When Can A Juror Say Black Lives Matter?

By Andrew Karpan | August 9, 2020, 8:02 PM EDT

When she showed up for jury duty, prosecutors asked Crishala Reed about her support of Black Lives Matter and, in doing so, teed up a new legal fight in California over how race is being used to reject jurors.

The case surrounding a gang-related murder in 2012 preceded the start of the Black Lives Matter movement, but by the time an indictment landed in Contra Costa Superior Court in 2016, use of the phrase had become widespread after Michael Brown had been killed two years earlier by a police officer in Ferguson, Missouri.

To county prosecutors in the San Francisco suburb, however, Reed's decision to write "Black Lives Matter" in her questionnaire signified her potential support of criminal activity.

According to a transcript, when the prosecution spoke with Reed in 2016, they had brought up her support of Black Lives Matter and had asked her if it meant that she agreed with the idea of destroying private property. In the notes prosecutors used in their efforts to reject Reed from the prospective jury for cause, they had claimed that she rolled her eyes before telling them that she did not support destroying property that was not her own.

The prosecutor said they decided to stop the line of questioning at that point and described Reed's attitude as "hostile" and unaware of "well-reported" stories of civil unrest. In their notes, the prosecutor pointed to the shutting down of traffic in nearby Berkeley that year, during which protesters had chanted "Black Lives Matter."

After the judge rejected this as a reason for Reed to be removed from the jury, the county used one of their peremptory challenges to eject her from the prospective jury box nonetheless. Before interviewing Reed, prosecutors had already used peremptory challenges to remove six other persons of color from serving on the jury in the case.

While three Black men were eventually convicted in connection to the double homicide, the questions surrounding Reed's dismissal have taken on new life on appeal.

Lawyers at the Roderick & Solange MacArthur Justice Center saw the prosecution's decision to question Reed on her support of Black Lives Matters as a proxy for removing Black jurors from the case and last week urged state's First District Court of Appeal to use the case to issue limits that would limit racialized interrogations of prospective jurors.

"This is a troubling technique that we're seeing across the country, where prosecutors are asking these racially loaded questions of jurors and using their answers as a reason to strike Black jurors," Easha Anand, a lawyer with the MacArthur Justice Center, told Law360.

Prosecutors in Contra Costa County are not the first to quiz prospective Black jurors about their support of Black Lives Matter in voir dire hearings.

In a North Carolina murder case called Cooper v. State , which had reached the state's high court in 2018, prosecutors had invoked a college student's involvement in a Black Lives Matter group with their professor and had told the judge that the involvement had "implied unstated issues that may arise due to either law enforcement, the state, or other concerns we may have."

A Minnesota prosecutor had been even more blunt when interrogating a Black prospective juror in a 2016 case called State v. Gresham and had asked them: "Have you participated in any of the Black Lives Matters kind of marches and stuff like that here?"

In both cases, appeals panels turned down challenges to the rejection of those jurors, finding that the reasons prosecutors had come up with were sufficiently "race-neutral," according to the framework established in 1986 by Justice Lewis Powell Jr. in the U.S. Supreme Court case Batson v. Kentucky .

Powell's ruling had raised a standard that had been set in a previous 1965 Supreme Court case called Swain v. Alabama , in which the court had upheld an all-white jury's verdict that had sentenced a Black man to death. In Swain, the high court found that there had been "no studied attempt" to exclude Black people from that jury, even though the eight Black jurors who had been empaneled in the case had all been peremptorily challenged.

Batson was supposed to raise the bar and required trial judges to evaluate a prosecutor's "neutral explanation" in response to allegations of racially motivated juror strikes.

The Supreme Court had revisited Batson as recently as last year, in a case called Flowers v. Mississippi , which involved a particularly "relentless" district attorney who had made peremptory challenges of a total of 41 Black prospective jurors over the course of two mistrials and four vacated verdicts.

Writing for the majority, which had scrapped a death penalty verdict in the case, Justice Brett Kavanaugh wrote that "Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all Black prospective jurors in cases involving Black defendants."

But criminal justice advocates disagree and say that Batson has only enabled what professor Elisabeth Semel, who runs the Berkeley Law Death Penalty Clinic, calls a "vicious circle" in which less outrageous miscarriages of justice are excused by precedential jurisprudence that compels judges to take district attorneys at their word.

"If courts continue to reinforce prosecutors' use of certain explanations, prosecutors will continue to give them," Semel told Law360.

In a study Semel conducted in June that looked at more than 700 cases in California, she found that peremptory challenges had been used to eject Black jurors more than 70% of the time. In her opinion, the Batson process isn't working on the state level. Out of 142 Batson objections that the state's high court had ruled on between 1989 and 2019, her report found that the state's appeals court had found prosecutorial prejudice in only three.

"When it's that infrequent, then you cannot have confidence that the court is rigorously applying the procedure," Semel said.

Semel's findings, however, have not been without their critics. Los Angeles Deputy District Attorney Michele Hanisee, who also works as president of the Association of Los Angeles Deputy District Attorneys, argued in a statement after the report's release that because Semel only looked at cases where defense lawyers had alleged discrimination, Semel "guaranteed a data set with a high percentage of cases" where discriminatory conduct could be found.

Hanisee had also observed that criminal justice advocates rarely look at how peremptory challenges are used by defense lawyers and "subtly suggests that defense attorneys are free from such bias."

In its brief, the MacArthur Justice Center urged the appeals court to take a hard look at a 1992 ruling by the Ninth Circuit in United States v. Bishop . The Ninth Circuit ruled in that case that asking jurors in Los Angeles if they lived in Compton "served as a mere surrogate for race."

In the eyes of prosecutors, the center says that surveying support of Black Lives Matter is no different.

"Racism is very creative," Tiffany Wright, an associate at Orrick Herrington & Sutcliffe LLP who co-wrote the brief, told Law360. She argues that interrogating a juror's feelings toward Black Lives Matter is tantamount to interrogating their Blackness.

"I felt like, as a Black woman, this was not a brief that I could turn down," Wright said.

"For me to hear that question, you're asking me if my life matters and if the life of my children matter," she added. "It's very personal to me in a way that's not to a person who doesn't share that background."

The center in its court filing draws a direct connection between the Black Lives Matter movement and the civil rights history that is valorized by politicians, museums and our legal system.

"When Black people today declare, 'Black Lives Matter' in the face of race-based killings by police and vigilantes, their voices echo Sojourner Truth asking, 'Ain't I A Woman' in the face of chattel slavery and Black protesters declaring, 'I Am A Man' in the face of a racial caste system," the brief reads.

The Contra Costa County District Attorney's Office and the office of California Attorney General Xavier Becerra, which is vigorously defending the case, both declined a request for comment. According to a filing earlier this week, Becerra's office has until early next month to respond to the center's claims, in addition to their initial 150-page brief defending the country's verdict.

In that brief, the state argued that the prosecutor hadn't interrogated other prospective Black jurors as heavily and that it was simply a matter of the prosecutor "not connecting" with Reed.

David LaBahn, a former Orange County deputy district attorney who is now president of a group called the Association of Prosecuting Attorneys, told Law360 that the MacArthur Justice Center's brief was "very persuasive."

But he thinks this case "breaks on the facts."

LaBahn pointed to the questionnaire that Reed had filled out and said that because she had referenced Black Lives Matter, the prosecution had every right to ask her about it.

"I think most prosecutors would at least ask what that answer means," LaBahn said, adding that it's important to remember that the trial occurred four years ago.

"This was all in the context of a particular point in time," he added, saying that the APA would not recommend prosecutors ask prospective jurors about their involvement in Black Lives Matter today.

"Today, I think it's so much more commonplace, who in this country hasn't heard of Black Lives Matter? You can't turn on the news, you can't watch sports without seeing it," he said.

Wright thinks that state courts should take note of the mainstream acceptance of Black Lives Matter.

"The difference today is that it's happening much quicker than it did before. You have Black Lives Matter penciled on the streets of major cities and my law firm immediately put out a statement that said Black Lives Matter," she said. "People understand that this is yet another necessary movement to obtain civil rights."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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