David Hackett Souter

“ The requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule. The imposition of this rule is nevertheless subject to our standards for assessing the adequacy of independent state procedural grounds to bar all consideration of claims under the national Constitution. A review of these standards reveals the inadequacy of Georgia's rule in Sparks to foreclose consideration of the Batson claim in this case. ”

“ On appeal, the Supreme Court of Georgia at one point interpreted petitioner's claim as one "that the prosecutor's use of peremptory strikes to remove 9 of 10 possible black jurors denied Ford his right to a jury comprised of a fair cross-section of the community." ”

“ 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 violation of equal protection of the law under Swain necessarily states an equal protection violation subject to proof under the Batson standard of circumstantial evidence as well. Thus, from the determination by the Supreme Court of Georgia that petitioner raised a claim under Swain, it follows that he raised an equal protection claim subject to the more lenient burden of proof laid down in Batson. ”