No peeking, Lady Justice!

A curious case was argued in the U.S. Supreme Court on March 20th of this year–Flowers v. Mississippi (Docket No. 17-9572). Thanks to a very popular APM podcast, many people are well-aware of the basic facts of this case. But it is neither the facts nor the evidence of the case that is being questioned at the Supreme Court; it is the possible Batson violation perpetrated by the prosecution. In other words, the counsel for Curtis Flowers argued that the District Attorney Dough Evans who prosecuted the case repeatedly used his peremptory strikes to eliminate Black potential candidates from the jury just because they were Black. If the Court rules in Flowers’ favor, his conviction for a quadruple homicide will be overturned not because he happens to be innocent of the crime–the issue of his guilt or innocence is not at all of any importance in the case before the Supreme Court–but because Black candidates were eliminated from the jury.

This case, as well as the 1986 Batson v. Kentucky (476 U.S. 79), highlights the litigated acknowledgment of the fact that prosecutors are tempted by a perceived benefit of trying a Black defendant with a White jury. In other words, prosecutors assume that a White jury is more likely to convict a Black defendant than a Black jury would. Prosecutors hold this assumption for a very good reason: statistically, this, in fact, is correct–see the 2012 study from Duke University “The Impact of Jury Race In Criminal Trials.” According to this study, an all-White jury is much more likely to convict a Black defendant than a White one. If at least one Black juror is present, the rate of convictions for Black defendants drops by approximately 10% while that for White defendants rises by approximately the same rate, and both rates average out to become nearly identical.

It is likely that the cases in question are not based on direct evidence. These cases are built on circumstantial evidence and rely on stories told by the prosecution and the defense in order to interpret the evidence and infer conclusions. In other words, in the absence of direct evidence, an all-White jury is much more likely to believe that a Black defendant is guilty, and a mixed-race jury is much less likely to believe that. Again, it is worth pointing out that what is of primary importance here are not objective facts but subjective beliefs in stories. The defendant may or may not be guilty as a matter of fact, and a jury may or may not find him guilty as a matter of which story–that of the defense or that of the prosecution–they find more believable, quite independent of the factual guilt or innocence.

Apparently, through (actual) trial and error, prosecutors found that White jurors are more likely to believe that a Black defendant is guilty than Black jurors are. This is not to say that Black jurors are more objective, or more knowledgeable, or more fair, or understand the laws better than their White peers. This is also not to imply that Black jurors are more likely to let guilty Black defendants off the hook. In fact, this phenomenon says absolutely nothing about the defendants’ actual guilt or innocence. In a very significant way, a jury is not tasked with determining what actually happened. It is tasked with assigning a label of “guilty” or “not guilty” based on the stories told by lawyers. This is why our criminal justice system, while strictly following all of the applicable laws and procedures, can find an actually-innocent defendant “guilty” and an-actually-guilty defendant “not guilty.” These labels are not factual; they are procedural.

If we look at the difference in conviction rates revealed by the 2012 study cited earlier, it is possible that this ambiguity of whether the defendant is actually guilty or not affects up to 10% of all cases that go to a jury trial. In the U.S., a country with the largest number of inmates in the world–30% more than in China, for example, with a general population that is more than 4 times smaller–10% is a very large number of people, even considering that most suspects are convicted through a plea deal, not a jury trial. These are the people in a strange twilight zone, whose “guilty” or “not guilty” labels depend merely on the racial persuasion of their jury.

This problem is not limited to the racial identities of jurors. In a 1994 Supreme Court case J.E.B. v. Alabama (511 U.S. 127), the very same reasoning was applied to sex. In that case, the State sued J.E.B., a male, for unpaid child support and used peremptory strikes to eliminate male potential jurors, apparently assuming that an all-female jury is more likely to convict a man. The prosecution was correct. In one study from 2016, the presence of at least one female on a jury increases the rate of conviction by approximately 15% if the victim is a female, and decreases it by approximately the same rate if the victim is a male. Strikingly, this rate of change in outcomes is quite similar to that in the case of jurors’ race. In other words, approximately one in every ten cases is decided not on indisputable and incontrovertible evidence, but on beliefs, opinions, biases, and inclinations of the jurors.

Race and sex biases are settled law. But clearly, human experience, including human criminal experience, is not limited to race and sex. We are not exclusively White males or Black females, and I am not speaking about gender identities or the bizarre case of Rachel Dolezal. Could defense benefit from striking good parents from serving as jurors in child abuse cases, or would prosecution benefit from striking property owners from serving in trespass cases? Even more interestingly, could sides benefit from striking jurors for their political affiliation? The obvious answer is yes.

In the case of Flowers v. Mississippi, the Supreme Court watchers do not watch all Justices. It is presumed that the liberal justices will side with Curtis Flowers. It is also presumed that the conservative Justices will side with the State, and there are only a couple of unknowns who are worth watching. In this particular case, the watchers may be wrong, and most if not all of the Justices may end up siding with Mr. Flowers (or, rather, against the State, since it is the actions of the State, not those of Mr. Flowers, that are on trial in this case). In many other cases, however, such reasoning is well-warranted–but why should this be so? Why do we assume that in order to overturn Roe v. Wade the court must be packed with conservatives, but in order to preserve it–with liberals? How can something be either constitutional or not constitutional not on its own merit, but based solely on the party affiliations of the Justices?

It is worth pointing out that the Supreme Court is not in the business of deciding what it right and wrong, but what is constitutional and not. Ideas about right and wrong may change, depending on one’s religion, culture, or social fads. This is why applying the standard set by the U.S. Constitution, rather than anyone’s personal subjective opinions, would in theory protect our society from being driven by ideologies. The question before the Supreme Court in the Flowers case is not whether the prosecutor did the right thing or the wrong thing, but whether what he did violated the Equal Protection Clause of the Constitution. Clearly, the system does not always work as advertised.

Even though the Supreme Court is not a jury, they essentially act like one. Prosecutors have no control over the selection process of the Justices, but this process is fraught with similar considerations. The only difference is in that this process cannot be challenged in court. For example, if the President decides that he wants to be remembered for nominating a minority woman to the Court, he will “strike” all White women or men of any color from the list of potential candidates. The President may narrow this even further and decide that he needs a Hispanic woman and eliminate all Black and Asian women from the list. Or the President may decide that he will only look at Republicans and strike all Democrats. Or he may decide that he wants a Catholic and thus by proxy enlist the Pope in the fight over Roe v. Wade. In the end, cases like Flowers v. Mississippi may be decided not on whether or not Mr. Flowers actually killed four people, and not on whether the prosecution actually violated the Equal Protection Clause when selecting a jury, but on how many liberals and conservatives happen to be on the Supreme Court.

In his swearing-in speech, Justice Kavanaugh said: “The Supreme Court is an institution of law. It is not a partisan or political institution.” If only this were true, Conservatives would not feel hopeful every time Justice Ginsburg went to a hospital, and Liberals would not, in the words of The Washington Post’s Samantha Schmidt, be “obsessing over her health since the beginning of the Trump administration” (30 July 2018). Perhaps, what Justice Kavanaugh could have said is not that the Supreme Court is not partisan or political, but that it should not be. Until this ideal is achieved–if indeed it can be achieved, which fact is not necessarily a given–it seems that all that we can hope for in some cases is an ideological decision forcing one group’s ideology on everyone else or an approximation of some average that does not represent anyone if we pack the Court the way that Noah packed his ark–“two of every sort shalt thou bring into the ark”–Black and White, male and female, Asian and Jewish, Native and Hispanic, L and G and B, T and Q and +.

Considering that the second option is not possible for practical reasons, unless the Supreme Court balloons to the size of the House of Representatives, it must be recognized that in a very small but important number of cases, the Supreme Court acts as an instrument of political ideology and is subject to manipulation. In other words, it is not that the constitutional right to kill unborn children was suddenly discovered in 1973 in some previously-missing manuscript of the U.S. Constitution, or the that a team of Justices finally had a break-through and discovered the right to same-sex marriage in 2015. It is that not too long go, those ideas were considered “odious,” in the words of Reynolds v. United States (98 U.S. 145 [1878])–another Supreme Court case that has more to with politics at the time than with timeless ideals of Constitutional law. And it is precisely this very important long-standing Supreme Court precedent of basing its decisions on what the majority of Justices happen to find odious or not, that speaks to the true nature of this institution, despite what Justice Kavanaugh may wish it to be.

The decision in the case of Mr. Flowers is expected in June.

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