Law Commons^™

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection …

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Race And Recalcitrance: The Miller-El Remands, Sheri Johnson

Sheri Lynn Johnson

In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …

Unconscious Racism And The Criminal Law, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.

The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Stephen P. Garvey

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture. Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

Racial Discrimination In The State's Use Of Peremptory Challenges: The Application Of The United States Supreme Court's Decision In Batson V. Kentucky In South Carolina, John H. Blume

John H. Blume

Some one hundred and six years before the United States Supreme Court's 1986 decision in Batson v. Kentucky the Court ruled that a black person is denied the equal protection of the laws when the State seeks to convict him of a criminal offense in a proceeding in which members of his race have been excluded from serving on the jury. From this straightforward and common-sense beginning, the Court stumbled and lurched for more than a century before arriving at another equally straightforward and common-sense decision in Batson. The purpose of this article is to examine the Supreme Court's decision …

The Prosecutor Prince: Misconduct, Accountability, And A Modest Proposal, H. Mitchell Caldwell

Catholic University Law Review

No abstract provided.

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein

Touro Law Review

No abstract provided.

I’Ll Take “Improper Declarations Of Mistrial” For $2,000.00: Applying The Protection Against Double Jeopardy - Robar V. Labuda, Daniel Fier

Touro Law Review

No abstract provided.

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

Race And Recalcitrance: The Miller-El Remands, Sheri Johnson

Cornell Law Faculty Publications

In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Cornell Law Faculty Publications

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.

Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

Unconscious Racism And The Criminal Law, Sheri Johnson

Cornell Law Faculty Publications

No abstract provided.

Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan

Michigan Law Review

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Criminal Procedure— Peremptory Challenges After Purkett V. Elem, 115 S. Ct. 1769 (1995): How To Judge A Book By Its Cover Without Violating Equal Protection, Jason Hendren

University of Arkansas at Little Rock Law Review

No abstract provided.

Asymmetrical Peremptories Defended: A Reply, Richard D. Friedman

Articles

Three years ago, with the publication of his article ''An Asymmetrical Approach to the Problem of Peremptories" in this journal, Professor Friedman initiated a debate on the subject that was taken up in 1994 by three prosecutors who offered a rebuttal that was also printed in these pages. Professor Friedman continues the debate.

The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Peremptory Challenges: Free Strikes No More, H. Patrick Furman

Publications

No abstract provided.

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …

Annual Survey Of Virginia Law: Criminal Law And Procedure, Steven D. Benjamin

University of Richmond Law Review

During the past year, the Virginia Court of Appeals continued to be the primary contributor to the development of substantive and procedural criminal law in Virginia. As it has in years past, the court ruled on numerous Fourth Amendment questions, particularly with respect to investigatory detention. Other significant rulings dealt with double jeopardy, discovery, due process, and trial procedure.

Racial Discrimination In The State's Use Of Peremptory Challenges: The Application Of The United States Supreme Court's Decision In Batson V. Kentucky In South Carolina, John H. Blume

Cornell Law Faculty Publications

Some one hundred and six years before the United States Supreme Court's 1986 decision in Batson v. Kentucky the Court ruled that a black person is denied the equal protection of the laws when the State seeks to convict him of a criminal offense in a proceeding in which members of his race have been excluded from serving on the jury. From this straightforward and common-sense beginning, the Court stumbled and lurched for more than a century before arriving at another equally straightforward and common-sense decision in Batson. The purpose of this article is to examine the Supreme Court's …

Batson V. Kentucky: Curing The Disease But Killing The Patient, William T. Pizzi

Publications

No abstract provided.

Annual Survey Of Virginia Law: Virginia Criminal Procedure, Ronald J. Bacigal

University of Richmond Law Review

Reversing a recent trend, the past year was relatively quiet with respect to search and seizure cases. The United States Supreme Court decided two cases dealing with open fields and the curtilage of a dwelling. Dow Chemical Co. v. United States held that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; such an industrial complex "is more comparable to an open field and as such is open to the view and observation of persons in …