{"id":271,"date":"2020-08-20T11:20:19","date_gmt":"2020-08-20T15:20:19","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/?p=271"},"modified":"2020-08-20T11:20:19","modified_gmt":"2020-08-20T15:20:19","slug":"constitutionality-of-peremptorily-striking-jurors-who-support-the-black-lives-matter-movement","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/2020\/08\/20\/constitutionality-of-peremptorily-striking-jurors-who-support-the-black-lives-matter-movement\/","title":{"rendered":"Constitutionality of Peremptorily Striking Jurors Who Support the Black Lives Matter Movement"},"content":{"rendered":"

By Matthew Caminiti<\/a><\/em><\/strong><\/p>\n

The appeal of a 2016 murder conviction in Contra Costa County Superior Court, California has brought front and center a new problem facing trial courts: the constitutionality of peremptorily striking jurors who indicate their support of the Black Lives Matter movement.<\/p>\n

In the seminal case of Batson v. Kentucky<\/em>, 476 U.S. 79 (1986), the United States Supreme Court ruled that a prosecutor\u2019s use of a peremptory challenge to strike a juror solely on the basis of race violates the Equal Protection Clause. Following Batson<\/em>, a defendant could make a prima facie <\/em>showing of improper racial discrimination by demonstrating that he or she is a member of a \u201ccognizable racial group\u201d and that the prosecutor exercised peremptory challenges to \u201cremove from the venire <\/em>members of the defendant\u2019s race\u201d on account of such juror\u2019s race. Once the defendant makes this prima facie<\/em> showing, the burden shifts to the government to demonstrate a racially neutral explanation for the strike.<\/p>\n

In People v. Silas<\/em>, three defendants were convicted of murdering a Northern California couple and subsequently sentenced to life in prison. During voir dire<\/em>, an African-American juror was questioned extensively about her support of the Black Lives Matter movement after mentioning the movement in response to a question inquiring about membership in any \u201cjustice-focused special-interest\u201d groups. When the juror was seated as an alternate, the prosecution peremptorily struck her. The defense raised a Batson <\/em>objection, to which the prosecution cited several, perhaps ostensible, race neutral justifications, including that the juror showed up late and was \u201copenly hostile\u201d when being questioned about her support of Black Lives Matter.<\/p>\n

Ultimately, the court overruled the defense\u2019s Batson <\/em>objection and the juror was dismissed. In overruling the objection, however, the court went as far as to mention that it almost struck the juror for cause during voir dire<\/em>. The court proclaimed that the juror\u2019s support of Black Lives Matter \u201c[gave] cause to question\u201d her fitness to serve on the jury due to the movement\u2019s penchant for \u201cdisobeying the law.\u201d The judge\u2019s example of such was a single incident in which Black Lives Matter protestors apparently locked arms and stopped traffic on a highway in Oakland, California.<\/p>\n

The defendants\u2019 appeal argues primarily that support for Black Lives Matter is \u201cinextricably bound up\u201d with race such that support for the movement is not a race neutral justification for striking a juror. In addition to race itself, courts have determined that it is impermissible to strike jurors on pretextual grounds that are mere surrogates for race. See United States v. Bishop<\/em>, 959 F.2d 820 (9th Cir. 1992) (black juror\u2019s residence in Compton was not a race neutral justification for peremptory challenge). Still, courts are divided on other juror characteristics that may well be considered obvious proxies for racial identity. For instance, whereas South Carolina courts have determined that it is racially discriminatory to strike a juror for wearing dreadlocks, McCrea v. Gheraibeh<\/em>, 669 S.E.2d 333 (S.C. 2008), a California court allowed such strike where the prosecution justified its action by insisting that \u201cdreadlocks are [] associated with a Reggae culture [which] promotes drug use . . . in general.\u201d People v. Duncan<\/em>, 2006 WL 3480375, at *3 (Cal. Ct. App. Dec. 4, 2006). In short, the law is malleable and largely undefined in this context.<\/p>\n

The issue of Black Lives Matter support as a predominant factor in exercising a peremptory challenge is currently being faced in courts across the country. See State v. Campbell<\/em>, 838 S.E.2d 660 (N.C. Ct. App. 2020); Cooper v. State<\/em>, 432 P.3d 202 (Nev. 2018); State v. Gresham<\/em>, 2016 WL 7338718 (Minn. Ct. App., Dec. 19, 2016).<\/p>\n

Ultimately, a higher court\u2019s decision on the constitutionality of such strikes is likely to be informed by its characterization of the movement itself. Many view the movement as a concerted effort to reinforce the humanity of people of color, which has increasingly come under assault by the systemic racism in contemporary society. To such, asserting that \u201cblack lives matter\u201d is nothing more than re-affirming what should be an obvious truth. With such an understanding, a court would surely determine that support of the movement is inextricably intertwined with racial identity and that to strike a juror for believing in the worth of black lives is a quintessential violation of the rule in Batson<\/em>. To others, the movement is inherently political. Despite its name, some believe the movement advocates primarily for specific policy initiatives traditionally associated with far left ideologies. With such a characterization, a court may well determine it as permissible to peremptorily strike a juror indicating his or her support of the Black Lives Matter movement as it would be to strike a juror supporting any other political ideology deemed \u201ctoo radical.\u201d<\/p>\n

Regardless of the outcome, any higher court\u2019s decision on the issue is certain to be politically polarizing. As such, the zeitgeist <\/em>surrounding the movement, and persisting throughout the country, will play a vital role in swaying a court\u2019s judgment on the issue.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Matthew Caminiti The appeal of a 2016 murder conviction in Contra Costa County Superior Court, California has brought front and center a new problem facing trial courts: the constitutionality of peremptorily striking jurors who indicate their support of the Black Lives Matter movement.<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[235,236,237],"ppma_author":[241],"class_list":["post-271","post","type-post","status-publish","format-standard","hentry","category-general","tag-black-lives-matter","tag-matthew-caminiti","tag-peremptory-challenges"],"authors":[{"term_id":241,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":"","9":"","10":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts\/271","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/comments?post=271"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts\/271\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/media?parent=271"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/categories?post=271"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/tags?post=271"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/ppma_author?post=271"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}