Monday, February 27, 2017

Kicking most of the blacks off the potential jury did not give criminal defendant a viable habeas petition

A "jury of your peers" is one of those myths that non-lawyers will repeat from time to time when they talk about the possibility of a fair trial. But you really don't get a jury of your peers. You get 6 to 12 people who (1) don't know you or any of the witnesses; (2) swear under oath they can be fair and (3) could not find a way to avoid jury duty. The courts have other measure to keep things fair, including the rule that you cannot kick black citizens off the jury because of their race.

The case is Carmichael v. Chappius, decided on February 17. Carmichael was charged with certain drug crimes. At jury selection, his lawyer saw that something funny was going on. The prosecutor was kicking blacks off the jury. Not all of them, but most of them. Of the 210 people considered for jury duty, eight were black. The prosecutor removed six of them with peremptory challenges. "Eight black potential jurors accounted for 14 to 16 percent of the total number of individuals questioned during jury selection who were not removed for cause. Yet, the State used six of its twenty-one peremptory challenges on black venirepersons, or close to 29 percent of its available strikes, to remove 75 percent of them from the potential jury."

What does it all mean? The Supreme Court said in 1986 that you cannot kick potential black jurors off the jury. That was the Batson case. The party that objects to the racial cleansing has to make out a prima facie case of racial discrimination in asking the trial court to correct the problem. You make out a prima facie case "by offering a wide variety of evidence, so long as the sum of the proffered facts gives rise to an inference of discriminatory purpose." In other words, you've got to know it in your bones that the prosecutor is doing something wrong. All of this maneuvering is taking place, by the way, during jury selection, when there is no time to really prepare for this dispute and everyone has to think on their feet.

The federal trial court in Carmichael's habeas petition said the state court had violated the Constitution in not recognizing that his lawyer has identified a prima facie case of racial discrimination in jury selection. But citing the 1996 federal law that says federal judges have to defer to the constitutional judgment of state courts in habeas petitions (you know, states' rights and all that), the Court of Appeals (Winter, Cabranes and Restani [sitting by designation]) disagrees, holding that the state courts did not unreasonably apply settled constitutional standards in finding that Carmichael's lawyer did not identify a prima facie case. The Second Circuit concludes, "While statistical evidence may, in some circumstances, suffice to establish a prima facie case of discrimination during jury selection, the Appellate Division did not apply Batson and its progeny in an unreasonable manner when it concluded that, in the circumstances presented, the statistical evidence did not warrant an inference of discrimination." 

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