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tv   Flowers v. Mississippi Oral Argument  CSPAN  March 22, 2019 11:06pm-12:01am EDT

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tois imperative for mr. barr make the full report public. " the statement goes on to say attorney general barr should not give president trump or his lawyers or staff any sneak preview of the mueller findings. cnn reports no further indictments from the special counsel are expected. you can follow c-span and c-span.org for updates on the investigation. next supreme court oral arguments in flowers v. mississippi. looking at the methods and jury selection in six trials related to a 1996 armed robbery. >> we ws morning in case 17 9572, flowers versus mississippi. miss johnson. only. chief justice, the
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plausible interpretation of all of the evidence used to militantly is doug evans began saw thatumulatively doug evans received as few american -- african-american jurors as he could. the numbers are striking. he exercised 36 peremptory challenges, all of them against african-american jurors. exercisedth trial he five out of six of his challenges against african-american jurors. if we look at the numbers of his regarding his questioning, they are likewise stark. struckd of the african-american jurors and average 29 questions. he asked the white jurors 1.1
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questions. these numbers do not stand alone. mr. evans was twice found to have been discredited on the basis of race in the exercise of his peremptory challenges against african-american dependents in trials of the same case against the same defendant. there is no one who has a record of adjudicated discrimination like that of mr. evans. the history is very troubling and you have summarized that. -- >> the history is very troubling and you have summarized that. the decision that ultimately has to be made in the case. i am not suggesting this is the way it should be analyzed, it is not, but if we were to disregard everything before this trial and we looked at the strikes of the
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black prospective jurors as we would in any other case, do you think you would have much chance of winning? ms. johnson: the evidence is clear and convincing he acted with discriminatory motive in this case even if we set aside his history and the reasons he was unwilling to tell the truth. jus. alito: if we look at the jurors in question one by one, there are aspects that i think will cause any prosecutor to get the juror off the jury. there is a juror who said she couldn't view the evidence objectively. she couldn't make a decision based on the evidence. there is one who said because of her complaints with members of the flowers family, she would lean toward the defendant.
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another made false statement on her juror questionnaire because she would say anything to get off the jury. do you think those are frames that would likely succeed if this troubling history had not proceeded? ms. johnson: the court amended a sensitive inquiry into all of the circumstances that prove racial discrimination and setting aside his history, there are many circumstances here that suggest racial motivation. there is an extraordinary record of disparate questioning. it is not limited to those numbers but the tone. one of the responses that you quoted came from an extremely aggressive pursuit of an african-american juror who said she would not be troubled and ultimately said it is possible. of course a prosecutor could take that approach with every
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juror. if you took that with every juror, there would be nothing to complain about. he did not do that with white jurors. then there is his out of for investigation of three african-american jurors. -- out-of-court investigation of three african-americans. jus. alito: if a juror says i don't work mostly with the defendant's sister, i don't work goes to the defendant's sister, and the prosecutor has reasons to success -- suspect that is for the, is the reasons person going to the human relations person in employment and bringing them to testify that they work nine to 10 inches apart? there is something wrong with that? ms. johnson: there is not if there was reason to not believe the juror. the juror said she knew her and worked in the place. mr. evans cited new place -- no
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place he should not believe her. but after that it is suspicious. you bring someone in to say they worked close together, and that someone says, and i could produce the evidence. when asked of that, the records, he doesn't come back. a prosecutor could, and a rich prosecutor might investigate all -- jus. sotomayor: did he have the is ready that same day? ms. johnson: he brought them back the next day. jus. alito: what is your strongest strike? ms. johnson: the clearest case is that of carolyn wright. three. statements through the first was that her wages were garnished. jus. alito: we have found in the record with a state exhibit on
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it a judgment that shows her wages were garnished. ms. johnson: there is a mark that shows there was such a request but both the trial court and the mississippi supreme court looked at the record and found her wages had not been garnished. jus. alito: we can look at the judgment but the fact remains she was -- one of the victims was the proprietor of a family-owned store, right? and the store sued her? ms. johnson: the store sued her. the victim had not. jus. alito: the store did. -- puty wouldn't that aside the history. in the end we can't do it. don't you think a prosecutor or any attorney would be very wary of having a juror who had been sued by one of the parties? ms. johnson: i think if the prosecutor had pursued by us
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with respect -- were sued bias with respect to white and african-american jurors, it would be permissible. in fact he didn't do that. this was one of four victims. it does seem unlikely a person in a quadruple homicide case would be biased by a subsequent suit of one of the relatives. even if we thought that were true, one whatever magic the prosecutor would have -- one would have imagined bias with the other victims. jus. ginsburg: when did the questioner asked the entire array of whether they had any store? the ms. johnson: yes, but there was orquestion asked about suits disputes with the other three victims, nor was there an inquiry into bias i think any rational prosecutor would have made if concerned truly about
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that, which was lawsuits prosecution of the jurors and their close relatives by his office. the prosecutor made no inquiry about that. if you were worried about bias, you would be worried about that. jus. sotomayor: did he ask mrs. right how she felt? ms. johnson: she was askedms. johnson:. what she said what she paid the debt and she had no ill will toward the parties. reason,llow up on this i think this reason is suspicious -- he cited the same burnside.th edith he said it with respect to edith burnside your he repeated the whole statement her wages had been garnished despite being called by the trial court on it the first time. then he said he was striking her in part of that basis. ms. burnside -- backsotomayor: can you go
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and slow down? you said to justice alito that the state record that says something about garnishment, the state courts found it was not adequate. could you explain why not? the judgment in the record -- it is a form in the record. ms. johnson: the form reflects a suit and there is a check by garnishment. if you look at the order at the end, there is none. the trial court and the mississippi supreme court looked at that and they are experts about what documents mean. they said there was no garnish. >> what if it turned out there were none? ms. johnson: he would mean he made two false statements about the juror, the ones that she and the otherr sister. if i could go back for a moment to ms. burnside, when he
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repeated the story, the pre-sect -- pretext is apparent when you look at ms. burnside. she worked for mrs. tardy caring for her mother. ms. burnside was helped during her divorce by mrs. tardy. whatever she might have felt negative about the son-in-law, the feelings she would have had about the victim herself could only have been positive and but he cited the same reason. jus. gorsuch: didn't ms. burnside also say she didn't want to judge anybody? ms. johnson: she did not -- she did -- did say that. jus. gorsuch: you think that is not a legitimate -- jus. alito: you think that is not a legitimate reason for striking a juror? ms. johnson: it is a legitimate
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reason for striking a judge -- i'm sorry, a juror. the problem isn't whether it is legitimate but whether it was pretext. when we look at what he did setting the relationship, have an -- looks like everything is pretext. if i could go back to the rest of your question about juror right, there were three misrepresentations with respect to her. they also cited the number of defense witnesses that she knew, but the prosecutor did not question the others about their relationships with a witness. nor did he strike them when he had an opportunity to do so. jus. alito: didn't she work with the defendant's father? ms. johnson: in the same location.
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jus. alito: the same store, the world's smallest walmart. ms. johnson: that is what the trial described it as. it is important to notice that when she was asked, does she still work, she doesn't know. workalito: does she still there? ms. johnson: she did. jus. alito: i thought she had left. ms. johnson: that was another juror with respect to cora flowers. she didn't know if he still worked there. jus. sotomayor: compare her with pamela. that comparison is the one i am most interested in. to dohnson: i was about that. it is true working with someone under some circumstances might produce bias. it is interesting the only thing she said that might suggest the closeness of the relationship, she didn't know whether he still worked and kevin -- he didn't
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ask about the relationship, nor did he worry about juror justine and five of flowers' family members. juror justine worked as a teller at a bank where all of them game. -- them came. jus. sotomayor: she knew the father. ms. johnson: the father, mother, two sisters and a brother. [speaking simultaneously] jus. ginsburg: bank teller, someone comes to make a deposit different from someone who is a encounterand it would setting on ae work daily basis? ms. johnson: it could be a very different relationship. it turns out we know the closeness -- unless there was inquiries, but doug evans didn't make that kind of inquiry. what he said, it was a purely
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professional relationship. he didn't ask whether she had a close relationship among whether she was worried. he assumed -- >> all of the questions we have been addressing here are the same sort of questions you get in a typical [indiscernible] case, looking at the circumstances of potential jurors struck in this case. as my colleagues have recognized, it is unusual because you have the extensive history. that is why the case is here for review. interested because the rule we adopt will apply in other cases. argument that we need to look at the past history is pertinent. one absentecutor had violation in his 30-year career 30 years ago, is that something that should be drawn out and
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pertinent? ms. johnson: may i say one thing about carolyn wright i don't want to forget? jus. roberts: sure. ms. johnson: she put on her panel -- her desk that she was strongly in favor of the death penalty. looking at her as a whole, a prosecutor looking in a colorblind way would have been attracted. now your question. i apologize but i was worried i would not get back. this is an extraordinary case. i have combed the cases and cannot find -- jus. roberts: you are hiding the hypothetical. 30 years, what is in violation 20 years ago -- is that pertinent to the current case? ms. johnson: i didn't understand. it is pertinent, but it is weak re-probative.
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we look as we would in a criminal case, we look at how fair -- how recent a fabrication has been come up whether relatively similar or whether they have the same motive. a case that occurred 30 years ago would be different. it would be different from the a stern the established law of the court. someone who violates fashioning -- fascinating media, that is less probative than someone who has done it repeatedly. ms. johnson: what would you have us -- jus. roberts: what would you have us adopt as a general rule? ms. johnson: it is one you have already adopted that in state three, every factor that bears a pearl of credibility is relevant. that is the general rule and if we say that in another way, the mississippi supreme court asked only that question if there is a
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juror left, a reason for this juror left standing not contradicted by the record and matched by a white juror, and that is not the right rule. >> your turn. >> you go first. jus. roberts: justice gorsuch. jus. gorsuch: i want to pursue the chief justice's question a little bit further. i can understand what you have in the next case. let's just slip doesn't say this case was perfect, and the strengths were without taint otherwise. but we have this history with this prosecutors. would -- this prosecutor. would that be a problem still or is there no violation in those circumstances? ms. johnson: if there weren't eight -- jus. gorsuch: hypothetical again. let'spothetical is
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suppose there were explained by nondiscriminatory reasons. we have this prosecutor with this history. what then? how should a court assess? ms. johnson: if there are on -- no other issues of discrimination, the defendant has not met his burden of proof proving prior dissemination. jus. gorsuch: so we need proof. ok. that is helpful. my question was about the history. i thought swain had said the history was relevant. swain said history was the only way you can prove a violation. what this man did was to say you can look at the individual case. babson did not say you can no longer take account of the history. and babsong of swain interact ms. johnson:? ms. johnson:that is entirely
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correct. even in swain, history was relevant and to look more broadly in arlington heights, this court said history is relevant. and in another, said history was elephant. there isn't a new rule about history being relevant. mississippi ignored what this court said -- jus. ginsburg: the court took account of the history. what are we to make of that? ms. johnson: if the court had taken into account its history it could not have come to this conclusion. there are many reasons to believe they did not. they said considering history it doesn't alter our opinion and they pasted in their prior history. his historyid doesn't undermine stated reasons. it is wrong.
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it may or may not be sufficient desire for all-white jury, found willing to make false statements, those things in the past, with respect to three other jurist does undermine it. did, therewhat they is no point in which they say we are more skeptical of the reasons he stated because he was dishonest before. when i look at the statements he made here, the eight false statements, they were matched with false statements he did before. they did not consider history, nor did they consider anything else that would be consistent with this court's insistence we look at the totality of circumstances. jus. ginsburg: [indiscernible]
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a juror, potential juror, wright, one of your complaints is that were many more questions asked of laugh -- of african-american jurors but that wasn't only wright's case. she was asked only three questions. ms. johnson: that is correct. but the relevance of the disparate questioning is not merely to ask how many questions this juror was asked. it might be, as supreme court said, with respect to some african-american jurors, it was legitimate to ask more questions because more new flowers -- knew flowers' family. disparate questioning of either is relevant. it does suggest the prosecutor is looking for reasons to strike an african-american juror as opposed to being interested in
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bias or anything else. jus. sotomayor: some time ago justice alito asked you about the prosecutor's investigation of some jurors. how many jurors did the prosecutor separately investigate? and all african-american? ms. johnson: all of them were. when the defense counsel said he had been investigating, there was no evidence he investigated anyone else. he said nothing. he had an opportunity to say i have investigated everyone, and he didn't. and you referred to something that struck me when i read through all of this. this is, unlike some of the cases, it is a small town where everybody knows everybody apparently or money people know many people -- many people know many people. it is a largely segregated town
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where you might think african-americans know more african-americans than they would white or vice versa. does that account for some of the differential questioning? in other words, looking at the environment and saying i have to ysh more on whether x knew because given the circumstances of the down -- the town, x very well might have known y. ms. johnson: the mississippi court set it did some of that. there are more african-american jurors who report relationships with defense witnesses or the defense family members. white jurors five who report such relationships and whom the prosecutor did not ask questions about those. jus. ginsburg: you say such relationships, were they relationships because of working
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at the same place or living in the same neighborhood? in the case of the white jurors? ms. johnson: none of the relations were working at the same place. when he was asked, they were asked about whom they knew, white jurors and -- responded that they knew defense witnesses. they did not have questions about those witnesses. we can't know the relationship if we don't ask questions. >> do you have those names? ms. johnson: waller, lester, blalock, fields and chesty. >> it is strange or unusual>> that there was some white jurors who had people accused of crimes in jail, relatives accused of crimes in jails.
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were there any questions how that affected the white jurors? ms. johnson: no, not at all. a very brief question about -- for two of them. that goes to the question of was he investigating bias when he was asked questions about being sued by tardy furniture? if you were being concerned about bias, you would concern yourself with your office. he was not doing that. permission, i's will reserve the rest of my time. jus. roberts: thank you, counsel. mr. chief justice, may it please the court, the history in this case is troubling. the history is confined to this justiced as mr. chief
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pointed out, it is unusual this --the sixtht tria in this sixth trial in this small town of approximately 5000 individuals. the questioning of whether the makeup or limited number of individuals in the town was one of the reasons for follow-up is accurate. let me say the mississippi supreme court's decision was commensurate with batson and its progeny. i would return to justice gorsuch's question of, if we disengage this troubling history -- i agree i am not suggesting as justice alito said, however if we take that out of the case, we don't have any tank. >> could the attorney general has said, enough already, we are going to send one of our own ,eople to try this case
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preferably in a different county where so many people don't know so many other people? could he have done that? ag davis: the attorney general's office is allowed to take over only if requested. we were not so requested. >> you said if we take the history out of the case. we can't. ag davis: that is not what i am saying. 42 potential african-americans, 41 are stricken. yes, yourlevant, honor. held, historyhas is part of the consideration. jus. sotomayor: you agree it is not only adjudicated violations but the number of strikes such as justice kavanaugh listed?
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ag davis: i do. the strikes were unique. the strikes in this case are supported in the record. each of the jurors that were struck, either worked with a --ative, were related or new knew intimately, the defendant's family or others, up to one juror who lied on her questionnaire and then lied on the stand. jus. ginsburg: you have a strange position on potential jurors who lie because it was the case of a white to juror who said he had no knowledge of the flowers case when in fact he was on a 2007 [indiscernible] panel. you said that doesn't matter that he lied because he didn't admit to lying. i think if someone lies and didn't admit to it, that would be a count against that person rather than in that person's
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favor. ag davis: the trial court made the distinction the juror struck for lying on a questionnaire admitted on the stand she lied intentionally, not the case with juror huggins. it would seem it appeared that his participation in the panel, and he was dismissed before he got anywhere near selection, that he either forgot that or completely left his mind at the time he was questioned. back toomayor: let's go that. if we are looking at whether this is pretext, mr. evans was willing to give an excuse to this juror and keep him, despite the fact there was direct evidence he knew about the case. he was willing to accept the white line but not under oath in front of the judge. -- the white lie but not under
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oath in front of the judge. doesn't that suggest pretext? ag davis: the issue as it reads from the record is that the juror who lied on a questionnaire admitted she lied for the purpose of getting off the jury. if that were the case, i don't think one to take one juror and not push them on those questionnaires and come up to an intentional understatement or overstatement. honor,s: again, your that was -- that is the issue is that each one of these strikes, we don't have one single reason. jus. roberts: let's look at them, but you do have history. all peripheries, strikes five. number two, as much as possible, uses all five, strikes all five
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blacks. trial number three, 17 black possible. uses only 15 this time. he ran out of peremptory's and only had 15. fourth trial, 16 black, only struck 11. maybe only had 11 peremptories. now we come to this trial. i don't think it will take much. let's look at one black juror, one white one potentially. let's call them one and two. both are women. both are in their mid-40's. both have some college education. both strongly favor the death penalty. the potential black actually has a brother serving as a prison guard. you might have thought that would favor the prosecution in the prosecutor's mind. that is one difference. don't think that gets favor. anybody arrested? neither have.
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do they know people in the case? something over 30, same thomas same. now is there a connection with the flowers family? the black juror did in fact possibly work at some distance, we don't know what with the father at walmart and the white one knew his father, mother, sister, cousin through her work as a bank teller. and the last one that was crucial was the black potential juror was sued for overdue credit. she paid the garnishment of $30. the white juror had been a friend of the victim's daughter in high school. there we have it. potential black, potential white. we have the whole background. looking at that, you tell me what was the difference as to why he could strike if that background, caroline wright, the
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potential african-american juror, number four, and pamela chesterton, the potential white american juror, who was number 17. what is the difference? given all this similarities? ag davis: caroline wright was sewed -- was struck because she was sued by tardy. caroline wright worked with the defendant's father at walmart. the distinction would be -- sen. breyer: you didn't add juror 17 was a friend of the victim's daughter in high school and new flowers' father, mother, sister and a cousin through her work as a teller at the bank. ht's relationship with the father was a work relationship. chesterton saw them coming in through the bank. and was an employee
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customer relationship which mississippi supreme court made a distinction. sen. breyer: it was closer to the first. >> i've read that the first was closer, then seeing them every week. >> will it say that? >> how closely physically did andwork with the father there was no answer to that question. ag davis: the record would bear out the district attorney only struck those individuals that worked with members of his family. that was consistent. sen. breyer: so that is the reason. i go back in the record and have to say, knowing flowers' father, sister, mother, cousin through the work of a bank teller is not a reason for striking somebody but working with flowers' father distance atown walmart is the crucial difference i will find.
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if there is anything else -- i have the history plus now i have narrowed it down. narrowed it down to that being the difference. ag davis: i would also say one of the differing things was she was sued by tardy, which was -- sen. breyer: i also should look at that and decide whether that is more significant than the fact 17 was friends with the victim's daughter in high school. sometimes your high school pals, you don't forget. so anything else? ag davis: i think that is enough. >> i do too. --. kagan: mrs. right is a wright is a perfect prosecutors. she favors the death penalty, uncle a prison security guard, relative is the victim of a violent crime, except for her
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race, you would think this is a juror a prosecutor would love. isn't she? ag davis: not if she works with the defendant's family and was sued by the workplace of one of the victims. that is the distinguishing factor here. jus. breyer: you have directed me, the two relevant parts of the record, and before i make up my mind, i will read those relevant parts both sides. ag davis: ok. >> council, we are conducting this if it were one case. in terms of a broader rule, do you recognize, or do we recognize in our president any restriction -- precedent any restriction with respect to what can be brought up? ag davis: no, your honor.
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far be it from -- for me to presume the basis, but i see it as one of the issues before the court as your honor asked, how far are we to go, and what does it matter? what part does the history play? jus. roberts: is there anything that suggests they should be limitation looking to the history of the prosecutor involved? ag davis: there is no limitationag davis:. certainly the president -- the nt says you have to consider it. i am not aware of any language for this particular circumstance where we have six trials by the same district attorney. i am not aware of any. this is unique in that regard. jus. gorsuch: justice breyer pointed out it economy that in other -- a dichotomy that in
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exploitablemight be but if all of the history is relevant as you have acknowledged, what like to does that shed on what otherwise might appear to be an innocent strike, and what rule would you lay down? it is hard to do but we are taking cases to guide future disputes, not just this one. how would you write the rule as to the relevance of the best information with when we are looking at the current trial? wordvis: looking at the history, we are limiting it to this case. the district attorney in his 25 years of experience, having searched for additional cases and no case decided by the petitioner outside of this case in regards to a violation, so the history is limited here. the question is what to do in a case like this?
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how much does the specter of those prior violations come into ? ay in the analysis in this i think it has to be looked at. i believe the trial -- jus. sotomayor: is it just the specter of the violations were not the cases overturned in which prosecutorial misconduct -- at least the first was overturned on prosecutorial misconduct. they didn't even reach the challenge. ag davis: yes, your honor. jus. sotomayor: doesn't it tell you something about this man's passion? i don't need to call it anything else. doesn't that tell you how you should be looking at this case? ag davis: i can't speak to his passion. i can speak to his pursuit of conviction in the sense of the six trials in which there were -- i understand he
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didn't ask the attorney general to step in, which he could have, to prosecute the case, but i understand he lobbied to legislators to try to change the venue legislatively. is that correct? ag davis: that is my understanding. try the case outside of montgomery county. jus. sotomayor: instead of giving the attorney general to try the case. in his own county. ag davis: we are strict the prohibited from interjecting ourselves in cases we have tried , not in this case but in another in our supreme court. batson -- in ian batson we held a prosecutor cannot state he challenged jurors in the defendant's case of the defendant's race on his
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assumption or intuitive judgment there would be -- they would be partial to the defendant because of shared grace. that was the critical sentence in batson and the sentence disagreed with that. you can't just assume someone will be favorable to someone because they shared the same race. when you look at the 41 -- how do you look at that and not come away without thinking what was going on there was what the dissent said? the majority set it was not permissible that there is a stereotype you are going to favor someone because they are the same race as the defendant. ag davis: i respectfully in this case you know when agree -- in that because of this person's race, they were not going to be favorable.
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years nowspanned 23 in this small community. in this case there were three adjudicated batson violations. ag davis: two. jus. sotomayor: ok. two. >> [laughter] ag davis: flowers three and flowers two both had adjudicated batson issues. the trial court was aware of that, it was evident. the same trial judge presided over the fifth trial, and in this case we have same defense counsel, counsel moved in, the -- jointred in appendix 42. motion number 57, to borrow prosecution from exercising for entry strikes, exercising against nonwhite minority members. the judge adopted his prior rulings. his ruling on that also included
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caution, to both parties that if were is any objections challenges based on demeanor or based on a juror's appearance, and if it wasn't in the record, he was not going to consider. [speaking simultaneously] jus. sotomayor: could you just say the same judge who tried the sixthtrial also tried the trial? --davis: wasn't he the judge yes, your honor. jus. sotomayor: wasn't he the judge that prosecuted in the holdout, and didn't mr. evans do that and the attorney general take over the case and say there was no basis? ag davis: there were two jurors bound over perjury. one pleaded guilty and the other crossed --
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not my division, but another. jus. sotomayor: i think the attorney general did that because there was no races for prosecution. ag davis: i don't know there was not a basis, but it was done. >> in this case because of the unusual and really disturbing history, this case could not sixth timeried this by the same prosecutor. in light of the history you can't untangle what happened before the particular strikes in this case. ag davis: hindsight is 2020. i was not involved in consideration on that. had i been, it might have been a suggestion of mine it might be the case. but the record in this case by no means supports the conclusion
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that the mississippi supreme court's decision ran afoul of batson progeny. i would like to say -- return to what i said about trial judges being aware of the history. judge loper said the transcript -- i know what flowers three said. he cautioned the state, saying i will look closely at this. the judge acknowledged he be diligent making sure the same type of error did not occur again. >> let's talk about the questioning in this case. the numbers themselves are staggering. to number of questions asked african-americans versus whites but more than the numbers, you look at the way, what these questions were targeted to do, let's take for example questions on the death penalty. this executor would question the white person who said he or she had reservations about the death
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penalty, and the questions are designed to rehabilitate the person. the prosecutor said if the law required you to do it, the person would say yes. if an african-american said they had calls about death penalty, the prosecutor would say the opposite. they would say something like, it would be hard for you to apply the death penalty then. ,o this disparate questioning it looks as though he is designing, trying to create a record for striking black jurors that will end and for distinguishing lecturers from white jurors by means of his questioning which is sort of completely opposite from the questioning he gets to whites. ag davis: the questions the direct attorney asked were a direct result of those responses the jurors provided.
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jus. kagan: it is not two jurors, one white, one black says i have reservations and he says to the white one, you can follow the law, and he says to the black one, i don't know, i guess you can't follow the law. ag davis: respectfully, that is not the case if i read the record. each juror that indicated they were against the death penalty was certainly one that in the general context a prosecutor would not want to be on the jury. we had in this case vacillation amongst jurors. jones, on her questionnaire, said she was against the death penalty but during questioning said she could consider it. then she lied on her juror questionnaire. askedstrict attorney questions to follow up on what
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was on the juror questionnaire with regard to their statements therein regarding the death penalty. >> in this case the record itself shows the district attorney offered valid reasons for each strike, each strike was considered by the trial court who made the parties aware of, he was aware of the history of the case, and the record supports that all the jurors that were struck were struck because they were sued by tardy furniture, either related to the defendant, friends with or have worked with members of the defendant's family area these are all valid race neutral reasons. jus. ginsburg: there were no white jurors who
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relationship with defense witnesses. [indiscernible] ag davis: the only to my recollection is pamela indicating she knew flowers' family but only because she was a bank teller and see them come in. jus. ginsburg: they said they had a relationship with defense witnesses, that they weren't asked what is the relationship. ag davis: regarding the one who said they knew the witnesses, yes, in the mississippi supreme court the noted -- this is part and parcel of the case. 5000 people in the town, everybody knows everybody and about the case. mississippi supreme court noted
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these witnesses on both sides knew numerous for both prosecution and defense. that is part of the analysis. reasons to look at the that were offered by the district attorney and in this case is a support the strikes. part of batson was about fairness of the criminal justice system. of awas against a backdrop lot of decades of all white juries convicting black defendants. swain said let's put a stop to that but didn't give the tools for eradicating discrimination. another 21 years of that until batson, then batson said we will give you the tools to eradicate that so not just for the fairness to defendant and juror but community has confidence in the fairness of the system. can you say you have confidence in how this all transpired in
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this case? ag davis: i have confidence in this record. i have confidence in the strikes based on the four corners of this record. i have confidence that if reviewed with an eye towards what actually transpired, it supports the mississippi supreme court's decision in this case. that i have confidence in. jus. sotomayor: [indiscernible] how this case was prosecuted? ag davis: yes, i do. jus. sotomayor: one of the first things i did when i found this case was to try to do some research. at least my former state prosecutor's office would have substituted attorneys long before the sixth trial. regrettably i wasn't able to find any formalized guidance on
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that. thatt does seem odd to me any prosecutor would continue to try a case with this history. agree we haveuld an unusual circumstance and case with these trials having been all tried by the same prosecutor, but i would resubmit again the decision of the mississippi supreme court in this instance was not violating that sin and its progeny. jus. roberts: four minutes remaining, ms. johnson. ms. johnson: unless the court has further questions, i will wave rebuttal. >> could you tell me whether or not you exercised any directories? ms. johnson: i was not the trial lawyer. >> were any exercised by the
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defendant? ms. johnson: they were. jus. thomas: what were the race? ms. johnson: only against white jurors. i would add her motivation is not the question here, but the question is -- she didn't have any black jurors to exercise directories against -- ms. johnson: except the first one. jus. sotomayor: but so did the prosecutor accept the first one. after that every black juror available on the panel was struck. ms. johnson: he seated one african-american juror. at the very end, struck one white juror. when all of the evidence in this case is considered just as in foster versus chapman, the conclusion race was a essential part of evans' automation is inescapable and mississippi supreme court's

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