Wednesday Writs for 3/20

Curtis Flowers

[L1]: The Supreme Court will be hearing arguments today in the case of a Mississippi man who has been tried six times for the same murder charges. This includes three overturned convictions, two hung juries, and his most recent conviction, which is now before the high court. According to his appeal, the prosecutor in the case has “relentlessly” struck as many black jurors from his case as possible, striking all ten black jurors in the pool at his first two trials (one of which strike the judge denied as racially motivated), and using all 26 of his peremptive strikes in the second two trials to excuse black jurors. The first two convictions were overturned on other grounds; the third based on “as strong a prima facie case of racial discrimination as [the Mississippi Supreme Court] had ever seen” in jury selection. At the sixth trial, after two subsequent hung juries, the same prosecutor struck 5 of 6 prospective black jurors. Flowers was convicted and sentenced to death. Now, SCOTUS will decide whether the prosecution has once again violated the rule against racially motivated juror strikes, known as the Batson rule, which arose out of our Case of the Week.

The issue stems from the practice of “peremptory strikes”; that is, the striking of potential jurors for which the attorney need not give a reason. These are different than “for cause” strikes, in which the attorney must articulate a reason why a particular potential juror could not be fair and impartial. Lawyers at a criminal trial are given a certain number (variable by jurisdiction) of peremptory strikes to use up before they must give cause.

James Batson was a black man indicted in Kentucky for burglary. At his trial, the prosecutor used peremptory strikes to remove all black potential jurors. Batson’s lawyer objected and moved to dismiss the jury on 6th and 14th amendment grounds, but the trial proceeded. He was convicted, and the Supreme Court of Kentucky affirmed the conviction. The US Supreme Court heard arguments in Batson v. Kentucky on December 12, 1985. The Court overturned the verdict in a 7-2 decision, and crafted what is now known as the Batson rule.

The Court had held a century before, in Strauder v. West Virginia, that a statute which prohibited blacks from serving as jurors was invalid. But that was largely interpreted to mean that blacks could not be excluded from being called for jury service, and did not necessarily mean that their race could not be a reason for the state to strike a person from a jury, once chosen from the pool. In the years following Strauder, the Court was often asked to consider whether a defendant had met his burden of proof supporting a claim of racially motivated strikes. In Swain v. Alabama in 1965, SCOTUS held that this burden could be met by showing an historical pattern by a prosecutor of striking black jurors. The prosecution could then rebut the argument with a showing of “racially neutral” reasons for the strike. The Batson court, in a 7-2 decision penned by Justice Powell rejected the Swain analysis, finding that a defendant can meet his burden by showing a prosecutor’s actions in his case alone, without the need to show a long-standing pattern. “For evidentiary requirements to dictate that ‘several must suffer discrimination’ before one could object… would be inconsistent with the promise of equal protection to all.”  Instead, the Court set forth a three-prong test. A defendant must show that he is 1) a member of a cognizable racial group; 2) that the prosecutor has excluded members of that group from the jury via peremptory strike, and that 3) “that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Once a defendant has met these conditions, it is up to the prosecution to rebut with proof of non-discriminatory reasons for the strike. In practice, this means that the defense raises a Batson challenge during jury selection. The prosecution must then provide a neutral reason for the strike, and the judge determines whether the strike is valid or discriminatory.

Of course, this rule was met with objection. In his dissent, Chief Justice Burger argued that the Court’s holding basically turned peremptory challenges into challenges for cause; Justice Rehnquist, dissenting separately, believed using peremptory strikes to remove blacks from the juries of black defendants was fine, so long as white jurors were similarly struck from white defendants’ juries or Hispanics from Hispanic defendants’ juries. Batson remains the rule, however, and has been expanded under certain circumstances to include other classes of discrimination including gender or ethnic background.

[L2]: For a fascinating and detailed backstory and overview of Batson, I recommend the July 16, 2016 episode of the More Perfect podcast, entitled “Object Anyway.” Both Mr. Batson himself and the prosecutor on his case are interviewed.

[L3]: In contrast to the Flowers case, SCOTUS has refused to hear argument in the case of death row inmate Keith Tharpe, after a juror on his case claimed after convicting Tharpe that he “wondered if black people even have souls” and opined that there were two kinds of black people: good ones and, well, you can guess the other. The 9-0 decision was based on procedural grounds, though Sotomayor wrote (on page 17 here) to lament the circumstances.

[L4]: In other SCOTUS news, Chief Justice John Roberts is mulling over a code of conduct for the Court’s nine justices. Some may be shocked to learn there is not one already.

[L5]: Last Friday, March 15th marked the 86th birthday of Justice Ruth Bader Ginsburg. Hundreds turned out to plank in front of the Supreme Court in her honor.

[L6]: Shortly after the imposition of Paul Manafort’s second prison sentence by a federal court in two weeks, the State of New York announced new charges against the President’s former campaign manager, alleging mortgage fraud and other felonies. Many see the move as intended to ensure prison time, should Trump issue a pardon on the federal convictions (he has no such authority on state charges.)

[L7]: The Sixth Circuit Court of Appeals has dealt a blow to Planned Parenthood, upholding Ohio’s 2016 law which forbids funding for the clinics and any provider of “non-therapeutic abortion.”

[L8]: Elon Musk is in trouble with the federal court for his tweets about Tesla production, which the SEC says violates the provisions of a September 2018 settlement over Musk’s tweets about a public offering which never materialized.

[L9]: A Minnesota judge, tired of the snow heaped upon his county by a ruthless and unrepentant Old Man Winter, ordered it stopped. The weather has begrudgingly complied, but found a loophole, setting days of rain upon the area instead.

[L10]: In honor of RBG’s birthday, enjoy Kate McKinnon’s portrayal of her and her commentary on the Kavanaugh confirmation, complete with sick Gins-burns.