Courts

'I Mean, You're Racist For Calling Me Racist!' Argument Fails Spectacularly In Benchslap

Unfortunately, this state's still got problems.

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With all the attention on the census, America’s getting pretty familiar with obviously racist pretextual arguments. But while the administration is busy trying to concoct a new rationale for the census question out of thin air, the mundane, everyday work of creating terribly pretextual reasoning for racist activity is still going on in America’s courts. This is what Batson is supposed to curtail, but it’s not too difficult for savvy prosecutors to work their way around that edict with the help of a compliant bench.

Sometimes, however, Racist Icarus flies too close to the sun and earns the constitutional benchslap they deserve.

Out in Oregon, three young, unemployed college students showed up for jury duty in a case involving a black defendant and a white alleged victim. The two white kids got on… the black kid did not. The prosecutor said his peremptory strike wasn’t racially motivated because he decided he doesn’t like young, unemployed jurors and had made a note to strike him before ever seeing him. You see, it’s not so much that he’s against a juror because he’s black, he’s against all college students and makes exceptions if they’re white!

When the defense raised a Batson issue, the prosecutor carefully considered the racial dynamics of the situation and decided that the real racist here was defense counsel:

Amazingly, the trial judge accepted this reasoning. The court of appeals did… not agree:

There is nothing offensive or racist about invoking the United States Supreme Court-established process for eliminating unconstitutional discrimination in jury selection, and defense counsel should not have been subjected to those accusations by the prosecutor simply for doing his job in accordance with the law.

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The opinion eviscerates the pretextual reasons offered by the prosecutor. For example, he said he liked the white kid, despite his reservations, because he was a Boy Scout but then never asked the black kid about that. But the most entertaining problem for the government dealt with the disparate treatment of the female juror, arguing, “Although the prosecutor did not state so expressly, a prosecutor might reasonably refrain from challenging a female juror, when trying a case involving a young girl who was preyed-upon by an older man.” You can see where this is going…

This argument creates problems for the state and, given those, the state wisely backed away from it at oral argument. Nonetheless, it is difficult to disagree with the underlying premise of the state’s argument: that, on this record, it is inferable that the prosecutor’s exercise of the peremptory against [the black juror] was unconstitutionally based on gender, as well as race.

The case was reversed and remanded.

Putting aside the obvious constitutional problems — which shouldn’t be diminished by this point — what makes this such a boneheaded Batson violation is not so much that the black juror was going to be the second alternate and therefore have very little chance of impacting the verdict, but that even if he was on the jury, Oregon is the sole remaining state allowing non-unanimous verdicts — a Jim Crow-era law crafted for this exact situation to allow prosecutors to let black people on juries without raising obvious constitutional alarms without worrying that they might frustrate a proper railroading.

So perhaps Oregon should get on fixing that problem next.

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State v. Curry [Justia]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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