In my county in Texas most every judge tells an assembled panel before jury selection begins they cannot be excluded from jury service because of race, ethnicity or gender. This is their way of promoting full and complete answers to questions asked of the panel touching on their possible service as a juror.
The problem? What these judges are telling these jurors is for the most part not true. These trial level judges are, for the most part, vessels in the betrayal of the principle. The primary culprits are appellate courts failing to give meaningful appellate and collateral review of the principle. This includes SCOTUS, which represents to minority communities they are protected, yet turns a blind eye to methods excluding the very populations they claim are protected.
It is the worst sort of sleight of hand because it involves the administration of justice.
SCOTUS decided Batson v. Kentucky by declaring jurors could not be excluded from jury service based on their ethnicity. To do so in state criminal prosecutions violated the 14th Amendment right of everyone to equal protection under the law. Batson introduced a three step process to determine whether the juror exclusion (strike) was impermissible:
- First, the movant, typically a criminal defendant, must make an initial showing (called a prima facie case) of discrimination. Most often this would mean showing most if not all of the minority jurors were struck by the non-moving party;
- Second, if this initial showing is made, the non-moving party (typically the state) must provide a race neutral reason for exercising the strike against the minority panel member;
- Third, the court must decide whether the under all the circumstances presented, purposeful discrimination in the exercising of the state strike of the minority jury panelist exists. The state's race neutral reasons can be attacked as pretextual, for example. Pretexual strikes come into play most often when the race neutral reason is compared against the similar answers or non-verbal behaviors given or exhibited by non-minority jury panel members who were not struck.
This week SCOTUS decided a Batson challenge in Davis v. Ayala, before the court on federal habeas review. It is a death penalty case. At trial some 25 years ago, the state had struck all the African American and Hispanic jury panel members. When Ayala's trial lawyer made a Batson challenge, the trial judge excluded the defense lawyers when hearing the state's race neutral reasons for exercising these strikes. After hearing the race neutral reasons, the trial judge denied the defense motion. Fast forward to federal habeas review. The Ninth Circuit Court of Appeals found purposeful discrimination existed and reversed for a new trial.
This is the posture of the case when SCOTUS decided it last week.
Justice Samuel Alito wrote the majority opinion. Justice Alito opened the opinion with the considerable age on the case, and then worked very hard to parse the evidentiary record to attempt to demonstrate the exclusion of the defense lawyers had not undermined the race neutral reasons given by the prosecution for the exercise of their strikes. Justice Alito concluded that any violation was harmless under Federal habeas standards.
The dissent, authored by Justice Sotomayor argued it was exclusion of the defense lawyers which drove the harm more than the evidentiary record established without them. Justice Sotomayor wrote that Justice Alito's parsing of the record was compromised because there was no adversarial hearing regarding the purported race neutral reasons given by the State. Justice Sotomayor would have presumed harm because of the exclusion of the defense lawyers in a hearing that by it's very nature required their presence to challenge evidence provided by the prosecutors of race neutral reasons for striking minority panel members.
Ayala's legacy, however, may be the concurrences of Justices Kennedy and Thomas in the judgment of the Court. Justice Kennedy used his concurrence to basically announce his openness to consider whether long term administrative segregation (solitary confinement) is unconstitutional under the 8th Amendment. Justice Thomas answered Kennedy's concurrence with a sussy to death penalty proponents deriding Kennedy's concerns for the petitioner's living conditions when contrasted with the death of his victim.
Contrast Ayala with the facts of another Batson case which SCOTUS has granted certiorari for decision next term, Ford v. Humphrey, before SCOTUS on state habeas review. Ford is also a death penalty case. The Petition for Certiorari was filed by lawyers for the Southern Center for Human Rights (SCHL), where Bryan Stevenson, the acclaimed author of the New York Times bestselling memoir Just Mercy began his legal career.
Ford was tried to a Georgia jury in 1987. Like Ayala, the state exercised strikes against all African Americans on the panel. The trial judge required the state to give race neutral reasons for the exercise of strikes, and after referring to notes, the state gave some 40 different race neutral reasons for their strikes against the minority jurors. The trial court denied the Batson motion and later a post trial request for discovery of the prosecutors notes as well as motion for new trial re-urging the Batson motion. On direct appeal the Georgia Supreme Court affirmed the conviction and death sentence.
Many years later, in 2002, the SCHR, which had taken over working the case on habeas review, made an open records request for the prosecutor notes denied Ford in his post judgment discovery motion. The results were, well, shocking, and formed the basis for the subsequent state habeas claim re-urging the original Batson violation based on the newly discovered evidence.
What the SCHL found in the prosecutor's notes can be read in the SCHL Petition for Certiorari (pages 5-8):
First, the prosecution marked the name of each black prospective juror in
green highlighter on four different copies of the jury list.
Second, the prosecution circled the word “BLACK” next to the “Race”
question on the juror questionnaires of five black prospective jurors.
Third, the prosecution identified black prospective jurors Eddie Hood, Louise
Wilson and Corrie Hines as “B#1,” “B#2,” and “B#3,” respectively, in its notes.
Fourth, Clayton Lundy, the prosecution’s investigator, ranked the black
prospective jurors against each other in case 'it comes down to having to pick one of the black jurors.' Lundy explained in a draft affidavit that he advised the prosecutor: 'if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.'
Fifth, the prosecution’s strike lists contradict the 'race-neutral' explanationsThe state trial habeas court denied relief. The Georgia Supreme Court refused review. The order from the habeas trial court denying relief reads as follows (page 9 of Petition):
proffered for the strikes of the black prospective jurors. For example, the prosecutor
claimed that his team 'had, in [its] jury notes, listed [Marilyn Garrett] as
questionable,' and only decided to strike her when Shirley Powell, the fifth black
prospective juror, was removed for cause on the morning of jury selection.
But Garrett was identified as a “No” or “Definite No” on all four of the prosecution’s
The notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists. Furthermore, the State has offered evidence sufficient to rebut such a claim. The court finds that the State put forward multiple race neutral reasons for striking each juror, and the Petitioner’s claim ofIn other words, despite the new evidence discovered (and previously denied to the defense trial attorneys despite their request) the habeas trial court still found no pretext in the State's stated race neutral reasons for striking every African American on the panel.
inherent discrimination is unfounded by the record. Importantly, this court notes that on direct appeal, trial counsel raised a claim that the trial court erred in finding that the prosecution provided race-neutral reasons for striking the four African-American jurors. The Georgia Supreme Court affirmed the trial court’s denial of this claim,finding that the prosecutor’s explanations were related to the case to be tried, and were clear and reasonably specific. The Georgia Supreme Court held that the trial court did not err by finding these reasons to be sufficiently neutral and legitimate. Foster v. State, [374 S.E.2d 188,191-92] (1988). Accordingly, the court finds the Petitioner’s renewed Batson claim is without merit.
Regardless of the ultimate outcome of Ford at SCOTUS next term, I believe at least one, maybe as many as three of the justices, will back the habeas trial court's reasoning. Justice Alito, the author of the majority opinion in Ayala, is the prime candidate to be writing a defense of, what to me, is indefensible: That the State of Georgia gave sufficient nonpretexual race neutral reasons in striking every black person on a jury panel that would be decide death or life.
You see, judges hide behind process to avoid granting Batson challenges. Trial judges typically do not like them. They work with prosecutors on a daily basis and do not like making findings that these same prosecutors have engaged in discriminatory practices in striking jurors. Appellate court judges then hide behind their process by deferring to the trial judges who acted in their fact finding roles when they decided a race neutral reason existed for the strike. Habeas judges and appellate judges reviewing collateral habeas findings hide behind harmless error, while often simultaneously fuming if the habeas is a subsequent (second, third or fourth) claim.
If I told a person of color the State of Georgia had exercised preemptory strikes on every African Americans on a death penalty jury panel, and a all white jury decided an African American defendant should receive the death penalty, they might shake their heads. If I told the same people the State of Georgia had fought attempts to review prosecutors notes, which when finally secured twenty years after the trial, demonstrated the singling out of African American jurors for the purpose of exercising their strikes against those jurors, they would be incredulous.
Yet if I told these same people of color a reviewing appellate court decided these prosecutor's notes did not establish a discriminatory intent behind the exercise of the State strikes against all the African Americans on the jury panel, they might say "Things don't change much."
You know something? They would be right. Things do not change much.
Cases like Foster only stoke the fire of perception among communities of color that the criminal justice system cannot be trusted. The evidence is there for appellate courts. Instead many choose to hide behind processes, procedures, and harmless error standards lost on those the underlying constitutional principle were supposed to protect.
Both Ayala and Ford are death penalty cases. Think about it: If this kind of chicanery is occurring in death penalty cases, can you imagine what is happening in lesser felony and misdemeanor prosecutions? Ones in which defendant's do not have access to a lawyer for post conviction purposes? There is no right to counsel for post conviction habeas proceedings in non-death cases. Without the SCHL, could a non-capital habeas petitioner jumped through all the hoops they did?
Yes, what SCOTUS giveth, it taketh away with process and procedure. What does more harm? Honestly telling a community that they can be excluded from the "administration of justice" based on their ethnicity, or placating them with assurances they cannot be so excluded, just to turn a blind eye to discrete methods that accomplish their exclusion anyway?