This is an edited version of an article that originally appeared on ATL Redline.
It is illegal for attorneys to choose (or not choose) jurors based on race. It’s been illegal for them to do it for a long, long time.
So we’ve created a way for attorneys to illegally discriminate legally.
It’s called Batson v. Kentucky and was decided in 1986. You used to be able to dismiss jurors for any reason or no reason at all. It’s called a “peremptory strike.” But in Batson the Supreme Court said that you had to have a sufficient “non-racial” reason for challenging jurors. A judge can then decide if that reason is compelling.
It’s a good rule, until you realize that the “non-racial” requirement is a loophole big enough for a Klansman to get through without folding his hat. “Your honor, we can’t have Mr. Johnson on this jury, not because he’s black, but because his father is black and the defendant in this case is a black father.” For Batson to work, a judge has to call out a prosecutor when it is obvious that he’s making up objections with the actual goal of engineering an all-white jury.
There’s no reason for the law to work this way. Instead of letting prosecutors engineer their juries, you could just empower judges to strike juries that are not sufficiently diverse. That’s what a judge in Kentucky does.
Then again, how often do we really think a judge is going to do that? How often do we think judges in Kentucky or Texas or Georgia are making that call? It’s hard to prove racial bias, even when the bias is staring you in the face.
Earlier this month, the Supreme Court heard oral arguments in the cast of Foster v. Chatman. The prosecutor was able to get a conviction and a death sentence against Timothy Foster—a black man accused of murdering an elderly white woman—with the help of an all-white jury. The prosecutor successfully challenged all of the black jurors in the pool, and a Georgia judge felt that the prosecutor had met the Batson requirements.
And that would have been the end of that if not for an open records request on a completely unrelated case, which exposed the prosecutor’s notes from the juror selection process. The notes revealed a comic-book-villain level of racism. From the New York Times:
“In at least six different ways, the prosecutors singled out eligible black jurors: Notes from the jury selection list show they marked their names with a “B” and highlighted them in green on four separate copies; circled the word “black” on their juror questionnaires; noted several as “B #1,” “B #2”; ranked potential black jurors against one another “in case it comes down to having to pick one of the black jurors”; and wrote “Definite NOs” on the list of priority strikes, which had all four possible black jurors.”
Armed with his all-white jury, the prosecutor argued that Foster should be sentenced to death to “deter other people out there in the projects.” You don’t have to be Superman to hear that dog whistle. As Chris Rock might say, the only other thing that prosecutor could have done to show that he was racist was to shoot Medgar Evers.
And still, a Georgia court found that there was no racism here. Which is why this case is at the Supreme Court.
Open and shut case?
If this isn’t a Batson violation, I don’t know what is. Put another way: if this isn’t enough to prove racism, than there is no way to do it.
But during oral arguments today, it seems that the court was more concerned about who gets to decide than what the decision should be. From Buzzfeed:
“The procedural question ultimately boils down to which lower court the U.S. Supreme Court will address when (or if) it issues a decision in the case—the Georgia Supreme Court or the trial court. To answer that question, the justices must determine whether the Georgia Supreme Court’s decision to reject Foster’s discrimination claim was a decision on the merits of that claim, or whether it was a discretionary decision not to hear it. If it was a merits decision, cert goes to them. If it was discretionary, cert goes to trial court.”
This is the problem with Batson right here. Racism in this country is like global warming: you can’t prove that any one instance is caused by it, even if you know that many instances are caused by it including the one that is smacking you in the face. If you want to believe that cabbies just don’t see black people as they drive by and super strong hurricanes are just random acts of a vengeful God, you are free to. But if your discrimination laws are based on what Georgia—not exactly a hotbed of racial progressivism—thinks is racist, your laws are meaningless.
The question is never really about whether or not something is racist, but who gets to make the call.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
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