In a February 14, 2024 op-ed published in the Washington Post, the longtime defense lawyer, former director of the Southern Center for Human Rights, and law professor Stephen Bright highlights the continued illegal exclusion of Black jurors in violation of Batson v. Kennedy (1986). The op-ed titled, “Struck from a jury for being Black? It still happens all too often,” uses the case of Georgia death-sentenced prisoner Warren King, whose petition the U.S. Supreme Court is expected to review on February 23, as the latest example of the persistent practice. 

“The right to a fair trial before an impartial jury of one’s peers is one of the criminal legal system’s most basic principles. But for many Black people, the promise is illusory,” writes Mr. Bright. He explains that Black people are “completely or substantially underrepresented on juries, especially in death penalty cases.” Juries in capital cases must be death-qualified, meaning that they can be neither categorically opposed nor categorically in favor of the imposition of the death penalty. Through this process, which has been criticized as both problematic and discriminatory, Black people opposed to the death penalty are dismissed and prosecutors subsequently use their preemptory strikes to dismiss those who remain. “As a result, all-White juries are still common in criminal trials, even in communities with substantial minority populations,” states Mr. Bright.  

In Batson v. Kentucky, the Supreme Court made clear that prosecutors are prohibited from excluding jurors based on race and when challenged, must provide race-neutral reasons for using preemptory strikes on Black people. “And yet prosecutors routinely get away with striking based on race because courts fail to scrutinize their often-flimsy excuses, which include such dubious reasons as alleged low intelligence, lack of eye contact with prosecutor, living in a high-crime neighborhood or showing boredom or inattentiveness,” Mr. Bright explains.

Mr. King, an intellectually disabled man diagnosed with schizophrenia, filed a petition for certiorari at the U.S. Supreme Court alleging that the prosecutor in his case, John B. Johnson III, intentionally discriminated against Black people when selecting jurors at his trial. Mr. Johnson, known for a career with “persistent allegations of misconduct,” was 10 times more likely to strike a Black juror than a white one – 87.5% to 8.8% respectively – during voir dire. Rather than provide race-neutral reasons for the dismissal of seven Black jurors, Mr. Johnson angrily expressed his disdain for the decision in Batson. The trial judge only found that Mr. Johnson violated Batson in dismissing one of the seven Black jurors.  

“This was egregious racial discrimination,” states Mr. Bright. “Because King did not receive a fair trial by an impartial jury and now faces the ultimate punishment, the Supreme Court should take his case and make clear once again that such discrimination has no place in the legal system.”