Supreme Court Refuses to Review Case in Which Texas Judge Seated Juror Who Believed ​‘Non-White Races’ More Violent

Five years after the U.S. Supreme Court struck down a Texas death sen­tence when an expert wit­ness had tes­ti­fied that a Black defen­dant posed an increased risk of com­mit­ting future acts of vio­lence because of his race, the Court has refused to review anoth­er Texas cap­i­tal case in which the tri­al court per­mit­ted a juror to serve who expressed the very same view. 

On April 18, 2022, the Court denied a peti­tion for cer­tio­rari filed on behalf of Kristopher Love chal­leng­ing the tri­al court’s refusal to remove juror Zachary Niesman from his case. During jury selec­tion in Love’s 2018 death penal­ty tri­al, Niesman said he believed mem­bers of ​“non-white” races ​“tend to be more vio­lent than oth­ers.” Love is African American. While claim­ing he did not har­bor any per­son­al ani­mus against peo­ple of col­or and that he could be a fair and impar­tial juror, Niesman assert­ed, ​“Statistics show more vio­lent crimes are com­mit­ted by cer­tain races. I believe in statistics.” 

Texas law requires a cap­i­tal jury to find that a defen­dant presents ​“a con­tin­u­ing threat to soci­ety” as a pre­con­di­tion to impos­ing a death sen­tence. In February 2017, in Buck v. Davis, Chief Justice John Roberts declared that expert tes­ti­mo­ny that an indi­vid­ual who is Black has an “’[i]ncreased prob­a­bil­i­ty’ of future vio­lence” because of his race inject­ed a dead­ly ​“tox­in” in the guise of ​“hard sta­tis­ti­cal evi­dence … to guide [the jury’s] oth­er­wise spec­u­la­tive inquiry” into future dangerousness.

“And it was potent evi­dence,” Roberts wrote, that ​“appealed to a pow­er­ful racial stereo­type — that of black men as ​‘vio­lence prone.’” The tes­ti­mo­ny, the Chief Justice con­tin­ued, ​“coin­cid­ed pre­cise­ly with a par­tic­u­lar­ly nox­ious strain of racial prej­u­dice, which itself coin­cid­ed pre­cise­ly with the cen­tral ques­tion at sen­tenc­ing. The effect of this unusu­al con­flu­ence of fac­tors was to pro­vide sup­port for mak­ing a deci­sion on life or death on the basis of race.” 

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dis­sent­ed from the Court’s refusal to hear Love’s case. ​“Over time, we have endeav­ored to cleanse our jury sys­tem of racial bias,” she wrote. ​“One of the most impor­tant mech­a­nisms for doing so, ques­tion­ing dur­ing voir dire, was prop­er­ly employed here to iden­ti­fy a poten­tial claim of bias. Safeguards like this, how­ev­er, are futile if courts do not even con­sid­er claims of racial bias that lit­i­gants bring forward.”

Love’s tri­al coun­sel tried to have Niesman removed for cause based on ​“his stat­ed beliefs that … non-whites com­mit more vio­lent crimes than whites.” Counsel argued to the court that ​“leav­ing this man on the jury would be an invi­ta­tion to leav­ing some­one on there that might make a deci­sion … that would ulti­mate­ly lead to a sen­tence of death on his pre­con­ceived notions and beliefs that have to do with the race of the defen­dant.” The tri­al judge denied the request with­out expla­na­tion. Although the defense had already used all of its allot­ted dis­cre­tionary strikes, as well as two addi­tion­al strikes grant­ed by the court, the judge refused to grant an addi­tion­al dis­cre­tionary strike and seat­ed Niesman on the jury.

Love appealed his death sen­tence to the Texas Court of Criminal Appeals, which failed to address the mer­its of his claim. Instead, the state court said that seat­ing Niesman as a juror was harm­less, even if it were inap­pro­pri­ate, because the tri­al court had giv­en Love two extra jury strikes. 

The Supreme Court’s con­ser­v­a­tive super­ma­jor­i­ty refused to hear Love’s peti­tion for review, elic­it­ing a sharp dis­sent. Quoting Buck, Justice Sotomayor wrote: ​“Racial bias is ​‘odi­ous in all aspects,’ but ​‘espe­cial­ly per­ni­cious in the admin­is­tra­tion of jus­tice.’ When racial bias infects a jury in a cap­i­tal case, it deprives a defen­dant of his right to an impar­tial tri­bunal in a life-or-death con­text, and it ​‘poi­sons pub­lic con­fi­dence in the judi­cial process.’ The seat­ing of a racial­ly biased juror, there­fore, can nev­er be harmless.”

Sotomayor crit­i­cized the Texas court’s deci­sion as ​“plain­ly erro­neous.” ​“An already-expend­ed peremp­to­ry strike,” she wrote, ​“is no cure for the seat­ing of an alleged­ly biased juror. The state court thus deprived Love of any mean­ing­ful review of his fed­er­al constitutional claim.”

Love’s lawyer, John Tatum, told Law & Crime, ​“Obviously, I agree with the dis­sent that our legal sys­tem needs to cleanse itself of racial bias in jury selec­tion and stop improp­er­ly using harm­less error rules to block the appli­ca­tion of laws we already have to pro­tect the accused cit­i­zen from any racial bias in the appli­ca­tion of crim­i­nal Justice in this coun­try. There are too many Texas crim­i­nal cas­es where the opin­ions of the U.S. Supreme Court are either ignored or procedurally nullified.”

In an April 18, 2022 com­men­tary in Slate, senior writer Mark Joseph Stern wrote that the Court’s rul­ing ​“illus­trates how the con­ser­v­a­tive major­i­ty can change the law by doing noth­ing.” By ​“refus[ing] to enforce prece­dents pro­tect­ing cap­i­tal defen­dants from racial bias,” Stern said, the Court ​“savi[ed] itself the trou­ble of for­mal­ly overruling them.”

Since Buck was decid­ed, two of the jus­tices who made up the 6 – 2 major­i­ty in that case — Anthony Kennedy and Ruth Bader Ginsburg — are no longer on the Court and have been replaced by jus­tices appoint­ed by Donald Trump. During the fed­er­al exe­cu­tion spree in the final six months of the Trump admin­is­tra­tion, Stern wrote, ​“the con­ser­v­a­tive major­i­ty ignored or flout­ed fed­er­al law, often break­ing the court’s own rules in the process. They are cer­tain that death row lawyers are using guer­ril­la tac­tics to delay exe­cu­tions and are increas­ing­ly will­ing to rewrite law on the fly in a bid to thwart them,” he said.

“What is the eas­i­est way to rewrite the law?,” Stern asked. ​“Simply stop enforc­ing it. That’s what the Texas Court of Criminal Appeals did in swat­ting down Love’s claim, and it’s what SCOTUS did … by bless­ing the low­er court’s defi­ance of precedent.”