Prosecutors wrote circled ‘B’ notes next to all Black potential jurors

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. In his sixth trial, the prosecution used peremptory challenges to strike five of six potential Black jurors, and spent more time questioning Black potential jurors than White potential jurors. Although the Supreme Court overturned the convictions in both of these cases, the petitioners waited years for these reversals of their convictions and were required to take their appeals to the highest court in the land to do so. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 889

Categorization

• XREF: Connects to the Batson v. Kentucky doctrine in equal-protection jurisprudence and the show-vs-subtle-racism literature; also pairs with the broader theme of procedural racism surviving formal legal prohibitions.
• SEED: Angle: the uncovered ‘B’ notes as a rare case where prosecutorial intent becomes literally legible — how racism hides in plain sight in voir dire, and why Batson’s step-three inquiry fails when intent is unprovable.