United States Supreme Court Asked to Consider Another Case of Racially Biased Prosecutorial Jury Strikes

On December 18, 2023, attorneys for Warren King, an intellectually disabled black man sentenced to death in Georgia in 1998, filed a petition for a writ of certiorari in the United States Supreme Court, asking the Court to review the Eleventh Circuit Court of Appeals’ ruling denying Mr. King relief. The petition states that “abundant evidence demonstrates that the prosecutor discriminated against Black and female jurors in selecting [Mr.] King’s jury,” which violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Former Appling County prosecutor John B. Johnson III, known for a career with “persistent allegations of misconduct” including withholding evidence and paying witnesses in cash to testify, struck seven of eight potential Black jurors and three white women from Mr. King’s jury pool. Mr. Johnson also used a strike to remove a Black woman from the alternate jury pool, while exercising no strikes on any white men. Ultimately, Mr. Johnson struck 87.5% of all Black individuals in Mr. King’s jury pool, while striking just 8.8% of white individuals in the jury pool, all of whom were women. This discriminatory pattern in Mr. King’s case shows that Mr. Johnson was ten times more likely to strike a Black juror than a white juror.

During jury selection, the defense objected to these strikes under Batson v. Kentucky (1986), the U.S. Supreme Court decision that prohibits prosecutors from striking any perspective juror based on race, and Mr. Johnson was required to explain his strikes. To find that a prosecutor has violated Batson, the judge must find that (1) there was intentional racial discrimination, and (2) the prosecutor was not truthful when giving a “race neutral” reason for the strike. The trial judge found that one of Mr. Johnson’s strikes, of a Black woman, was racially motivated and “main[ly] because she was a Black female,” and the trial judge placed her back on the jury. After this decision, Mr. Johnson continued making emotional complaints about the Batson decision and the trial judge had to ask him to collect himself. Since the 1986 decision, it has been understood that discretionary, or peremptory strikes, cannot be used to exclude potential jurors because of their race or gender.

On appeal, the Georgia Supreme Court denied Mr. King relief, affirming the trial court’s findings that Mr. Johnson’s strikes did not constitute a Batson violation, but were rather “mistakes.” The court failed to address either of Mr. Johnson’s outbursts decrying Batson and did not consider the trial court’s finding of a Batson violation to be compelling evidence that the other strikes were used in a racially discriminatory manner. The U.S. Court of Appeals for the Eleventh Circuit also affirmed the trial court’s findings, writing that the “appeal presents a troubling record and a prosecutor who exercised one racially discriminatory strike and ranted against precedents of the Supreme Court of the United States,” but ultimately did not grant relief for Mr. King. In a dissent, Circuit Judge Charles Wilson wrote that Mr. King’s case shows “clear” and “strong evidence of racial discrimination” that would have led to finding a Batson violation.

All jurors Mr. Johnson struck had gone through the death qualification process, indicating they were not biased and would be able to consider imposing either a life sentence or the death penalty. Despite their previous qualification, Mr. Johnson chose to strike jurors based on reasons that were later disproven by the record. In one instance, Mr. Johnson provided a reason that was blatantly race- and gender-based: he said his “main reason” for striking a juror was because she was a “Black female… from Surrency.” (Petition at p. 11). Mr. Johnson relied on possible criminal charges and investigations against family members of some of the Black jurors, including a distant relative by marriage, as reasons for striking them without ever asking the jurors questions about those charges or whether they might affect the juror’s deliberations, and without eliciting any evidence that the changes even existed.” (Petition at pp. 25 – 26)

Georgia prosecutors have a long history of racial discrimination against Black people in the jury selection process. In a study of eight southern states, the Equal Justice Initiative documented how some district attorney’s offices expressly train their prosecutors how to successfully exclude people of color from serving on juries and what reasoning to offer to avoid sanction. EJI has reported that prosecutors have struck Black jurors from service because they “wore eyeglasses,” “walked in a certain way,” or “dyed their hair.” These “race neutral” reasonings have allowed prosecutors to avoid fines, sanctions, and accountability. In 2019, the Supreme Court found that the prosecutors in Curtis Flowers’ capital cases had repeatedly and intentionally excluded people of color and ordered a new trial.

In addition to Mr. King’s argument that Mr. Johnson’s discriminatory jury strikes precluded him from receiving a fair trial, his attorneys also argue that Mr. King is not eligible for the death penalty because of his intellectual disability. In 2002, four years after Mr. King was sentenced to death, the U.S. Supreme Court ruled in Atkins v. Virginia that executing the intellectually disabled is cruel and unusual punishment. As a child, Mr. King repeated both kindergarten and first grade twice, eventually being placed in special needs classes. At age sixteen, Mr. King read at a fourth-grade level and dropped out of school. Raised in extreme poverty, he grew up in a house without running water or indoor electricity. Both of his parents drank heavily and were violent towards one another, so much so that Mr. King and his siblings often slept in neighbors’ cars to escape the violence. At the time of the crime, Mr. King was also suffering from severe mental illness, which has continued throughout his incarceration. Since his arrest, Mr. King has been diagnosed with psychotic disorder by doctors and correctional staff and was diagnosed with schizophrenia after entering a catatonic state while awaiting trial. The jurors in Mr. King’s case did not learn much of his life history, which may have led one or more jurors to vote for a life sentence rather than the death penalty. Mr. King’s trial attorney has been found ineffective in another death penalty case tried around the same time.