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April 18, 2022

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

April 18, 2022 at 11:35 AM | Permalink


It is of course possible that the juror was racially biased, but the cited statement is not evidence of it. No one in the field doubts that blacks commit proportionately more violent crime than whites (which is one reason black people are murdered proportionately far more often than whites, murder being overwhelmingly an intra-racial crime).

This emphatically does not mean blacks are racially inferior (or superior) to whites. It emphatically does not mean that THIS DEFENDANT is more likely to be guilty in this case than anyone else. As the trial court surely instructed the jury, guilt or innocence must be determined only from the specific evidence admitted in the particular case, and a juror's knowledge of demographic crime statistics, even if accurate (as this one is), is not evidence. So if the jurors followed the instructions, as the law presumes they did and the facts here offer no reason to doubt, the 6-3 denial of cert was correct.

P.S. Justice Sotomayor is onto something, however, see the defense bar's disgusting insistence that it has the right to exclude jurors because of race, Georgia v. McCollum, 505 U.S. 42 (1992).

Posted by: Bill Otis | Apr 18, 2022 2:24:26 PM

This is a capital case and, in Texas, future dangerousness is an express penalty consideration in capital cases. Whether a statistically based belief means that the venireperson has prejudged future dangerousness is an issue that probably needed to be explored further during voir dire. The dissent seems to assume that the mere knowledge of the statistics showing different arrest rates for different racial groups means that the venireperson would be unable to set that belief aside and judge the case on the evidence presented in court which is usually not the default assumption.

Having tried to read the Court of Criminal Appeals opinion, I am simply unable to make sense of their rule of prejudice. As best as I can determine, the rule is that you are not prejudiced by an erroneous ruling on a challenge for cause if you have already blown your peremptories on jurors that were not excusable for cause. But, if you haven't blown all of your peremptories, you are prejudiced by having to use a peremptory on a venireperson who should have been removed for cause. That probably is not the rule in Texas, but that appears to be what the CCA is saying in its opinion.

It seems to me that the prejudice is having an biased (and thus unqualified) juror hear the case. In my state, to preserve the claim for appeal, you have to let the biased juror sit on the jury (i.e. not use the peremptory which has the perverse effect of making the defense decide if they want to gamble on the merits of the challenge for cause on appeal or play it safe at trial while losing the appellate claim). But, I can see the majority opting against deciding the prejudice issue when the merits claim might be weak.

Posted by: tmm | Apr 18, 2022 3:56:13 PM

This seems an odd proposed use of summary vacatur, attempting to correct an alleged misapplication of a state procedural rule. There is no clear indication on the face of the dissent that even the dissenters thought the underlying question certworthy . . so the majority may have felt their proposal looks too much like error correction on state law error.

Posted by: Jason | Apr 18, 2022 8:23:23 PM

Eugene Volokh had some interesting commentary on this case (https://reason.com/volokh/2022/04/18/jurors-who-believe-that-some-races-tend-to-be-more-violent-than-others/), coming to significant disagreement with the dissent.

Posted by: Soronel Haetir | Apr 19, 2022 12:57:42 AM

As a person of color, would you want that person deciding your fate?

As for the Q in Q, "tend" to me suggests a disposition (or is, at best, ambiguous on this point). Perhaps the "statistics" qualifier would have been enough to defeat any bias concerns, but the admittedly short response by the juror suggests to me the juror was confusing correlation and causation. If it was causation, it seems to me the for-cause challenge should have been granted. But, again, the state court opted not to even engage and for pretty indefensible reasons. My $.02.

Are others aware of similarly vacuous or self-defeating procedural requirements in Texas or elsewhere?

Posted by: John | Apr 19, 2022 4:45:49 PM

John --

"As a person of color, would you want that person deciding your fate?"

As a person shown by the evidence to be guilty beyond a reasonable doubt, I wouldn't want ANYONE to be deciding my fate, and would seek to avoid accountability for my behavior by making the ubiquitous charge of "RACISM," hoping that such a charge would make everyone forget about the evidence and get put back on their heels. Fortunately, the courts didn't go for it.

Posted by: Bill Otis | Apr 19, 2022 5:38:02 PM

Are you suggesting that the seating of a racist juror should be subject to harmless error? Or that a guilty person shouldn't be able to appeal?

Posted by: John | Apr 19, 2022 6:22:01 PM

John --

You needn't guess about what I'm "suggesting." I try to choose my words carefully, and what I mean is exactly what I say, neither more nor less.

P.S. I literally made my living (before I left for legal academia) answering appeals from guilty people.

Posted by: Bill Otis | Apr 19, 2022 9:45:11 PM

Got it. Just a personal preference then, not a comment on our legal system in any way beyond that. Hope you continue to be fortunate enough to avoid the situation you’ve flagged in your comment.

Posted by: John | Apr 19, 2022 11:52:08 PM

John --

"Hope you continue to be fortunate enough to avoid the situation you’ve flagged in your comment."

The situation I flagged in my comment is, to quote verbatim, "a person shown by the evidence to be guilty [of murder] beyond a reasonable doubt." I too hope that I avoid that situation, and if I do (which one would have to think is likely at this late date), it won't be because of good fortune. It will be because I don't use violence. I haven't even been in a fistfight since I was a teenager.

There are those (perhaps you're one, I don't know) who think that if you just yell RACISM loud enough often enough, you can bring the system to a halt. That works with some people. I'm not one of them.

Posted by: Bill Otis | Apr 20, 2022 11:05:30 AM

Bill, Should we infer, then, that your first comment, suggesting that the racism the Court should concern itself with is in the criminal defense bar, is your attempt to "bring [that] system to a halt"? Or is there a genuine concern there?

Posted by: John | Apr 20, 2022 12:32:47 PM

John, I just have the summary of the voir dire and the questionnaire in the opinions to go by, but I have seen that question in a questionnaire before. I have always thought that it was poorly phrased because you get answers like the one that you got in this case from people who are aware of the statistical data which shows a correlation between race and crime rates. I would personally argue that the correlation reflects other factors present in the community that are also (due to historical racisms) correlated with race and that none (race or the other factors) reflect an inherent violent nature of the people in those communities. But the question as posed does not get into the nuances of causation vs. correlation and thus the answer to the question does not by itself indicate that the juror has a racial bias that rises to the level of a for cause challenge.

The law does not require the trial court to explain its findings on a challenge for cause. On appeal, it is assumed that the trial court found that the record was insufficient to prove that the venireperson had a disqualifying bias. While the full record might give more clarity to the issue, on the limited summary that we have, I am not certain that the record demonstrates that the trial court erred in its ruling. And, because it found that due to the lack of prejudice there was no need to address the merits, we do not know if the CCA felt that the trial court erred.

I think the Texas prejudice analysis is more than a simple procedural rule because prejudice analysis of a constitutional error has a constitutional component. But I can see the U.S. Supreme Court being disinclined to a summary vacatur and being disinclined to grant for full briefing on the prejudice analysis when the merits of the claim of error are unresolved.

Posted by: tmm | Apr 20, 2022 12:59:52 PM

John --

"Bill, Should we infer, then, that your first comment, suggesting that the racism the Court should concern itself with is in the criminal defense bar, is your attempt to "bring [that] system to a halt"?"

You should infer from my long career as an AUSA in EDVA, long known as the "rocket docket" for moving cases more efficiently than any other district in the country, that I support expediting justice not impeding it. I put my career where my mouth is.

How 'bout you? Who are you? Are you a criminal defense lawyer? Did you file motions for continuances and other procedural motions designed to bring about delay?

"Or is there a genuine concern there?"

You may believe whatever you care to, not that inquiries into my personal attitudes count for anything other than attempts at diversion. The substantive fact remains that the criminal defense lawyer in McCollum asserted that the defense can use racial considerations (i.e., racial bigotry) to strike potential jurors. Do you agree with that position? Thank goodness SCOTUS didn't.

Posted by: Bill Otis | Apr 20, 2022 1:48:32 PM

Sorry to leave you hanging.

I represent individuals in post-conviction appeals from their convictions. When I seek more time, it is to make sure I'm putting together the best case I can for them, either b/c I need more time to investigate or to simply write up their claims.

Sometimes I am able to include claims of factual innocence. Sometimes not.

I don't know whether you'd consider bringing claims other than factual innocence intended to bring delay, especially in light of your refusal to say whether you agree the guilty should retain a right to appeal. But my substantive intent in seeking more time is just to do a good job. Mundane stuff, when it comes down to it.

As for discriminating on the basis of race in juror selection, I think it is odious and lazy, no matter who does it. I don't see many (any?) examples of defense counsel doing it these days, which is part of what piqued my curiosity by you raising it as the real problem in jury selection.

Whether racist use of peremptoriness amounts to state action when a party other than the state does it is, in the abstract, a closer question. I consider the answer in the affirmative to be settled law that deserves to be followed on stare decisis grounds and because a contrary holding would require courts to involve themselves in racial discrimination (as when enforcing racist covenants and the like). (Justice Thomas thought the answer on state action was no)

I hope all this helps!

Posted by: John | Apr 22, 2022 6:43:16 PM

John --

"Sorry to leave you hanging."

No problem. No commenter "owes" another commenter an answer, still less an answer at any particular time. We all have day jobs.

"I don't know whether you'd consider bringing claims other than factual innocence intended to bring delay, especially in light of your refusal to say whether you agree the guilty should retain a right to appeal."

I thought I had clarified that, but I will now for sure. Guilty people have the right to appeal (whether and in what circumstances they should exercise that right is a different question). If they didn't have it, I would have been out of a job long ago. I was head of the Appellate Division of the USAO for EDVA.

"As for discriminating on the basis of race in juror selection, I think it is odious and lazy, no matter who does it. I don't see many (any?) examples of defense counsel doing it these days..."

That's because they lost McCollum. The problem was that they ever took the stance they did in that case.

Posted by: Bill Otis | Apr 24, 2022 4:02:35 PM

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