Supreme Court Case Considers 'Batson' Challenge Process in Jury Selection, Which Was Used in Recent Cleveland Case

During the civil trial that eventually landed the estate of Kenny Smith a $5.5-million award from the city of Cleveland for its role in Smith's wrongful death, the city's legal representation tried to remove two black jurors from the panel. (Smith was a 20-year-old black man.)

That's not unusual in itself, but the sidebar debate among attorneys and Judge Solomon Oliver illuminates a greater truth about how the justice is delivered in U.S. courts. 

The Smith family's attorney, Terry Gilbert, challenged the dismissal of the black jurors under Batson v. Kentucky, a Supreme Court case that prohibits attorneys from dismissing jurors "based solely on their race." Each attorney is permitted a certain number of "peremptory" challenges to individuals juror selections. A Batson challenge, in turn, demands the attorney explain why he or she is requesting the dismissal of a particular juror, if the question of racial motivation arises. 

In a rare move, one of Gilbert's challenges to the city attorney's jury decisions was sustained.

The city's attorney, John Bacevice, argued that a black woman on the panel should be dismissed because she was the mother of a child who died and that that might bias her toward the Smith family's plight. It turned out the "child" was a 44-year-old man, and the attorney had not questioned her as to whether he died of, say, a police shooting or natural causes. 

"I'm going to sustain this challenge," Oliver said. "I never have done this before, but really it never occurred to me based on the reading of her background, nor I did not hear anything in the questioning that suggests that the mere fact that she has a child who is deceased that would prevent her from being able to serve as a juror. I don't follow that logic, that because a person has someone who is deceased they wouldn't be able to serve. We have had many people serve, and also in cases involving death, so I think that's a broad — I didn't get that."

(Read the transcript of the conversation below.)

That was the first time Oliver had sustained such a Batson challenge in his career — and the first time Gilbert had received a successful result following his own invocation of Batson.

The timing of those trial transcripts being unsealed this month is noteworthy, as the U.S. Supreme Court is currently hearing evidence in a case that directly deals with the legacy of Batson v. Kentucky

The SCOTUS case involves Timothy Foster, who confessed to the murder of a white woman as a black teenager in 1986. He was convicted, but new evidence — and a rallying cry from the prosecution — is emboldening his request.

From The Guardian:

The strong new evidence came in the form of notes taken by prosecutors when they were deciding which potential jurors to strike off the jury, which revealed they had designated all African Americans on the list with a “B” against their name.

Of the six jurors marked “definite no” by prosecutors, five were African American, while the only white person struck off the list had a declared opposition to the death penalty so should not have been included anyway.

Other black jurors were struck off for false reasons, such as misunderstood religious beliefs, or factors such as age that were not applied to white jurors.

The defence team argued the notes amounted to an “arsenal of smoking guns” and said it was vital that the supreme court reinforce its ruling in an earlier test case – Batson v Kentucky – which requires prosecutors to demonstrate that race is not the motive for striking off minorities from the jury.

"That's an important case, because race does play a factor in the criminal justice system," Gilbert tells Scene. "We all know that. We see it every day. It manifests itself in the way police act, in the way judges act, in the way punishment is imposed...You have to view with great suspicion what the motivation is of a prosecutor who strikes three blacks from the jury panel, particularly if there's a black defendant, to shape the jury in a way that there would be a jury pro-prosecution and pro-conviction."

Batson challenge transcript in Smith v. Jones

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Eric Sandy

Eric Sandy is an award-winning Cleveland-based journalist. For a while, he was the managing editor of Scene. He now contributes jam band features every now and then.
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