Mississippi Allows Peremptory Challenges for Fake, Race-Neutral Reasons in Violation of Batson's Equal Rights Rationale.

• Author: Weeden, L. Darnell

"[P]ublic respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race." (1)

I. INTRODUCTION

Does the Equal Protection Clause prohibit Mississippi from demonstrating discriminatory intent by allowing the prosecution to strike at least one black juror, whose circumstances were like those of potential white jurors who were not stricken by the prosecution? In Flowers v. Mississippi (2) (Flowers VI), the Supreme Court of the United States declared that the Batson v. Kentucky decision prohibits Mississippi from discriminating on the basis of race when using its peremptory challenges to remove potential jurors in a criminal trial. (3) Writing for the Court, Justice Kavanaugh highlighted the Batson decision as endorsing a central goal of the Fourteenth Amendment--to stop racial discrimination by governmental actors. (4) Although Batson has noble goals, "Batson challenges are difficult to win. First, the judge must find enough merit in the challenge to require the opposing party to identify a non-discriminatory basis for its challenge. Many Batson challenges will fail at this stage." (5) When a court commands an opposing party to provide nondiscriminatory information for its challenges, competent attorneys have the ability to provide some justification other than race for their strikes. (6) "If the opposing party manages to offer a nondiscriminatory basis, the challenger must demonstrate that the basis was pretext, another substantial hurdle. Accordingly, [parties] reserve Batson challenges for extreme circumstances." (7) Because peremptory challenges may serve as easy tools for intentional racial discrimination abuse in criminal trials, any nondiscriminatory justification under Batson should be required to meet a strict scrutiny test to protect racial equality in the jury selection process.

Part II of this Article asserts that Batson historically failed to end discrimination on the basis of race in peremptory challenges because a prosecutor may use any plausible, nonracial removal justification. (8) Part III provides an analysis of Flowers VI and the link between peremptory challenges and discrimination on the basis of race. (9) Part IV contends Batson remains a toothless tiger in slowing down or ending intentional, racially-biased jury selection by prosecutors because the Supreme Court refuses to apply the strict scrutiny test to a prosecutor's peremptory exclusion of black jurors on the basis of race even when that exclusion leaves the jury either all white or extremely disproportionately white. (10) Part V recommends eliminating peremptory challenges in the jury selection process under the Fourteenth Amendment's Due Process Clause because the practice leaves the prosecution with unbridled discretion to exercise that power in a pretextual race-neutral or arbitrary manner. (11) Part VI of this Article asserts that because the exercise of peremptory strikes in a criminal trial--when there is an allegation of discrimination on the basis of race--is not subject to a strict scrutiny analysis, one can only conclude the Supreme Court is not serious about providing an effective judicial remedy to end discrimination against jurors on the basis of race. (12)

II. BATSON HAS HISTORICALLY FAILED TO END DISCRIMINATION ON THE BASIS OF RACE IN PEREMPTORY CHALLENGES BECAUSE A PROSECUTOR MAY USE ANY PLAUSIBLE, NON-RACIAL REMOVAL JUSTIFICATION

In Batson v. Kentucky, a black man was indicted in Kentucky on allegations of committing second-degree burglary and receiving stolen personal property. (13) On the first day of trial, the judge did a voir dire examination of the jury venire. (14) The judge excused some jurors for cause, and allowed peremptory challenges. (15) The prosecutor utilized his peremptory challenges to strike the four black jurors on the venire, which produced an all-white jury. (16) Defense counsel requested a discharge of the jury because the prosecutor's removal of the black veniremen on the basis of race violated the black defendant's right to equal protection of the law. (17) In 1880, the Supreme Court held in Strauder v. West Virginia (18) that a state denies a black defendant equal justice under the law when black jurors are intentionally excluded. (19)

The Strauder decision represents the Court's dysfunctional approach to ending discrimination on the basis of race when selecting members of a jury in a criminal trial. (20) In Strauder, the Court asserted that the purpose of the Fourteenth Amendment was to stop governmental discrimination on the basis of race. (21) "Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure." (22) I believe that Strauder only proclaims equality in theory, because Strauder, the ancestor of Batson, was flawed in practice. In both cases, the prosecutors were allowed to exclude blacks as jurors for virtually any conceivable reason, other than on the basis of race. Currently, a prosecutor is free from consequences if they articulate any reason--manufactured or not--that distracts from a racially discriminatory purpose, thereby legally achieving the goal of an all-white or substantially white jury. Today, under Batson's fake racial equality in peremptory strike rationale, a prosecutor motivated by race is undoubtedly willing to tolerate the Batson rule of judicially-approved, de facto race-based exclusion of black jurors.

A black or white defendant has the right to be tried by a jury whose participants are not chosen on the basis of race. (23) The Equal Protection Clause protects a black defendant from the fake, self-serving inference that members of his or her race are not qualified to serve as jurors. (24) Discrimination on the basis of race during juror selection undermines a black defendant's faith in an impartial criminal justice system. (25) Ultimately, the ability to serve as a juror should depend on a race-neutral judgment of a person's qualifications and his or her ability to impartially assess evidence offered during the trial. (26) Racial stereotyping is not related to whether a person is qualified to serve as a juror. (27) Since Strauder, the Supreme Court has consistently held that when a state denies a person the right to serve as a juror on the basis of race, the state has "unconstitutionally discriminated against the excluded juror." (28) "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." (29) Discrimination in the judicial system, resulting from racial prejudice, creates unequal burdens on citizens of color seeking to serve as jurors and denies black defendants their right to equal justice regardless of race. (30)

Batson, holding that the Equal Protection Clause prohibits exercising peremptory strikes to remove jurors solely based on race, failed to provide meaningful safeguards to shield a black criminal defendant from a prosecutor, acting on the basis of race, deliberately and methodically denying black citizens the right to serve as jurors in the defendant's trial. (31) Justice Thurgood Marshall correctly predicted in his concurring opinion in Batson that the decision would not stop the racial discrimination that peremptory challenges routinely allow. (32) Soon after the Court's Batson decision, prosecutors developed techniques to evade or defeat a "Batson challenge" in order to continue the traditional pattern and practice of discriminating against black jurors on the basis of race. (33) These racist procedures were revealed one year after Batson when a training video from the Philadelphia District Attorney's office was leaked. (34) The video showed Assistant District Attorney Jack McMahon giving the following advice to inexperienced prosecutors:

When you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate later.... You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race. (35) Similar behaviors, policies, and manuals could be found throughout the offices of prosecutors in the United States. (36) The use of these tactics provides overwhelming evidence that intentional discrimination to eliminate potential black jurors on the basis of race was, and still is, unrelenting. (37) It is conceded, however, that "[t]he problems and limitations that exist within Batson challenges are undeniable, but it is important that such a challenge exists within the system. Making a motion pursuant to Batson is a way for a defendant, through his attorney, to call out the likelihood of racism affecting and infiltrating the trial." (38) In Batson, the Supreme Court held that a state may not discriminate on the basis of race when using peremptory challenges to remove prospective jurors in a criminal trial. (39) It is my position that the Batson approach is not effective as a practical matter because strict scrutiny is not required to justify a nondiscriminatory removal of a black juror. (40) Nevertheless, I suggest that the Batson motion could help end discrimination on the basis of race if granted anytime race is a factor in the selection of jurors.

III. AN ANALYSIS OF FLOWERS V. MISSISSIPPI AND THE LINK BETWEEN PEREMPTORY CHALLENGES AND DISCRIMINATION ON THE BASIS OF RACE

In 1996, Curtis Flowers, a black man, was accused of killing four individuals in Winona, Mississippi. (41) Flowers went to jury trials six times for allegedly killing those individuals. (42) In all six trials, the lead prosecutor for Mississippi was the same. (43) Although the first three trials resulted in...