By Jordan S. Rubin
The U.S. Supreme Court declined Dec. 4 to take up an Alabama inmate’s claim that prosecutors wrongly rebuffed women and blacks from the jury that sentenced him to death.
But the court’s refusal shouldn’t be taken as an endorsement of the government’s use of peremptory strikes in picking Christopher Floyd’s jury, two of the high court’s most outspoken members on the death penalty said in a written statement respecting the denial.
“Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention,” Justice Sonia Sotomayor said in the statement that was joined by Stephen G. Breyer.
The government used peremptory challenges against 10 of 11 black potential jurors and 12 of its 18 strikes against women, Sotomayor said. “The prosecutor also marked the letter ‘“B,” as in black,’ next to the name of each potential African-American juror,” she said.
Those facts are “remarkably similar” to government action the high court struck down in 2016 in Foster v. Chatman, Sotomayor said. In that case, the state’s use of peremptory challenges to strike blacks from the jury was found to have violated the court’s landmark 1986 decision on race and jury selection, Batson v. Kentucky.
Like in Foster, the record in this case “fails to support the prosecutors’ proffered race- and gender-neutral reasons for some of the strikes,” she said.
But the high court was right not to take Floyd’s case, given the “unusual posture” in which he raised his claims, Sotomayor said, without elaborating on why the posture was unusual.
Still, she emphasized that “courts reviewing claims in circumstances like these must be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process.”
Such discrimination “casts doubt on the integrity of the judicial process” and “places the fairness of a criminal proceeding in doubt,” Sotomayor said, quoting an earlier case.