Opinion
No. 2020-K-00785
11-18-2020
STATE of Louisiana v. Thomas Calvin HENSON, Jr.
Writ application denied.
Johnson, C.J., additionally concurs and assigns reasons.
Hughes, J., additionally concurs and assigns reasons.
I can only concur in the denial of this writ application since the standard of review that applies when judging the propriety of a prospective juror's contested removal for cause is abuse of discretion, and I cannot say the trial court abused its broad discretion.
Recently-gathered statistical data suggests that the primary means through which African Americans are disproportionately excluded from jury service in criminal trials in Louisiana is through the State challenging prospective jurors for cause. The dataset on which the district court relied in State v. Melvin Cartez Maxie, 11th Judicial District Court, No. 13-CR-72522 demonstrated not only that the State disproportionately uses peremptory strikes against Black prospective jurors, but also that the State disproportionately uses challenges for cause against Black prospective jurors. The race of the 14, 616 potential jurors who were members of initial jury venires in the study almost exactly correlated with Louisiana's population: 32.6% were Black and 61.7% were White. But in the sample, the State challenged Black prospective jurors for cause at 3.24 times the rate of White prospective jurors; 58.9% of successful cause challenges were against Black prospective jurors and 34.4% were against white prospective jurors. As such, statistics demonstrate that cause challenges are another mechanism for excluding African Americans from jury service.
This data included information from over 3,000 criminal jury trials in Louisiana between 2009 and 2017 and formed part of the Joint Appendix in Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 793-95 (2020).
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Our jurisprudence is clear that the State may not use peremptory strikes in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79 (1986) ; Snyder v. Louisiana, 552 U.S. 472 (2008) ; Flowers v. Mississippi, 139 S.Ct. 2228 (2019). Under Batson, if a defendant makes a prima facie case of racial discrimination in the State's use of peremptory strikes, the State must provide race-neutral reasons for its strikes, and the trial court must then determine whether the prosecutor's stated reasons are a pretext for discrimination. Batson, 476 U.S. at 97–98. By contrast the standard we apply to reviewing challenges for cause is loose and extremely deferential. State v. Robertson, 630 So.2d 1278, 1281 (La. 1994). As such, prosecutors may characterize a broad spectrum of potential jurors’ opinions as "not impartial" under La. C. Cr. P. art. 797(2) or as evidence that the juror is "biased against the enforcement charged to have been violated" under La. C. Cr. P. art. 798(1), thereby ensuring the juror's removal for cause. These "catch all" provisions result in the disproportionate exclusion of Black potential jurors. Our procedural rules should allow defendants to raise an Equal Protection challenge to the State's disproportionate use of challenges for cause when the State's challenges result in a pattern of disproportionate exclusion of Black potential jurors. In supplying reasons for the use of such challenges, the State should not be permitted to rely on facially "race neutral" reasons which are, in fact, not "race neutral" because they disproportionately apply to people of color, such as contact with law enforcement.
Louisiana's African American community is disproportionately exposed to law enforcement, criminal courts, and prison. Black prospective jurors are statistically more likely to be related to someone who has been arrested or imprisoned. If potential jurors—such as Mrs. Evelina Johnson in this case—can be struck for cause when they articulate a lingering sense of unfairness in the application of the criminal law, there is no wonder that cause challenges disproportionately remove Black jurors.
Jury service is a critical right and responsibility in our democracy. "Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process." Flowers, 139 S.Ct. at 2238. If we remove jurors from jury service because of their proximity to the criminal legal system's harsh effects, we disproportionately deny Black citizens the most substantial opportunity that they have to participate in the democratic process.
Johnson, C.J., concurs in the writ denial with reasons:
While I agree in the denial of the defendant's writ application, I find nothing wrong with the sentence or the manner in which it was imposed. On remand the trial court is free to impose whatever sentence will achieve justice.
Hughes, J., additionally concurs and assigns reasons.