On Point: 3. Batson issues

State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity

C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.

The Legal Profession Blog reports on an ugly murder case out of New Jersey. Click here. A prosecutor tried to remove a Black prospective juror, F.G., for cause. When the judge ruled against the State, the prosecutor ran a records check on F.G., found a warrant and told the judge. The judge and the prosecutor then decided to dismiss F.G., wish him a good day, and have him arrested outside the presence of the jury pool.

State v. Patrick D. Zolliecoffer, 2018AP1639-CR, 8/20/19, District 1 (not recommended for publication); case activity (including briefs)

Zolliecoffer challenged two of the State’s peremptory strikes as racially based. On appeal, the State conceded that the circuit court failed to apply the 3-step procedure for analyzing Batson claims, which On Point recently explained here.  Zolliecoffer urged the court of appeals to remand for a new trial. The State sought a remand to apply Batson. Surprise! The State won.

State v. Malcolm J. Sanders, 2019 WI App 52; case activity (including briefs)

Sanders is black, and the DA struck the only black jurors from serving on his case because, even though they said they could be fair, they had had prior bad experiences with police, including being the subjects of racial profiling. Judges Gundrum and Neubauer held that the DA did not discriminate. But in another “must read” dissent, Judge Reilly said:

It is a perversion of justice to accept the reasoning that because we have unfairly treated blacks (or any class of people), we can then use our wrongful acts to prevent blacks from serving on juries. Utilizing our unfair treatment of blacks as a valid “race neutral” reason to keep blacks off juries is itself discrimination. Dissent, ¶16.

Flowers v. Mississippi, USSC No. 17-9572, 2019 WL 2552489, June 21, 2019, reversing Flowers v. State, 240 So. 3d 1082 (Miss. 2017); Scotusblog page (includes links to briefs and commentary)

The Court reverses Curtis Flowers’ conviction and death sentence and orders a seventh new trial on the ground that the district attorney at his sixth trial (he also prosecuted the other five) exercised at least one peremptory strike with racially discriminatory intent. Three previous convictions were overturned by lower courts because of “numerous instances of prosecutorial misconduct” (that was the first one) “prosecutorial misconduct” (two) and “as strong a prima facie case of racial discrimination” as the Mississippi Supreme Court had “ever seen” (this was trial number three).

State v. Michael Exhavier Dunn, 2018AP783-CR, 4/30/19, District 1 (not recommended for publication); case activity (including briefs).

The lead issues in this appeal are whether the jury pool for Dunn’s trial represented a fair cross section of the community and whether Dunn was denied equal protection when the DA struck 2 of the 3 African-Americans from the 30-person jury pool for his case.

State v. R.D.W., Sr., 2018AP351, 6/19/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

There were only 3 black jurors among the 25 on the panel for the grounds trial in this TPR cases. The ADA used peremptory challenges to strike all of them. The ensuing Batson hearing concerned only one–Juror 2. As proof of non-discriminatory intent, the DA filed a copy of her NAACP membership card, showed her Coretta Scott King tattoo, and explained why she struck Juror 2.

Foster v. Chatman, USSC No. 14-8349, 2016 WL 2945233 (May 23, 2016); reversing an unpublished order of the Supreme Court of Georgia; Scotusblog page (includes links to briefs and commentary)

Timothy Foster, who is black, was convicted of murder and sentenced to death by an all-white jury. Long after his conviction, his attorneys obtained documents from the prosecutors’ files showing their heavy reliance on race in deciding which jurors to strike. Seven of the eight justices now side with Foster and reverse the state courts’ rejection of his habeas claim under Batson v. Kentucky, 476 U.S. 79 (1986).

State v. Courtney J. James, 2014AP2230-CR, District 1, 8/25/15 (not recommended for publication); case activity (including briefs)

The prosecutor’s use of a peremptory strike to remove an African-American from the jury did not violate Batson v. Kentucky, 476 U.S. 79 (1986), because none of the three parts of the Batson are satisfied in this case.

Question presented:

Did the Georgia courts err in failing to recognize race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), in the extraordinary circumstances of this death penalty case?