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.