When It Comes to Juries, All of a Sudden the Supreme Court Can See Race

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: The state will use up all 15 of its peremptory strikes against 15 black jurors.

0:00:18 Jenessa: The prosecutor's job is to get justice, not a conviction. They should want an innocent verdict if the person is innocent.

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1270. I'm Thomas Smith. That over there is real life attorney, Jenessa. How are you doing?

0:00:39 Jenessa: I'm doing pretty good. I just got back from some traveling around, so nice to settle back into my office.

0:00:48 Thomas: Small talk. Where did you travel? What was the weather like?

0:00:52 Jenessa: Oh, we are in the middle of a sweaty heat wave over here. It's gross. Gross. Yeah, I've been all over the place lately. A lot of work to do. Oh, I got to go to a drive -in and see the Star Wars movie. That was fun.

0:01:06 Thomas: The Star Wars movie.

0:01:08 Jenessa: The one that just came out, the Mandalorian one.

0:01:09 Thomas: Oh, okay. Okay. He said drive -in, so I wasn't sure if you went back in time or something. If they were having like a retro, like Star Wars, whatever. But you did go see a Star War. You did that.

0:01:19 Jenessa: I did, I did at a drive in, which I really enjoy. They still exist.

0:01:24 Thomas: We've gone to one and it's mostly just like the movies, except way worse. That's pretty, uh, pretty cool. Yeah, it's the charm.

0:01:30 Jenessa: Oh ,I like it. I don't know, maybe it's just because I did it a lot as a kid.

0:01:34 Thomas: Oh, really? Were you kidding in the seventies? No, I'm just kidding.

0:01:37 Jenessa: No, I, for some reason, in upstate New York just has more of them than like the rest of the country I think because I hear people say all the time like oh my god those still exist and I'm like there's like four in my area I

0:01:43 Thomas: Huh? Wow. Yeah. I mean, we just have the one that I know of, but I, I don't know, like, in what way do they exist? Do they exist ironically or like people are just like, no, this is, this istill a good way to watch movies in the year 2026.

0:01:57 Jenessa: Paid seven bucks for each of our tickets and three dollars for popcorn and I got to yell during the movie because we were in our shut car.

0:02:11 Thomas: Now that's a pitch pitch in today's prices. I hope they, if they pitch on that, then that's good. I guess they don't, what? Cause they're not paying building rent and utilities or something.

0:02:19 Jenessa: Maybe? It's an open field. No.

0:02:23 Thomas: Well, anyway, this is not related at all to today's topic, but we do have a good Supreme court thingy. What? Speaking of traveling back in time, in a weird way, the only good ones now are usually like nine Oh, if it's anything at all contentious, you're not winning five, five, four, but I guess there have been a few where it's like, you know, the, uh, the speaker, the Speaker of the court. The chief justice of the court and maybe like one other person. But yeah, that's interesting.

0:02:34 Jenessa: Like many good Supreme Court things lately, it is 5 -4, but it's still a good one. Yeah, mm -hmm.

0:03:00 Thomas: And let me guess, this time, was it the chief Justice and maybe one other person? Yep. Okay. I guessed it. Give us a teaser. What was our good court thingy?

0:02:59 Jenessa: Right uh -huh so we have once again reiterated that batson challenges the ability to stop prosecutors from kicking all of the black people off of a jury still a thing you can do still a way to stop racial discrimination in prosecutions. And what I think is important is this is two in a row over the span of about seven years where Kavanaugh wrote the majority opinion.

0:03:42 Thomas: Oh, okay. That's interesting because I thought our colorblind constitution would mean you can't do any of this because I'm sure in order to undo the racism of the trial, You'd have to look at the races of the people and we can't do that. So how is this consistent with anything they've said in the last month?

0:04:01 Jenessa: I couldn't tell you. I don't.

0:04:02 Thomas: Yeah, it's the answer is it's not.

0:04:04 Jenessa: I really struggle to understand what is going on here that makes makes Kavanaugh get it in this context. And we can talk more about that. But for some reason, he is reliable on this issue. And I think that bodes well that we've kept him as not just a reliable vote on it, but writing the majority and sticking up for people in oral arguments.

0:04:29 Thomas: Could it be that because there aren't any electoral consequences, they obviously see the obvious truth that, oh, yeah, you can't in order to undo a racism, that's not racism. That's not reverse racism. Could it Be maybe?

0:04:42 Jenessa: Yeah, it's affecting one individual defendant, and we will see him express some compassion for an individual here

0:04:49 Thomas: Yeah, sure. And again, and they also I know they want to get their like points for like, see, we're not so bad. But I love how those other four assholes are just like, no, we are this bad. What are you talking about? Actually, so so it's Kavanaugh. Interesting. So no, Amy Coney Barrett. That's interesting. I wonder what's going on there.

0:05:08 Jenessa: No on a death penalty case still no miss I as a catholic can't yeah something

0:05:13 Thomas: Oh, my God. You're right. That's meaningless. That is absolutely meaningless.

0:05:19 Jenessa: I really could have applauded her for when she wrote that uh law review article and was like as a Catholic you have to recuse yourself because you have this blah blah blah And then look what she just,

0:05:26 Thomas: Yeah. She not only doesn't recuse, she's on the like kill him side. Right.

0:05:34 Jenessa: Yes, it's more than once now.

0:05:37 Thomas: Your values are so meaningful and predictable. Like it's just, it's just insane. All right. Well, lots to talk about though. At least at the very least, I know it's good news. So I'm excited to get to it. Let's take a break. That lot of old movies is out so much fun. I will say a little more contentious than, than all in good fun. But you know, if anyone's at all like sensitive to conflict, even when it's not real, you know there's a little more conflict in it because Matt really tried to make the case for a horrible movie being good. And that's, you You know, I just, I stand by my values. Unlike Amy Coney Barrett, my values about things that suck are consistent and I can't help it. But no, it was all in good fun.

0:06:01 Jenessa: When he called it the My Cousin Vinny of immigration movies, I about threw my phone across the room. How dare you?

0:06:21 Thomas: Yeah, yeah. That's us announcing that Matt's fired and he's not with the show anymore. But here Matt's last episode where, yeah, a lot of movies, patreon.com/seriouspod, of course, where you can support and skip the ads. All right, we'll take a break and then we'll get to it.

0:06:42 Ad: [Ad break 1 — ad music]

0:06:42 Thomas: Okay, where do we want to begin?

0:06:43 Jenessa: I'm sure this has come up before. How much do you know about a Batson challenge or that case?

0:06:50 Thomas: A little bit. Yeah, I mean, just also from context, I mean, the idea that you can't just challenge, even if it's on other grounds, can't just get rid of all the black jurors, even when you're pretending you have a good reason for it, right? Something like that.

0:07:04 Jenessa: Yeah, pretty much. The famous case here is Batson v. Kentucky. It's 1986. It is going to do a couple of things. First, it is going overturn a 1965 case, Swain v. Alabama, where there is going be a theme in the states involved in these cases pretty much they had like some wild number like for decades it they'd had like nine black jurors ever or something ridiculous like that and they were like oh well you know what can you do the ruling there was like unless you can show a systematic trend of excluding black jurors it doesn't matter if they excluded black jurors in your case you have to prove, like, systematic discrimination.

0:07:12 Thomas: Let me guess. Alabama was like, it's super cool to racistly kill a black person. Yeah. Wow. Wow, seems like a heavy burden for one defendant to have to

0:08:00 Jenessa: Yeah, and that's going to get overturned at Batson. First of all, there obviously was systematic discrimination, I don't know how they came to that conclusion, but also they were trying to say that you had to show it in the long history, not just your case, and in the jury pool, not only in the case of Batson, but not just the jury. It was ridiculous.

0:08:04 Thomas: Prove yeah

0:08:22 Jenessa: Totally absurd.

0:08:17 Thomas: Wow that seems absurd yeah what if some guy came and it was his first day on the job and he's like racism like what you can't you know what I mean like it's like my hi I'm judge racism for it's my first trial um get rid of all the black ones and then you'd be like well that's not a trend it's just his first day you know it's obviously obviously like a racist ruling, just wearing different bedsheets.

0:08:44 Jenessa: Yeah, absolutely. Yeah, exactly. Obviously ridiculous. And people will continue to say to this day, this is not a burden that could be carried by anyone. This is during the Warren Court. There's a dissent that Warren himself joins. It's a 5 -4. Yeah.

0:09:02 Thomas: A dissent?

0:09:04 Jenessa: So this was the bad one. It's the Warren Court.

0:09:07 Thomas: Oh, oh, oh. Gotcha. Okay. I thought you were talking about Batson. Okay.

0:09:10 Jenessa: Normally we expect the Warren court to do the right thing. It came out 5-4 the wrong way. There was a dissent which Warren, the famous liberal judge, joined the dissent saying, come on guys, like this is not going to work.

0:09:23 Thomas: Come on guys. I'm trying to get like the whole, like the me court, you know, I'm try to be cool. I've tried in the future. People will be like, oh is the Warren court is so cool. Come on guys, that was the dissent.

0:09:33 Jenessa: This one, not so much. Not a cool one at all. Really a stain on our history. Yeah. It was written by Goldberg, joined by Warren and Douglas. There will be a theme through here of a lot of 5 -5 and 7 -2 cases. Is Batson's going to be 7 -2.

0:09:39 Thomas: That's why he wrote He wrote, come on, guys. I'm trying to do a thing here. Hmm.

0:09:54 Jenessa: With a whole bunch of concurrences, everybody had to have an opinion about, well, I got to tell you my reason that's slightly different for why. But they do get enough people onto the majority for Batson to matter, for it to be controlling precedent. What happened in Batson was, so you've got your four cause strikes, right? Your jurors are sitting there and you can have as many of those as you want. There's the really obvious stuff like I personally know the defendant or I've worked in the prosecutor's office.

0:10:30 Thomas: Because it's not really about like how many you want, because there's sort of things that just disqualify people or the judge is like, yeah,

0:10:37 Jenessa: Exactly. And that's why you can have as many as, if somebody's truly for cause not appropriate to be on this jury, of course we would never cap that.

0:10:44 Thomas: You wouldn't want to run out and be like, I'm the defendant's mom. You're like, shit, I'm not going to do that. I'm out of the four cause ones.

0:10:49 Jenessa: Yeah, exactly, exactly. The obvious ones like that, it would be if anybody says out loud, like I'm too biased, I can't be on the jury. Some people are going to say that because I don't want to be on the jury I can certainly imagine a case where I would have to honestly say that like there's some reason this is just too personal or whatever and I know I'm not appropriate for this jury I can't be

0:11:14 Thomas: I think I could be. I could probably convict myself of murder. Like, that's how much like I feel like I'm pretty fair. I'd be like, Yeah, no, I did it. Like, I don't. I've got no bias here. Kill me.

0:11:25 Jenessa: Unbiased yeah I mean like I'm struggling to come up with an example but I'm sure I could be put in front of something where I'm like oof I'm gonna have a hard time with this one and then there'll be ones where oh if you're like a medical doctor and they're gonna have medical experts testify like yeah they obviously don't want the person who's gonna question the

0:11:46 Thomas: Yeah. We want only like junk scientists. You're not allowed to be an actual, like, you know, that's not, we're doing like a fun, like theater of science in here. Not real science.

0:11:52 Jenessa: Experts oh god you don't have to say out loud I'm biased there can be things where often somebody's like oh I can be unbiased and then they keep questioning them until it becomes obvious. I'm forgetting the exact example, but there was one I listened to where the guy says he can totally be impartial on this jury. And one of the attorneys keeps questioning him until one of the lines just got a laugh. And then he turned to the judge and he was like, yeah, yeah. And he's like, all right, I can strike this guy.

0:12:23 Thomas: Yeah, he's like, I ordered the code red kind of thing. Yeah?

0:12:27 Jenessa: Right. And the judge is like, Yeah, you can have a four cause on that one. You go through all of those getting rid of the people who just for one reason one or another are obviously inappropriate for this jury. And then you get your peremptory strikes. You know, it'll really depend on the state and the court and whatever, but you have a limited number. And the general rule is you don't have to explain yourself.

0:12:53 Jenessa: You just don't want them. So I think this person is just going to be biased against my client.

0:13:01 Thomas: I think this person is just going to be black. Like that's the thing.

0:13:04 Jenessa: This is the problem, right. Let's say it was a malpractice case against a pediatrician. You might be aiming towards I'm going to try to not get the people with young children on this jury. But that's not like a for cause. You know, that doesn't make you impossible or like, you know, most people have children. You're not going to be able to say only people with no kids, only people who hate kids can be on this. You know what I mean? It's not going to work. That's the kind of thing that it's not for cause, but you're like, I just got it. I got it in my gut that this woman giving my client side eye, who's got three kids under the age of five, is probably not going to love the pediatrician on trial.

0:13:47 Thomas: This is like the Dr. Phil stupid bull thing.

0:13:50 Jenessa: Yes. Yeah, basically. The idea behind it is that it is striking somebody who you just kind of got a vibe that they're not good for your client and you're trying to, oh, well, I get some and you get some. So that makes it fair, right? What the courts will eventually say is like, hey, you know what doesn't make it fair? Well, I get to strike black jurors and you gets to strike white jurors. So, that's fair, right? Like, no, no. For the longest time, it was peremptory challenges like that's just a black box. I don't get to ask you why you did it. You just get a certain number and when you're out, you're out. In Batson, the famous interaction is he's sitting there and he's watching the prosecutor strike one Black juror after another.

0:14:39 Thomas: Who's he?

0:14:40 Jenessa: Batson is our criminal defendant at the time, and he turns to his defense attorney and he says, you're gonna object? He's obviously kicking all the Black people off this jury in Kentucky. We all know what's happening here. And his defense attorney is like, you can't. It's a peremptory challenge. They can strike whoever they want. The famous line, Batson says to him, object anyway. So he does. And the judge, technically correctly for the time, says you can object to a peremptory challenge, but it's on the record and it is preserved.

0:15:19 Jenessa: You have made your objection and now on appeal, he'll You can say why you objected and continue to push it all the way to the Supreme Court. And he wins. They say under the 14th Amendment equal protection and the 6th Amendment right to a jury of your peers, it doesn't matter. It was proportional in the jury pool and I don't have to prove, you know, a whole history of discrimination. It's obvious what he did. He was striking all the Black jurors to make sure I was tried by an all -white jury. And we do have data that demonstrates very clearly that all -white juries are much more likely to convict Black defendants in the states where juries decide sentencing. They lead to harsher sentences. Says it's not just a frivolous concern. So what the court says basically is, yes, this is discriminatory. First of all, it establishes it's nicht just a right of the defendant, it's a right of the juror. You have a right to be on a jury. It is discriminatory to kick you off a jury because of your race. You're not disqualified. You are not unable to be impartial because of your race alone. That's not a thing. Now, if you got up there and you said, I believe fundamentally that every time the government prosecutes someone of my race, it is just always going to be discriminatory and therefore I will always vote not to convict. Well, all right, then I mean, you can't be on the jury if

0:16:28 Thomas: Interesting.

0:16:58 Jenessa: You're going to say that during the voir dire, right? But if you just are black, like that's not disqualifying. They say overall discriminatory and they come up with a test for us what you have to do. It's going to be a burden shifting.

0:17:12 Thomas: That's what I was just gonna ask I wonder yeah

0:17:18 Jenessa: Initially, step one, you have the burden of persuasion. It is not a burden of proof. Mostly an arbitrary distinction. It will matter for procedural purposes for lawyers. The defense is going to say you have to raise a prima facie case of discrimination. So on its face, something that is like, hey, look, come on, clearly discriminatory. So you raise the objection and you convince the judge, you persuade the judge that it's more than just, I declare it is discrimination. Look, they kicked an Asian person off. And you were like, all right, well, the defendant is Puerto Rican and the crime has nothing to do with Puerto Rigan or Asian people. And there's seven Asian people on the jury. Like, Like, all right, well, then what is your objection? It's not quite clear, right? But if you can bring it to the level of they have kicked off all the black jurors available or even just one, but it's obvious, you know, you were questioning them more than other people or anything that would make you think maybe there was some targeting or just raise the objection and hope the judge is paying attention and also curious, the burden will then shift over to the prosecutor, who has to offer a race -neutral

0:18:38 Jenessa: Reason for why they did what they did.

0:18:38 Thomas: Which doesn't seem that hard

0:18:43 Jenessa: No, not really. Unfortunately, very shortly after Batson, there's coaching out there on what you can say to try to get around this.

0:18:55 Thomas: He had a gun I feared for my life oh no that's the other kind that's so the police can get away with shooting people never mind somebody did the wrong coaching the objection oh he had again oh shit no I used to be a cop

0:18:59 Jenessa: Not that one. Yeah, oops. I mean, it's not a lot lot better than that, I'm going to be honest with you. This is one that was shared in a continuing legal education, like, oh, for prosecutors, here's what you can do to justify whenever you kick a juror off. Here's some stuff you can try. And of course, somebody shared this document immediately.

0:19:09 Thomas: Sorry, yeah, oh my God, wow, Batson, and it's labeled Batson justifications like they're not even trying to hide it. Inappropriate dress. Attire may show lack of respect for the system, immaturity, or rebelliousness. Physical appearance. Boy, that sure just sounds a whole lot like race. Tattoos, hairstyle, disheveled appearance, blah, blah. Age. Young people may lack the experience to avoid being misled or confused by the defense. Attitude. Body language rehabilitated jurors are those who vacillated in answering DA's questions. Huh. Juror responses, which are inappropriate, non -responsive, evasive, or monosyllabic may indicate defense inclination. Wow. Communication difficulties, unrevealed criminal history. Well, it's the one that seems like, I guess you're supposed to say that, right? Aren't you supposed to save you have criminal history?

0:20:25 Jenessa: Sure. Yeah. I mean, they should definitely ask you about it.

0:20:27 Thomas: I like that that's on a list. Like just say it's that like for the, for the black you're trying to get rid of and and someone objects like he's probably a criminal it's unrevealed any other sign of defiance okay yeah no that's that seems bad

0:20:44 Jenessa: I That it is this document that's trying to say, when you are trying to argue that, no, no no, I didn't kick somebody off because of their race, just say one of these. It's like, here's a thought. If you already know why you're kicking them off and it's not race, say that. And if you don't know why you're kicking them off, don't kick them off.

0:21:08 Thomas: Yeah if it weren't about race then this would make no sense even existing you'd be like why why would you have a pre -list of excuses to kick someone off that doesn't make

0:21:19 Jenessa: You should know why you did what you did. Like, always remember, the prosecutor's job is to get justice, not a conviction. They should want an innocent verdict if the person is innocent.

0:21:33 Thomas: Sense. Yeah, I don't think they know that somebody should tell them

0:21:36 Jenessa: They don't get the same excuse as, like, the defense attorney's job is to do the best job of representing their client. The prosecutor's Job is justice. Like, justice isn't served by putting innocent people in jail. They don't get the excuse of doing the strongest, hardest advocacy to put a person in jail. It's not, it doesn't make it okay, you know? It's Not the Same Thing. It's NOT the same role as other attorneys trying to come up with a reason you shouldn't have to. If you step back and think, why am I kicking this person off again? And you don't have an answer, don't do it. It's always an option to leave a person on the jury who may well vote not guilty. And like maybe that was the right answer and that's okay oh god yeah so we definitely have a problem there the one thing that's really important that often gets forgotten step one the defendant raises the prima facie case there is some discrimination step two the prosecution has to articulate a race neutral reason why you did what you did there is a step three we don't just stop at step two.

0:22:23 Thomas: Well, you sound like a communist, um, so you know, yeah, I would hope because otherwise I think this would be meaningless.

0:22:54 Jenessa: Then we're over, right? Step three, it's now the judge's job to decide who do I believe. There is room for the defense. They can always rebut it. They can come out and say, oh, that was pretextual. Here's why you shouldn't believe them. You know, you can have a little back and forth. But ultimately, the judge does bear a responsibility to essentially do a little fact finding here to say, I agree with the defense or I agree with the prosecutor to make a finding in that moment. So there's a burden on the defendant. There's a burn on the prosecutor. There's burden on judge to make determination after they hear from the two. It's not enough to just say a race -neutral reason was offered. The judge has to also say, and I believe it in the totality of the circumstances, having looked at everything.

0:23:43 Thomas: Yeah, you can't just be like, why are you striking this juror? The economy? Okay. Got to be another step after that. Seen the price of eggs? Yeah, you're right.

0:23:49 Jenessa: Yeah, like that, that would obviously. Right, right. Exactly.

0:23:57 Jenessa: Yeah. It can't be that simple. And I sometimes see it portrayed that way as like, oh, if they can come up with anything. Now, in practice, that is happening. And that's why we end up at the Supreme Court.

0:24:08 Thomas: Yeah, because your next step is still a judge in the South saying whether or not it was cool.

0:24:13 Jenessa: On the one hand, Batson, it's a great decision. You do get a concurrence from Thurgood Marshall, the first Black Supreme Court justice, who essentially says, like, maybe we should just get rid of these peremptory challenges because I don't trust you people to, like stop, to control your racism.

0:24:34 Thomas: That's interesting.

0:24:34 Jenessa: I just like, I don't think they would have used the language of implicit racism back in the 80s when he wrote this. To me, that's that's essentially what he's talking about. You can't control yourself. You're going to keep doing this or that you're going to be able to disguise it. And maybe what if we just didn't do this? What if you were just stuck with the jurors who were left after the four cause strikes? Just whoever the first nine or 12 people or whatever are when you're done. That's it. You know, I don't hate it.

0:25:03 Thomas: Hmm, that's interesting, yeah. Yeah.

0:25:06 Jenessa: He's a very powerful voice on this issue that's really worth listening to, of course.

0:25:11 Thomas: Now that I think about it, I have never thought about that before. But like, yeah, why not? Like, what's the big counter argument to that? Like? Oh, no. If it was the thing that statistically helps the defense more than I guess I would get it because it's like, Yeah, in the interest of due process and stuff like that. But I don't know. Like, I'm trying to think like, why would that be a big deal if we got rid of that?

0:25:33 Jenessa: I don'T work in criminal defense or prosecution. I don't have enough exposure to it to have like a really definitive opinion. My superficial look at this is, boy, this has caused a lot of problems. It just opens a door that could be shut.

0:25:49 Thomas: Hmm. Interesting.

0:25:51 Jenessa: I'd love to hear from people who do more trial work. I try to avoid trials like the plague, but for people who do trial work, what do they feel about this? And, you know, certainly there'd be space to say, in criminal, it's just too risky, but maybe we keep it in the a civil context. I don't know.

0:26:08 Jenessa: There's all kinds of options, right? Interesting for sure. And this gets extended to gender in 1994, there was actually a child support case where the state kicked all the men off the jury. You know, an all -woman jury was probably a lot more favorable to the state trying to get the various paternity things going on they held 5 -4 that actually you can't do that the dissent there was one from Rehnquist and one from Scalia joined by Rehnquist and Thomas, not fans of this idea. We're getting closer at that point to the current court composition Then we get to Flowers v. Mississippi.

0:26:56 Ad: [Ad break 2 — ad music]

0:26:59 Thomas: That name sounds familiar.

0:27:01 Jenessa: Oh boy. So this was 2019 and this is the one that Kavanaugh wrote. I have to read you this fact pattern. I'm gonna apologize for chuckling my way through. This is very not funny for Mr. Curtis Flowers. It is ridiculous what this attorney, this district attorney did if you'd like to title this episode f doug evans he's the worst person in 1996, Curtis Flowers allegedly murdered four people he worked at this convenience store this is how he tells the story of course he finds out that it was robbed and people were shot there and then all of a sudden the cops show up at his house and like he of course maintains his innocence

0:27:51 Thomas: Wait, what was the murder? Sorry, what? I think I lost the thread on what you said.

0:27:55 Jenessa: It was like some kind of grocery store that he worked at in 96. And there's a murder at the grocery store. And his reaction when he finds out about it is like, dang, I could have been there when it happened. Lucky me, I'm not dead. And then the cops arrest him for allegedly committing the murders. He maintains his innocence. He's finally out after this decision. He was tried for the murder of those four individuals six separate times.

0:28:26 Thomas: Six separate times.

0:28:28 Jenessa: Yes. How on earth did that happen? The first trial, 36 prospective jurors, five black, 31 white, are presented to potentially serve on this jury. The state exercised 12 peremptory strikes, five of them to get rid of the five black jurors.

0:28:47 Thomas: Yeah, not great.

0:28:49 Jenessa: Flowers objects, makes a Batson challenge and says, this is obviously racially discriminatory. The trial court rejects that, and they move forward with the trial in front of an all -white jury. They convict him. They sentence him to death. So starting at this point, he's going to go to jail or prison, and he'sgoing to be on death row for 23 years through this process. On appeal, the Mississippi Supreme Court will reverse the conviction. Every time this this happens, it's just new trial. It's not you're done, go home. They say the state committed prosecutorial misconduct in front of the jury by, among other things, expressing baseless grounds for doubting the credibility of witnesses and mentioning facts that had not been allowed into evidence by the trial judge.

0:29:37 Thomas: And they went on that. It's not just Batson. It's also that.

0:29:41 Jenessa: Yeah, the court did not reach the Batson argument at that time. They just focused on the prosecutorial conduct. So that's the first trial. Second trial, here we go. 30 prospective jurors five black 25 white the state uses all of its strikes against the five black jurors all white jury once again the trial court did determine at that point that one of the strikes it was upheld basically they said bats and challenge on all of these and one of the state's reasons well that juror he was nodding off during the jury selection he was inattentive and the judge said like that's just not even true like I was watching he's he's fine so they put that black juror on the jury so he actually ended up with 11 white jurors and one black jurors they convict and sentence him to death mississippi supreme court again reverses the prosecutor had engaged in prosecutorial misconduct in front of the jury by among other things impermissibly referencing evidence and attempting to undermine witness credibility without a factual basis.

0:30:51 Thomas: Holy shit. How many times do you get to prosecutorial misconduct someone? I feel like the answer should be very little.

0:30:58 Jenessa: You would think they're never going to change prosecutors, by the way. It will be Doug Evans for all six. He's just going to keep right on trying.

0:31:07 Thomas: What an asshole.

0:31:08 Jenessa: Third trial, 45 prospective jurors, 17 black, 28 white. One of the black jurors is struck for cause, so we're down to 16. The state will use up all 15 of its peremptory strikes against 15 Black jurors. Yes. He ends up with one Black juror because they didn't have 16 peremptory strikes. They ran out.

0:31:22 Thomas: Oh my God. No way. Oh. My God, wow. And just a quick note so far. It hasn't even had to be reversed on the Batson right it's all been just we don't even need to get there because you're doing other stuff so

0:31:42 Jenessa: Right? Exactly. It's all been prosecutorial misconduct so far.

0:31:50 Thomas: Corruptly, jeez.

0:31:50 Jenessa: So this time on appeal, the Mississippi Supreme Court did find a Batson violation.

0:31:55 Thomas: Yeah, oh my God, this is like a children's story.

0:31:59 Jenessa: I know. You would think I made this up.

0:32:00 Thomas: Like it's like and so this time yeah like Maybe we should do a children's book of this.

0:32:06 Jenessa: I, Kavanaugh. I am basically quoting Kavanaugh's opinion, or else you would find this implausible. They said the instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge the critical thing here that I think is important each individual strike may have justifiably appeared to the trial court to be sufficiently race neutral. The trial court also had a duty to look at the state's use of peremptory challenges in total. Yeah, obviously.

0:32:45 Thomas: Yeah what are we doing

0:32:48 Jenessa: There's no universe in which all 15 of them, oh, okay, well, every one of those was plausible, so, like, moving on, right? No. Fourth trial, 36 prospective jurors, 16 black, 20 white. They used 11 perempty strikes, all 11 against black jurors. There was such a large number of black jurors at this point, they just could not get themselves to an all -white jury. So seven white jurors, five black juror, mistrial, hung jury, they can't get a decision. Fifth trial, we have no available racial information about the prospective jurors I don't know what how on

0:32:56 Thomas: Here Holy shit. What How maybe there this was like all right here's how we're gonna get away with it no uh Somebody shut down the system that tells people what the race makeup was of the prospective jury, that's maybe that's the new this is like a super villain trying all these uh new racism attempts.

0:33:32 Jenessa: Earth just burn the filing cabinets down, I don't know.

0:33:46 Thomas: Oh, well, you can't. It actually was all white people. That's what happened.

0:33:51 Jenessa: The jury ends up being nine white jurors and three black jurors. Hung jury. Can't get a verdict. So trial number six. I know. 26 prospective jurors, there are six black and 20 white. They use six peremptory challenges, five of the six against black jurors, leaving one black juror on the jury. And of course they bring a Batson challenge about this, the trial court lets the trial go forward anyway he is convicted of murder and sentenced to death for like the third fourth time

0:34:27 Thomas: So You've had six trials and two of them from my memory were hung juries. So yeah, the fourth time he's been convicted of the thing.

0:34:35 Jenessa: Yeah and the two times the racial makeup of the jury roughly reflected the racial breakup of the neighborhood he ends up with a hung jury when they get to an all -white or almost all -white jury he gets convicted

0:34:48 Thomas: It's almost like that makes a difference.

0:34:52 Jenessa: Yeah, isn't it? It's a little weird. Kavanaugh writes the opinion and says, this is racial discrimination, guys. You should do a Batson challenge once again. He says this is breaking no new legal ground, which on the one hand, I think is a nice thing that like, hey, somebody's life hangs in the balance and it doesn't matter if we are going to say anything new and innovative and groundbreaking, we're going to save a human life and that's all that matters. We're just going to reiterate how Batson worked. On the other hand, it's not exactly no new legal ground because he does go through here a list of some factors you might want to consider when you do a Batson analysis. Statistical evidence about the prosecutor's use of peremptory strikes against black prospective jurors as compared to white prospective juror's. Evidence of a prosecutor's disparate questioning and investigation of black and white prospective juries in the case. So that's like if you were really hounding the black jurors with all kinds of questions and then the white jurors just ask a couple questions and okay that one's good side by side comparisons of black prospective jurors who were struck and white prospective jurers who were not struck

0:36:14 Jenessa: This one's critical this comes up a lot so like oh we struck this person because they're a doctor and it's like well that's funny because you left a white doctor on the jury that doesn't make a lot lot of sense does it misrepresentations on the record when defending the strikes so yeah if you know why you struck the person your answer about why you stuck them shouldn't change relevant history of the state's peremptory strikes and past cases so this is kavanaugh saying if they have a history of doing this of racial discrimination in bats and type issues you should keep that in mind. Maybe this isn't the first time they've done it. We don't have to look at each case in isolation and other relevant circumstances that bear upon the issue of racial discrimination. So I think that's helpful. He, in 2019, laid out a list of things you might want to think about.

0:37:13 Thomas: And it's all the same exact kind of crap that would apply for the Voting Rights Act, but they just decided you can't do that. Ridiculous.

0:37:21 Jenessa: I will really struggle to square that circle on like how, I don't know.

0:37:27 Thomas: Oh, that's because it can't be done, Jenessa. It can't be squared.

0:37:31 Jenessa: Yeah, it's just it's more that these ideas exist inside the head of the same person. Humans are contradictory, I guess. That's all I really got for that. Flowers, in 2019, this comes out and they say, you may once again get a new trial because your Batson challenge is accepted. And then finally they dismiss his case in 2020 and say the witnesses are dead like it's been 23 years yeah

0:38:00 Thomas: Yeah, they're also like, we can't find a prosecutor who's not going to misconduct you, so I guess you're free to go? I don't know. They're not going to let us do it. They're not going to let us just keep doing misconduct, and that's no fun, so you're free to go. I got to say, if I were on death row, if I were on Death Row, I would want this though, because at least it would be interesting to go through six trials. I'd become a lawyer after this. Maybe you learned a lot. Although I guess you mostly learned what not to do.

0:38:14 Jenessa: Basically is what happened True, yeah.

0:38:33 Thomas: But yeah, no, at least you'd have some entertainment for that time. Because otherwise you're just, oof, on death row.

0:38:33 Jenessa: I I did see an interview with him on 60 Minutes um now that he's out he's with his family and he was talking to the reporter about like they showed a far away view of them walking together and he mentioned like I can't stop shuffling because I'm so used to walking with shackles on that like it's hard for me to realize I can take a normal stride with my legs it's tough, but you know, then he's singing on the porch with some family members so he seems like he's working on adjusting It's horrible, but it did set a good precedent there.

0:38:58 Thomas: Oh my gosh. Yeah, yeah, yeah. I don't know if he was factually innocent or not. I have no idea. But if he was, that's even more reason to be mad at the prosecutor. That's the thing that they never do like you if you if he's guilty you should be able to convict him without doing all the racism, right? Shouldn't you be able to do that?

0:39:33 Jenessa: Yeah, you'd think, right? Like, obviously, when I see this kind of behavior, it immediately makes me think if he is so obviously guilty. Why are you doing this? But then again, I mean, we've seen cops do that when people are obviously guilty, they still do this. Yeah. He maintains his innocence. I don't have a ton of facts about the case. It doesn't even matter. Yeah, yeah,

0:39:42 Thomas: Yeah yeah they try to frame guilty people all the time yeah Yeah, it's not worth getting into. I... yeah, I have no idea. I was just making the point that if he was guilty, the person to be mad at is the prosecutor, just FYI.

0:40:03 Jenessa: Exactly. Whatever it is you wish upon guilty people, it is the fault of the prosecutor that justice was not. If he's innocent, then the guilty person just got away with it because this guy made it his life's mission to target Curtis Flowers instead of the guilty person. Six trials by District Attorney Doug Evans, who did recently retire, but not before he was the prosecutor of Terry Pitchford in the case of Pitchford v. Kane that just came out in 2026.

0:40:37 Thomas: What is that?

0:40:38 Jenessa: That is the Supreme Court decision Kavanaugh just wrote last month. Same prosecutor in Mississippi. It's also the same judge. Oh yeah, the one hospital.

0:40:50 Thomas: This guy's all over it. Oh my gosh, you gotta be kidding me. What is this? Remember when it was like that one Florida thing? What was that yeah yeah it's like that all over

0:40:59 Jenessa: Judge Joseph Loper in Mississippi was the trial judge for trials number five and six of Curtis Flowers and for Terry Pitchford. I'm going to let Jackson and Kavanaugh tell you a little bit about it. Kavanaugh is going to give us a quick summary, just some facts about this case.

0:41:13 Thomas: Again

0:41:18 Clip: The reason this matters is this is a death penalty case, right? And he was 17 when he admitted to a crime, and he did not, not that this is good, but he was not the shooter, correct?

0:41:34 Jenessa: Jackson will tell us a little more. She's going to be talking to the attorney for the United States.

0:41:39 Clip: The United States has entered this case as an amicus curiae, meaning that you did not have to be here. And as Justice Kavanaugh pointed out, this case is a capital case involving the conviction of a defendant who was not not the shooter, a felony murder scenario. And so I guess I'm trying to understand the United States' interest. Your brief doesn't really pay a lot of attention or devote a lot of time to defending the actual conviction. So what is the principle that you are seeking to have upheld in this case in which it's clear that the defense counsel said several times, I have a Batson objection and tried to preserve it in the court, if anything, misled her into believing that she had preserved it by saying it's in the record.

0:42:28 Clip: Why is the United States interested in being involved in this case? Well, Your Honor, the United State is a party in many trials, including many criminal trials, is subjected to Batson objections and defends in Batson cases. And so I think our interest is in defending the right of courts of appeals to exercise their discretion to consider juror comparison arguments and not as, I think, petitioner, if I may, Your Honor, not as petitioner argued in petitioner's brief, although it seemed to walk away from today, adopt a rule that appellate courts must consider jurors comparison arguments when they are raised for the first time on appeal.

0:42:29 Thomas: Oh racism

0:43:13 Jenessa: Really appreciate Jackson calling that out there that the U .S. attorney's office did not have to show up to this case. Why are you pushing so hard for this conviction? Slight correction on Kavanaugh there. Terry Pitchford was 18, not 17, God forbid. He was involved in a robbery and his accomplice was 16 at the time the 16 year old shot the clerk pled guilty and got 20 years in prison and pitchford there's dispute about did he not shoot his gun did he shoot the gun at the floor or whatever he didn't shoot the clerk he was put on trial at 18 years old and sentenced to death he didn't shoot the guy. This is the felony murder rule generally if you're like an accomplice to a robbery and I, all I do is drive the getaway car, I still robbed a bank. Like I don't have to go in there with you for it to count. But if we conspire together to rob a bank or to rob a grocery store or whatever, and in the process you commit a murder, the felony murder rule says I committed a murder. Some states do this and it's extremely controversial. And that's essentially what's happening here. He was 18 years old. He was involved in a robbery. Somebody else killed someone. And now he is given the death penalty at 18 years older for a murder when he never shot anyone.

0:43:57 Thomas: Unbelievable yeah yeah yeah that's ridiculous for so many reasons

0:44:45 Jenessa: And he's been in jail now for 20 years. This happened in 2004. And we're still litigating this because they struck all the black jurors. And the complaint here is that his attorney, objected. She made bats and objections. And then the prosecutor offered race -neutral reasons. And the judge said after each one, there were four, what's your race - neutral reason? And the prosecutor gives one and the judge says, okay. Number two, what is your race neutral reason. The prosecutor gives and she says okay. It's the same judge as Flowers.

0:45:26 Jenessa: And they go back and forth over the four and then the judge says okay that's fine and now defense yeah they didn't do step three the judge never stopped

0:45:34 Thomas: Those all seem super chill and cool uh right

0:45:41 Jenessa: And said defense attorney do you have anything to say or I find now having listened to the arguments the judge pretty much says and Kavanaugh says this is an incorrect legal conclusion because you gave me race neutral reasons. Done. And he's like, yeah, you know, you have to do step three. Through this entire oral argument, they are going to act like, oh, I guess the judge just didn't know.

0:46:10 Jenessa: This is the judge from Flowers. They know. They know. It's not an innocent mistake.

0:46:15 Thomas: It was an innocent mistake that they've made 400 times.

0:46:21 Jenessa: This is the judge from one of the most famous Batson cases in recent history. He knows.

0:46:27 Thomas: To be fair, that judge may be suffering a Groundhog Day-like phenomenon where they have to figure out that you can't do that until that's how they get out of the loop, and they're just not out of the loop yet. That could be what it is.

0:46:42 Jenessa: It's truly painful to hear people just make these excuses. But at the end of the day, Kavanaugh is going to say this was just not reasonable and reiterates you should take into account the long history of Doug Evans. He does this. You should know that he does this. And the trial court judge should have, among the many things they would take into account, take that into account. This poor attorney, the person who was Pitchford's trial attorney, just gets absolutely wrecked by everybody. She should have objected more. She should Have been more aggressive. She should've been more forceful about it. After listening to this oral argument, I never want to go to trial ever in my whole life. I never want to hear Supreme Court Justice Elena Kagan be like, well, you know, she clearly did a terrible job, but like, oh no, misery. Kagan makes a really good point about this. The important part is that she did preserve the issue by making the objection. It doesn't matter if she didn't do a great job.

0:47:52 Clip: I think you've made the point that she didn't do very well, you know, that she could have done a lot better than she did. But that's really not the question before us. The question is whether she's waived her objection. And three times she's told by the Court that the objection has been preserved. So you're right, General. She should have said a lot more stuff. But the only question before Us is did she waive her objection when three times She's told By the Court, your objection is in the record. And this is critical, Justice Kagan. The Mississippi Supreme Court did not hold that her objection was waived. It held that her pretext arguments were waived, it upheld the finding of the argument. That's slicing the bologna very thin. It's, it's, Justice Bray's dissent. Here we are, after the prosecutor has done all his, here's my race-neutral reason, here is my race neutral reason, and then the defense counsel says, I'm not persuaded, I need to, to, you know, I need to say something about this. I still have an objection. Well, at that point, of course she's objecting to the ultimate finding. This is after the prosecutor has given all his race-neutral reasons, and she's still objecting. So what could she be objecting to at that time? She must be objected to the fact that either the race- neutral reasons aren't credible or they're, you well, that's what she's objecting to. But there's no other way to read the context of this colloquy without saying that at that point she's saying what the prosecutor gave you wasn't enough.

0:49:37 Jenessa: Essentially what they're getting to there is what the Mississippi Supreme Court said when they upheld this. Clearly she made a Batson objection and so that preserves your right to appeal it but then when the prosecutor said here's my race neutral reasons and she didn't interrupt the judge who was continuing on to the next step and say wait wait wait I say that's pretextual because she waived her right on appeal to argue that it was pretextual. This

0:50:03 Thomas: That sounds like it's her obligation, not the judge's obligation to conduct a fair trial and do things that you're supposed to do. Yeah.

0:50:17 Jenessa: Is precisely what Kavanaugh all will say the burden at that point is on the judge to do I mean he doesn't say it like this but to do their job the burden is first on the defense to raise the objection then it's on the prosecutor to give a race neutral reason and then it'S ON THE JUDGE the judge has a duty everybody including a bunch of people who sign on to the dissent say well obviously this is not how you should run a courtroom and I'm like okay so a man should be put to death when you all just said that about this judge hello no and that's the point kagan is really making she says at a later point it's not the decision I would have made but I can understand a person when the judge is saying we're moving forward we're making forward that you make a strategic decision

0:51:06 Thomas: You don't want to piss off the judge. Yeah.

0:51:08 Jenessa: Exactly and Kagan will very forcefully say it was obviously the wrong decision like you needed to fight for your client and stick up and make sure it got on the record what your objection was but clearly the judge was saying you see in the transcript the judge is like it's preserved it's reserved he didn't say shut up but he might as well have good advocacy for your client means you stop them and you say I'm sorry I have to get the reasons on the record your honor please let me say this it's important but the fact that the defense attorney did not do that does not mean it was not preserved it also drives me nuts through this whole thing they just keep saying well did she preserve her right to object and I'm like she's not going to jail terry pitchford is going to jail it always bugs me that we're so hung up on like did you preserve your right to to object to something, oh, if you didn't, then because your lawyer didn't do a procedural thing right, the client should go to jail when there was racial discrimination. Wake up! How can that ever be the right answer? That bothered me throughout, and Gorsuch just wrote a dissent that was like, well, there's a really high burden when you don't preserve whatever,

0:51:59 Thomas: It's kind of interesting. Yeah.

0:52:29 Jenessa: And we shouldn't overturn Mississippi Supreme Court, even though they have an extremely long history of doing super racist dumb stuff. Annoying, but we have an ally in Kavanaugh. He is gonna keep writing that Batson is upheld and you can't strike black jurors just because they're black.

0:52:50 Thomas: Queen.

0:52:52 Jenessa: I just almost spit my drink.

0:52:59 Ad: [Ad break 3 — ad music]

0:52:59 Thomas: Well, good stuff. I mean, it's nice when something good happens. I hate that we have to celebrate Kavanaugh. But what are you going to do? I mean. Sure. Now apply this to literally everything else, assholes. I'm surprised. OK, here's my question. I don't know if you read through everything or not, but did any of the assholes, you know, your Clarence Thomas and your Samuel Alito, did they make the connection between the Voting Rights Act and all the stuff they just did? They didn't say, oh, okay, what was their reasoning?

0:53:30 Jenessa: Literally, Gorsuch's reasoning was we have this weird law that says in convictions over death penalty and terrorism, if you want to appeal to the federal courts like a habeas petition, there's this really high bar and we should defer to the Mississippi Supreme Court.

0:53:50 Thomas: Oh, so just some procedural nonsense.

0:53:53 Jenessa: Just some procedural nonsense about why somebody who committed a crime at 18 should be put to death.

0:53:58 Thomas: Oh, boy. Yep, just goes to show the law is fake and everything's made up and points don't matter. Sometimes.

0:54:02 Jenessa: Yeah, for real. We have so much data on the bad decisions people make in their teens and early 20s and how crime rates plummet in late 20s, early 30s. Nobody becomes a crime lord in their 40s. It's not a thing. Beat

0:54:21 Thomas: Challenge accepted. I'm turning 40 soon. I've been wanting a reason to get up in the morning. I think that's going to be it, you know?

0:54:29 Jenessa: The odds, I guess.

0:54:29 Thomas: I'm going to do the first, yeah.

0:54:30 Jenessa: It is just so obviously connected to brain development. We pretend you turn 18 and you magically become an adult with the ability to make good decisions. And there's just so much data that shows us that is not how decision making works. It's not how cognitive development works.

0:54:50 Thomas: I think there's data to show that never happens for most of the country.

0:54:55 Jenessa: Apparently, Jesus, it's really frustrating when it's like, we're punishing people for something they did in their teens, and they're still being punished for it in their 60s. And like, there's no risk whatsoever at that age that they're going to they're not the same person anymore and they're just still being punished for it and it's really disappointing it's easy to be like well I didn't make that mistake but you weren't in that situation frustrating

0:55:06 Thomas: Yeah, ridiculous. They really aren't. Yeah. Yeah. Have you considered that the crime could be described in really gruesome ways, though? Have you considered that? Yeah. All right. Well, it is still a good court thingy and we'll celebrate it nonetheless. Thanks for the breakdown and good stuff. Thanks. Thanks, everybody. Please support the show. Please share the show and we will see you next time.

0:55:28 Jenessa: Right exactly yes for sure see ya

0:56:16 Thomas: I do hate most documents. I could probably convict myself of murder.