Cross Posted from Frederick Leatherman Law Blog

Saturday, March 2, 2013

Good morning.

I write today to warn everyone regarding a probable defense effort during jury selection to exclude all potential jurors who are black, notwithstanding the recent defense claim that the defendant is Afro-Peruvian, whatever the hell that means.

The simple truth is that this defendant self-identified as white until after he killed Trayvon Martin. When he was accused of racially profiling Trayvon, he rather conveniently decided that calling himself White Hispanic and more recently Afro Peruvian would dispel any suspicions that the killing was racially motivated.

Instead, given the convenient timing of his declarations and his confusion of race with nationality unintentionally showcases his intellectual limitations and the desperate lengths to which he will go to deny that he is a racist.

He doth protest too much, methinks.

Therefore, do not be surprised if the defense attempts to use its peremptory challenges to exclude black jurors from the jury.

Recall, that unlike a challenge for cause, a lawyer does not have to explain the basis for a peremptory challenge. Recall too, that the SCOTUS prohibited the use of peremptory challenges by prosecutors to systematically exclude blacks from serving on juries with black defendants in Batson v. Kentucky, 476 U.S. 79 (1986), because such systematic exclusion violates a defendant’s Fourteenth Amendment right to Equal Protection of the laws. See also Miller-El v. Dretke, 545 U.S. 231 (2005).

We have an interesting wrinkle in this case because, if it happens, the defendant will be the party systematically excluding jurors because they are black or non-white, whereas, in Batson and Miller-El the prosecution systematically excluded blacks violating the defendant’s right to equal protection of the laws.

The issue the prosecution must be ready to argue and Judge Nelson must be ready to decide before jury selection is whether the Batson and Miller-El prohibition against the prosecution’s discriminatory use of peremptory challenges applies equally to a defendant.

I believe the answer is “yes,” because to rule otherwise would constitute official judicial approval of discrimination against black jurors in jury selection, so long as the defendant is doing the discriminating. I do not see that happening, if for no other reason than blacks have just as much right to serve on juries as whites.

Consider this language from Justice Blackmun’s majority opinion in JEB v. Alabama ex rel. TB, 511 U.S. 127, 128-129 (1994), in which the Court extended the Batson rule to gender.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a `petit jury composed in whole or in part of persons of his own race,’ ” id. , at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).

Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases 129*129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

(Emphasis added)

White defendants certainly do not have a right to an all white jury. As Justice Blackmun said, they have a right to a jury selected in a non-discriminatory manner.

Therefore, the selection process must be non-discriminatory and that must necessarily apply to all parties and to the Court.

A final thought to consider:

If the defendant is the race-blind Afro-Peruvian that he claims to be, then he ought to submit his case to an all black jury.

What do you think the odds are that he would agree?