His confidence faded as jury selection began. Stackhouse, a Black man then in his late 20s, found no one who looked like him among the pool. There were no Black males and few people of color at all, and hardly anyone close to his age, he recalls.

“I was terrified,” Stackhouse, now 47, told Bolts. “I remember going through and trying to select individuals who I felt would at least hear my side of what happened, but then I was going to trial knowing that I could definitely be speaking on deaf ears.”

Stackhouse was convicted and later incarcerated for 12 years. 

The jury arrangement in his case was hardly an unlucky break. By design, New Jersey jury pools are unrepresentative of the populace, in large part because of state law excluding people with past convictions from juries for life. 

These exclusions massively bias the jury pool because New Jersey’s criminal legal system so disproportionately targets Black residents, from police stops to sentencing. The state permanently bars about 25 percent of Black adults from serving on a jury, according to estimates shared by the New Jersey Institute for Social Justice. By comparison, it bars 7 percent of all adult residents.

These are high rates even by national standards. Though every state excludes some people with criminal records from juries, New Jersey’s policy is unusually harsh: It bans people from jury service for life if they’ve been convicted of any “indictable offense”—a category which include felonies as well as some lower-level crimes that would be considered misdemeanors elsewhere. Only four other states are as restrictive as New Jersey: Maryland, Pennsylvania, South Carolina, and Texas.

A free man today, Stackhouse is now helping to champion a proposed reform meant to make New Jersey juries more representative of the communities in which they serve. Assembly Bill 834, filed earlier this month, would allow anyone to serve on a jury so long as they are not currently incarcerated for an indictable offense. 

The bill calls for the continued exclusion of those who’ve been convicted of murder or aggravated sexual assault, but otherwise opens jury service up to everyone living on the outside—including those on parole or probation. Its passage into law would instantly make New Jersey’s jury exclusion law one of the country’s most permissive. 

“New Jersey has an opportunity to be a leader in the nation, and a leader in one of the best ways: having our juries be robust and reflective,” Emily Schwartz, senior counsel for the New Jersey Institute for Social Justice, told Bolts. “We have an incredibly diverse state of all life experiences. That can only make this process a stronger one.”

New Jersey lawmakers have been debating this question as far back as 1995, when the state adopted a law permitting jury service for anyone who’d completed a full sentence for an indictable offense—only to repeal it in 1996.

More recently, lawmakers have considered reforms to expand jury service eligibility every session since 2018. This year’s proposal seems to have real momentum, as a reform identical to AB 834 already cleared one chamber of the statehouse in early January, at the end of the last legislative session. AB 834 was filed the next day, at the onset of the current session, sponsored by Assembly members Verlina Reynolds-Jackson and Shanique Speight, both Black women. 

“We’re getting close,” Stackhouse said. Schwartz added she believes this bill can pass by the summer. 

New Jersey, like the rest of the country, owes much of its jury exclusion practice to explicitly racist post-Reconstruction campaigns to keep Black people out of jury boxes. Those efforts are still serving their purpose today; all across the country, Black and other Americans of color overall are disproportionately more likely to be arrested and incarcerated. This means they are less likely to serve on juries, either because of exclusion for past convictions or because of state policies that alienate marginalized communities from civic life. 

Plus, defendants must contend with a criminal legal system in which trial judges and elected prosecutors are almost always white.

“We’re whitewashing a space that’s disproportionately affecting Black and brown communities,” Schwartz said, “which really calls into question: who is getting a jury of one’s peers?”

The upshot in New Jersey is a disparity between imprisonment rates for Black and white citizens greater than in any other state in the country. The Sentencing Project reported in 2021 that Black New Jerseyans were 12 times likelier than their white neighbors to be incarcerated—more than double the national average disparity.

In New Jersey and the U.S. overall, the vast majority of criminal cases never go to trial, resolving instead with plea deals. Among the reasons why, several formerly incarcerated New Jerseyans and criminal defense attorneys told Bolts, is the discouragement that comes from knowing one’s fate at trial may well be determined by a set of people who cannot relate to the defendant.

“The expected composition of the jury affects the way we advise people about whether to go to trial, in certain types of cases,” said Andy Elders, a Virginia-based public defender. “If our defense is going to be that the police are lying, or that there was police violence, or if our defense is that the accused fled from the police because he was afraid of them—those are experiences that are more likely to be racially coded, where, for example, Black people may have different experiences than white people.”

Research has shown that more diverse juries are less quick to convict, deliberating longer and more thoughtfully. One study conducted in the Houston area concluded that proportionate representation on juries could reduce median sentence terms by 50 percent.

“More perspectives on juries means more understanding,” Schwartz argued. “In a room where you have 100 people and they all hear the same story, what each person takes from that story can shift a little bit, so doesn’t it give more credibility to the process to have more perspectives?”

The jury selection process, known as voir dire, is already designed to dismiss those who demonstrate biases that could cloud their judgment. At the heart of the argument for New Jersey’s reform is the basic premise that everyone has a unique worldview that precludes total impartiality, and that it is thus unfair to exclude one class of people entirely. 

“Ultimately, the prosecutor and the attorney have to agree on who sits on the jury. There’s a process in place to weed them out, so why wouldn’t we be included in that?” Frank Gilmore, who was incarcerated for seven years in New Jersey, told Bolts.

Gilmore is now a city council member in Jersey City. It’s one of the most racially diverse cities in the country, with roughly equal numbers of white, Asian, Black, and Latinx residents—but Gilmore recalls that the jury in his trial was mostly white. The conviction resulting from that trial is still keeping him from serving on juries today, which he finds especially, bitterly ironic.

“I’m a legislator; I create legislation, I write laws. Who better to judge if someone broke the law than a person that created it?” he said. “It doesn’t make sense, and it’s not consistent with this idea that we give people second chances.” 

Gilmore and others backing the New Jersey bill say they’re concerned that it carves out those convicted of murder and aggravated sexual assault. Schwartz called this a “kneejerk reaction to what [lawmakers] think of more upsetting crimes,” and said this selective exclusion “also ignores the reality that we all have our biases.” 

Rev. Dr. Russell Owen, who was released from prison in 2021 after being incarcerated for 32 years on a murder conviction, said that the exclusions in the bill also serve to keep people like him in a permanent underclass. “They’re telling me there’s a limit to my integrity, a limit to my goodness, a limit to my rehabilitation,” Owen, now a community organizer with Faith in New Jersey, told Bolts. “I am not a carve-out. I am more than that, but what they’re saying is that I’m still not a real citizen.”

But those proposed carve-outs were the product of an amendment to last session’s version of the bill that passed late last year by a Democratic-controlled Assembly committee and later by the full Assembly. Advocates aren’t happy with the change, Schwartz said, but they feel it makes the bill much more likely to pass.

Ann Roan, a longtime public defender who has lectured around the country on voir dire, warns that even if New Jersey’s bill does become law, it may not make juries much more racially representative. Roan has seen up close how a law that appears inclusive on paper may not play out in practice: she’s from Colorado, which has one of the country’s most permissive laws on jury exclusion, and she said racial bias still very much persists there in jury trials. 

Though the U.S. Supreme Court has held that one cannot be dismissed from a jury pool simply on the basis of race, Roan said plenty of proxy options remain. Those hailing from communities that experience heaviest policing and incarceration are often most skeptical of law enforcement, Roan has found. In the voir dire process, she said, many prosecutors find such skepticism to be disqualifying.

“Your lived experiences and your honesty about your lived experiences only work if those lived experiences are congruent with support for law enforcement. Otherwise you’re deemed not fit to serve,” Roan said.

“I tend to believe that if this bill in New Jersey passes, you will not see skyrocketing numbers of prior convicted felons being part of juries, because prosecutors are not going to let that happen.”

The post New Jersey May Open Juries to Most People with Criminal Convictions appeared first on Bolts.

Evans captured national attention when, in 2019, he drew an unusually scathing condemnation from the U.S. Supreme Court for engaging in racial discrimination during jury selection at Flowers’ many trials. Flowers was set free after nearly 23 years behind bars and awarded $500,000 by the state of Mississippi for his wrongful imprisonment. Yet Evans faced no consequences.

He continued to run his DA’s office without additional oversight, dodging bar discipline and a civil rights lawsuit, and cruising to re-election unopposed. In an apparent response to the Supreme Court ruling, a lawmaker introduced bills to reform jury selection, but those went nowhere in the legislature. Now Evans exits his office as he ran it, on his own terms, having set the stage for one of his deputies to take up his mantle. 

Evans, now 70, submitted his resignation letter to a state agency in late May, but made no public announcement regarding his departure to his constituents. A local judge revealed Evans’ plans in a court filing on Wednesday. Both documents were reviewed by Bolts.

I first came across Evans in 2017 when I began reporting on the Flowers case for In the Dark, a podcast that investigated Flowers’ ordeal at the hands of Evans.

At the time, Flowers was on death row at the Mississippi State Penitentiary in Parchman. He’d been convicted in 2010, at his sixth trial, for the 1996 murders of four people at Tardy Furniture store in a town called Winona. Flowers’ first three trials had resulted in convictions that were later overturned by the Mississippi Supreme Court due to prosecutorial misconduct; his fourth and fifth trials ended in hung juries.

We found that Evans had used unreliable and faulty evidence in his repeated prosecutions of Flowers, and our analysis of Evans’ discriminatory jury selection practices—in the Flowers case and beyond—revealed his troubling legacy as a prosecutor.

Montgomery County, Mississippi, where the Tardy Furniture murders took place, is nearly half Black. And yet, the juries that convicted Flowers never had more than one Black member; two were all white. Though the U.S. Supreme Court had ruled in 1986 that it’s unconstitutional to dismiss people from juries because of their race in a landmark decision known as Batson, Evans seemed to be doing just that. 

In Flowers’ second trial, Evans removed a Black juror who he claimed was in a gang and sleeping in the courtroom. Neither claim turned out to be true, and the judge ordered the man back on to the jury, ruling that Evans had violated Batson. In Flowers’ third trial, Evans used all 15 of his discretionary strikes to remove Black people from the jury. When the Mississippi Supreme Court reversed Flowers’ conviction from that trial, the court called Evans’ actions “as strong a prima facie case of racial discrimination as we have ever seen.”

Evans’ behavior in Flowers’ trials was part of a broader pattern at his office. In the Dark’s team spent months collecting trial records—over 115,000 pages of them—deciphering notes scrawled on jury lists, and analyzing transcripts of juror questioning. We found that, over a period of 26 years, Evans and his assistants had struck Black prospective jurors more than four times as often as they struck white ones. 

Evans’ alarming history gave the U.S. Supreme Court cause to throw out yet another of Flowers’ convictions in June 2019. The high court condemned Evans’ prosecution in stark terms. “The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury,” wrote Justice Brett Kavanaugh. 

Evans was undaunted. “It was a ridiculous ruling,” he told a local newspaper shortly after the decision. “They basically said there was nothing wrong with the case and reversed it anyway.”

For a brief time that year, it looked as if Evans might face consequences for his misconduct. He’d become an exception to the rule that prosecutors elude scrutiny, with multiple judges saying his practices for selecting juries violated the constitution.

An In the Dark listener had filed a complaint against Evans with the Mississippi Bar Association, which can reprimand, suspend or disbar attorneys who violate professional standards. And four of Evans’ Black constituents filed a lawsuit, alongside a local branch of the NAACP, seeking court-mandated oversight to force Evans to clean up his act. They asked a federal judge to “hold [Evans] accountable for the policy, custom, and usage of racially discriminatory jury selection” and to grant “an injunction to end this odious practice.” 

But the lawsuit was thrown out on procedural grounds, and the bar complaint has resulted in no known discipline. 

One state lawmaker, Derrick Simmons, authored a bill in 2021 that would have made it easier for defendants like Flowers to stop Evans, or any other prosecutor, in his tracks, if he looked to be discriminating against prospective jurors on the basis of race. But the bill died in a legislative committee. Simmons, a Black Democrat, tried two more times, filing the bill again in the 2022 and 2023 sessions, and twice more it died without ever making it to the floor for a vote. 

Progress on this issue has been slow-moving throughout the country, but in recent years, some states have made strides by limiting the ways lawyers can use peremptory challenges, the discretionary strikes that allow them to remove jurors without having to state a cause. Washington and California have both adopted rules aimed at preventing unconscious or implicit bias in their use. California’s 2020 law, for instance, makes it easier to argue that the removal of a prospective juror violates Batson, barring the attorney that asked for the removal from defending it with reasons that are essentially proxies for racial discrimination, like having a relative who’s been stopped by police or having a general distrust of law enforcement.

The Arizona Supreme Court went a step further in 2021, eliminating peremptory strikes altogether. Now jurors in Arizona can be dismissed only when a judge has determined they are unable to serve.

Peter Swann, former chief judge of the Arizona Court of Appeals, filed the petition to Arizona’s Supreme Court that resulted in the change. He says he was inspired to take action after an especially egregious Batson case came before him on the bench. “I usually find that when a tool is being used unfairly, taking it away is often the only way to achieve fairness,” he told me. “It’s very hard to have a view that discrimination will happen in jury selection if you take away peremptories.”

Data collected by the court system in Maricopa County, where more than half of Arizonians live, shows that this change has made juries more diverse. The share of jurors identifying as Hispanic increased by 15 percent in criminal trials between 2019, the last full year before the reform when jury trials were unperturbed by the pandemic, and 2022, the year the change took effect. On civil juries, the share of jurors of color saw an uptick of roughly 15 percent over the same period.

“A successful Arizona experiment, which we now have, is going to add fuel to the fire,” Swann said. “Arizona was the first domino. Eventually they’re going to start falling.”

It seems unlikely that Mississippi will be next.

“Legislators in Mississippi aren’t interested in strengthening Batson,” said Tucker Carrington, who heads the Mississippi Innocence Project and was one of Flowers’ lawyers. “Legislators know that race affects peoples’ lived experiences, and many of them are also lawyers who don’t want to make it harder to control which lived experiences end up on their juries.”

Carrington says eliminating peremptories is a step in the right direction, but he also thinks that Batson needs a more ambitious overhaul in order for juries to truly become fair.

“Doug Evans is an egregious example, but the criminal justice system is full of prosecutors like him. Under the Batson paradigm, nothing much happens to them. They get a slap on the wrist and then it’s back to business as usual,” Carrington said. 

Indeed, Evans was allowed to try Flowers again and again, even after he was caught discriminating in Flowers’ trials. Just months after the Supreme Court’s rebuke made him a national figurehead of misconduct, Evans was elected to a sixth term as DA of Mississippi’s Fifth Circuit Court District; no one even ran against him. Last fall, he was bold enough to throw his hat into the ring for a local judgeship. It was there that he finally suffered a setback, losing to a popular local attorney in a runoff. 

Not long after, with his job as DA back in play in the 2023 election cycle, Evans let a February filing deadline pass without entering the DA’s race, forgoing a reelection bid.

He then told his staff he would leave office early, on June 30, in the middle of the contest to fill his seat. He sent his resignation letter to the state of Mississippi in May, which I learned through a public records request to the governor’s office. But he made no statement to the public that had kept him in his post for decades. I called Evans to ask about his imminent exit, but he hung up on me once I identified myself and did not respond to a later text message.

Circuit Judge Joey Loper, who presided over two of Flowers’ trials and ordered his release from jail in 2019, on Wednesday appointed Mike Howie, an assistant prosecutor in Evans’ office, to serve as interim DA upon Evans’ departure.

Evans’ long-term successor will also come from within his office. Only two candidates are running to replace him in the upcoming election, and both are his assistant DAs.

The winner will be decided in the Aug. 8 GOP primary in the state’s Fifth District, which covers Attala, Carroll, Choctaw, Grenada, Montgomery, Webster, and Winston counties. 

One of the candidates, Adam Hopper, is the long-time staffer who did Evans’ bidding in the final days of the prosecution of Curtis Flowers. It was Hopper who appeared in court in late 2019 to say his office still had a strong case against Flowers and to oppose his release from jail, even after his conviction had been overturned by the U.S. Supreme Court. Hopper didn’t respond to requests for comment.

His opponent, Rosalind Jordan, is one of Evans’ newer assistant DAs. Jordan, a former public defender, told me that “it’s important that you go the extra mile in making sure that you do your jury selection properly, and that you don’t discriminate based on sex or race or anything like that.” But she also said she thought no change was needed at the DA’s office.

“What I’ve witnessed since I’ve been here since 2021, I’ve found to be completely in compliance with our ethical code and the rules of criminal procedure,” Jordan said.

“I would just encourage continuing to follow that.”

On Friday, the same day Evans leaves office, the U.S. Supreme Court declined to hear an appeal by Tony Terrell Clark, a Black man sitting on death row in Mississippi, who alleged that his conviction was marred by Batson violations. (The case was not prosecuted by Evans’ office.) The state Supreme Court rejected Clark’s challenges last year. In response to the U.S. Supreme Court’s refusal to take up the case, Justice Sonia Sotomayor wrote an excoriating dissent warning that Mississippi courts seem to be “[carrying] on with business as usual,” rather than heeding her court’s 2019 decision in Flowers’ favor. 

“Because this Court refuses to intervene, a Black man will be put to death in the State of Mississippi based on the decision of a jury that was plausibly selected based on race,” Sotomayor wrote in reference to Clark, joined by Justices Elena Kagan and Ketanji Brown Jackson. “That is a tragedy, and it is exactly the tragedy that Batson and Flowers were supposed to prevent.”

“The result is that Flowers will be toothless in the very State where it appears to be still so needed.” 

The article was updated on June 30 with a response from the governor’s office, and with a new order by the U.S. Supreme Court in the case of Tony Terrell Clark.

The post Mississippi DA, Exposed for Striking Black Jurors, Leaves His Office On His Own Terms appeared first on Bolts.

In a ruling issued earlier this month, a federal court left a Black man on death row despite the emergence of new documents that suggest prosecutors sought to eliminate Black people from the jury pool. 

The decision reveals the length to which judges will go to permit prosecutors’ maneuvers,  and underscores the urgency of political solutions that could create meaningful constraints on prosecutors.

It’s well-established that the rule barring race discrimination in jury selection is inadequate, bordering on useless. The rule, established in the 1986 Supreme Court case Batson v. Kentucky, is so narrow and its burden of proof so high that prosecutors have had little trouble devising ways around it. Finding a Batson violation—that prosecutors struck a potential juror because of race—ultimately requires finding that prosecutors intentionally discriminated and that any acceptable reason they gave for removing a juror was a lie, knowingly offered to conceal the racism driving their conduct. 

Part of Batson’s deficiency is that it leaves judges, a great many of whom are former prosecutors themselves, wide leeway to defer to prosecutors. In most cases, a judge simply taking the prosecutor at their word is all it takes to kill a Batson claim. And prosecutors have developed training manuals on how to get all-white juries while going through the hollow motions of legal compliance. 

The ruling by the Fifth Circuit Court of Appeals this month, along with the 2019 district court ruling it affirms, exemplifies judges’ extraordinary deference to prosecutors, and the contorted reasoning they use to avoid holding prosecutors accountable for even the most obvious racism. 

The Fifth Circuit denied relief to James Garfield Broadnax, in a decision written by Edith Jones, a conservative judge who once complained that a last-minute appeal in a death penalty case made her miss a birthday party. Broadnax was sentenced to death in 2009 in a case where prosecutors tried to exclude every Black person from the jury pool. Prosecutors even highlighted each potential Black juror on written documents that they then withheld and that only recently surfaced. The Dallas district attorney’s office, where they worked, has a long history of racial discrimination; it had “for decades, followed a specific policy of systematically excluding blacks from juries,” the Supreme Court found in 2005.

But rather than face the discrimination staring at them, the district court and the Fifth Circuit panel recast much of this evidence as the prosecution’s good-faith efforts to comply with Batson. 

At Broadnax’s murder trial, prosecutors used their peremptory strikes—which allow lawyers to remove potential jurors for virtually any reason or no reason at all—against all seven Black potential jurors and one Latinx potential juror. They pointed to factors that disproportionately affect Black people in the United States, for instance striking one potential juror because she had relatives in jail. The trial judge initially permitted this tactic before reseating the last Black juror, offering a make up of sorts for the racism he had allowed before then: “I’m going to grant the Batson challenge and I’m going to do so because of the fact that there are no African-American jurors on this jury and there was a disproportionate number of African-Americans who were struck,” he said. 

That ruling gave Broadnax 11 white jurors and one Black juror whom the prosecution had tried to remove.

In addition, prosecutors had marked the names of each Black juror—and only the Black jurors—in bold font on a spreadsheet. Prosecutors had withheld this document for years, until after Broadnax had finished his state court appeals and filed his habeas petition in federal court. 

This spreadsheet was the focus of the Fifth Circuit’s opinion. The court had to decide whether the rules governing federal claims of unlawful imprisonment would allow Broadnax to submit the spreadsheet as new evidence of race discrimination, or if, as the federal district court had decided, the document must be excluded, effectively dooming Broadnax’s claim. 

In other cases, prosecutors have tried to spin such evidence into a positive, claiming they marked the Black jurors they eventually struck from the jury pool as part of their efforts to avoid discrimination. 

In Foster v. Chatman, this drew the rare wrath of the U.S. Supreme Court. In that 2016 case, prosecutors in Butts County, Georgia, had a list of potential jurors with the names of all four Black jurors highlighted in bright green (a legend indicated that the highlighting “represents Blacks”), and then struck them from the jury. The state of Georgia later argued that, while this may look bad, it reflects how the prosecution was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors,” and worked “to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” 

The Supreme Court didn’t buy it. “The focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” the Court wrote, and any suggestion to the contrary “reeks of afterthought.” 

But in Broadnax’s case, both the federal district court and the Fifth Circuit declined to follow the Foster ruling’s lead. They announced that marking Black jurors on a list and then trying to strike all of them could have indicated benevolent race-consciousness intended to comply with Batson. 

They reasoned that the DA’s office’s history of racist jury selection may actually count in its favor. Since prosecutors have been caught discriminating before, the courts explained, they should be tracking the race of potential jurors to better protect people of color, and judges could assume that was their intent with the spreadsheet.

The district court said “it would have been professionally irresponsible for the Dallas County District Attorney’s Office (in 2009) to have failed to identify the members of the remaining jury venire who were members of a protected class and against whom it might have been preparing to exercise a peremptory challenge.” The Fifth Circuit echoed this, explaining that, given its history, the “office would have had considerable motivation to identify which jury venire members belonged to a protected class when preparing to defend its use of peremptory challenges.” 

Absent from this analysis is the fact that prosecutors attempted to strike every single juror they were supposedly trying to protect. 

Looking at the evidence this way, the Fifth Circuit found that the spreadsheet was, at best, unimportant—certainly “no smoking gun,” it wrote—and affirmed the district court’s decision not to consider it. In a system that routinely holds people’s history of misconduct against them, prosecutors got a free pass, and James Broadnax remains sentenced to die.

There is some chance that the Supreme Court will intervene, as it did in the high-profile case of Curtis Flowers, decided in 2019. But that would only underscore how slow and nearly random securing justice under Batson can be. Flowers sat on death row for decades and was tried six times for murders he almost certainly didn’t commit. Over that time, 61 of the 72 jurors who decided his fate were white. And although Flowers won, the Supreme Court declined the opportunity to use his case to strengthen Batson, instead emphasizing that its ruling was limited “to the extraordinary facts of this case.” Moreover, the prosecutor in Flowers’s case, Doug Evans, has so far evaded accountability, and a civil lawsuit against him was dismissed last year. 

But elected lawmakers don’t have to wait for judges to battle discrimination. Last year, California passed legislation that targets how implicit bias and racial stereotypes often influence jury selection, accounting for racism that is hard to detect and can infect jury selection even when prosecutors do not intend it. This can allow relief without defendants having to prove that prosecutors were intentionally discriminating against potential jurors of color. Among other things, the law presumptively bars an enumerated list of reasons that prosecutors have often used to exclude Black jurors, including “having a negative experience with law enforcement” and “expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.” The Washington Supreme Court adopted a similar rule in 2018. 

Such a law may have helped Broadnax, had it been in place in Texas at the time. It certainly would have made it harder for prosecutors to get away with striking one juror because she had relatives in jail, and another because she had children but no employment and “desperately wanted to sound intelligent” — both “race neutral” explanations that prosecutors used to defeat Batson challenges in his case. 

When he authorized most of prosecutors’ requests to exclude jurors of color, the trial judge in part blamed  Batson’s exacting standard of intentional discrimination. “The problem … is that if you grant a Batson challenge it implies some sort of nefarious intent on the part of prosecutors … you’re essentially saying that the prosecutors are lying,” he said. While Broadnax argued at trial and throughout his appeals that he proved Batson violations, a law like California’s would have also enabled the judge to grant the defense team’s objections without finding “nefarious intent.”

But reforms to jury selection require courts to enforce them, and they will not be enough as long as judges excuse even overt, documented discrimination, giving prosecutors every benefit of the doubt. That’s why there’s a growing chorus to abolish peremptory strikes altogether, and allow lawyers to strike only those jurors who are not qualified to serve. That’s what Justice Thurgood Marshall argued when he concurred in Batson itself. The “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds,” he wrote, “should ideally lead the Court to ban them entirely from the criminal justice system.” 

In the meantime, Broadnax remains on Texas’s death row, his legal challenges nearly exhausted. Now only the U.S. Supreme Court can vindicate his right to jury of his peers, selected without the taint of racial discrimination.

The post Prosecutors Excluded Black Jurors in a Death Penalty Case. They’re Getting Away With It. appeared first on Bolts.

During the 2017 murder trial of Gary Timothy Bryant Jr. and Diallo Ray Jackson, who are both Black, prosecutors in Contra Costa, California, struck all six Black people from the jury pool. They excluded four of them with peremptory strikes—the rule that allows lawyers to exclude a certain number of jurors for nearly any reason or no reason at all—later citing the prospective jurors’ prior experiences with or stated distrust of law enforcement. 

One of the potential jurors, for example, said that he had been pulled over three times, once because his truck was two inches too high. Another said that he felt some police officers “abuse their authority, especially involving Black suspects.” 

The defense lawyers objected, accusing prosecutors of trying to pick a jury that excluded “the human experience of what a Black person goes through in this society.” It’s unconstitutional for prosecutors (and defense lawyers) to strike jurors because of their race, a rule the Supreme Court established in its landmark 1986 decision Batson v. Kentucky. 

But even under Batson, courts still allow prosecutors to exclude jurors for reasons that track closely with race and racial stereotypes, like living in a predominantly Black neighborhood or wearing dreadlocks, providing wide leeway that has led to the continued exclusion of Black people from jury service. Many cases have also held that prosecutors can strike jurors specifically because they or their family members had been victims of racial discrimination in the criminal legal system, viewed police and prosecutors with skepticism, or advocated for racial justice. Being Black isn’t a valid reason to dispense with a juror. But living the reality of being Black in America, or trying to do something about it, is, in many cases, fair game. 

That was true for the Black people who appeared for jury duty at Bryant and Jackson’s 2017 trial. Citing these prior court decisions, the trial court upheld the prosecution’s strikes and seated a jury without a single Black member. Both men were convicted, and the convictions were later affirmed on appeal. 

Still, for one of the judges who heard their appeal, California First District Appellate Court Judge Jim Humes, the case screamed for reform. “In light of the undeniable evidence that some minority groups—particularly black men—have been overpoliced and subjected to harsher sentences than others,” he wrote in a concurrence, “it hardly seems race neutral to categorically allow potential jurors to be stricken simply because they have had contact with or hold negative opinions about law enforcement or the judicial system. Reflexively allowing these strikes compounds institutional discrimination.”

“The time has come,” Judge Humes said, “for the Legislature, Supreme Court and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection.”

California responded this week with a new law that overhauls how peremptory challenges may be used in California jury trials. It shrinks prosecutors’ ability to exclude Black people and others based on their affiliation with protected groups.

Assembly Bill 3070, introduced by Assemblymember Shirley Weber and signed into law today by Governor Gavin Newsom, is a significant if incomplete blow against racial discrimination in jury selection. It establishes a presumption that certain reasons for excluding jurors are improper proxys for racial discrimination, and targets implicit or unconscious bias in jury selection—something that the Batson ruling did not prohibit and may have actually invited. The law takes effect for criminal cases in January 2022, and will apply to civil cases in 2026.

It’s the first legislative reform of its kind in the country, though it follows a similar rule that the Washington State Supreme Court adopted in 2018. Other state supreme courts, including California’s, are studying potential reforms as well. 

The law is part of a broader attempt this month to fight both intentional and implicit bias and close racial disparities in California’s criminal legal system. 

Another jury reform, Senate Bill 592, will expand California’s pool of prospective jurors by including everyone who files an income tax return. This will make the jury pool better reflect the state’s population because jurors are now primarily drawn from people who are registered to vote or have a driver’s license. This practice disproportionately excludes Black and Latinx residents, as well as people with lower income.

Newsom also signed the California Racial Justice Act (AB 2542), a sweeping reform that will allow people to challenge convictions and sentences that are based on race.

While AB 3070 tightens the rules on the front end of prosecutions, during jury selection, the Racial Justice Act provides a remedy for discrimination on the back end, allowing for post-conviction hearings to present evidence that racial or ethnic animus infected any stage of the prosecution, including “in the exercise of peremptory challenges.” Crucially, this new law permits statistical evidence to show racial disparities in charging and sentencing decisions over time, and allows courts to grant relief where they exist. 

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Over the last four decades, study after study after study has found that racism remains endemic in jury selection. One recent report from the Berkeley Law School death penalty clinic, “Whitewashing the Jury Box,” analyzed  nearly 700 appeals from 2006 though 2018  involving objections to prosecutors’ strikes, and found that California prosecutors used peremptory challenges to remove Black jurors in 72 percent of the cases and white people in only 0.5 percent. Yet California’s appellate courts rarely intervene, further emboldening prosecutors. During the last 30 years, the California Supreme Court reviewed 142 cases with jury discrimination claims and found violations in only three, according to the report.

These findings are unsurprising given how easy Batson has made it to disguise discrimination. Under the rules Batson established, which California’s new law will replace but which will remain in place in most other states, prosecutors need only provide some “race-neutral” reason for striking jurors even when they are challenged. Under Supreme Court precedent, the reasons can be “implausible,” “silly,” “fantastic” or “superstitious,” like “the juror had a beard” or “long curly hair.” 

Marshalling evidence to prove that such reasons are merely a cover for discrimination can be nearly impossible, and in any case judges are often reluctant to accuse prosecutors—usually people with whom they have an ongoing professional relationship—of being lying racists. 

Batson also does nothing to curb implicit bias. Even well-intentioned prosecutors bring socially constructed, internalized stereotypes to jury selection, and may rely on those stereotypes without realizing it. Concurring in Batson, Justice Thurgood Marshall gave the example of a prosecutor whose “own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.” Indeed, throughout California, training manuals encourage prosecutors to “follow gut instincts” on jury selection, without explaining how “gut instinct” is often little more than decision by crude racial stereotype.

Under Batson, California prosecutors have successfully excluded Black people “because they had dreadlocks, were slouching, wore a short skirt and ‘blinged out’ sandals, visited family members who were incarcerated … or lived in East Oakland, Los Angeles County’s Compton, or San Francisco’s Tenderloin,” according to the Berkeley Law School report. 

To confront these problems, California’s new reform eliminates Batson’s onerous demand that a defense team prove purposeful discrimination on the part of prosecutors in order to challenge a peremptory strike. Instead, it lowers the standard to prohibit implicit or unconscious bias as well, making strikes unlawful if “an objectively reasonable person” would believe that “race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation” was a factor in their use, whether intentionally or unintentionally. The law specifically instructs courts to consider the effect of implicit bias on peremptory strikes when making such determinations.

The law also presumptively bars an enumerated list of reasons for excluding jurors, particularly ones tied to negative racial stereotypes or factors that are more commonly affiliated with marginalized groups. Those include “having a negative experience with law enforcement” and “expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.” 

No longer can prosecutors strike jurors because of their neighborhood, or their appearance, or the fact that they receive state benefits, or because the prosecutor perceives that a potential juror is inattentive or has a “problematic attitude”—at least not without convincing the judge, with evidence, that the strike is related to the juror’s ability to be fair and impartial and not the product of discrimination. By listing these specific explanations that have long provided cover for discrimination, the law takes the various policies and practices that prosecutors have developed over decades to skirt Batson and makes them illegal. 

But the very need for such a carefully tailored reform is itself a sign that it will be insufficient. 

When Justice Marshall concurred in the Batson decision, he rightly predicted that the “decision today will not end the racial discrimination that peremptories inject into the jury-selection process.” Discrimination—particularly racial discrimination—and peremptory strikes are inexorably intertwined. As Marshall wrote, the goal of ending discrimination “can be accomplished only by eliminating peremptory challenges entirely.” 

In the years since, a growing number of judges, academics, and lawyers have embraced that view, calling for the abolition of peremptory strikes. This would mean that jurors can only be excluded for cause—that is, through an affirmative showing that a potential juror cannot follow the law or be fair and impartial. Such a reform is hardly radical, and California is free to enact it, though it chose not to this year. After all, as Supreme Court Justice Stephen Breyer wrote in 2005, “the right to a jury free of discriminatory taint is constitutionally protected—the right to use peremptory challenges is not.”

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