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.

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