Amicus Curiae Brief — Curtis Giovanni Flowers, Petitioner v. Mississippi

Supreme Court briefJan 3, 2019

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No. 17-9572

IN THE

Supreme Court of the United States

CURTIS GIOVANNI FLOWERS,

Petitioner,

STATE OF MISSISSIPPI,

Respondent.

On Writ of Certiorari

to the Supreme Court of Mississippi

BRIEF OF FORMER JUSTICE DEPARTMENT

OFFICIALS AS AMICI CURIAE IN SUPPORT OF

PETITIONER

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

CHRISTOPHER M. LYNCH

MUNGER, T OLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1100

donald.verrilli@mto.com

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ..................................................... 2

ARGUMENT ................................................................ 5

II.

Racial Discrimination In Jury Selection

Undermines The Very Protections That

A Jury Is Intended To Ensure. ......................... 5

Since The Ratification Of The

Fourteenth Amendment, The

Court And Congress Have

Understood Preventing Racial

Discrimination In The Jury

System To Be Critical To

Providing Equality Under The

Law ......................................................... 5

To Give Full Effect To The

Prohibition On Racial

Discrimination In Jury Selection,

Courts Must Rigorously

Scrutinize Peremptory

Challenges, Particularly Where

There Is Evidence of Similar Prior

Discrimination by the Same

Prosecutor ............................................. 10

Racial Discrimination in Jury Selection

Fundamentally Undermines Public

Confidence in the Justice System................... 14

Racial Discrimination in Jury

Selection Harms Not Only

TABLE OF CONTENTS

(continued)

Page

Defendants, But The Justice

System As A Whole .............................. 14

Amici’s Experience in the Justice

Department Has Convinced Us

that Racial Discrimination and

the Appearance of Racial

Discrimination in the Jury

System Undermine the Justice

System .................................................. 18

CONCLUSION .......................................................... 21

APPENDIX OF AMICI.............................................. 1a

iii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Akins v. Texas,

325 U.S. 398 (1945) ................................................ 6

Avery v. Georgia,

345 U.S. 559 (1953) ................................................ 9

Ballard v. United States,

329 U.S. 187 (1946) .............................................. 15

Batson v. Kentucky,

476 U.S. 79 (1986) .........................................passim

Castaneda v. Partida,

430 U.S. 482 (1977) ................................................ 9

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................ 5, 6

Foster v. Chatman,

136 S. Ct. 1737 (2016) ................................ 4, 11, 14

Georgia v. McCollum,

505 U.S. 42 (1992) .......................................... 15, 16

Hernandez v. Texas,

347 U.S. 475 (1954) ................................................ 9

Hollins v. Oklahoma,

295 U.S. 394 (1935) ................................................ 9

J.E.B. v. Alabama ex rel. T. B.,

511 U.S. 127 (1994) .............................................. 15

TABLE OF AUTHORITIES

(continued)

Page(s)

Miller-El v. Dretke,

545 U.S. 231 (2005) .......................................passim

Neal v. Delaware,

103 U.S. 370 (1880) ................................................ 9

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) .....................................passim

Powers v. Ohio,

499 U.S. 400 (1991) .................................... 9, 15, 16

Snyder v. Louisiana,

552 U.S. 472 (2008) .......................................... 3, 11

Strauder v. W. Virginia,

100 U.S. 303 (1879) .......................................passim

Ex parte Virginia,

100 U.S. 339 (1879) ................................................ 8

STATE CASES

Flowers v. Mississippi,

158 So.3d 1009 (2014) .......................................... 13

Flowers v. Mississippi,

240 So.3d 1082 (2017) .......................................... 13

Flowers v. Mississippi,

947 So.2d 910 (2007) ........................................ 4, 12

TABLE OF AUTHORITIES

(continued)

Page(s)

FEDERAL STATUTES

An Act for the further Security of equal

Rights in the District of Columbia,

ch. 3, 16 Stat. 3 (Mar. 18, 1869) ............................. 8

Civil Rights Act of 1875, ch. 114, 18

Stat. 335 .................................................................. 8

Civil Rights (Ku Klux Klan) Act of 1871,

ch. 22, 17 Stat. 13 (codified as

amended at 42 U.S.C. § 1985 (2000)) .................... 8

FEDERAL RULES

Rule 37.6 ...................................................................... 1

OTHER AUTHORITIES

ABA, Criminal Justice Standards for the

Prosecution Function 3-1.2(b) (4th

Ed.) ........................................................................ 19

Emily Ekins, Policing in America:

Understanding Public Attitudes

Toward the Police. Results from a

National Survey, ch. 3, Perceptions of

Systemic Racial Bias, Cato Institute

(December 7, 2016),

https://www.cato.org/policing-inamerica/chapter-3/perceptionssystemic-racial-bias .............................................. 17

TABLE OF AUTHORITIES

(continued)

Page(s)

The Federalist No. 83 (A. Hamilton) (B.

Warner ed. 1818) .................................................... 5

George W. Dougherty, et al., Race and

the Georgia Courts: Implications of

the Georgia Public Trust and

Confidence Survey for Batson v.

Kentucky and Its Progeny, 37 Ga. L.

Rev. 1021 (Spr. 2003) ........................................... 17

Hiroshi Fukurai, Social De-Construction

of Race and Affirmative Action in

Jury Selection, 4 Afr.-Am. L. & Policy

Rep. 17 (Fall 1999) ............................................... 18

James Forman, Jr., Juries and Race in

the Nineteenth Century, 113 Yale L.J.

895 (2004) ......................................................... 7, 14

Mattie Johnstone & Joshua M.

Zachariah, Peremptory Challenges

and Racial Discrimination: The

Effects of Miller-El v. Cockrell, 17

Geo. J. Legal Ethics 863 (2004) ........................... 16

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Monica Anderson, Vast Majority of

Blacks View the Criminal Justice

System as Unfair, Pew Research

Center (Aug. 12, 2014),

http://www.pewresearch.org/facttank/2014/08/12/vast-majority -ofblacks-view-the-criminal-justicesystem-as-unfair/ .................................................. 17

4 W. Blackstone, Commentaries on the

Laws of England (Cooley ed. 1899)........................ 6

INTEREST OF AMICI CURIAE 1

Amici are former officials in the United States Department of Justice, identified in the appendix, who

maintain an active interest in the fair and effective

functioning of the justice system. In particular, amici

are deeply committed to maintaining the public trust

in the justice system necessary to its effective administration, including the perception that all persons—

and particularly criminal defendants—will be treated

equally in the eyes of the law. Amici share the conviction that to foster this perception of equal treatment, all actors in the justice system must do their

utmost to treat all persons fairly. It is also, of course,

the right thing to do. And in cases where there is evidence that could cast doubt on whether a litigant has

been treated fairly, amici believe is critical that

courts take great care to examine this evidence and

assure the public that the principle of fairness is upheld in practice.

This is particularly important in the context of

peremptory challenges where racial bias is exploited,

or seen to be exploited, by prosecutors, who are public

servants charged with promoting fairness and justice,

and whose conduct is thus particularly important in

establishing public trust in the system. Without the

perception of equal treatment for all participants in

the legal system, the convictions of criminal defendants obtained by the Department of Justice—and inCounsel for all parties have consented to the filing of this brief.

In accordance with Rule 37.6, amici confirm that no party or

counsel for any party authored this brief in whole or in part, and

that no person other than amici or their counsel made any monetary contribution intended to fund the preparation or submission of this brief.

deed all outcomes in our justice system, whether in

state or federal court—may lack legitimacy in the

eyes of the public. A belief among the public that justice is not fair and evenhanded undermines both the

mission of the Department of Justice and the rule of

law itself.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The promise of “equal justice under law” is foundational to our justice system. Preventing racial discrimination in jury selection is essential to preserving

both the principle of equal justice under law and public confidence that it is being upheld. In particular,

this Court’s precedent mandates, contrary to the decision below, that evidence of a prosecutor’s prior history of racial discrimination is critical context that—

in connection with evidence of discrimination intrinsic to the voir dire proceeding—is sufficient to provide

an “undeniable explanation” that the prosecutor’s

proffered reasons for striking African American jurors are pretext. Miller-El v. Dretke, 545 U.S. 231,

266 (2005).

I. As this Court first recognized in 1879, just after

the Fourteenth Amendment was ratified, prohibiting

African-Americans from serving on a jury undermines the very protections a jury system is intended

to provide. Strauder v. W. Virginia, 100 U.S. 303,

308 (1879). Such discrimination denies a fair trial to

the accused by depriving him of a jury that is fairly

representative of his own community. And it denies

justice to crime victims who happen to be members of

disfavored minorities. For those reasons, the Court

held that the prohibition on racial discrimination in

jury selection is at the core of the Fourteenth

Amendment.

This Court has repeatedly reaffirmed that bedrock

principle in the nearly 140 years since. In particular,

this Court has recognized that racial discrimination

in the context of peremptory challenges, while more

subtle than the discriminatory state statute struck

down in Strauder, is just as inimical to the right to a

fair trial by a jury of one’s peers. Batson v. Kentucky,

476 U.S. 79 (1986). Because discriminatory peremptory challenges are difficult to detect and prevent,

this Court has made clear that courts must evaluate

such claims in light of “all of the circumstances that

bear upon the issue of racial animosity.” Snyder v.

Louisiana, 552 U.S. 472, 478 (2008).

In its post-Batson jurisprudence, this Court has

held that the prosecution’s prior pattern of racial discrimination is powerful evidence that peremptory

strikes of African American jurors in a particular

case may be discriminatory. Miller-El, 545 U.S. at

253, 266. That evidence is present here, and the lower courts should have considered it. Since 1996, petitioner has been tried six times by the same District

Attorney in connection with a multiple homicide in

Winona, Mississippi. In the five trials for which information about the race of jurors struck by the prosecution is available, the prosecutor used peremptory

challenges on all but one potential African American

juror, a total of 41 potential African American jurors

in all. See Pet. Br. 2, 32. Over the course of the six

trials, the Mississippi courts twice held that the prosecutor had violated Batson, in two different trials.

The Mississippi Supreme Court described the evidence as “as strong a prima facie case of racial dis-

crimination as [it] ha[d] ever seen” in this context.

Flowers v. Mississippi, 947 So.2d 910, 935 (2007); see

Pet. Br. 9. Under Miller-El, this history of adjudicated racial discrimination in peremptory challenges is

critically relevant to evaluating whether the prosecutor again discriminated in the jury selection procedure at issue here.

II. In case after case, this Court has recognized

that the necessity of protecting the jury system from

racial discrimination is “essential to ensure that defendants receive a fair trial and to preserve the public

confidence upon which our system of criminal justice

depends.” Foster v. Chatman, 136 S. Ct. 1737, 1760

(2016) (Alito, J., concurring); see also Miller-El, 545

U.S. at 238 (“[T]he very integrity of the courts is

jeopardized when a prosecutor’s discrimination ‘invites cynicism respecting the jury’s neutrality’ and

undermines public confidence in adjudication.” (citations omitted)). As this Court has repeatedly and

consistently articulated, the use of peremptory challenges to effectuate racial discrimination is uniquely

pernicious to public confidence in the integrity of the

judicial system (i) because it undermines the bedrock

guarantee of fairness that the jury system is intended

to provide; (ii) because of the long history in which it

has been used to tip the scales of justice; (iii) because

when it occurs, it undermines confidence in the outcomes of the justice system; and (iv) because excluding individuals from jury service based on immutable

characteristics is fundamentally inconsistent with

our pluralistic, democratic society.

As former Justice Department officials, we understand from firsthand experience the critical importance of evenhandedly administering the justice

system, and of public confidence in the integrity of

the justice system. Law enforcement simply cannot

function without public legitimacy. When prosecutors discriminate in jury selection, they violate their

oath to do justice and undermine the criminal justice

system as a whole.

ARGUMENT

Racial Discrimination In Jury Selection

Undermines The Very Protections That A

Jury Is Intended To Ensure.

Since The Ratification Of The Fourteenth Amendment, The Court And

Congress Have Understood Preventing Racial Discrimination In The

Jury System To Be Critical To

Providing Equality Under The Law

1. Since the Founding, the right to trial by jury has

been “considered a fundamental safeguard of individual liberty.” Pena-Rodriguez v. Colorado, 137 S. Ct.

855, 860 (2017); see The Federalist No. 83, at 451 (A.

Hamilton) (B. Warner ed. 1818). The Framers, like

the “founders of the English law” in which the jury

trial right originated, understood that the jury would

provide critical protection against “oppression by the

Government.” Duncan v. Louisiana, 391 U.S. 145,

155-156 n.23 (1968) In particular, the jury was intended to guard against “unfounded criminal charges

brought to eliminate enemies” and other arbitrary

misuses of the criminal justice system. Id. at 156.

The jury’s ability to safeguard liberty is founded on

its composition. Strauder v. W. Virginia, 100 U.S.

303, 308 (1879) (“the constitution of juries is a very

essential part of the protection such a mode of trial is

intended to secure”). Juries are thought to ensure

defendants a fair trial precisely because they are

composed of “the peers or equals of the person whose

rights it is selected or summoned to determine; that

is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he

holds.” Ibid. When the truth of the prosecutor’s accusations against a defendant must be “‘confirmed by

the unanimous suffrage of twelve of his equals and

neighbours, indifferently chosen and superior to all

suspicion,’” the defendant and the community can be

confident that the conviction is not simply the result

of “overzealous” or “biased” government action. Duncan, 391 U.S. at 151-152 (quoting 4 W. Blackstone,

Commentaries on the Laws of England 349-350 (Cooley ed. 1899)).

But just as a representative jury of one’s peers

serves as a powerful check on government oppression,

an unrepresentative jury can be an equally powerful

instrument of that very oppression. Juries determine

in the first instance “the way in which law should be

enforced and justice administered” with respect to individual defendants. Duncan, 391 U.S. at 155. When

particular communities or minority groups are excluded from jury selection, there is a danger that instead of serving as a check on arbitrary government

action, the jury will simply reinforce it. “By compromising the representative quality of the jury, discriminatory selection procedures make juries ready weapons for officials to oppress those accused individuals

who by chance are numbered among unpopular or inarticulate minorities.” Batson v. Kentucky, 476 U.S.

79, 86-87 n.8 (1986) (quoting Akins v. Texas, 325 U.S.

398, 408 (1945) (Murphy, J., dissenting)). A jury

composed of representative members of the community, “indifferently chosen,” is thus critical to ensuring

the equal protection of the laws to both defendants

and crime victims. Strauder, 100 U.S. at 308.

2. The framers of the Fourteenth Amendment well

understood that eliminating racial discrimination in

jury selection was critical to ensuring African Americans’ civil and legal equality.

The debates preceding the ratification of both the

Thirteenth and Fourteenth Amendments were influenced by arguments that participation on juries was

necessary to ensure that African Americans would

enjoy equal protection of the law—both the protection

that the law provides against crime (in particular, the

lynchings and other racially motivated violence that

followed the end of the Civil War), and the protection

of a fair trial when accused of a crime. James Forman, Jr., Juries and Race in the Nineteenth Century,

113 Yale L.J. 895, 916-917 (2004). As this Court has

recounted, “[i]n the years before and after the ratification of the Fourteenth Amendment, it became clear

that racial discrimination in the jury system posed a

particular threat both to the promise of the Amendment and to the integrity of the jury trial.” PenaRodriguez v. Colorado, 137 S. Ct. 855, 867 (2017).

Particularly in the South, “[a]ll-white juries punished

black defendants particularly harshly, while simultaneously refusing to punish violence by whites, including Ku Klux Klan members, against blacks and Republicans.” Ibid. (quoting Forman, supra).

Both Congress and this Court responded with

measures designed to ensure that juries would be im-

partial and selected free of racial discrimination. In

1869, Congress exercised its plenary authority over

the District of Columbia to prohibit racial limitations

on jury service, as well as the right to hold offices. An

Act for the further Security of equal Rights in the District of Columbia, ch. 3, 16 Stat. 3 (Mar. 18, 1869). In

1871, using its authority under the Fourteenth

Amendment, Congress enacted the Ku Klux Klan Act,

which rendered persons who had conspired to deny

the civil rights of African Americans ineligible to sit

on juries. Civil Rights (Ku Klux Klan) Act of 1871,

ch. 22, §5, 17 Stat. 13, 15 (codified as amended at 42

U.S.C. § 1985 (2000)). And in 1875, Congress banned

racial discrimination in jury service in state courts in

Section 4 of the Civil Rights Act of 1875. Civil Rights

Act of 1875, ch. 114, §4, 18 Stat. 335, 336-337; see Ex

parte Virginia, 100 U.S. 339 (1879). These statutes,

all enacted in the years immediately after the Fourteenth Amendment’s ratification, demonstrate that

the import of a jury system free from racial discrimination was well understood at the time.

This Court first held that the Fourteenth Amendment prohibits racial discrimination in jury selection

in 1879, striking down a West Virginia statute that

disallowed African-Americans from serving on juries.

Strauder, 100 U.S. at 308. The Court explained that

racial discrimination in jury selection denies African

Americans “a very essential part of the protection

such a mode of trial is intended to secure,” as it exposed African-American defendants to the danger

that their cases would be tried by racially prejudiced

juries. Id. The Court viewed the proposition that racial discrimination in the jury system denied the

equal protection of the laws promised by the Fourteenth Amendment as self-evident: “how can it be

maintained that compelling [an African American] to

submit to a trial for his life by a jury drawn from a

panel from which the State has expressly excluded

[everyone] of his race, because of color alone . . . is not

a denial to him of equal protection?” Id. at 309.

In the nearly 140 years since, “this Court has been

unyielding in its position that a defendant is denied

equal protection of the laws when tried before a jury

from which members of his or her race have been excluded by the State’s purposeful conduct.” Powers v.

Ohio, 499 U.S. 400, 404 (1991); see also PenaRodriguez, 137 S. Ct. at 867. The Court has repeatedly struck down laws and policies that systematically exclude minorities from juries. See, e.g., Neal v.

Delaware, 103 U.S. 370 (1880) (practice of excluding

African Americans as unqualified on other grounds);

Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam); Avery v. Georgia, 345 U.S. 559 (1953) (use of differently colored tickets to ensure that only the names

of white individuals would be selected to serve on a

jury); Hernandez v. Texas, 347 U.S. 475 (1954) (practice of excluding persons of Mexican descent); Castaneda v. Partida, 430 U.S. 482 (1977) (same, in

grand jury selection).

To Give Full Effect To The Prohibition On Racial Discrimination In

Jury Selection, Courts Must Rigorously Scrutinize Peremptory Challenges, Particularly Where There Is

Evidence of Similar Prior Discrimination by the Same Prosecutor

In Batson v. Kentucky, this Court addressed the

problem of discriminatory peremptory challenges,

holding that “there can be no dispute[] that peremptory challenges constitute a jury selection practice

that permits those to discriminate who are of a mind

to discriminate.” 476 U.S. 79, 96 (1986) (citation

omitted).

In the late nineteenth and twentieth centuries, after the Court had struck down statutes or policies excluding racial minorities from juries, “[s]tate officials

then turned to somewhat more subtle ways of keeping blacks off jury venires.” Id. at 103 (Marshall, J.,

concurring). Because prosecutors enjoyed a “historical privilege of peremptory challenge free of judicial

control,” id. at 91, peremptory challenges provided a

ready means of ensuring an all-white or nearly allwhite jury. “Misuse of the peremptory challenge to

exclude black jurors” therefore became “both common

and flagrant.” Id. at 103-104 (Marshall, J., concurring) (describing an “instruction book used by the

prosecutor’s office in Dallas County, Texas” that “explicitly advised prosecutors that they conduct jury selection so as to eliminate ‘any member of a minority

group,’” as well as statistics showing disproportionate

use of peremptory challenges to strike black jurors).

The Court accordingly held that peremptory challenges are subject to equal protection principles, and

that when a defendant establishes that a prosecutor

used peremptory challenges to exclude minority jurors, his conviction must be reversed. Id. at 100.

In recent decades, the Court has made clear that

trial judges must be vigilant in “ferreting out” the

misuse of peremptory challenges to mask racial discrimination in jury selection. Miller-El v. Dretke, 545

U.S. 231, 238 (2005). Because discriminatory intent

can easily be obscured by the many discretionary factors that could legitimately influence peremptory

challenges, it is critical that the trial court consider

“all requisite circumstances” in determining whether

a defendant has established intentional discrimination in the use of peremptory challenges. Id. at 240

(quoting Batson, 476 U.S. at 96); see also Foster v.

Chatman, 136 S. Ct. 1737, 1748 (2016) (“We have

‘made it clear that in considering a Batson objection,

or in reviewing a ruling claimed to be Batson error,

all of the circumstances that bear upon the issue of

racial animosity must be consulted.’”) (quoting

Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).

The relevant circumstances that must be considered include both evidence intrinsic to the voir dire

proceeding and evidence that is extrinsic to the proceeding. Thus, the prosecutor’s conduct during jury

selection is relevant: for instance, the number and

percent of African American jurors stricken by the

prosecution, a comparison of African American jurors

stricken from the panel and white jurors permitted to

serve, and any other conduct during the jury selection

procedure. Extrinsic evidence is also relevant: in particular, the prosecution’s policies and practices of discrimination outside the specific set of jurors under

consideration in the given trial. Miller-El, 545 U.S.

at 240-41, 253-55, 265.

In Miller-El, for instance, the Court gave great

weight to the “widely known evidence of the general

policy of the Dallas County District Attorney’s Office

to exclude black venire members from juries at the

time Miller-El’s jury was selected.” Id. at 253. The

Court explained that “[i]f any facially neutral reason

sufficed to answer a Batson challenge, then Batson

would not amount to much . . . .” Id. at 240. “[S]ome

stated reasons are false, and although some false reasons are shown up within the four corners of a given

case, sometimes a court may not be sure [that purposeful discrimination occurred] unless it looks beyond the case at hand.” Id. at 240, 253. Thus, a

prosecutor’s history of racially discriminatory strikes

in or around the time of the relevant case provides

critical context in assessing a prosecutor’s proffered

neutral reasons for peremptorily striking minority

jurors.

That context is unquestionably present here. In

Petitioner’s first two trials, the prosecutor struck all

but one potential African-American juror, and that

juror was seated only because the trial judge concluded that the peremptory strike was racially motivated.

Pet. 3. In the third trial, the prosecutor used all 15

peremptory strikes against African-Americans, leading the Mississippi Supreme Court, in overturning

the conviction, to comment that “[t]he 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.” Flowers v. Mississippi, 947

So.2d 910, 935 (2007) (“The prosecutor exercised all

fifteen of his peremptory strikes on African–

Americans, and the lone African–American who ulti-

mately sat on Flowers' jury was seated after the State

ran out of peremptory challenges. Such a result cannot be considered ‘happenstance.’”). After two subsequent trials before racially mixed juries ended in mistrials, the prosecutor struck five of six potential African American jurors in the trial at issue here, resulting in a jury of 11 whites and one African American.

To be sure, the history of racially motivated peremptory challenges by the prosecutor in prosecuting petitioner’s case does not in itself establish that the challenges under review here were discriminatory. But

the prosecutor’s historical practice is unquestionably

relevant to that question, and the Mississippi Supreme Court was wrong to disregard it. 2

In its initial opinion affirming Mr. Flowers’ conviction after his

sixth trial, the Mississippi Supreme Court wholly failed to consider the history of prior Batson violations by the same prosecutor in Mr. Flowers’ case. See Flowers v. Mississippi, 158 So.3d

1009 (2014). After this Court vacated that decision for further

consideration in light of Foster v. Chatman, the Mississippi Supreme Court re-adopted its same analysis, dismissing the evidence of prior Batson violations with the conclusory assertion

that it “does not alter [its] analysis.” Flowers v. Mississippi, 240

So.3d 1082, 1124 (2017). The Mississippi Supreme Court’s failure to meaningfully consider the totality of the circumstances is

plainly contrary to this Court’s decision in Miller-El. See Pet. Br.

21-23, 33-39.

II.

Racial Discrimination in Jury Selection

Fundamentally Undermines Public Confidence in the Justice System

Racial Discrimination in Jury Selection Harms Not Only Defendants,

But The Justice System As A Whole

1. There is no question that racial discrimination

in jury selection impedes individual defendants’ right

to a fair trial. But the Court has also long recognized

that prohibiting such discrimination “is essential to

… preserve the public confidence upon which our system of criminal justice depends.” Foster, 136 S. Ct. at

1760 (Alito, J. concurring). Racial bias in the jury

system threatens “systemic injury to the administration of justice” because it is a “recurring” problem

that “implicates unique historical, constitutional, and

institutional concerns.” Pena-Rodriguez, 137 S. Ct. at

868.

First, a fairly constituted jury, representative of

the defendant’s community, is the very characteristic

that enables a jury to perform its constitutional function of ensuring a fair trial. See supra Part I.A.

Second, precisely because of the power of jury composition, prosecutors historically have used racial discrimination in jury selection to administer the criminal justice system in a fundamentally unfair way.

All-white juries have been used both to exonerate

white defendants accused of racially motivated

crimes against African Americans and to convict innocent African Americans of crimes they did not

commit. Pena-Rodriguez, 137 S. Ct. at 868; see, e.g.,

James Foreman, Jr., Juries and Race in the Nine-

teenth Century, 113 Yale L.J. 895 (2004). That history demonstrates the close connection between jury

selection and the justice system’s outcomes, and creates both a special sensitivity and a special need for

vigilance on this issue.

Third, because of this history, discrimination in jury selection undermines public acceptance that justice is being done. “One of the goals of our jury system is ‘to impress upon the criminal defendant and

the community as a whole that a verdict of conviction

or acquittal is given in accordance with the law by

persons who are fair.’” Georgia v. McCollum, 505

U.S. 42, 49 (1992) (quoting Powers v. Ohio, 499 U.S.

400, 413, (1991)). Thus, “[t]he verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset.” Powers, 499

U.S. at 413.

Finally, representative juries serve a broader public purpose by demonstrating that all of the communities and individuals within “the heterogeneous population of our Nation” are viewed as qualified to take

part in the administration of criminal justice. Batson, 476 U.S. at 99. “[T]he admitted exclusion of an

eligible class or group in the community in disregard

of the prescribed standards of jury selection . . . deprives the jury system of the broad base it was designed by Congress to have in our democratic society,” Ballard v. United States, 329 U.S. 187, 195

(1946), and establishes “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice,”

J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 128

(1994). Discrimination in jury selection thus creates

a divide between those empowered to take part in the

criminal justice system through jury service, and

those who are viewed as unqualified to do so—but

who are governed by that very system. That is intolerable in our democratic, pluralistic society.

Juries tainted by racial bias are therefore harmful

not only to the defendant or the jurors, but also to the

“entire community,” because they “undermine public

confidence in the fairness of our system of justice” as

a whole. Batson, 476 U.S. at 87. “Selection procedures that purposefully exclude African–Americans

from juries undermine that public confidence—as

well they should. ‘The overt wrong, often apparent to

the entire jury panel, casts doubt over the obligation

of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause.’”

McCollum, 505 U.S. at 49 (quoting Powers, 499 U.S.

at 412). For this reason, this Court has repeatedly

recognized that “[a] constitutional rule that racial bias in the justice system must be addressed . . . is necessary to prevent a systemic loss of confidence in jury

verdicts, a confidence that is a central premise of the

Sixth Amendment trial right.” Pena-Rodriguez, 137

S. Ct. at 869; see also Powers, 499 U.S. at 411 (discriminating racially in jury selection “damages both

the fact and the perception” that juries can guard

against wrongful exercise of state power).

2. These concerns about public confidence in the

judicial system are particularly pressing because empirical research confirms that many Americans question the system’s fairness. For example, a 1999 survey conducted by the American Bar Association revealed that nearly half of the Americans surveyed indicated that the U.S. judicial system does not provide

equal justice for African Americans. See Mattie

Johnstone & Joshua M. Zachariah, Peremptory Chal-

lenges and Racial Discrimination: The Effects of Miller-El v. Cockrell, 17 Geo. J. Legal Ethics 863, 863 n.1

(2004); Emily Ekins, Policing in America: Understanding Public Attitudes Toward the Police. Results

from a National Survey, ch. 3, Perceptions of Systemic Racial Bias, Cato Institute (December 7, 2016)

(“Fully 58% of Americans say the criminal justice system fails to treat all individuals equally, including

45% who believe the system gives preference to white

Americans….”). 3 A majority of African Americans

themselves—68% in a recent study—perceive the justice system as treating African Americans unequally.

See, e.g., Monica Anderson, Vast Majority of Blacks

View the Criminal Justice System as Unfair, Pew Research Center (Aug. 12, 2014). 4 Similarly, a survey

conducted at the request of the Georgia Supreme

Court indicated that “African-Americans and Hispanics were much more likely to indicate that people like

themselves received ‘somewhat worse’ or ‘far worse’

treatment by the courts,” with “[t]he level of disappointment with treatment by the courts among African-American Georgians” particularly strong. George

W. Dougherty, et al., Race and the Georgia Courts:

Implications of the Georgia Public Trust and Confidence Survey for Batson v. Kentucky and Its Progeny,

37 Ga. L. Rev. 1021, 1028 (Spr. 2003). 5

https://www.cato.org/policing-in-america/chapter-3/perceptionssystemic-racial-bias.

http://www.pewresearch.org/fact-tank/2014/08/12/vast-majority

-of-blacks-view-the-criminal-justice-system-as-unfair/.

The authors of the Georgia study found, however, that African

Americans who had served on juries had better perceptions of

the court system than those who had not, suggesting that inclusion in jury service fosters public perceptions of fairness. Id. at

1033-34.

The public response in the aftermath of certain

widely-reported cases also provides more dramatic

evidence that jury composition can affect the public’s

perception of the fairness of verdicts in racially

charged cases. Popular anger and unrest has followed acquittals of white police officers by all-white

juries for beating or killing African American motorists in Los Angeles in the Rodney King case, and in

Miami in a series of cases in the 1980s. See, e.g., Hiroshi Fukurai, Social De-Construction of Race and

Affirmative Action in Jury Selection, 4 Afr.-Am. L. &

Policy Rep. 17, 18-19, 23 (Fall 1999). But a subsequent acquittal of a white police officer in a similar

case in Miami by a racially diverse jury did not spark

protests. 6 Id. at 19.

Amici’s Experience in the Justice

Department Has Convinced Us that

Racial Discrimination and the Appearance of Racial Discrimination

in the Jury System Undermine the

Justice System

As former officials in the Department of Justice,

we witnessed firsthand that public confidence in the

integrity of the jury system is essential to the system’s operation as a whole. The vital work of law enforcement professionals—from police investigators to

prosecutors and policymakers—depends on belief in

In a widely-celebrated example from Mississippi of how a jury

composed without racial discrimination can improve confidence

in the justice system, the 1994 conviction by a racially diverse

jury of Byron de la Beckwith of killing civil rights activist Medgar Evers came exactly 30 years after two all-white juries refused to convict Beckwith for the same crime, despite his having

publicly bragged about perpetrating it. See, e.g., id. at 18.

the fairness of the justice system’s procedures and

the evenhandedness of its operation. Without that

legitimacy, the public will be less likely to cooperate

with law enforcement and to accept the accuracy and

fairness of criminal verdicts. Cf. Miller-El, 545 U.S.

at 238 (“[T]he very integrity of the courts is jeopardized when a prosecutor’s discrimination invites cynicism respecting the jury’s neutrality and undermines

public confidence in adjudication.”) (internal quotation marks and citations omitted).

It is therefore critical that those administering the

justice system uphold the promise of equal justice

under law, and also that they be perceived as doing

so. Prosecutors in particular must honor the principle that “[t]he primary duty of the prosecutor is to

seek justice within the bounds of the law, not merely

to convict,” and they must at all times “respect the

constitutional and legal rights of all persons, including suspects and defendants.” ABA, Criminal Justice

Standards for the Prosecution Function 3-1.2(b) (4th

Ed.). In our tenure in the Department, we were privileged to work with dedicated professionals who upheld these standards and acted with the highest integrity.

But when there is reason to believe that a prosecutor is exploiting racial bias and division in an attempt

to obtain a conviction, the courts must take strong

action. That the bias is exploited by, or seen to be

exploited by, prosecutors—public servants who have

been charged with promoting fairness and justice—

makes this type of discrimination especially damaging to acceptance of the rule of law. Left unaddressed, discrimination in jury selection threatens

to leave the public with the belief that it is governed

by men, not laws. Requiring all prosecutors comply

with Batson is necessary “to ensure that our legal

system remains capable of coming ever closer to the

promise of equal treatment under the law that is so

central to a functioning democracy.” Pena-Rodriguez,

137 S. Ct. at 868. The Mississippi Supreme Court’s

cavalier disregard of the history in this case—in

which the prosecutor was twice adjudicated to have

violated Batson in his previous attempts to secure a

conviction of this very defendant—cannot be squared

with this critical principle.

CONCLUSION

For the foregoing reasons, and for the reasons

stated in Petitioner’s brief, the judgment of the Supreme Court of Mississippi should be reversed.

Respectfully submitted,

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

CHRISTOPHER M. LYNCH

MUNGER, TOLLES & OLSON LLP

1155 F Street NW,

7th Floor

Washington, DC 20004

(202) 220-1100

donald.verrilli@mto.com

January 3, 2019

APPENDIX

Donald B. Ayer served for 10 years in the Department of Justice, including as Deputy Attorney

General from 1989 to 1990, Principal Deputy Solicitor

General from 1986 to 1988, United States Attorney

for the Eastern District of California from 1981 to

1986, and Assistant United States Attorney for the

Northern District of California from 1977 to 1979.

James M. Cole served as Deputy Attorney General from 2011 to 2015. He also served in various

roles in the Department of Justice over the 13 years

from 1979 to 1992, including Deputy Chief of the

Criminal Division’s Public Integrity Section.

Gary G. Grindler served in the Department of

Justice Department from 1995 to 2000 and from 2009

to 2013, including as Acting Deputy Attorney General, Deputy Assistant Attorney General in both the

Civil and Criminal Divisions, and Principal Deputy

Associate Attorney General and Counselor to the Attorney General. He previously served as an Assistant

U.S. Attorney in both the Southern District of New

York and the Northern District of Georgia.

Peter D. Keisler served in the Department of

Justice from 2002 to 2007, including as Acting Attorney General of the United States, Assistant Attorney

General for the Civil Division, and as Principal Deputy Associate Attorney General and Acting Associate

Attorney General.

David W. Ogden served as Deputy Attorney General of the United States from 2009 to 2010 and as

Assistant Attorney General for the Civil Division,

United States Department of Justice, from 1999 to

2001. He also served as Chief of Staff to Attorney

General Janet Reno, Counselor to the Attorney General, Associate Deputy Attorney General, and Deputy

General Counsel of the Department of Defense.

Sally Q. Yates served in the United States Department of Justice as Acting Attorney General,

Deputy Attorney General, and United States Attorney for the Northern District of Georgia. She also

served as Assistant U.S. Attorney and First Assistant

U.S. Attorney for the Northern District of Georgia.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.