A New Trial?

We just got back from the Batson hearing, and I feel pretty good.

Here’s how these things work. Batson prohibits the state from striking jurors because of race. Winning a Batson challenge is a three step process. First, you convince the court that there is a pretty good chance the state is misbehaving. Then the state gets to respond with race-neutral reasons for the strikes. Finally, you say those reasons are b.s. The court then decides whether the race-neutral reasons were the actual cause of the strike. If not, you win.

Our case is an appeal. The trial attorney never even took the first step; he failed to object on Batson grounds. Normally that means you can never, ever, ever, raise that objection, no matter how obvious and harmful the error. However, in a death penalty case, you are allowed to raise on appeal errors to which there was no objection at trial, and the court will grant relief if the error is obvious and harmful. The court in this death penalty case said there was a very good chance that the state was misbehaving. So even though there was no objection, they considered the Batson issue.

What we did today was steps two and three. The Court of Criminal Appeals sent the case back to the trial court so the state would have a chance to explain its strikes. We argued and fussed for an hour or so, but it all boils down to this:

Us: Judge, Juror Jones has a relative who is a cop. He knew the victim in this case. His own son was murdered, and he admitted that he did not think he could put that out of his mind as he heard this case. In short, he was a perfect juror for the state. They struck him because he is black.

The State: No, we struck him because he has a conviction for writing a bad check.

Us: Well, so does Juror Smith, who is white. They did not strike Juror Smith.

The State: Um, er, uh, let me see here, well we were unaware of Juror Smith’s conviction.

Us: It happened right here in Dothan, all you had to do was check with the clerk’s office. You checked on Juror Jones.

The State: We can’t check everyone, we don’t have the resources.

Us: So you just investigate the black jurors?

No doubt this guy had the conviction. The question is whether that was the actual reason for the strike. I say no, because another juror had the same conviction. Race was the only difference between the two. I don’t buy the ignorance excuse, either. It takes no time or effort to find out whether or not a potential juror has a criminal record. If they were ignorant, it was willful. Also, saying they only investigate some jurors just pushes the problem back. The result, though, is the same. They only investigate blacks, so only blacks get struck for crimes.

So anyway, I’m sure the trial judge will rule against us. We did not make a real good impression on him. But the purpose of the hearing was to get the facts in the record for the Court of Criminal Appeals. They are not known for being fair minded, but this may be one of those cases where they have to rule for the defense. I’ll be sure to let you know either way.

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