When she appeared on the jury, prosecutors asked Crishala Reed about her support for Black Lives Matter, launching a new lawsuit in California about how race is used to turn down judges.

A gang-related murder case in 2012 preceded the start of the Black Lives Matter movement. However, when charges landed in the Contra Costa Supreme Court in 2016, the use of the term became widespread after Michael Brown was killed two years earlier by a police officer in Ferguson, Missouri.

However, for the district attorneys in the suburbs of San Francisco, Reed's decision to include "Black Lives Matter" on their questionnaires represented their potential support for criminal activity.

According to a transcript, when they spoke to Reed in 2016, prosecutors had raised their support for Black Lives Matter and asked her if that meant she agreed to the idea of ​​private property destruction. In the notes prosecutors used in their efforts to have Reed dismissed from the prospective jury on important grounds, they claimed she rolled her eyes before telling them she was not about to destroy property that was not her own support.

The prosecutor said they had decided to stop questioning at that point, describing Reed's attitude as "hostile" and unaware of "well-reported" stories of civil unrest. In their notes, prosecutors noted the cessation of traffic in nearby Berkeley that year when protesters sang "Black Lives Matter".

After the judge denied this as a reason for removing Reed from the jury, the county took advantage of one of their compelling challenges to kick her out of the potential jury box anyway. Before the questioning of Reed, the prosecutors had already dismissed six other black people from the jury.

Finally, while three black men were convicted of the double homicide, questions surrounding Reed's release on appeal have been given new life.

Judicial Center attorneys Roderick & Solange MacArthur saw the district attorney's decision to question Reed about their support for Black Lives Matters as the stand-in for the removal of black jurors from the case and last week called the State First District Court of Appeals to open the case To use to set limits that would limit racist interrogations of potential jurors.

"This is a disturbing technique that we see across the country where prosecutors are asking these racially charged jury questions and using their answers as a reason to beat black jurors," said Easha Anand, attorney at MacArthur Justice Center Law360.

Prosecutors in Contra Costa County aren't the first to question potential black jurors about their support for Black Lives Matter in voir dire hearings.

Called on a murder case in North Carolina Cooper versus stateThe prosecution, which reached the state's Supreme Court in 2018, had cited a college student's involvement in a Black Lives Matter group with their professor, telling the judge that the involvement had "implied unspoken problems arising the two law enforcement agencies. " State or any other concerns we might have. "

A Minnesota district attorney had been even more dull when he met a potential black juror on a case called State v. Gresham in 2016 and asked her, "Did you take part in any of the Black Lives Matters marches and things like that here?"

In both cases, appellate panels rejected the dismissal of those jurors, finding that the grounds the prosecutors had put forward were sufficiently "racially neutral" under the framework established by Justice Lewis Powell Jr. in the US Supreme Court in 1986, Batson v Kentucky Trial .

Powell's decision had raised a standard set in an earlier 1956 Supreme Court case called Swain v Alabama in which the court upheld the verdict of an all-white jury who sentenced a black man to death. In Swain, the Supreme Court found that there had been "no investigated attempt" to expel blacks from that jury, even though the eight black jurors involved in the case had all been forcibly challenged.

Batson was asked to raise the bar and urged trial judges to evaluate a prosecutor's "neutral statement" in response to allegations of racially motivated jury strikes.

The Supreme Court had Batson revisited last year in a case called Flowers v. Mississippi It was a particularly "relentless" district attorney who had brought a total of 41 potential black jurors to justice in the course of two legal proceedings and four free judgments.

Judge Brett Kavanaugh wrote on behalf of the majority who had abolished the death penalty in the case: "Batson put an end to the widespread practice whereby prosecutors could (and often would) routinely beat any potential black jury in cases involving black defendants. . "

Criminal justice advocates disagree, however, saying that Batson only enabled what Professor Elisabeth Semel, who heads the Berkeley Death Penalty Clinic, calls the "vicious circle" of less outrageous errors of justice being excused through priority jurisdiction, the judges Forcing the district to take lawyers at their word.

"If the courts further increase prosecutors' use of certain statements, prosecutors will continue to give them," Semel told Law360.

In a June study by Semel that examined more than 700 cases in California, she found that more than 70% of cases were used to use Peremptorist challenges to expel black jurors. In her opinion, the Batson process does not work at the state level. Of 142 Batson objections the state Supreme Court ruled between 1989 and 2019, their report found that the state appeals court found prosecutor's bias in only three cases.

"When it's that rare, you can't trust the court to rigorously apply the process," said Semel.

Semel's findings, however, were not without critics. Los Angeles Assistant District Attorney Michele Hanisee, who also serves as president of the Los Angeles Association of Assistant District Attorneys, argued in a statement following the release of the report that Semel "guarantees data" as Semel only investigated cases involving defense attorneys Alleged discrimination had set a high percentage of cases "where discriminatory behavior could be found.

Hanisee had also observed that criminal justice attorneys seldom examine how peremptorist challenges are used by defense lawyers and "subtly suggest that defense lawyers are free from such prejudice".

In its brief, the MacArthur Justice Center called on the Court of Appeal to consider a 1992 Ninth Circle ruling against Bishop in the United States . The Ninth Circle in this case ruled that the Los Angeles jury's question as to whether they lived in Compton "was only a substitute for the race."

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

"Racism is very creative," Tiffany Wright, an Orrick Herrington & Sutcliffe LLP associate who wrote the letter, told Law360. She argues that asking a juror how they feel about Black Lives Matter is tantamount to asking their blackness.

"I felt like as a black woman this wasn't an assignment to turn down," Wright said.

"In order for me to hear this question, you are asking me if my life is important and if my children's lives are important," she added. "It's very personal to me in a way that isn't for a person who doesn't share that background."

The center in its court record creates a direct link between the Black Lives Matter movement and civil rights history valued by politicians, museums, and our legal system.

"When blacks today declare that 'Black Lives Matter' is concerned with racial murders by the police and vigilante groups, their voices are in line with Sojourner Truth, asking, 'Ain & # 39; t IA Woman' 39; in the face of slavery and the declaration of black protesters: "I am a man" in the face of a racist caste system, "the letter says.

The Contra Costa County District Attorney's Office and California Attorney's Office, Xavier Becerra, who vigorously defended the case, both declined requests for comment. According to a filing earlier this week, Becerra's office has until early next month to respond to the center's demands, in addition to their first 150-page letter defending the country's verdict.

In that letter, the state argued that the prosecutor had not interrogated other potential black jurors as violently and that it was simply a matter of the prosecutor not connecting with Reed.

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

But he believes this case "breaks down on the facts".

Pointing out the questionnaire Reed had completed, LaBahn said prosecutors had the right to ask them about it because they were referring to Black Lives Matter.

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

"All of this happened in the context of a specific 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 common in this country who hasn't heard of Black Lives Matter? You can't turn on the news, you can't watch sport without seeing it," he said.

Wright believes that state courts should take note of the general acceptance of Black Lives Matter.

"The difference now is that it's much faster than before. They penciled Black Lives Matter on the streets of big cities and my law firm immediately made a statement that said Black Lives Matter," she said. "People understand that this is another necessary movement to gain civil rights."

Do you have a story idea for access to justice? Reach us at accesstojustice@law360.com.

– Adaptation by Katherine Rautenberg.

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