The Six Conservative Judges Had To Know That This Decision Would Guarantee Cries of “Systemic Racism!” But They Had The Integrity To Rule Correctly Anyway [Updated]

Good for them. If only more Americans had similar courage….but having a guaranteed lifetime position definitely helps.

The Supreme Court last week silently rejected an appeal by a death row inmate in Texas arguing that his conviction was unjust because a juror had admitted  to racial bias. Kristopher Love (above) is black, and his lawyer had been forced to accept  a juror whose answer to a potential juror questionnaire query, “Do you believe that some races and/or ethnic groups tend to be more violent than others?” was “Yes.” Asked about that answer, the white juror said, “Statistics show more violent crimes are committed by certain races. I believe in statistics.”

The prospective juror in question, who is white, said yes. Pressed by defense lawyers, he said he based his views on “news reports and criminology classes” rather than his “personal feelings toward one race or another,” and that he did not “think because of somebody’s race they’re more likely to commit a crime than somebody of a different race.” He insisted that he did not feel  animosity or suspicions toward Love “because he’s an African American.”

Love’s lawyers asked the judge to strike the prospective juror for cause. The judge had to do it if it was going to be done because the defense had exhausted its peremptory challenges, and the judge had already “bent over backwards” to accommodate its concerns, granting them two more peremptory challenges than they were entitled to. With a challenge for cause, the judge must agree that the reasons the lawyer believes the juror is unacceptable is valid. The juror was seated, and served on the jury that found Love guilty of committing a murder for hire. 

The Texas Court of Criminal Appeals had ruled that Love’s lawyers could not contest the judge’s decision to seat the juror, having exhausted their challenges (and some) before he was interviewed. The six conservative SCOTUS justices (Roberts, Gorsuch, Alito, Kavanaugh, Barrett and Thomas, voted to let the appellate court’s ruling stand, without comment. Justice Sotamayor—she would have been my bet!—wrote the dissent, which Justices Kagan and Breyer joined.

 Sotomayor wrote that “a previously used peremptory strike does not eliminate the need to inquire into the juror’s bias.”

Well, to be technical about it, that peremptory strike never existed, because the lawyers had already used more than their quota. Sonia is seldom conserved with technicalities, however.

“Biases capable of destroying a jury’s impartiality can take many forms,” she wrote. “Whatever the nature of the bias, if a trial court seats a juror who harbors a disqualifying prejudice, the resulting judgment must be reversed.”

The trial judge obviously did not think that the juror did “harbor a disqualifying prejudice.” Based on what the juror said, neither do I, though I would feel more secure if I watched and heard him myself. The point is, the judge did see and hear him, and it is appropriate to defer to his judgment absent a reason beyond “We don’t like capital punishment, so any justification for overturning a conviction for murder in Texas is good enough for us!”

Justice Sotomayor argued that the only way to “cleanse our jury system of racial bias” was to ensure that claims of racial bias on juries be reviewed because  “a person’s life is on the line.” (Her dissent is here).

I suspect that the reason the the majority gave no reason for its declining to take the case is that they felt it was obvious. A judge is not obligated to grant either side more than its allotted challenges. Those are the rules. For the judge to remove a juror requires that judge to agree with the defense that the juror should be disqualified, and it is entirely the judge’s discretion whether to do so or not. If the appeal were allowed, then every defense team could exhaust its statutory challenges and still claim that a jury was tainted because the judge didn’t allow still more, which the judge is not obligated to do.

Other suspicions? Sotomayor’s colleagues signed on to her questionably argued touchy-feely dissent as a gesture of solidarity. Neither was willing to put a dissent in writing, because the facts of this case point the majority’s way. Another? The majority, reading the facts of the case, agreed with the trial judge’s call. As do I.

Additional Observations:

  • That question was horribly phrased, and should not have been allowed by the trial judge. What does “tend” to be more violent mean? “Tend” for what reason? Because of where they live? Their culture? History? Genetics? “Tend” when? Over the span of history, the white race and Asian race are vying for the “most violent” title.
  • His answer did not “show racial bias” toward any named race.
  • If the juror said that he felt no differently about the defendant’s likelihood of guilt because he was African-American, why isn’t that per se sufficient to eliminate doubt of the juror’s objectivity—unless the real bias here is the presumption that white jurors are presumed to be racists?
  • While they may not have felt that the issue in the case should have required an explanation of why they rejected the appeal, when the “Racists!” mob is poised to pounce (as they are perpetually now) , it would be prudent for the majority to explain their reasoning anyway, especially when at least one of their colleagues believe that rules don’t matter.
  • Doesn’t the fact that Love was convicted of murder for hire make the juror’s answer to the question irrelevant? This wasn’t a murder of passion; hit men aren’t violent, they are sociopaths. The issue in the trial wasn’t “was Love prone to kill people?” but did he accept money to kill someone he didn’t even know.
  • The best option now is for Love to appeal on the ground of ineffective assistance of counsel, if it’s not too late. His lawyers mismanaged their jury challenges, and that’s their fault. During the Kyle Rittenhouse trial, it was discussed here that the failure of  his lawyers to object to the repeated examples of improper questions and statements by the prosecution meant their potential for an appeal was waived. If he had been convicted and SCOTUS was asked to order a appellate court to consider how those improper statements may have influenced the trial, the same majority (and maybe a few more since Rittenhouse is white) would have said, “Sorry, kid, those are the rules.”

5 thoughts on “The Six Conservative Judges Had To Know That This Decision Would Guarantee Cries of “Systemic Racism!” But They Had The Integrity To Rule Correctly Anyway [Updated]

  1. Jack,
    This post strikes me as more inside baseball than your baseball posts.

    I am not sure what went on here, but I understand that different states have different rules.

    You really need to have a transcript to follow this. In my State (the State that Mondale won), you get a limited number of peremptory challenges (challenges for no good reason), but you get an unlimited number of challenges for cause (challenges for good reason). This sounds like they had a challenge for cause. It could have been peremptory, but we don’t know who they burned up their peremptory challenges on (I often credit the fact that I was seated on a jury on the batshit-craziness of the rest of the jury pool, as opposed to my law degree).

    If they ran through their peremptory challenges (presumably with good reason), the lawyers were stuck with one for cause.

    Is that what happened? It is not clear from the post. Like I said: inside baseball (like, how did they get extra peremptory challenges? Were those actually for cause?).

    If it was for cause and the Judge denied it, why? What questions were asked? I have never been a prosecutor (those bastards! (Shakes fist)), but I could “rehabilitate” that juror to show he could be fair.

    This seems to be a problem. To understand the issues here, you really need to know a lot about the law and the background facts.

    No wonder Sotomayor authored the dissent. (Okay, that was a cheap shot.)

    Beyond that, I don’t think I have anything substantive to say about what happened.


    • Yeah, thanks for asking all that. Yes, the challenge was for cause, and I will clarify that. The Judge has to approve a challenge for cause, and did not.

      The appeal in Texas was a dogs breakfast of all possible claims, and this was the only one that was appealed to SCOTUS.

      Here’s the Texas Appeals opinion.

      • Okay, but, yes, challenges for cause are easier to review (sort of).

        If a challenge is for cause, the arguments are put on the record and the Court decides. Those are harder to overturn because the reasons are put out there.

        The Supremes should get that.


  2. “Statistics show more violent crimes are committed by certain races. I believe in statistics.”

    Wait! This guy believes in SCIENCE! Doesn’t that put him on the right side of history! Doesn’t he get a pass into lefty heaven on earth? Can’t he put that on a sign on his front yard? Who could impeach a guy who says he believes in statistics? I mean, come on. This guy’s a virtual Dr. Fauci!

    Oh, wait. Statistics may not be science (or it may be a science). Statistics (like science) may simply be a white supremacist construct intended to oppress people of color. And it’s one of those subjects that’s, you know, kind of hard.

    Never mind. Challenge for cause granted.

  3. In NJ the state gets 12 peremptory challenges, the defense 20 in criminal matters. In civil it’s only six each. 20 is an awful lot, so it’s hard to see how the defense could mismanage it. Texas it’s ten challenges each, so theoretically the defense attorney could have tapped out his challenges before this juror. Even so, the judge had already given the defense 12. Apparetly, the judge was ok with this juror’s representation that he was not biased against Mr. Love, whatever his opinions regarding statistics may have been. It also didn’t hurt that the judge framed the question, so he decided what answer satisfied him. Maybe the judge should have erred more on the side of caution, but I don’t think it would have made a difference, considering the circumstances here. This guy deserves to fry, and that’s not enough of a procedural error or impropriety to spare him. He’s already becoming a liberal cause celebre, which I can’t understand.

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