Peremptory strikes reveal bias only through explicit material like prosecutors’ notes

Evidence

A recent case illustrates how difficult it can be to actually prove the race-based nature of potential challenges. In Foster v. Chatman (2016), the Supreme Court agreed to hear a petitioner’s case when the defense discovered notes written by the prosecutors during the voir dire process; they had written the letter “B” circled next to all the African American potential jurors. The nation’s highest court eventually rejected the prosecutor’s arguments that their peremptory challenges were not based on race (e.g., prosecutors maintained they had removed jurors because of age). In particular, the reason provided for one of the challenges was youth, yet a younger White juror remained on the jury. In its most recent decision on the topic, the U.S. Supreme Court overturned Curtis Flowers’s conviction in his sixth trial, ruling that the peremptory challenges used by the prosecution violated the constitution (Flowers v. Mississippi, 2019). In Flowers’s first four trials, the prosecution tried to strike all thirty-six of thirty-six prospective Black jurors. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 889

Categorization

• SHARE: For anyone tracking Batson jurisprudence — Flowers’ 36-of-36 Black juror strike across four trials is a vivid, citable data point.
• corroborated: 2 independent passages support this claim — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 889