J. Sotomayor at p. 4). And some structural errors, by definition, result in a fundamentally unfair trial. Justice Sotomayor considers a Batson violation such an error because it “is the racial discrimination in jury selection itself, not merely its effects on the outcome of trial, that causes the harms (to defendants, jurors, and the process itself) with which Batson is principally concerned.” (J. Sotomayor Statement at p. 5).
Although Justice Sotomayor remarked that the Court “should one day resolve the conflict outlined above and hold that Strickland does not require the kind of prejudice analysis that the Mississippi Supreme Court has adopted for Batson-related ineffectiveness claims,” Clark did not argue before SCOTUS that his trial lawyer’s performance was deficient and she concurred in denying his petition for certiorari given the independent basis for the state court’s decision. (J. Sotomayor Statement at pp 5-6).
Wisconsin does not require the defendant to show the outcome of the trial would have been different when alleging ineffective assistance of counsel based on Batson. Rather, the defendant must only establish that, had trial counsel made a Batson objection, there is a reasonable probability the objection would have been sustained and the trial court would have taken appropriate curative action. (In re Commitment of Taylor).