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Several landmark U.S. Supreme Court rulings are so commonly used in criminal trial practice that they have become ubiquitous and take on a persona far greater than a judicial holding. We are all on a one-name basis with Miranda,{1} 1 Miranda v. Arizona, 384 U.S. 436 (1966). Gideon,{2} 2 Gideon v. Wainwright, 372 U.S. 335 (1963). Terry{3} 3 Terry v. Ohio, 392 U.S. 1 (1968). and Brady,{4} 4 Brady v. Maryland, 373 U.S. 83 (1963). just to name a few. We use and cite these cases so often that they end up feeling like old friends. While each of these cases involves issues of race (either explicitly or implicitly) and the expansion of rights of the citizen accused in the criminal justice system, none of these Supreme Court cases specifically call out and ostensibly prohibit blatant racism in trial practice as much as our friend Batson.{5} 5 Batson v. Kentucky, 476 U.S. 79 (1986).
More than three decades ago, Batson held that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution to use peremptory strikes during jury selection to remove potential jurors solely on the basis of their race. At its very core, Batson was intended to protect an African American criminal defendant from having a racist prosecutor intentionally and systematically exclude African American citizens from sitting on his or her jury. However, even at the time of the decision, Justice Thurgood Marshall wrote the following in his concurring opinion:
The decision today will not end the racial discrimination that peremptories inject into the jury-selection process.{6} 6 Id. at 102-03.
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I wholeheartedly concur in the Court’s conclusion that use of the peremptory challenge to remove blacks from juries, on the basis of their race, violates the Equal Protection Clause. I would go further, however, in fashioning a remedy adequate to eliminate that discrimination. Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.{7} 7 Id. at 105.
The foresight that Justice Marshall had as to the limited effectiveness and protection that Batson would provide to a defendant is astounding. Immediately after the Court decided Batson, prosecutors across the county scrambled to find ways to circumvent or survive a “Batson challenge” without eliminating the racist practice they were accustomed to using. These practices were exposed when someone leaked a Philadelphia training video used in 1987 (one year after Batson) that contained Assistant District Attorney Jack McMahon offering these instructions to new prosecutors:
When you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. … You may want to ask more questions of those people so that it gives you more ammunition to make an articulable reason as to why you are striking them, not for race.{8} 8 Gilad Edelman, Why Is It So Easy for Prosecutors to Strike Black Jurors? N.Y. Times, June 5, 2015, available at https://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors.
Similar statements, practices, and even policy manuals{9} 9 Batson Justifications: Articulating Juror Negatives, Handout at North Carolina Conference of District Attorneys (1995). proved that purposeful discrimination to exclude potential jurors based on race persisted amongst prosecuting offices nationwide.
Illustrating how these problems continue to persist today, in 2016 the U.S. Supreme Court overturned a death penalty verdict due to a Batson violation in Foster v. Chatman{10} 10 Foster v. Chatman, 136 S. Ct. 1737 (2016). and this year considered such a violation in Flowers v. Mississippi.{11} 11 Flowers v. Mississippi, No. 17-9572, 588 U.S. _____ (2019). Both of these cases involved obvious and blatant unconstitutional behavior on behalf of prosecutors. In Foster, the prosecutor’s notes were uncovered decades later that evidenced an undeniable and preexisting effort to strike every one of the black potential jurors, which is exactly what he did. In Flowers, the case before the Supreme Court was the sixth trial for Curtis Flowers. In earlier trials, the prosecutor had been found to have violated Batson and in all the trials combined, he had struck 41 of the 42 black potential jurors in the pool. In trial six, the State struck five of the six black prospective jurors. Flowers was convicted, and Mississippi’s highest court affirmed the conviction. The U.S. Supreme Court reversed on June 21, 2019. These cases are the ones that get the attention because of the clear evidence of racism, but more often it is the quiet, hidden, or even implicit racism that is so much harder to combat.
The problems and limitations that exist within Batson challenges are undeniable, but it is important that such a challenge exists within the system. Making a motion pursuant to Batson is a way for a defendant, through his attorney, to call out the likelihood of racism affecting and infiltrating the trial. What about other aspects of the criminal justice system that are affected by race and racist behavior? Where are the voices of the accused to draw attention to the appearance of racism at other stages in their prosecution? A recent survey of the social media accounts of nearly 15,000 police officers in a specifically chosen representative array of jurisdictions found thousands of offensive, problematic, and/or racist posts by these officers.{12} 12 Shaila Dewan, When Police Officers Vent on Facebook, N.Y. Times, June 3, 2019, available at https://www.nytimes.com/2019/06/03/us/politics/police-officers-facebook.html. Police officers who are bold enough to publicly post racist language or images most certainly carry those beliefs into the way they do their jobs — from investigation to arrest and ultimately to their testimony on the witness stand. The impact that this behavior has on the lives of people of color cannot be overstated. Statistics abound about the rates of arrest and incarceration of black men versus white men. Black men are incarcerated at six times the rate of white men{13} 13 John Gramlich, The Gap Between the Number of Blacks and Whites in Prison Is Shrinking, Pew Research Center, April 30, 2019, available at https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison. and receive sentences nearly 20 percent longer than similarly situated white men.{14} 14 United States Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (November 2017), available at https://www.ussc.gov/research/research-reports/demographic-differences-sentencing. Is there a Batson challenge that can be made when a cop is discriminating on the basis of race?
What about jurors who exhibit blatantly racist attitudes? Just a few months ago, the Supreme Court declined to hear the case of Tharpe v. Ford, a death penalty case in which a juror who participated in the verdict later gave a sworn statement with shockingly offensive language and beliefs about black people (the defendant in the case is a black man). While some of his language will not be repeated here, it is cited by the Court in Justice Sotomayor’s concurring opinion. The juror went so far as to comment that he was not sure “if black people even have souls.”{15} 15 Tharpe v. Ford, 139 S. Ct. 911 (2019). This information about the juror was known and accepted by the Eleventh Circuit Court of Appeals{16} 16 Tharpe v. Warden, 898 F.3d 1342 (11th Cir. 2018). as well as the Supreme Court, and yet his conviction stands and the state of Georgia has now been given the green light to put him to death. Where is the Batson challenge when jurors are discriminating on the basis of race?
Let us not forget the judges. The U.S. Sentencing Commission released a study in 2017 titled “Demographic Differences in Sentencing: An Update to the 2012 Booker Report.”{17} 17 See Update to the 2012 Booker Report, supra note 14. The Commission found a substantial disparity in sentencing between similarly situated defendants of different races, both in sentence length and in the willingness of a judge to award a downward departure. On the state level, a comprehensive project undertaken by the Herald-Tribune in Sarasota, Florida, titled “Bias on the Bench,” compiled Florida sentencing data from the past 13 years.{18} 18 Josh Salman, Emily Le Coz & Elizabeth Johnson, Florida’s Broken Sentencing System, Herald-Tribune, Dec. 12, 2016, available at http://projects.heraldtribune.com/bias/sentencing. Researchers found that judges were sentencing black defendants to nearly double the sentences of similarly situated white defendants. The statistics do not take into account other actions undertaken by the judge in a criminal case such as the granting of bond or rulings on motions or objections that can also be tainted by racial prejudice. Where is the Batson challenge when judges are discriminating on the basis of race?
This list could go on and on. Many areas of the criminal justice system are infected and infiltrated by racial discrimination and prejudice, but so few ways exist for criminal defendants to challenge that bias. Their voices, often by and through us, need to continue to call out systemic racism at every level. This organization remains vigilant in that regard. NACDL now includes “identifying and reforming flaws and inequities in the criminal justice system and redressing systemic racism” in its mission statement. This fight is at our very core. We continue to study, inform, educate, and advocate to effect and change this fundamental flaw in the system.
About the Author
Drew Findling is principal of The Findling Law Firm, which he founded after serving as an Assistant Public Defender in Fulton County, Georgia. He has tried federal and state criminal cases throughout the United States and has spoken in CLEs in over 40 states. He is a recipient of the Heeney Award, the NAACP’s Civil and Human Rights Award, a commendation by the Legislative Black Caucus of Georgia, and GACDL’s Indigent Defense Award.
Drew Findling (NACDL Life Member)
Findling Law Firm
Atlanta, Georgia
404-460-4500
drew@findlinglawfirm.com
www.findlinglawfirm.com
@drewfindling
@drewfindling
