# Amicus Curiae Brief — Flowers v. Mississippi, 139 S. Ct. 451 (2018) (No. 17-9572) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0845%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2018 ## Text IN THE Supreme Court of the Anited States CURTIS GIOVANNI FLOWERS, Petitior } 127, Vv. 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 TABLE OF CONTENTS INTEREST OF AMICI CURIAE .................c.ccc00eeeeeeeees 1 INTRODUCTION AND SUMMARY OF THE Il. Racial Discrimination In Jury Selection Undermines The Very Protections That A Jury Is Intended To Ensure. ......................... 5 A. Since The Ratification Of The Fourteenth Amendment, The B. To Give Full Effect To The Discrimination In Jury Selection, Courts Must Rigorously Scrutinize Peremptory Challenges, Particularly Where There Is Evidence of Similar Prior ii TABLE OF CONTENTS (continued) Defendants, But The Justice B. 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 CBSO AION cccccescccescccccccscccccscccccccsccccecccsnesccssccoosces 21 APPENDIX OF AMICL.....0.......0.cccccccceeeeneneeeeeeeeeeeneees la iii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Akins v. Texas, TS ae ae 6 Avery v. Georgia, ETE SE Rea ee aCe ene Ren i) Ballard v. United States, tr etinerdneteninteiebieans 15 Batson v. Kentucky, inns ans errr ema aermepeinntl passim Castaneda v. Partida, Tn ee i) Duncan v. Louisiana, ETS a ae ee 5,6 Foster v. Chatman, Be GN HE SEIU ecennnnntssenesccesccnceescsarss 4,11, 14 Georgia v. McCollum, ea eR 15, 16 Hernandez v. Texas, TESTE eae eRe eee em 9 Hollins v. Oklahoma, EE a ee i) J.E.B. v. Alabama ex rel. T. B., FS Be Bee GD crccacesccsereccesecevsscsccscsncencesensecees 15 iv TABLE OF AUTHORITIES (continued) Miller-El v. Dretke, ee Neal v. Delaware, a Pena-Rodriguez v. Colorado, | Powers v. Ohio, GD UVB, GED CABG A) cccccccccccccccccccocccccvecececes Snyder v. Louisiana, ee Wee QF ie GID cecccccocncesecencescscossccoonens Strauder v. W. Virginia, eS EOE cnvcencevcccewsevscscesemsssscuese Ex parte Virginia, eee STATE CASES Flowers v. Mississippi, 158 So.3d 1009 (2014) ...........ccccccceceeeeeeeees Flowers v. Mississippi, 240 So.3d 1082 (2017) ............cccccesceeeeevees Flowers v. Mississippi, 947 So.2d 910 (2007) ............cccesseeceeseeeeees v TABLE OF AUTHORITIES (continued) FEDERAL STATUTES An Act for the further Security of equal Rights in the District of Columbia, ch. 3, 16 Stat. 3 (Mar. 18, 1869)............... Civil Rights Act of 1875, ch. 114, 18 Civil Rights (Ku Klux Klan) Act of 1871, ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. § 1985 (2000)) ...... ABA, Criminal Justice Standards for the Prosecution Function 3-1.2(b) (4th Hilti Peccsesscnscssnsanseessescsovescensnecuesseesnareccoesecoee Emily Ekins, Policing in America: Underetandina Public Attitud Toward the Police. Results from a National Survey, ch. 3, Perceptions of Systemic Racial Bias, Cato Institute (December 7, 2016), Page(s) peveecoannns 19 vi TABLE OF AUTHORITIES (continued) The Federalist No. 83 (A. Hamilton) (B. 0 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) ..............cccceeeeeseeee Hiroshi Fukurai, Social De-Construction of Race and Affirmative Action in Jury Selection, 4 Afr.-Am. L. & Policy Rep. 17 (Fall 1999) ..........c.ccessesseessesseseeee James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. Re GED scncseescrensassnnscncessscscseneeztencessescese Mattie Johnstone & Joshua M. Zachariah, Peremptory Challenges IR 7 l Di a - th : The Effects of Miller-El v. Cockrell, 17 Geo. J. Legal Ethics 863 (2004) .............. 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/fact- tank/20 14/08/12/vast-majority -of- 4 W. Blackstone, Commentaries on the Laws of England (Cooley ed. 1899)....................... 6 INTEREST OF AMICI CURIAE' Amici are former officials in the United States De- partment 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 admin- istration, including the perception that all persons— and particularly criminal defendants—will be treated equally in the eyes of the law. Amici share the con- viction that to foster this perception of equal treat- ment, 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 ev- idence 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 up- held 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 defend- ants obtained by the Department of .Justice—and in- * Counsel 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 mon- etary contribution intended to fund the preparation or submis- sion of this brief. 2 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 jus- tice 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 founda- tional to our justice system. Preventing racial dis- crimination in jury selection is essential to preserving both the principle of equal justice under law and pub- lic confidence that it is being upheld. In particular, this Court’s precedent mandates, contrary to the de- cision below, that evidence of a prosecutor’s prior his- tory of racial discrimination is critical context that— in connection with evidence of discrimination intrin- sic to the voir dire proceeding—.is sufficient to provide an “undeniable explanation” that the prosecutor's proffered reasons for striking African American ju- rors 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 under- mines 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 just.ce to crime victims who happen to be members of disfavored minorities. For those reasons, the Court held that the prohibition on racial discrimination in 3 jury selection is at the core of the Fourteenth Amendment. Th‘s Court has repeatedly reaffirmed that bedrock principle in the nearly 140 years since. In particular, 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 peremp- tory 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 dis- crimination is powerful evidence that peremptory strikes of African American jurors in a particular case may be discriminatory. Méiller-El, 545 U.S. at 253, 266. That evidence is present here, and the low- er courts should have considered it. Since 1996, peti- tioner 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 in- formation about the race of jurors struck by the pros- ecution is available, the prosecutor used peremptory challenges on al! 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 pros- ecutor had violated Batson, in two different trials. The Mississippi Supreme Court described the evi- dence as “as strong a prima facie case of racial dis- 4 crimination as [it] hald] ever seen” in this context. Flowers v. Mississippi, 947 So.2d 910, 935 (2007); see Pet. Br. 9. Under Miller-El, this history of adjudicat- ed racial discrimination in peremptory challenges is critically relevant to evaluating whether the prosecu- tor again discriminated in the jury selection proce- dure at issue here. Il.In case after case, this Court has recognized that the necessity of protecting the jury system from racial discrimination is “essential to ensure that de- fendants 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 (“[Tihe very integrity of the courts is jeopardized when a prosecutor's discrimination ‘in- vites cynicism respecting the jury’s neutrality’ and undermines public confidence in adjudication.” (cita- tions omitted)). As this Court has repeatedly and consistently articulated, the use of peremptory chal- lenges 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 out- comes of the justice system; and (iv) because exclud- ing individuals from jury service based on immutable characteristics is fundamentally inconsistent with our pluralistic, democratic society. As former Justice Department officials, we under- stand from firsthand experience the critical im- portance of evenhandedly administering the justice 5 system, and of public confidence in the integrity of the justice system. Law enforcement simply cannot function without public legitimacy. When prosecu- tors discriminate in jury selection, they violate their oath to do justice and undermine the criminal justice system as a whole. ARGUMENT L Racial Discrimination In Jury Selection Undermines The Very Protections That A Jury Is Intended To Ensure. A. Since The Ratification Of The Four- teenth Amendment, The Court And Congress Have Understood Prevent- ing 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 individ- ual 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 in- tended 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. 6 303, 308 (1879) (“the constitution of juries is a very essential part of the protection such a mode of tria! 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 hav- ing the same legal status in society as that which he holds.” Ibid. When the truth of the prosecutor’s accu- sations against a defendant must be “confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all ” the defendant and the community can be confident that the conviction is not simply the result of “overzealous” or “biased” government action. Dun- can, 391 U.S. at 151-152 (quoting 4 W. Blackstone, Commentaries on the Laws of England 349-350 (Coo- ley 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 in- dividual defendants. Duncan, 391 U.S. at 155. When particular communities or minority groups are ex- cluded from jury selection, there is a danger that in- stead of serving as a check on arbitrary government action, the jury will simply reinforce it. “By compro- mising the representative quality of the jury, discrim- inatory selection procedures make juries ready weap- ons for officials to oppress those accused individuals who by chance are numbered among unpopular or in- articulate minorities.” Batson v. Kentucky, 476 U.S. 79, 86-87 n.8 (1986) (quoting Akins v. Texas, 325 U.S. 7 398, 408 (1945) (Murphy, J., dissenting)). A jury composed of representative members of the communi- ty, “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 Ameri- cans’ civil and legal equality. The debates preceding the ratification of both the Thirteenth and Fourteenth Amendments were influ- enced 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 For- man, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. 895, 916-917 (2004). As this Court has recounted, “[iJn the years before and after the ratifi- cation of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amend- ment and to the integrity of the jury trial.” Pena- Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017). Particularly in the South, “[a]ll-white juries punished black defendants particularly harshly, while simulta- neously refusing to punish violence by whites, includ- ing Ku Klux Klan members, against blacks and Re- publicans.” Ibid. (quoting Forman, supra). Both Congress and this Court responded with measures designed to ensure that juries would be im- 8 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 Dis- trict 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 Four- teenth Amendment’s ratification, demonstrate that the import of a jury system free from racial discrimi- nation was well understood at the time. This Court first held that the Fourteenth Amend- ment 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 tria! is intended to secure,” as it ex- posed African-American defendants to the danger that their cases would be tried by racially prejudiced juries. Id. The Court viewed the proposition that ra- cial discrimination in the jury system denied the equal protection of the laws promised by the Four- teenth Amendment as self-evident: “how can it be 9 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 ex- cluded by the State’s purposeful conduct.” Powers v. Ohio, 499 U.S. 400, 404 (1991); see also Pena- Rodriguez, 137 S. Ct. at 867. The Court has repeat- edly struck down laws and policies that systematical- ly 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 curi- am); Avery v. Georgia, 345 U.S. 559 (1953) (use of dif- ferently 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) (prac- tice of excluding persons of Mexican descent); Cas- taneda v. Partida, 430 U.S. 482 (1977) (same, in grand jury selection). 10 B. To Give Full Effect To The Prohibi- tion On Racial Discrimination In Jury Selection, Courts Must Rigor- ously Scrutinize Peremptory Chal- lenges, Particularly Where There Is Evidence of Similar Prior Discrimi- nation by the Same Prosecutor In Batson v. Kentucky, this Court addressed the probiem of discriminatory peremptory challenges, holding that “there can be no dispute[| that peremp- tory 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, af- ter the Court had struck down statutes or policies ex- cluding racial minorities from juries, “[s|tate officials then turned to somewhat more subtle ways of keep- ing blacks off jury venires.” Jd. at 103 (Marshall, J., concurring). Because prosecutors enjoyed a “histori- cal privilege of peremptory challenge free of judicial control,” id. at 91, peremptory challenges provided a ready means of ensuring an all-white or nearly all- white jury. “Misuse of the peremptory challenge to exclude black jurors” therefore became “both common and flagrant.” Jd. at 103-104 (Marshall, J., concur- ring) (describing an “instruction book used by the prosecutor's office in Dallas County, Texas” that “ex- plicitly advised prosecutors that they conduct jury se- lection 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 chal- lenges are subject to equal protection principles, and 11 that when a defendant establishes that a prosecutor used peremptory challenges to exclude minority ju- rors, 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 dis- crimination in jury selection. Miller-El v. Dretke, 545 U.S. 231, 238 (2005). Because discriminatory intent can easily be obscured by the many discretionary fac- tors 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 discrimina- tion 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 consid- ered include both evidence intrinsic to the voir dire proceeding and evidence that is extrinsic to the pro- ceeding. 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 par- ticular, the prosecution’s policies and practices of dis- crimination outside the specific set of jurors under consideration in the given trial. Miller-El, 545 U.S. 12 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... .” Jd. at 240. “[Slome stated reasons are false, and although some false rea- sons are shown up within the four corners of a given case, sometimes a court may not be sure [that pur- poseful discrimination occurred] unless it looks be- yond the case at hand.” Jd. 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 conclud- ed that the peremptory strike was racially motivated. Pet. 3. In the third trial, the prosecutor used all 15 peremptory strikes against African-Americans, lead- ing 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- 13 mately sat on Flowers’ jury was seated after the State ran out of peremptory challenges. Such a result can- not be considered ‘happenstance.”). After two subse- quent trials before racially mixed juries ended in mis- trials, the prosecutor struck five of six potential Afri- can American jurors in the trial at issue here, result- ing in a jury of 11 whites and one African American. To be sure, the history of racially motivated peremp- tory challenges by the prosecutor in prosecuting peti- tioner’s case does not in itself establish that the chal- lenges under review here were discriminatory. But the prosecutor’s historical practice is unquestionably relevant to that question, and the Mississippi Su- preme Court was wrong to disregard it.” ? In its initial opinion affirming Mr. Flowers’ conviction after his sixth trial, the Mississippi Supreme Court wholly failed to con- sider the history of prior Batson violations by the same prosecu- tor 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 Su- preme Court re-adopted its same analysis, dismissing the evi- dence 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 fail- ure 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. 14 ll. Racial Discrimination in Jury Selection Fundamentally Undermines Public Con- fidence in the Justice System A. Racial Discrimination in Jury Se- lection 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 sys- tem of criminal justice depends.” Foster, 136 S. Ct. at 1760 (Alito, J. concurring). Racial bias in the jury system threatens “systemic injury to the administra- tion 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 func- tion of ensuring a fair trial. See supra Part 1.A. Second, precisely because of the power of jury com- position, prosecutors historically have used racial dis- crimination in jury selection to administer the crimi- nal 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 in- nocent 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- 15 teenth Century, 113 Yale L.J. 895 (2004). That histo- ry demonstrates the close connection between jury selection and the justice system’s outcomes, and cre- ates both a special sensitivity and a special need for vigilance on this issue. Third, because of this history, discrimination in ju- ry selection undermines public acceptance that jus- tice is being done. “One of the goals of our jury sys- tem 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 ac- cepted or understood in these terms if the jury is cho- sen by unlawful means at the outset.” Powers, 499 U.S. at 413. Finally, representative juries serve a broader pub- lic purpose by demonstrating that all of the communi- ties and individuals within “the heterogeneous popu- lation of our Nation” are viewed as qualified to take part in the administration of criminal justice. Bat- son, 476 U.S. at 99. “[Tihe admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection . . . de- prives the jury system of the broad base it was de- signed by Congress to have in our democratic socie- ty,” Ballard v. United States, 329 U.S. 187, 195 (1946), and establishes “state-sponsored group stereo- types rooted in, and reflective of, historical prejudice,” Jd.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 tu take part in the criminal justice system through jury service, and 16 those who are viewed as unqualified to do so—but who are governed by that very system. That is intol- erable 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 proce- dures 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,. ts doubt over the obligation of the parties, the jury, and indeed the court to ad- here 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 bi- as in the justice system must be addressed . . . is nec- essary 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 (dis- criminating 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 em- pirical research confirms that many Americans ques- tion the system’s fairness. For example, a 1999 sur- vey conducted by the American Bar Association re- vealed that nearly half of the Americans surveyed in- dicated that the U.S. judicial system does not provide equal justice for African Americans. See Mattie Johnstone & Joshua M. Zachariah, Peremptory Chal- 17 lenges and Racial Discrimination: The Effects of Mil- ler-El v. Cockrell, 17 Geo. J. Legal Ethics 863, 863 n.1 (2004); Emily Ekins, Policing in America: Under- standing Public Attitudes Toward the Police. Results from a National Survey, ch. 3, Perceptions of System- ic Racial Bias, Cato Institute (December 7, 2016) (“Fully 58% of Americans say the criminal justice sys- tem fails to treat all individuals equally, including 45% who believe the system gives preference to white Americans....”).° A majority of African Americans themselves—68% in a recent study—perceive the jus- tice system as treating African Americans unequally. See, e.g., Monica Anderson, Vast Majority of Blacks View the Criminal Justice System as Unfair, Pew Re- search Center (Aug. 12, 2014). Similarly, a survey conducted at the request of the Georgia Supreme Court indicated that “African-Americans and Hispan- ics 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 disap- pointment with treatment by the courts among Afri- can-American Georgians” particularly strong. George W. Dougherty, et al., Race and the Georgia Courts: Implications of the Georgia Public Trust and Confi- dence Survey for Batson v. Kentucky and Its Progeny, 37 Ga. L. Rev. 1021, 1028 (Spr. 2003).* ® https//www.cato.org/policing-in-america/chapter-3/perceptions- systemic-racial-bias. * http//www.pewresearch.org/fact-tank/20 | 4/08/12/vast-majority ° 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 inclu- sion in jury service fosters public perceptions of fairness. /d. at 1033-34. 18 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 fol- lowed acquittals of white police officers by all-white juries for beating or killing African American motor- ists in Los Angeles in the Rodney King case, and in Miami in a series of cases in the 1980s. See, e.g., Hi- roshi 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 subse- quent acquittal of a white police officer in a similar case in Miami by a racially diverse jury did not spark protests.* Id. at 19. B. Amici’s Experience in the Justice Department Has Convinced Us that Racial Discrimination and the Ap- pearance 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 sys- tem’s operation as a whole. The vital work of law en- forcement professionals—from police investigators to prosecutors and policymakers—depends on belief in * In a widely-celebrated example from Mississippi of how a jury cumposed 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 Med- gar Evers came exactly 30 years after two all-white juries re- fused to convict Beckwith for the same crime, despite his having publicly bragged about perpetrating it. See, e.g., id. at 18. 19 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 (“[Tlhe very integrity of the courts is jeopard- ized when a prosecutor's discrimination invites cyni- cism respecting the jury’s neutrality and undermines public confidence in adjudication.”) (internal quota- tion 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 princi- ple 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, includ- ing 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 privi- leged to work with dedicated professionals who up- held these standards and acted with the highest in- tegrity. But when there is reason to believe that a prosecu- tor 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 damag- ing to acceptance of the rule of law. Left un- addressed, discrimination in jury selection threatens to leave the public with the belief that it is governed 20 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. 21 CONCLUSION For the foregoing reasons, and for the reasons stated in Petitioner’s brief, the judgment of the Su- preme Court of Mississippi should be reversed. Respectfully submitted, January 3, 2019 APPENDIX la APPENDIX Donald B. Ayer served for 10 years in the De- partment 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 Gen- eral 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 Gen- eral, Deputy Assistant Attorney General in both the Civil and Criminal Divisions, and Principal Deputy Associate Attorney General and Counselor to the At- torney 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 Attor- ney General of the United States, Assistant Attorney General for the Civil Division, and as Principal Depu- ty Associate Attorney General and Acting Associate Attorney General. David W. Ogden served as Deputy Attorney Gen- eral 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 2a 2001. He also served as Chief of Staff to Attorney General Janet Reno, Counselor to the Attorney Gen- eral, Associate Deputy Attorney General, and Deputy General Counsel of the Department of Defense. Sally Q. Yates served in the United States De- partment of Justice as Acting Attorney General, Deputy Attorney General, and United States Attor- ney 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0845%3A12. Public record. Not legal advice.