State v. Malcolm J. Sanders, 2018AP1310-CR, 8/7/19, District 2 (recommended for publication); case activity (including briefs)

Sanders is black, and the DA struck the only black jurors from serving on his case because, even though they said they could be fair, they had had prior bad experiences with police, including being the subjects of racial profiling. Judges Gundrum and Neubauer held that the DA did not discriminate. But in another “must read” dissent, Judge Reilly said:

It is a perversion of justice to accept the reasoning that because we have unfairly treated blacks (or any class of people), we can then use our wrongful acts to prevent blacks from serving on juries. Utilizing our unfair treatment of blacks as a valid “race neutral” reason to keep blacks off juries is itself discrimination. Dissent, ¶16.

The State charged Sanders with 2 counts of delivering heroin, as a repeater and as a party to a crime.  The DA used 2 of her 5 peremptory challenges to strike the only potential black jurors from the jury. The defense objected based on Batson.

To prevail on a Batson challenge, the defendant must show that the DA exercised peremptory challenges on the basis of race. If the DA provides a race-neutral explanation for the strikes, the court must weigh the credibility of the testimony to determine whether she engaged in purposeful discrimination. The defendant bears the burden of proving that the DA’s reasons were a pretext for intentional discrimination. Opinion,¶¶7-8 (citing State v. Lamon, 2003 WI 78, ¶34, 262 Wis. 2d 747, 664 N.W.2d 607 and Batson v. Kentucky, 476 U.S. 79 (1986)).

Boiled down, the majority accepted the DA’s “race neutral” explanation for striking the black jurors. She said:

Both of those individuals expressed having prior bad experiences with the police, and although in the end they indicated they could be fair, they were quite hesitant and seemed to express feelings based upon their personal experiences of not trusting law enforcement and maybe looking more skeptically at law enforcement testimony than other witnesses, and that is the reason they were struck, which is also consistent with Mr. [O.] Opinion ¶3 (noting Mr. O is white).

On appeal, Sanders argued that “since only black people are stopped for Driving While Black, the State’s reason for striking these black jurors was not race-neutral.” Indeed, if people who are stopped for Driving While Black are excluded from juries, then the State is discriminating based on racial discrimination. Opinion ¶10.

In a classic appellate court dodge of the critical issue, the majority said that Sanders did not support or develop his argument on this point.  Id. It also listed cases from around the country holding that prosecutors had race-neutral reasons for striking African-Americans who distrusted police, prosecutors and/or the justice system. Opinion, ¶11.

Back to Reilly, uncut:

¶17 This is not a failure of the police. This is a failure of the judicial system. Our history of racism against blacks and our recent judicial sanctioning of racial profiling has infected our justice system with a cancer that is now metastasizing into the constitutional right to a jury. See State v. Wright, 2019 WI 45, ¶¶32-34, 386 Wis. 2d 495, 926 N.W.2d 157; State v. Floyd, 2017 WI 78, ¶¶26- 28, 377 Wis. 2d 394, 898 N.W.2d 560; State v. Brown, 2019 WI App 34, ¶¶19-21, ___ Wis. 2d ___, ___ N.W.2d ___. The jury is a foundation of our justice system as it removes the government from being the judge of whether one committed a crime. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”); see also Blakely v. Washington, 542 U.S. 296, 305-06 (2004) (The right of a jury trial “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”); Parsons v. Bedford, 28 U.S. 433, 446 (1830) (“The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy.”). The government is putting itself in the jury room by systematically removing an entire class of citizens from serving on juries.

¶18 “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.” Flowers, 139 S. Ct. at 2243. The Batson/Lamon standard of review is an illusion. The “race-neutral” reason offered by the prosecutor is per se discriminatory and requiring our trial judges to call out prosecutors as liars to defeat these easily stated “race-neutral” reasons is unworkable. I respectfully dissent.