The Supreme Court Gets a New Opportunity to Oppose Racism in America’s Death Penalty

Posted in: Criminal Procedure

Next month, the Supreme Court will consider whether to grant a writ of certiorari in the case of Warren King, a Black man who was convicted of malice murder and other crimes in a 1994 crime that resulted in the death of a white woman, Karen Crosby. King was sentenced to death in Georgia four years later.

His case tells an all-too-familiar story of how racism plays out in the death penalty system. But despite, or rather because of, that familiarity it is important that the Court take his case and provide relief. If the battle to root out racial prejudice in capital cases is ever to be won, it will require that we not turn a blind eye to cases like Warren King’s.

That case also offers the Court a chance to send a clear message about the seriousness with which it takes violations of its 1986 Batson v. Kentucky ruling. In that ruling, the court said that it was unconstitutional for a prosecutor in any case to use peremptory jury challenges to exclude “potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”

As Justice Lewis Powell wrote for a seven-judge majority, “The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race,” Powell explained “the State also unconstitutionally discriminates against the excluded juror. Moreover, selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

Since its Batson decision, the Court has struggled to articulate standards about what would count as a race-neutral justification for exercising a peremptory challenge. In 2003, it suggested that trial judges should consider “demeanor; by how reasonable, or improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”

Some have questioned whether Batson has achieved its goal of ensuring that jury selection comports with the requirements of the 14th Amendment. In 2017, Stephen Bright, one of this country’s leading death penalty defense lawyers, called Batson a “tremendous failure.”

He argued that Batson has done “little to stop discrimination in the use of preemptory strikes.”

“You are asking a judge to make two findings on a Batson case,” Bright explained, “one finding that there was intentional race discrimination and then secondly, and what I think is even harder, is that the prosecutor lied and gave a reason that is not the real reason when in fact the reason was race. The truth of the matter is when you strike a juror there is a whole combination of reasons why a lawyer strikes a juror.”

Prosecutors know this and have adapted their tactics to try to avoid running afoul of Batson. Today, prosecutors in death cases still employ various tools to prevent Black people from serving on juries. As former Supreme Court Justice Stephen Breyer put it, “The use of race-[]based stereotypes in the jury selection process seems better organized and more systematized than ever before.”

Still, despite these problems, a 2020 report of The National Association of Attorneys General found that the Batson principle has been expanded “to include challenges where the defendant and the excluded juror were of different races, different ethnic groups, to private litigants in civil cases, and to peremptory challenges by criminal defendants….” Some courts, it reports, “have extended Batson to challenges based on religious affiliation. Other courts have extended the principle to sexual orientation.”

But, especially in death cases, the heart of Batson remains race. That brings us back to the disturbing facts of the King case.

As his cert petition notes, “During jury selection, the prosecutor exhausted his peremptories by striking over 87% of the qualified black jurors (7 of 8), while striking just 8% of white jurors (3 of 34). He struck every qualified black woman and used his three remaining strikes on white women.”

The prosecutor was ten times more likely to strike a Black juror than a white one. This is precisely the kind of conduct Batson was designed to remedy.

But there were other things in King’s case that also should have raised red flags.

When the defense challenged the prosecutor’s racially disparate strikes, he was hardly subtle about how he felt about the Batson decision and its progeny. The prosecutor erroneously “insisted that the ‘statistic[al]’ pattern of his strikes was irrelevant,” and that “neither this Court nor the Supreme Court nor the defense should be involved in deciding whether or not the State has accurately or effectively performed its strikes.”

The trial court ultimately found that the prosecutor had discriminated against one juror, whom he had struck “main[ly]” because she was a “black female.” And as King’s attorneys rightly contend, “The prosecutor’s explicit admission that he struck a juror based on race and sex, the statistical improbability that the remaining strikes were non-discriminatory, the dubious nature of the prosecutor’s proffered reasons, and the prosecutor’s unhinged demeanor should have caused reviewing courts to step in to protect Mr. King’s constitutional rights.”

But they did not do so.

The Georgia Supreme Court affirmed the trial court’s finding that the prosecutor’s other strikes did not violate Batson. It ignored his rants against Batson and his grossly disproportionate strikes against Black jurors and excused his misstatements about the struck jurors as mere “mistakes.”

The U.S. Court of Appeals for the Eleventh Circuit conceded that the “appeal presents a troubling record and a prosecutor who exercised one racially discriminatory strike and ranted against precedents of the Supreme Court of the United States,” but refused to grant relief.

While King’s case is not unusual in the way those courts treated his Batson claim, Georgia prosecutors’ practice of discriminating against Black people and women in capital cases remains a pressing problem in a nation dedicated to equal justice under law.

King’s cert. petition gives the Supreme Court a chance to reaffirm Batson and signal that it will not tolerate the kind of prosecutorial misconduct that occurred in his case. Given what happened in his trial, as King’s petition asserts, it would be “unreasonable not to find a Batson violation.”

Indeed, the Batson violation in King’s case is about as blatant as any could be. His petition offers the Court as clear an opportunity as one can imagine to oppose racism in capital cases and stand up for simple justice.

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