EQUAL PROTECTION IN JURY SELECTION BATSON, MILLER-EL AND BEYOND LOUISIANA STATE BAR ASSOCIATION 2017 “NATCHITOCHES LIGHTS” CLE NA STATE BAR LOUISIANA STA JUSTICE SCOTT J. CRICHTON LOUISIANA SUPREME COURT 400 Royal Street New Orleans, LA 70130 ph. 504-310-2360 fax 504-310-2369 [email protected] TABLE OF CONTENTS Page I. United States Supreme Court Cases: 1. Batson v. Kentucky, 476 U.S. 79 (1986) ----------------------------------- 3-4 2. Georgia v. McCollum, 112 S.Ct. 2348 (1992) ---------------------------- 4 3. J.E.B. v. Alabama, 114 S. Ct. 1419 (1994) ------------------------------- 4 4. Edmonson v. Leesville Concrete Co., 111 S.Ct 2077 (1991)---------- 4 5. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed. 2d 931 (2003)(Miller-El I) ----------------------------------------- 5-10 6. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct., 2317, 162 L.Ed 2d 196 (2005) (Sup.Ct. 2005); (Miller-El II)---------------------------10-19 7. Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct.1203, 170 L.Ed. 2d 175 (2008) -------------------------------------------------------------- 19-21 8. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed. 2d 824 (2006) ---------------------------------------------------------------------- 21 9. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed 2d 129 (2005) ---------------------------------------------------------- 22 10. Thaler v. Haynes, 2010 WL 596511 (U.S.) (2010) -------------------- 22 11. Rivera v. Illinois, 129 S.Ct. 1446 (2009)-------------------------------- 23 II. Louisiana Supreme Court Cases: 1. Alex v. Rayne Concrete Service, et al, 05-1457, 05-2344, 05-2520 (La. 1/26/07) 951 So.2d 138 ---------------------------------- 23-25 2. State v. Allen Snyder, 98-1078 (La. 9/6/06) 942 So.2d 484 (reversed by U.S. Supreme Court) -------------------------------------- 25-30 3. State of Louisiana v. Coleman, 2006-0518 (LA. 11/2/07), 970 So.2d 511 ------------------------------------------------------------ 30-32 4. State v. Jacobs, 2009-1304 (La. 4/5/10) 32 So.3d 227--------------- 32-33 5. State v. Dorsey, 74 So.3d 603 (2011) ------------------------------------33-35 6. State v. Nelson, 85 So.3d 21(2012) -------------------------------------- 35-37 7. State v. Bender, 152 So.3d 126 (2014) ----------------------------------- 37 8. State v. Williams, 16-1952 (La. 11/13/17), --So.3d--------------------37-38 9. State v. Crawford, 16-1952 (La. 11/13/17), --So.3d------------------ 38-39 III. Miscellaneous th 1. United States v. Harding, 864 F.3d 961 (8 Cir. 7/28/17)-------------- 39 2. Wilson v. Vannoy – Fed. Appx. --, 2017 WL 3978445 (5th Cir. 9/8/17)----------------------------------------------------------------------------- 39 J. Crichton - Page 2 of 40 Pages This paper primarily focuses on civil and criminal voir dire after the Miller-El II case, decided by the United States Supreme Court in 2005; however for background purposes, several “pre Miller-El” cases are addressed. I. UNITED STATES SUPREME COURT CASES 1. Batson v. Kentucky, 476 U.S. 79 (1986) held that under the Equal Protection Clause of the 14th Amendment, prosecutors may not use peremptory challenges to excuse jurors on the basis of race. The familiar three-step Batson analysis was recently described in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d824 (2006), as follows. A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. 546 U.S. at 336-38, 126 S.Ct. at 973-974. Louisiana has codified the ruling of Batson in La. C. Cr. P. art. 795, which provides, in pertinent part: C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, J. Crichton - Page 3 of 40 Pages shall be made outside of the hearing of any juror or prospective juror. A. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror. B. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge. 2. Georgia v. McCollum, 112 S.Ct. 2348 (1992), held that defense lawyers may not use race – based peremptory challenges. 3. J.E.B. v. Alabama, 114 S. Ct. 1419 (1994) held that the Equal Protection Clause of the 14th Amendment prohibits discrimination in jury selection on the basis of gender or on the assumption that an individual will be biased in a particular case solely because of the fact that the person happens to be a woman or a man. 4. Edmonson v. Leesville Concrete Co., 111 S.Ct 2077 (1991) held that private parties in civil cases could not exercise their peremptory challenges in a racially discriminatory manner. Edmonson involved a suit by an African-American construction worker who was injured in a job site accident and sued the defendant for negligence. The defendant used two of its three peremptory challenges to strike African-American jurors from the prospective jury, and the plaintiff, citing Batson, requested that the Court require the defendant to provide a race-neutral explanation for striking the prospective minority jurors. The district court denied the plaintiff’s request, stating that Batson does not apply in a civil proceeding. After an appeal in which the Fifth Circuit Court of Appeals, en banc, ruled that the use of peremptory challenges by private parties does not constitute state action such that there are no constitutional implications, the Supreme Court granted certiorari and reversed. Specifically at issue in Edmonson, was whether a private party in a civil case may use peremptory challenges to exclude jurors on the basis of race, or stated another way, does a private litigant’s alleged discriminatory use of peremptory challenges constitute “state action” sufficient to invoke constitutional protections? The Court responded to this important question in the affirmative, by stating that, “[r]ecognizing the impropriety of racial bias in the courtroom, we hold that a race-based exclusion violates the equal protection rights of the challenged jurors.” J. Crichton - Page 4 of 40 Pages 5. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed. 2d 931 (2003); (Miller- El I) Thomas Joe Miller-El sought federal habeas relief from his state court conviction for capital murder and death penalty imposition. The federal district court denied his petition and the U.S. Court of Appeals for the Fifth Circuit denied certificate of appealability (COA). Certiorari was granted, and the United States Supreme Court1 reversed and remanded holding that reasonable jurists could have debated whether the prosecution’s use of peremptory strikes against African Americans prospective jurors was the result of purposeful discrimination, and thus petition was entitled to COA.2 Miller-El, his wife Dorothy Miller-El, and one Kenneth Flowers robbed Holiday Inn clerks in Dallas, Texas. They emptied the cash drawers and ordered the two employees to lie on the floor. The employees were gagged and their hands and feet were bound. Miller-El asked Flowers if he was going to kill them. When Flowers hesitated or refused, Miller-El shot one of the victims twice in the back, thereby killing him, and shot the other employee in the side. He was indicted for capital murder and his trial began in 1986. At the conclusion of jury selection, the defense counsel moved to strike the jury on grounds that the prosecution had violated the Equal Protection Clause of the Fourteenth Amendment by excluding African Americans by use of peremptory challenges. It should be noted that Miller-El’s trial occurred before the decision in Batson. The case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was then the controlling precedent. As Swain required, the defendant sought to show that the prosecution’s conduct was part of a larger pattern of discrimination aimed at excluding African-Americans from jury service. In a pretrial hearing, he presented extensive evidence in support of his motion.