It’s no secret prosecutors accused of discriminating against prospective jurors in jury selection usually get away with excluding the jurors they do not want to serve. What is remarkable, however, is that even prosecutors who document plans to strike jurors on the basis of race or gender can evade accountability. Even though the U.S. Supreme Court has called on courts to consider all the relevant circumstances when deciding whether a lawyer has violated the tenets of Batson v. Kentucky (the case that prohibits racial discrimination in jury selection and that has been extended to gender discrimination but not yet discrimination on the basis of sexual orientation)—and those circumstances most definitely include documents that refer to the planned dismissal of prospective jurors for unconstitutional reasons—a number of cases show that even a documented intent to discriminate may not be enough. If any single thread of the Batson jurisprudence reveals how fragile the entire fabric is, this is it.

To be fair, the Supreme Court itself has considered documentary evidence of discrimination. In Miller-El v. Dretke, the Court granted the defendant a new trial; while picking the jury, prosecutors struck 10 of the 11 qualified African-American prospective jurors. On top of the substantial and compelling record evidence that prosecutors intentionally discriminated against black potential jurors, the Court wrote: “There is a final body of evidence that confirms [our] conclusion. We know that for decades leading up to the time this case was tried prosecutors in the Dallas County office had followed a specific policy of systematically excluding blacks from juries . . . .” The Court cited the infamous “Sparling Manual”—a training manual that prepared prosecutors to discriminate by outlining reasons they could deploy to justify strikes against racial minorities. It advised, “you are not looking for any member of a minority group which may be subject to oppression—they almost always empathize with the accused.” Faced with this and other evidence, the Supreme Court found that Dallas County, Texas prosecutors had violated Batson.

If it seems clear that Thomas Miller-El deserved relief, then the tortured path his case took should be revisited. At his trial, Miller-El’s lawyers objected to the prosecutor’s peremptory strikes against black prospective jurors, but the trial court overruled the objection. Then the U.S. Supreme Court decided the Batson case while Mr. Miller-El’s appeal was pending. The Texas Court of Criminal Appeals sent the case back for reconsideration in light of Batson, and the trial court again approved of the prosecutor’s reasons for striking nearly all of the qualified black jurors. The case was affirmed on appeal in the state courts. Mr. Miller-El sought relief in the federal courts. The federal district court denied relief and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability—basically denying the defense permission to initiate an appeal to that court. The Supreme Court in 2003 reversed the Fifth Circuit’s denial of a certificate, sending the case back for a decision on the merits. Then, the Fifth Circuit rejected Mr. Miller-El’s substantive Batson claim. In 2005, the Supreme Court reversed again. In short, despite a record chock full of evidence of race discrimination, multiple state courts and multiple federal courts were unmoved even with the devastating revelation of the Sparling Manual.

In 2016, the U.S. Supreme Court again handed down a Batson decision favorable to parties concerned with racial discrimination in Foster v. Chatman. The evidence of discrimination looked very similar to the evidence presented in Miller-El; beyond the statistics (here, the prosecutor struck all four of the eligible African-American jurors), there were “misrepresentations of the record,” “shifting explanations,” and, wait for it, documentary evidence that prosecutors were planning to cut as many black jurors as possible. That evidence included the list of jurors in which a legend showed green highlighter was applied to “Blacks” and the letter “B” appeared next to each African-American juror’s name. Every African-American prospective juror was on the prosecution’s list of “definite NO’s,” while only one white juror appeared on that same list. And, someone wrote a note about which one the prosecutor should accept if “it [came] down to having to pick one of the black jurors.” As one commentator put it, the discrimination here was “so blatant that the Supreme Court basically had no choice but to rule in Foster’s favor.”

But, the U.S. Supreme Court had to take the case for this result to be reached. The trial court rejected the Batson claim during trial. The Georgia Supreme Court affirmed that judgment. Then, in state post-conviction proceedings, defense lawyers uncovered the illuminating documentary evidence. Despite this evidence, the state habeas court denied relief. Again, the Georgia Supreme Court affirmed that ruling. Mr. Foster, convicted of a crime committed in 1986, finally got the new trial he deserved in 2016. It took 30 years, and it took the exceptional blessing of U.S. Supreme Court intervention.

The outcomes in these cases prove how elusive Batson enforcement can be. Now, another case on the Supreme Court’s doorstep is showing just how rarely lower courts identify and remedy Batson errors. This case, like Miller-El and Foster, comes from the Deep South. Christopher Floyd was convicted in Houston County, Alabama. We have featured the County several times on The Open File (here, here, and earlier this month here) because of its extensive history of documented prosecutorial misconduct.

Floyd presented the lower courts with a strong Batson claim, but lost. At his trial, the State used its 18 peremptory challenges to remove 10 of 11 African-American qualified jurors and 12 of 18 female qualified jurors. The state appellate courts remanded the case twice for additional hearings and findings on potential Batson and J.E.B. (gender discrimination) violations, and then denied Mr. Floyd’s claims on the merits. As in the Foster case, the defense team uncovered documents demonstrating that the prosecution had marked the jury list with indications of which prospective jurors were Black. With the striking similarities between this case and Foster, the Supreme Court granted, vacated, and remanded the decision for “further consideration” in light of the Foster opinion.

Despite the District Attorney’s well-documented history of race discrimination (see footnote 5 in the petition for certiorari)—and the prosecutor’s explanation that he marked the list in accordance with his “gut reaction” rating system”—the Alabama Supreme Court reinstated its earlier judgment. That court accepted the prosecutor’s explanation for why it had prepared for jury selection by marking the race of the African-American jurors: “the list was . . . so marked in light of the trial court’s heightened concern that the parties comply with Batson.” This is the same argument that the prosecution made in Foster, that its evident preoccupation with race was about complying with Batson rather than discriminating because of race. Given all we know about Houston County prosecutors and who they actually chose to strike in this case, and all we know about other Batson cases, not to mention the role racial bias has played in high-profile prosecutions, this argument is more than difficult to swallow. Nonetheless, the state courts have again left it up to the U.S. Supreme Court—apparently the last and only line of defense against race discrimination in jury selection—to call a fig a fig.

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