Supreme Court takes up systematic bias against black jurors.

The Something Awful Forums > Discussion > Debate & Discussion > Supreme Court takes up systematic bias against black jurors.

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

quote:

Studies have shown that these proffered reasons are often a mere pretext for racial discrimination. A North Carolina study of jury selection in 173 death penalty cases found that black prospective jurors were more than twice as likely to be struck by the prosecution as similarly situated white jurors. A 2003 study of 390 felony jury trials prosecuted in Jefferson Parish, La., found that black prospective jurors were struck at three times the rate of whites. And in Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. The result was that half of these juries were all white, and the remainder had only a single black member, even though the county is 27 percent black.

# ¿ Nov 3, 2015 22:19

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# ¿ May 14, 2024 02:50

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

Oh yes I'm quite sure that if you cherry pick the worst of the south it's completely hosed to this day, there's no easy answer to the issue though, especially when there's still areas where human actors that make up the entire system just wholesale doesn't want to do what its supposed to do. Its not however:

It's good to know that no matter what facts you're presented with your analysis stays the exact same: it's not a problem, and if it is a problem we can't do anything about it. I am sure you are debating this in good faith though.

# ¿ Nov 4, 2015 01:51

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

Apparently you didn't because that part was talking specifically about the 1987 case

quote:

"Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors."

Those are not the words of the defense in the case. They come from a group of highly regarded prosecutors, Republican and Democrat, conservative and liberal, who have filed a friend-of-the-court brief siding with Timothy Foster, who was convicted and sentenced to death in the killing of an elderly white woman in Georgia.

# ¿ Nov 6, 2015 08:42

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

Except we were talking about the part of the article that talks about the reasons the prosecutor gives, what does the section you quoted have to do with that at all? Have you read the thread? Cause you don't seem to even understand what Painframe and I are arguing about.

No, I understand perfectly well that you're trying to argue that blacks are struck from Juries at disproportionately high rates because they are also more likely to fall into the other kinds of categories that prosecutor's like to eliminate.

The problem is that you're providing no evidence while seriously misrepresenting what the article posted in the op actually says. For instance you claim that the article only deals with a case from the 1980s when in fact the article mentions various other studies that find a continued and systematic bias. You also claim that there's universal support for the current system of striking jurors amongst both defense attornies and prosecutors - a claim that is, again, contradicted by the article posted in the op, where we find attorneys and judges criticizing the system and its outcomes. You also keep trying to downplay the presence of racism in the system by pretending that racism only happens in the deep south or that race relations in the late 80s have absolutely no bearing on contemporary race relations. These arguments are not convincing and you don't provide any evidence for them at all.

quote:

You've still yet to establish this fact pattern whatsoever. What's your alternative? You think prosecutors are intentionally hurting their cases by wasting their challenges on the personal satisfaction of keeping the black man down?

Quite the opposite I think prosecutors are aware that black jurors are less likely to give convictions than white jurors and therefor find spurious reasons to remove black jurors. The reason is not merely because blacks have higher rates of criminality but also because they are much more familiar with the systemic injustices of the contemporary American legal system. The fact they are excluded at higher rates totally demolishes the foundational justifications for jury selection and makes a mockery of what are supposed to be the systems most basic principles of fairness and democracy.

In that video from the op, for instance, the prosecutor explicitly advises that you should select for the dumbest jurors possible. There's absolutely zero reason to think that this piece of advice is out dated: in fact there's a great deal of circumstantial evidence to suggest that this is an entirely logical approach for prosecutors to take. So if you really want to defend a system where legal authorities intentionally look for the dumbest (and, one has to think, probably the most racist) jurors possible so as to maintain high conviction rates then go ahead, but maybe put a bit more effort into your arguments than just repeatedly saying "no no your wrong".

Anyway your claims about why black jurors get selected, as well as your claims that any problems are confided to the 20th century deep south, seem pretty implausible in light of articles such as the following:

Judicial Toleration of Racial Bias in the Minnesota Justice System, 25 Hamline Law Review 235-270, 263-264 (Winter, 2002) posted:

William E. Martin and Peter N. Thompson
excerpted from: William E. Martin and Peter N. Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice System, 25 Hamline Law Review 235-270, 263-264 (Winter, 2002)(230 Footnotes Omitted)

Prosecutors and state officials have denied persons of color full participation in the American justice system for decades. As early as 1879, the United States Supreme Court, in Strauder v. West Virginia, loudly denounced the systematic exclusion of Black Americans from jury pools, finding that the practice violated equal protection of the laws. But state officials did not readily embrace this holding. Over the past century, the United States Supreme Court has had to reapply this basic principle to numerous and varied state schemes designed to preclude Blacks from participating on grand juries, petit juries or both. In Rose v. Mitchell, the Court noted that "one hundred and fourteen years after the close of the War Between the States and nearly one hundred years after Strauder, racial and other forms of discrimination remain a fact of life in the administration of justice as in our society as a whole."

The United States Supreme Court has been persistent and consistent in denouncing state discrimination in grand juries and in petit jury pools. When the issue focuses on individualized discrimination against minorities by prosecutors exercising peremptory challenges, however, the Court has been more tolerant of racial discrimination.

In Swain v. Alabama, the Court addressed the discriminatory use of peremptory challenges against African American venirepersons. The Court reiterated the general principle that purposeful discrimination excluding Blacks from the jury was unconstitutional. The Court held, however, that as long as the prosecutor did not systematically remove Blacks from jury service over an extended period of time, no violation occurred. Although there was evidence that, based on the memories of county residents, no African American juror had served in a criminal case in that jurisdiction, the Court found no equal protection violation in Swain. The decision effectively renewed prosecutorial license to use peremptory challenges to keep persons of color off of juries.

In Batson v. Kentucky, the Court modified its holding in Swain and concluded that purposeful discrimination in excluding minorities by peremptory challenges in an individual case could be a violation of equal protection. The Court adopted the elaborate doctrine used for addressing discrimination in civil rights cases to resolve this pre- trial issue. First, counsel must object and establish a prima facie claim of intentional discrimination. The prima facie case can be established by proof that peremptory challenges were used to exclude one or more members of a racial group and that circumstances of the case raise an inference that the exclusion was based on race. The trial judge is required to consider "all relevant circumstances."

If a prima facie case is established, the burden shifts to the prosecutor to state a racially neutral reason for the strikes. If a racially neutral explanation is advanced, the challenger must then prove that the stated reason was pretextual and that striking the minority jurors was necessarily the result of purposeful discrimination. The issue of purposeful discrimination is a factual determination for the trial court that will not be reversed on appeal unless clearly erroneous. Batson, however, has not ended the long-standing practice of excluding persons of color from juries.

In dozens of cases in Minnesota, persons of color have maintained that the prosecutor has used peremptory challenges to intentionally exclude non-white venirepersons. Minnesotans might be pleased to learn that despite these numerous appellate challenges, no appellate decision has yet reversed a trial judge's finding that there was no intentional discrimination in the exercise of peremptory challenges. Based on the decisions of the Minnesota appellate courts there would seem not to be a problem in Minnesota. Apparently, attorneys here never use peremptory challenges impermissibly, or trial judges never make mistakes when ruling on Batson challenges. The Minnesota experience is remarkable considering a report that twenty percent of all state court Batson challenges throughout the country have resulted in reversals.

Other evidence calls the holdings of the Minnesota appellate courts into question. Surveys conducted by the Racial Bias Task Force revealed that nearly one-half of the public defenders, and fifty-three percent of the metropolitan judges believe that prosecutors in the state are more likely to use peremptory challenges against jurors who are people of color. Although it is difficult to discern what is occurring at the trial level by reading appellate opinions, the context and sheer number of appeals claiming discrimination raises the question whether discrimination is present, but tolerated by the courts.

In numerous cases, prosecutors have used peremptory challenges to exclude the only minority juror or jurors on the panel, leaving an all white jury to hear the case. Perhaps it is coincidence that prosecutors choose, for reasons unrelated to race, to exclude the only persons of color on these panels. Perhaps racial bias was not implicated in any of the cases. Perhaps Minnesota trial judges, unlike state trial judges throughout the country, are doing a near perfect job of avoiding racial discrimination. But in light of the long history of state attempts to keep persons of color off of juries, and the justice system's poor track record in policing racial bias in other contexts, a different conclusion cannot be rejected out of hand. Perhaps, the Minnesota courts are overly tolerant of racially biased conduct.

The reasons given in cases for excusing prospective jurors, who just happen to be the only persons of color on the panel, often seem contrived or insignificant. Also, these reasons are sometimes developed through intensive adversarial questioning directed exclusively to minority jurors. The Minnesota courts have accepted far-ranging justifications for excluding minority jurors, including the following examples: living in the same neighborhood (North Minneapolis) as the defendant; having experience living in a big city; being new to the neighborhood; working with kids, family members or acquaintances; being involved in the criminal or juvenile justice system; being too quick to answer questions; being youthful and inexperienced; being a foster care worker; knowing a state witness twelve years prior to trial; being too forgiving; participating in a certain life style; or developing a "certain rapport" with adverse counsel.

Several persons of color were struck from juries because they expressed concern about the police or the justice system. Frequently, the concern developed through intensive adversarial questioning, filled with leading questions relating to whether the system was fair to minorities. White venirepersons were not questioned with the same intensity, even though anyone who had read the newspaper reports of the Racial Bias Task Force conclusions would likely have concerns about the fairness of the justice system. Of course, persons of color do not need to read a task force report to know how that justice system treats them.

In State v. Bowers, the Minnesota Supreme Court analyzed a challenge for cause, removing the only Black venireperson after extensive adversarial leading questions about attitudes toward the police and alcohol. The majority found no purposeful discrimination. Justice Wahl, in dissent, however, concluded that the prosecutor's reasons for striking the juror were pretextual. She believed that the prosecutor questioned this African American juror in a manner designed "to invoke a response likely to disqualify her," while the prosecutor had not pursued a similar line of questioning with a white juror who had "a background of personal experiences [that were] virtually indistinguishable." Justice Wahl stated, "racial bias [within the courtroom] mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality." Ultimately, the harm caused by such "discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." Certainly, the stories taken back to local communities by the numerous persons of color excluded as the only non-white juror on the panel are stories of unequal treatment by the courts. Ironically, the conclusions fairly reached by members of this community are then used to further exclude them from participation as jurors.

Part of the problem in convincing society that the courts will no longer tolerate discrimination in jury selection is the legal standard set by the United States Supreme Court. To rebut the accused's prima facie case of discrimination, all the prosecutor must do is state a non-discriminatory reason for the strike. The reasons can be insignificant or even implausible. The Minnesota Supreme Court has embraced this approach in concluding that to rebut the prima facie case the prosecutor's reason need not even make sense. It would seem to be a fairly obvious point that citizens might lack confidence in the fairness of a justice system in which the prosecutor is permitted to exclude minority members from the jury to preserve an all white jury, justifying the action with nonsensical reasons. Racism is serious and should not be explained away by nonsense.

Theoretically, if the prosecutor's explanation for the strike is not reasonable, the court could infer that the prosecutor has engaged in purposeful discrimination. But the Minnesota courts put a heavy burden on the defendant to prove purposeful discrimination. In many of the reported appeals, the trial judges have deferred to the good faith of the prosecutor, and have not carefully scrutinized the prosecutor's explanation. The trial judge's task is complicated by the reality that any finding of intentional discrimination may have serious ethical implications for the prosecutor. It might be appropriate for judges to give prosecutors the benefit of the doubt before making any finding that a prosecutor's stated reason is a pretext and the prosecutor has in fact engaged in impermissible racial discrimination. Giving broad deference to prosecutors to protect their professional reputations, however, will lead to the untoward exclusion of minorities from juries.

Not yet having reversed any trial judge's finding on this issue, the appellate courts give great deference to trial judges. Even where trial judges make no findings on the issue of purposeful discrimination, or provide no justification for their decision other than a conclusion that the prosecutor stated a non-discriminatory reason, the appellate courts treat this as an "implicit determination" that there was no purposeful discrimination. Certainly the Minnesota Supreme Court's approach cannot be described as a vigilant protection against racial bias in Minnesota jury selection.

A prime example of the nonsense that passes as equal justice in the Minnesota court system is found in State v. Gaitan. In Gaitan, the prosecutor excused the only person of color in the jury venire. When challenged, the prosecutor stated that the juror was excused because of lack of education and difficulty understanding some terms. The trial judge who presided over the voir dire disagreed and sustained the Batson objection reinstating the juror.

The trial judge, however, allowed the prosecutor to research the issue overnight. The next morning, the prosecutor returned with two additional "race- neutral" explanations and additional elaboration for its previously rejected argument. The trial judge then changed its ruling and denied the Batson objection. The supreme court affirmed the ruling.

If the stated reasons for excluding a person of color do not work, the prosecutor now can spend the night researching the laundry list of acceptable reasons until coming up with one that does work. Certainly, most venirepersons of color would fit some acceptable category. In his dissent in Gaitan, Justice Page stated the obvious:

The Court's decision will encourage and permit prosecutors to offer contrived explanations for challenged peremptory strikes of prospective jurors. As a result, the prohibition that prosecutors not base peremptory strikes in jury selection on race or gender, as required by the Equal Protection Clause of the Fourteenth Amendment, ..., may well be rendered meaningless.

One might say that allowing this sort of nonsense to satisfy a requirement under the law will invariably render the law meaningless. In other contexts, the Minnesota Supreme Court has chosen to extend protection to Minnesota citizens under state constitutional grounds. If the Court is serious about restoring confidence that the state justice system provides equal justice and that racism will not be tolerated, it must put an end to the accepted practices resulting in the exclusion of persons of color from juries.

# ¿ Nov 6, 2015 21:53

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

Jesus Christ I'm not misrepresenting anything, I was responding specifically to Painframe's allegation that prosecutors never use any excuses other then bullshit like "he looked nervous" , of which he was concluding solely from that single case.

Unless you're completely autistic then I think you must be aware of how your comments in this thread come off as massively dismissive and eager to blame any problems on the past, or on very selective geographic parts of the country, or on a few bad apples.

quote:

The rest of your post is split between restating my own argument with a slightly different nuance, coming up with additional reasons that would clearly be covered by my statement that I wasn't providing an exhaustive list, and somehow being unable to read the original article that clearly states there is universal support for the peremptory strike system so its unlikely to change.

"Most trial lawyers" is in no way synonymous with "universal support".

quote:

Oh and a really loving bizarre flip out rant about the adversarial system. No, prosecutors trying to win is exactly how the system is supposed to function.

Yes, it is truly bizarre to think that a system that explicitly selects for the dumbest and least educated jurors and which displays a clear, persistent and systematically racist bias is bad. :rolleyes:

Don't worry, nobody is suggesting that the entire adversarial court system should be scrapped altogether but it's remarkable how quick you are to defend a set of institutional arrangements with such manifestly dysfunctional, racist system. The way in which most American jurisdictions deal with criminal issues is broken and it's pretty hard to read your constant nit picking and misleading presentations of what the original article says as anything other than an attempt to imply that the system is basically working as intended with only minor flaws.

# ¿ Nov 8, 2015 21:59

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

The first five or six posts you made in this thread were dismissive statements like "this case is from 1987", along with implications that the problem was geographically confined to the South, etc. There's no need to re-litigate those arguments but you should be able to understand why people think you're downplaying the issue.

Practically speaking, if you think the current system for striking jurors is simply irreplaceable, then what practical alternatives are there to deal with the disproportionate and racially motivated exclusion of black jurors?

# ¿ Nov 9, 2015 19:31

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

I was being dismissive of the over the top hyperbole of the OP and the people who thought the really horrible examples of this like the training video and the jurors marked with "B"s were contemporary events.

Helsing posted:

Practically speaking, if you think the current system for striking jurors is simply irreplaceable, then what practical alternatives are there to deal with the disproportionate and racially motivated exclusion of black jurors?

# ¿ Nov 10, 2015 20:28

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

I already said I didn't think one exists

Helsing posted:

It's good to know that no matter what facts you're presented with your analysis stays the exact same: it's not a problem, and if it is a problem we can't do anything about it. I am sure you are debating this in good faith though.

# ¿ Nov 10, 2015 20:46

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

Jarmak posted:

I've been arguing since the very beginning that this was a second order effect and trying to implement a solution at this level would do more harm then good because of a lack of acceptable solutions. "Bad Faith" does not mean "Argument I don't like/know how to respond to"

If the entire system is built on racism and perpetuates racism, is incapable of being meaningfully reformed and produces manifestly racist outcomes then what exactly is the meaningful distinction between a "first order" and "second order" effect in this context?

Sorry if I have trouble taking you seriously when your position is "the current way of doing things is the best possible system under current conditions". Coincidentally that has been the argument used since the 19th century or earlier to deflect every attempt to improve the situation, from abolitionism to desegregation down to the Great Society programs.

# ¿ Nov 10, 2015 21:03

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

In the long term there are huge parts of the American system that should be overhauled, root and branch, like elected judges and prosecutors. In the short term I imagine that restrictive oversight on prosecutors would be a better solution than shrugging and concluding there's nothing much to be done. Much in the way that the federal government has had to supervise some former confederate state's to prevent them from systematically disenfranchising black voters I imagine it may be necessary to have greater regulation and oversight of prosecutor behavior, especially in cases where it can be demonstrated that a prosecutor is striking black jurors at a disproportionately high rate.

How to implement such a system is a huge question that's mostly beyond the scope of a thread on Something Awful. However, talking about solutions to the problem, even in broad strokes, is hard to do when the loudest voice in the room keeps insisting there's no point even trying to do anything other than waiting for racism to end.

# ¿ Nov 11, 2015 04:46

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# ¿ May 14, 2024 02:50

Helsing: Aug 23, 2003; DON'T POST IN THE ELECTION THREAD UNLESS YOU JOE BIDEN

The trouble with elected judges runs way deeper than just worrying that they'll be subject to the fickle whims of the mob. The situation is worse than that:

quote:

In "Justice For Sale," FRONTLINE correspondent Bill Moyers examines the impact of campaign cash on the judicial election process and explores the growing concern among judges themselves that campaign donations may be corrupting America's courts.

In the 39 states where voters elect some or all of their judges (see map of states), special interest money is pouring into judicial races helping to finance expensive tv ads, media advisers and pollsters, and threatening to compromise judicial independence and neutrality. This report includes a rare interview with U.S. Supreme Court Justices Stephen Breyer and Anthony Kennedy who speak out about the threat to judicial integrity.

"If there is the perception or the reality that courts are influenced in their decisions based upon campaign funding sources," says Justice Kennedy, "we will have a crisis of legitimacy, a crisis of belief, a crisis of confidence."

"Justice for Sale" looks at judges' races in three states--Pennsylvania, Louisiana and Texas--talking to judges, media consultants and special interest groups who are donating big money to judicial campaigns.

In Pennsylvania, the pro-business group Pennsylvnians for Effective Government (PEG) surveys the voting habits of state Supreme Court justices and funds those who share their philosophy. PEG leader Bill Cook sees his group as being in competition with trial lawyers and labor unions who also contribute heavily to judicial campaigns. "Judicial elections are very partisan," he says. "Do the judges know who the big donors are? Of course!" Helen Lavelle, a media consultant for a Pennsylvania judge who won re-election in 1999 acknowledges, "We sell a judge the same way we sell anything." Although she believed in her candidate's integrity, she's concerned about money's corrupting influence. "It's unfair. People are ending up with a chance to be on a bench who have no business being there."

Traveling to Louisiana, this FRONTLINE report investigates how in 1998 a business group financed a campaign against Pascal Calogero Jr., Chief Justice of the Louisiana Supreme Court, whom they viewed as unsympathetic to industry's concerns. But after Calogero backed down on a crucial issue (and supported curbing a student law clinic which had several times successfully represented poor people against oil and gas interests in environmental cases), Calegero was able to secure enough donations from business to help him win another term.

In Texas--which Moyers calls "the heavyweight in partisan, expensive, knock-down, drag-out brawls for control of a state Supreme Court"-- FRONTLINE looks at how special interests and their fundraising has dramatically changed the make-up of the Texas Supreme Court. Twenty years ago, Texas was known as the 'lawsuit capital of America' with judges and juries favoring trial attorneys and their clients. By 1998, the Texas Medical Association had successfully spearheaded a campaign by business to take back the courts. Today, all nine members of the Texas Supreme Court are Republicans and staunchly pro-business, according to critics. Texas Supreme Court Justice Tom Phillips is one of several Texas legislators, lobbyists and judges who talk about the politics and money scramble to run for judicial office. Although Phillips calls for reforms to lessen money's influence, during his ten years on the court, he's had to learn to play the money game.

Throughout this report, FRONTLINE tracks the mounting evidence--polls, surveys and reports--that trust in judges and the courts is eroding because of the perception that campaign contributions to judges are affecting their decisions on the bench. For example, a June 1999 survey conducted by the Texas Supreme Court and the Texas State Bar found that almost half the judges in Texas believe campaign contributions significantly influence judicial decisions. Lawyers who appeared before the courts were even more skeptical of the system--79% believe that campaign contributions affected the decisions.

"Try as they might, the nine justices of the Supreme Court of Texas today have their next election on their mind every day of their life," says Bob Gammage, a former member of the Texas Supreme Court. Gammage believes that the justices strive to be impartial, but are dependent upon their campaign donors: "If you don't dance with them that brung you, you may not be there for the next dance."

Given the amount of money tied up in keeping Americans incarcerated I would not be surprised if all that business money is, either directly or indirectly, exerting pressure on the justice system to lock up more people.

# ¿ Nov 12, 2015 20:11

The Something Awful Forums > Discussion > Debate & Discussion > Supreme Court takes up systematic bias against black jurors.