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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