SCOTUS RULES AGAINST RACIAL BIAS IN DEATH PENALTY JURY SELECTION
On Monday, in a 7-1 decision (with Justice Clarence Thomas dissenting), the US Supreme Court moved to limit prosecutors’ exclusion of potential jurors based on race.
The Supremes ruled that Georgia prosecutors improperly struck black jurors from the jury pool in the death penalty case of Timothy Tyrone Foster.
The justices’ decision clears a path for a new trial for Foster, an intellectually disabled black man, who, at the age of 18, was charged with the murder of a 79-year-old retired elementary schoolteacher named Queen Madge White, a white woman. Foster was tried by an all-white jury, who sentenced Foster to death. Prosecutors highlighted the names of each potential black juror, and wrote the letter B next to their names.
In his majority opinion, Chief Justice John Roberts said the prosecutors acted in violation of a 1986 SCOTUS ruling that found racial discrimination during jury selection to be unconstitutional. The ruling required lawyers to give race-neutral reasons for striking jury members when accused of such discrimination.
But because the opinion is such a narrow one, it’s not going to stop prosecutors from misusing peremptory challenges, which allow attorneys to get rid of jurors they believe are harboring prejudice. Peremptory challenges can, and sometimes are, abused by attorneys who dismiss jurors because of race, gender, or sexual orientation without explanation. (Here’s a interesting history lesson and some more information on the issue of peremptory challenges from the Public Law Research Institute at UC Hastings.)
Georgia attorneys are allowed 20 peremptory challenges—more than in most states. (California lawyers also get 20 peremptory strikes in life imprisonment and death penalty cases.)
The Daily Beast’s Jay Michaelson has more on the issue. Here’s a clip:
[Stephen] Bright says that “every prosecutor has a handy-dandy list of race-neutral reasons that they give” when it comes to exercising peremptory challenges. “They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That is the real problem: that across the country, prosecutors are given enormous discretion—in Georgia, they have 20 peremptory challenges—and know how to weasel around the rules.
That certainly happened in Foster’s case. As the Court’s opinion relates, the prosecutor objected to one juror “because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service.”
That’s typical of the “laundry list” approach that prosecutors use in order to avoid being accused of discrimination: just throw everything at the wall and see what sticks. It doesn’t matter if it’s incorrect—for example, this “too young” juror was actually 13 years older than a white juror who had been admitted. Just say everything and sort it out later if you have to.
Nothing in today’s case changes that.
SCOTUSblog’s Lyle Denniston has a helpful breakdown of the ruling and its implications.
For further Foster v. Chatman-related reading, Atlanta Magazine’s Max Blau has an excellent profile on Stephen Bright, the head of Atlanta’s Southern Center for Human Rights, who found the prosecutor’s racially biased juror notes and successfully argued Foster’s case before the High Court. Bright and his SCHR team have won four of the last five SCOTUS capital punishment cases they’ve argued. Here’s a small clip:
“It’s a brutal, enormously difficult, emotionally draining practice,” Bright told the New York Times in 1993. “There are no resources to do the job well, there’s a tremendous amount of public hostility, and it’s financially devastating to most lawyers. You have to be out of your head to take one of these cases.”
Now boasting a staff of 26, the 40-year-old SCHR has won four of its last five U.S. Supreme Court death penalty cases, exonerated an Alabama man convicted of murder by showing he had an alibi, and helped overturn dozens of death sentences. It was a series of SCHR lawsuits that spurred lawmakers in the early 2000s to create the Georgia Public Defender Council, a statewide system considered to be a major upgrade over the existing patchwork of local public defender offices.
Two MacArthur Foundation “genius” grant winners have been Bright protégés. After graduating from Harvard Law School in 1985, Bryan Stevenson joined the SCHR, sleeping on Bright’s lumpy couch for a year. In 1989 Stevenson started the Equal Justice Initiative in Montgomery, Alabama, which has since saved more than 100 men from execution. And when Rapping founded Gideon’s Promise in 2007 to train public defenders across the country, Bright gave the fledging program space in the SCHR’s offices.
“We wouldn’t have existed without Steve,” Rapping says. “We’re carrying out Steve’s vision.”
CA LEGISLATORS SHOOT DOWN A SNEAKY BILL TO LIMIT THE RELEASE OF INFORMATION ON CHILD WELFARE SYSTEM FATALITIES
State lawmakers have rejected a “trailer bill” attached to the California’s May budget revision, which would have closed off public access to records regarding the deaths of children involved in the child welfare system.
The bill, introduced by the California Department of Social Services Director Will Lightbourne, would ease deadlines for releasing the child death records and keep social workers’ identities secret in such cases. Information on the family’s history within the child welfare system would be limited, and info provided by witnesses would be removed from the record. The legislation would have replaced those pieces of information with a short summary of the government’s attempt to protect the kids.
Lawmakers rejected the bill following a recommendation from the staff of Senate Subcommittee 3 on Budget and Fiscal Review to toss the bill
The LA Times’ Garrett Therolf has more on the issue. Here’s a clip:
Since the state implemented the original law, reporters have had access to social worker case notes and other files. These sometimes revealed glaring inadequacies in the state’s child welfare system, including instances of social workers disregarding policies and allowing children to remain in conditions that proved fatal.
One provision of the proposed revision of the law would have denied the public access to original case notes with social workers’ names, instead providing abbreviated summaries of how the government attempted to protect vulnerable children. Critics also criticized what would have been relaxed deadlines for the release of certain records.
The Senate lawmakers recommended that the department return to the drawing board and vet the measure through the usual committee process “to ensure that lengthier time of discussion is provided and that the proposed language does not represent a retreat from, or complicates, existing practice.”
Pete Cervinka, the social services deputy director who led efforts to craft the bill, said much of the criticism was overblown and that he had hoped the bill, in practice, would increase the amount of information released in child fatalities.
Cervinka noted that the bill would have for the first time provided information about cases in which someone injures or neglects a child to the point that they are “near death.” The federal government has been prodding the state to do this—and holding back some federal money until it happens.
He said the starting point for future attempts to address that issue would be the existing law, not the recent drafts of the new bill, adding that the department would work harder to build consensus among various groups, including nonprofit child welfare groups, lawyers for parents of children in foster care and unions representing social workers.
Trailer bills that are tacked onto the budget, like the one mentioned above, are able to skip review in committees and take a short cut to voting. These bills are meant to implement the budget, but often carry major non-budgetary policy changes.
Another way lawmakers circumvent the usual legislative procedure is by placing bills—ones that would cost the state money if passed—into “suspense files.” This technically happens so that the measure’s potential fiscal impact can be assessed. But there are quite a few bills that would place very little fiscal burden on the state that have been placed on suspense.
In an op-ed, the Sacramento Bee’s Dan Walters explains that using the suspense file has become a way for lawmakers to meet and decide behind closed doors which bills will move forward, and which will be dumped.
Interestingly, a bill to shine light on police personnel files in misconduct cases has been placed in a suspense file.
Walters says that, like police records, there should be more transparency within the legislative process. Here’s a clip:
The suspense file process has morphed into a way for the Legislature’s leaders to decide in secret which bills will be allowed to proceed and which will not, for reasons known only to themselves.
At some point later in the session, the committees will meet and in mere minutes declare which bills will be allowed to reach the floors of both houses. Pro forma votes will be entered into the official record, but that’s just window dressing.
The arbitrary nature of the process is aimed not only at winnowing the volume of measures reaching the floors, and their costs, but at protecting legislators from having to cast votes that could be politically difficult.
One could say, in fact, that legislators are protecting themselves in the same way that police secrecy laws protect cops and their departments from having to answer to the public for their actions.
Nor is it the only way that the Legislature makes it more difficult for its activities to receive public scrutiny.
When they take up the budget in June – a budget whose important details will be drafted in secret by the governor and legislative leaders – lawmakers will also vote on a couple of dozen “trailer bills” that supposedly implement the budget but always contain major policy changes that are never aired publicly in advance.
Not only should the secrecy surrounding internal police investigations be breached, but also the secrecy that envelops the budget.
LA COUNTY DISTRICT ATTORNEY JACKIE LACEY TALKS WITH KCRW’S WARREN OLNEY
In 2012, Jackie Lacey made history in Los Angeles, becoming the county’s first female and black district attorney.
In an interview with KCRW’s Warren Olney, Lacey—who is running unopposed for another four years as DA—talks about key issues that have cropped up during her first four years, including Prop 47’s effect on crime, jail-building, and prosecuting law enforcement officers. Here’s a clip from the interview, but do go over and listen to the whole thing:
Warren Olney: You have often said that your office is supposed to be race neutral, but history shows that our society and the rest of the criminal justice system is not race neutral. It’s a lot harder on blacks and other minorities than it is on white people. What are you doing about that?
Jackie Lacey: Our office does its very best to make sure that the policy makers reflect the diversity of the community. So if you look, our office is probably the most diverse population of prosecutors if not in California and maybe throughout the United States. I think that helps because you want the perspective of a lot of different people at the table. I think in diversity there’s strength and people take their jobs seriously, there’s the least likelihood of bias. I also think that it helps the community’s confidence to see that our office is as diverse as it is, in terms of making decisions about everything from what’s filed to what’s not filed, and certainly to what type of sentences are incurred. I, as an African American woman of course, grew up in Los Angeles, in South LA and am very much aware of biases and while we don’t have a perfect office, or a perfect system we’re doing everything we can to make sure that it is as bias free as it can humanely, possibly be.
Proposition 47 reduced some non-violent felonies to misdemeanors in order to help ease prison overcrowding, lead to alternative kinds of treatment and also to save money. Other district attorneys and some of your own prosecutors claim that it has led to an increase in crime. Do you agree with that?
I haven’t seen the data supporting that. There is an increase in crime, particularly property crime. I think the Public Policy Institute has noted that. I’m not sure if they attribute it to Prop 47 or AB-109 which is prison realignment. But we’re definitely seeing an increase in crime and we ought to pay attention to it. But I think we also owe it to the public to examine each case and look to see where the person was and what they were doing in terms of the criminal justice system before they committed the crime in order to draw that conclusion, that Prop 47 is responsible. It may be responsible and it may not. But I would love to see the data but I think more importantly, I think it’s my job to continue to look for ways to discourage people from committing crimes. Obviously there’s a deterrent effect asking for custody time, but also addressing any issues such as addiction that may be causing someone to get out there and commit property crimes.
Did the “old white woman have a name? And isn’t Foster guilty as HELL?
EDITOR’S NOTE:
Dear Questions, good point about the victim’s name. That’s fixed now. Thanks for the reminder.
As for guilt, I presume Foster is guilty. He confessed and I’ve read nothing that suggests it was a false confession. There are, however, a lot of questions about whether the death penalty is appropriate in Foster’s case. But, neither that or Foster’s guilt or innocence, is what the case—or the ruling—is about. It simply addresses whether the prosecutors illegally stacked the jury based on race. And, by the way, the lawyers writing additional briefs supporting the case were both liberal and conservative.