After five terms—some 30 years—in office, the elected District Attorney of the 20th Judicial District of Alabama, Douglas Valeska, is coming to the end of his stint as DA. He chose not to run for office again, paving the way for Patrick “Pat” Jones to replace him.  Though unquestionably powerful, Valeska has become a bit less exalted in recent years. In late 2015, the Alabama Ethics Commission acted on a complaint filed by a former assistant district attorney that Valeska required employees of the DA’s office to perform campaign and personal work on Valeska’s behalf. The Commission determined that the DA had in fact violated ethical rules, and was subject to an “administrative penalty” of up to $1,000 fine. Speaking of fines, the New York Times provided further scrutiny of Valeska’s behavior this month when it published an in-depth report on how the DA of Houston and Henry Counties provided preferential treatment to individuals he knew and those who could afford the high-cost fines his office imposed for diversion programs. Those fines, determined in part by the number and type of charges the DA filed, make the potential of a $1,000 fine against Valeska look like chump change: he reportedly brought in over $1,000,000 in fines in five years—to be used at his discretion.

While the ethical concerns about Valeska’s leadership continue to percolate, one particular prosecution could bring back to the limelight his long-established legacy of racial discrimination in jury selection. In 2011, the Equal Justice Initiative found that 80% of African American prospective jurors in capital cases were struck by Valeska’s office between 2005 and 2009. Half of the resulting juries were all-white and half had a single black juror even though Houston County is 27% African American. Remarkably, in the 1990’s, five Houston County cases prosecuted under Valeska were reversed because of jury selection discrimination. Yet, the trends of exclusion have persisted. A case recently touched by the U.S. Supreme Court throws the issue in sharp relief.

Christopher Anthony Floyd was convicted of a capital robbery-murder in Houston County in 2005 and received a death sentence. During jury selection, the State used its 18 peremptory challenges to remove 10 of 11 African–American prospective jurors. After the trial, a complicated path of appeals and hearings on the issue of race discrimination unfolded. At an early hearing, the prosecutor, Gary Maxwell (Doug Valeska’s right-hand man), provided reasons for why he struck each of the excluded African-American jurors, and he put into evidence his “strike list,” which included information about each juror’s race, among other things. Despite the office’s long history of Batson violations under Valeska, and despite some shoddy after-the-fact reason-giving, all of the Alabama courts that reviewed the case decided that the prosecution did not intentionally discriminate against jurors on the basis of race.

In December of 2015, Mr. Floyd’s defense team filed a petition asking the U.S. Supreme Court to review the case. The question the petition presented summarized one of the defense’s most compelling claims:

Christopher Floyd was tried by an all-white jury in Houston County, Alabama, where African Americans comprise twenty-seven percent of the population. The prosecutor, who has a documented history of racial discrimination in jury selection, marked African American venire members with a “B” on his strike list, then struck ten of eleven qualified African American prospective jurors. One of the African American prospective jurors this prosecutor struck, Inez Culver, provided answers to all of the prosecution’s questions during voir dire, yet when asked to explain his peremptory strike of her the prosecutor asserted that he could not come up with a race-neutral explanation because she failed to respond to any questions and he did not know anything about her. Even though this was not true and was merely an explanation for not having a race-neutral reason, the Alabama courts refused to find an Equal Protection violation.

While the Supreme Court considered the petition, it decided a strikingly similar case out of Georgia. In Foster v. Chatman, the Court found that the prosecutor had violated Batson where the defense had discovered evidence of handwritten notes by prosecutors denoting the race of prospective black jurors. In granting the defendant a new trial, the Court wrote that the evidence of discriminatory intent included the State’s “misrepresentations of the record, and the persistent focus on race in the prosecution’s file.” After deciding Foster, the Supreme Court granted Mr. Floyd’s petition, vacated the judgment below, and remanded the case “for further consideration in light of Foster.”

The remand did Mr. Floyd no good at the state level. Last month, the Alabama Supreme Court again denied his Batson claim. Although the state court ostensibly considered the parties’ supplemental briefs in light of the Foster remand, the opinion does little more than rehash its earlier rulings and rationales. Indeed, while claiming that it “reconsidered” the fact that the prosecutor had marked the race of prospective jurors on the strike list, the Alabama Supreme Court defensively noted that it had “considered the marked list in our previous review . . . .” (One justice dissented from the court’s 2015 opinion in the case; two of the court’s justices dissented from the 2016 decision that followed the U.S. Supreme Court’s remand.)

Whether the Supreme Court will intervene again is now the pressing question. It is not unusual for the Supreme Court to act multiple times on the same case to bring intransigent lower courts in line when it comes to race discrimination issues. For example, the seminal Miller-El case went up to the Court originally in 2003 and then returned in 2005—and the justices granted certiorari both times and twice issued a merits opinion in favor of the defendant who raised claims of discrimination. That may be the course that Floyd takes—or should be, at least. The Alabama Supreme Court’s opinion not only brushes aside the strong atmospheric evidence of discrimination—the strike list with juror race specifically noted and the compelling local history of discrimination—but it also glosses over the real smoking gun: that the prosecutor lied when he claimed that juror Culver did not respond to his questions during the selection process. As courts often do when confronted with evidence that prosecutors have violated a defendant’s constitutional rights, the Alabama Supreme Court nitpicked, minimized, and recast the evidence of discrimination and then chucked it overboard, ultimately validating the conviction.

Meanwhile, back in Dothan, it seems that little has changed with Valeska’s approach to jury selection in capital cases. In one case in which the death penalty has been reversed four separate times, Valeska’s office continues to exclude as many African American prospective jurors as possible. If Floyd eventually gets reversed, it will mark another disgraceful notch of discrimination on the wall of the DA’s office. It would also further confirm what history has made clear about the 20th Judicial District DA. One wonders whether things will change under Pat Jones, and, if not, whether Alabama courts will have the courage to curb ongoing discrimination.

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