The rationale of the Texas Court of Criminal Appeals was worse than one might expect, even of that court.
To prevail on a claim that the trial court erred in denying a challenge for cause, the defendant must also show harm. Harms depends on “whether a peremptory challenge was wrongfully taken from the defendant.”
After using up his 15 peremptory challenges, the defendant was given two additional strikes, both of which were used before they got to Juror Niesman. After the challenge for cause was denied, the defendant requested a third additional strike, which the judge denied.
Because the trial court granted Appellant two additional peremptory challenges, Appellant cannot show harm unless he demonstrates that the trial court should have granted at least three of his challenges for cause to these seventeen veniremembers.
Since the decision of a judge not to strike for cause is reviewed under the abuse of discretion standard, the question remaining was whether the juror was clearly racist, In her dissent, Justice Sotomayor, joined by Kagan and Breyer, argues that no court has confronted that issue, so that the Supreme Court should have granted cert to consider it.
In 2018, a jury convicted Love of capital murder in the course of a robbery that occurred in 2015. Prior to trial, prospective members of the jury filled out a questionnaire that included the following questions:
“68. Do you sometimes personally harbor bias against members of certain races or ethnic groups?
“69. Do you believe that some races and/or ethnic groups tend to be more violent than others?”
To the first question, No. 68, the prospective juror at issue answered, “No.” But to the second question, No. 69, he answered, “Yes.” He explained that “[s]tatistics show more violent crimes are committed by certain races. I believe in statistics.”
During the voir dire proceeding that followed, both Love and the State questioned the prospective juror about his response to question No. 69. He explained that he understood “[n]on-white” races to be the “more violent races.” He claimed that he had seen statistics to this effect in “[n]ews reports and criminology classes” he had taken.
He stated that his answer to question No. 69 was based on these statistics, rather than his “personal feelings towards one race or another,” and he indicated that he did not “think because of somebody’s race they’re more likely to commit a crime than somebody of a different race.” He told defense counsel that he would not feel differently about Love “because he’s an African American.”
At Slate, Mark Joseph Stern takes for granted that this juror, having said that “non-whites are more violent,” is racist.
Racism pervades every aspect of the death penalty, but it’s not often as obvious as it was at Love’s 2018 trial. Love’s attorneys asked prospective jurors whether they believe that some races “tend to be more violent than others” in an attempt to smoke out illicit bias. One juror, Zachary Niesman—who is white—answered “yes,” elaborating: “Statistics show more violent crimes are committed by certain races. I believe in statistics.”
At Volokh Conspiracy, Eugene Volokh doesn’t see the issue so simply resolved.
…I don’t think that, on the merits, the juror should have been excluded here, at least absent further evidence of bias that wasn’t mentioned in the opinion. While “tend to” in the question is ambiguous, I take it many reasonable jurors can interpret it as simply reflecting statistical correlation related to the per capita offense rate, and in particular statistical correlation within the U.S., which is how the juror said he was reading it; recall that the juror was a layman reading a question given to him on the questionnaire, rather than formulating it as his own statement.
And under that interpretation, the answer of many fair-minded people who have seen the statistics would be “yes,” even recognizing the limitations of the statistics (see here for more on the statistics and the limitations).
The difference between these two views, that the juror was obviously racist and that the juror wasn’t necessarily racist at all, is going to be significant going forward, given that sensitivity to, and definition of, racism has become a highly controversial and contested issue. Since the standard of review for denial of a strike for cause is abuse of discretion plus harm, Eugene’s point would clearly suggest that the defense would not have overcome the very high hurdle regardless of the additional peremptory issue.
As Stern emphasizes, the defendant had a constitutional right to an impartial jury that was violated by the seating of a racist juror. What remains unclear was whether this juror was racist, or at least not so clearly racist as to make the trial court’s refusal to strike him for cause an abuse of discretion.
The Supreme Court denied cert in the case, even though the Texas Court of Criminal Appeals dodged the issue of whether the juror was racist by holding that there was no harm. While the Supreme Court in Peña-Rodriguez v. Colorado made clear that it was a constitutional violation where a juror “relied on racial stereotypes or animus to convict a criminal defendant,” the decision doesn’t address where the line is drawn as to what constitutes stereotypes or animus.
Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
Essentially, the Supreme Court kicked it back to the trial court to exercise its “substantial discretion” as to what’s sufficiently “overt” and “casts serious doubt” on the verdict. If anything, this lends itself to harmless error analysis when the evidence of guilt is “overwhelming.”
As Eugene points out, not only is there a serious doubt as to whether the juror’s response was, as Stern so clearly believes, racist, but that a juror responding otherwise after being reminded of the statistics might be a dishonest juror.
On the other hand, it may also lead more jurors to actually be influenced by such statistical generalizations (because the question will remind them of things they’ve heard along these lines, whether or not they then candidly answer “yes”). And given that many fair-minded jurors would, if honest, answer the question “yes,” simply because the statistics do suggest such an answer, it may tend to identify not prejudiced jurors but honest jurors.
This would have been an excellent opportunity for the Supreme Court to address the issue of where the line is drawn as to what constitutes juror racism, as this is likely to become an increasingly challenged problem, leaving it to trial judges to apply their own sense of whether a juror is racist or not. While the Supreme Court may not be a court of correction, as Stern would have it, it could have taken this opportunity to clarify a critical issue by providing a rule for trial judges to decide whether a juror should be struck for cause for being racist. It chose not to.
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This is a great example of an issue non lawyers think is cut and dry, bc , we don’t understand law enough to see how difficult finding that line is Depending on where you’re standing
Law is hard, and media outlets with a cause to push take advantage of that by playing to the bias of their readers.
I don’t understand the cautious phrasing of Eugene’s comments. I don’t see why he says “tend to” is ambiguous. What “tend to” *always* means in statements about differences between members of demographic groups is that what is being asserted is a difference in population-level rates (usually put in to avoid such statements being read as meaning e.g. that every black person is more violent than a typical white person or something silly like that).
As far as I can see, with that “tend to” softener in there, the claim being asked about on the survey is just unambiguously and objectively true and anybody who answers “no” is either bizarrely unaware of the (substantial!) differences in per capita violent crime rates between races, confused about what “tend to” means (unless I am!), or giving an answer they know is false in order to avoid being filtered out of the jury. It’s pretty bizarre for it to have even been on the selection questionnaire.
The word you’re struggling with is “stereotypes<' which are population level assumptions that "tend to" serve as our starting point in interpreting evidence and finding facts.
That’s a tough question, Scott. And as many attorneys know, there’s a tendency of appellate courts to avoid tough questions and fall back on procedural defects to justify an opinion. (And let’s not get into some of the other decisions of the Texas Court of Criminal Appeals that have made me feel almost ashamed to be a Texan).
My concern about that juror honestly answering the second question is that so few of the general public understand statistics. (To be honest, I only have a basic understanding myself).
While it appears to be true that some segments of our society are, on the whole, more violent than others, that does not mean that any specific individual has a propensity for violence. To judge the guilt or innocence of a single defendant based on those statistics does that defendant a great injustice.
Frankly, I don’t know the answer and it’s not my job to make that determination. But it would be nice if the Supreme Court of the United States had not dodged the question.
Lee
Hopefully, a yes answer will bring further questions to illuminate whether it’s indicative of bias, statistical ignorance or a sound understanding of stats.
As for where to draw the line, beats me. But that’s the mess the Supreme Court leaves behind for trial judges to figure out on their own, only to be told later that they abused their discretion for reasons no one ever told them to apply.
I’m not so sure this is a good test case for defining juror racism. Take the questions:
“68. Do you sometimes personally harbor bias against members of certain races or ethnic groups?
“69. Do you believe that some races and/or ethnic groups tend to be more violent than others?”
Whether deliberate or not, this is exactly how a good trial lawyer would frame a questionnaire. The first is definite and clear. The yes leads to a for cause dismissal, but the no may not be an honest answer. But the question must be asked to ID the easy pickings.
The second is perfectly, and I hope, intentionally ambiguous. An ambiguous question leads to additionally questioning, even if the answer is definite. No matter how a juror answers an ambiguous question, a trial lawyer gets to probe the response. It’s trial lawyerin’ 101.
I didn’t do the heavy lifting of trying to find how the trial lawyers probed this response and I doubt I’d find much if I did. If a juror is Id’d as not good for my case, the ambiguous question is the way that one gets gone. From what I see, this juror did not show racism would affect a verdict, but if I wanted him gone, he would have been.
I don’t think the Court could define the boundaries for a racist juror based on this. Shit, I don’t know if it can be defined.
I don’t know if it can be defined either, but I’m fairly confident that there’s going to be a lot of screaming about pretty normal jurors being racist in the future, whether during voir dire or in the jury room after verdict. And even though it’s hard to define, that’s why they pay justices the big bucks.
As Skink sort of points out, 69 is a nicely ambiguous question opening the door to probing voir dire. The more direct “Do you think this guy’s probably dangerous just ’cause he’s black” pretty clearly invites a “No” even if it would be a lie.
Probe a “yes” answer to question 69, get the “I can be fair” response. As you say, what else do you expect the person to say, “Well sure, you got me. I’m a racist”?
Does this prove the juror is totally racist or totally reasonable? One side says anything to the right of a Kendi answer is racist and the strikes for cause are going to become quite heated.
Heating strikes is the job and stopping at fairness ain’t the job. Picking a jury is about excluding jurors. It’s not about a fair jury.
A judge I knew used to tell the venire at the start of voir dire, “What we’re all looking for here is a jury that can be fair to both sides.” Of course, that was a lie. Maybe (hey, it’s possible) that’s what the judge wanted. The prosecutor wanted a jury that would convict. We wanted a jury that would acquit. Fairness had nothing to do with it.
On a good day, you manage to strike the jurors the other side wants, just as they do yours.
Obviously, but what’s that got to do with anything?
Yeah, Skink.
My lesson quotient is filled for the day.
That’s what I thought. Cheers.
I’m with Skink when he says: “I don’t think the Court could define the boundaries for a racist juror based on this. Shit, I don’t know if it can be defined.”
That almost seems like one of those “I’ll know it when I see it” things we have to trust judges to call. It is also hard to see how Appellate Courts can presume know better than the judge in the room at the time unless there is something egregious in the record.
This is likely to lead to some very wild swings in jury selection. Get a woke judge and a big swathe of jurors are racist. Get an unwoke judge and nobody is. This is not a good thing for law.
Kafka trap antiracist questions seem like good fodder for appeals.
For the defendant, always good to craft some appellate issues ahead of time, just in case.
Maybe the Court is concerned that it doesn’t know the answer. To the extent some justices like to rule on such matters based on their perception of developing community norms, it has to be a problem that the general public lacks a cohesive understanding of “racism.” Some people can’t see it at all, while others see it everywhere, as a pervasive factor that drives everything. Still others believe only people in select ethnic groups are susceptible to racism, and that this belief is not racist. It makes sense to me that the Court would want to refrain from giving special legal significance to a word of uncertain import.
So? How does that help trial judges and lawyers?
Reading the dissent, all I could think was that if questions as ambiguous #69 are evidence of racism when answered in the affirmative, prosecutors looking to strike black jurors from juries for black criminal defendants just have to include a question along the lines of “some races tend to be wealthier than other races”; most black jurors are going to say yes. Then it opens up to an accusation of racial envy, reliance on stereotypes, bias, etc, and the black jurors are gone.
Any game played by the defense can be played by the prosecution as well. That’s why we need to be careful what we ask for.
Given that anything short of self-flagellation for being white is indicative of racism according to Kendi, I’m not sure there’s any reasonable definition of “racist” to be found these days that a court could rely on.