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IN THE #PARISH NUMBER# JUDICIAL DISTRICT COURT

PARISH OF #PARISH NAME#

STATE OF LOUISIANA

STATE OF LOUISIANA, Plaintiff v. #NAME# , Defendant

) ) ) ) ) ) )

No. #CASE NUMBER# Judge #JUDGE#, Presiding

OMNIBUS MOTION TO ESTABLISH A CONSTITUTIONALLY ADEQUATE FRAMEWORK FOR VOIR DIRE EXAMINATION

[Name] moves this Court under the Sixth and Fourteenth Amendments to the United

States Constitution, as well as the corresponding provisions of the Louisiana Constitution, to

adopt the following proposed ground rules for establishing a constitutionally adequate voir dire:

1. In Turner v. Murray, 476 U.S. 28 (1986), the Court emphasized that “[b]ecause

of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique

opportunity for racial prejudice to operate, but remain undetected.”

2. The twenty-five years since Turner has borne out the Court’s observation. See

e.g., Snyder v. Louisiana, 552 U.S. 472 (2008); State v. Coleman, 970 So.2d 511 (2007). See also

Miller-El v. Dretke, 544 U.S. 660 (2005) (Breyer, J., concurring) (noting that, despite Batson,

"the use of race and gender-based stereotypes in the jury-selection process seems better

organized and more systematized than ever before").; State of Mississippi v. Flowers, 947 So.2d

910 (2007) (lamenting that “racially-motivated jury selection is still prevalent twenty years after

Batson was handed down” and noting that lawyers have “manipulated Batson to a point that in

many instances the voir dire process has devolved into an exercise in finding race neutral reasons

to justify racially motivated strikes.”).

3. Although lawyers do sometimes state explicitly race-conscious motivations for

excluding jurors, see State v. Harris, 820 So.2d 471 (2002) (“He is a single, black male”), the

influence of race tends to operate under the surface.

4. Sometimes the motivations are known to the attorney who is exercising the

peremptory challenges, but a race-neutral reason is fabricated nonetheless. Miller-El v. Dretke,

545 U.S. 231, 238 (U.S. 2005) ("It is well known that prejudices often exist against particular

classes in the community, which sway the judgment of jurors, and which, therefore, operate in

some cases to deny to persons of those classes the full enjoyment of that protection which others

enjoy.") (internal quotation omitted).

5. But sometimes the motivations that lead to the strike are not clearly known even

to the lawyer exercising the challenge. See e.g. Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995) (Ginsburg, J., dissenting) (“Bias both conscious and unconscious, reflecting traditional

and unexamined habits of thought, keeps up barriers that must come down if equal opportunity

and nondiscrimination are ever genuinely to become the country's law and practice.”).

6. Hidden biases can be the most damaging. As Professor Sam Sommers explains in

his article Race and Jury Selection: A Psychological Perspective on the Peremptory Challenge

Debate, “[t]o the extent that attorneys have been exposed to or have developed their own racial

stereotypes relevant to juror performance—Blacks are skeptical of police; Whites are forgiving

of corporate malfeasance—no conscious effort may be necessary for these stereotypes to

influence voir dire evaluations.” This means that undetected bias can go undetected even within

the beholder.

7. “Hidden biases” are the result of implicit social cognition, which is defined as the

process by which the brain uses "mental associations that are so well-established as to operate

without awareness, or without intention, or without control."1 These mental associations operate

through the mind’s use of schemas. Schemas are simply templates of knowledge that help us

organize specific examples into broad categories. The schemas we use to categorize people are

called stereotypes.2

8. Thousands of American citizens participate each year in studies designed to

1 Project Implicit, Harvard University https://implicit.harvard.edu/implicit/demo/background/faqs.html#faq2 2 Complicating matters further is the possibility that some judgments based on stereotype might be true, which provides a sense of misplaced justification for those attorneys who do detect their biases—or worse—for those who use race to strike jurors because of their explicit biases. But the Equal Protection clause of the Fourteenth Amendment would prohibit the use of strikes based on race even if a stereotype applied to the vast majority of individual defendants against who the stereotype is held. For, as the Mississippi Supreme Court emphasized in Flowers, supra, “Batson makes clear that each juror must be evaluated on his/her own merits, not based on supposed group-based traits or thinking.”

measure implicit associations.3 Results consistently demonstrate that white participants (and, to a

lesser degree, participants from a variety of other racial and ethnic backgrounds) have strong

implicit associations between “White and Good,” “Black and Bad,” and "Black and Guilty."4

The results have predictive-validity.5 High implicit bias scores correlate with disparate treatment

of Black defendants: Jurors tend to interpret6 and misremember7 evidence in racially biased

ways, interpret Black physical features to reflect criminality,8 provide less mental due process to

3 See, e.g., Jerry Kang & Mazahrin Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 Cal. L. Rev. 1063, 1064 (2006). ("Evidence from hundreds of thousands of individuals across the globe shows that (1) the magnitude of implicit bias toward members of out-groups or disadvantaged groups is large, (2) implicit bias often conflicts with conscious attitudes, endorsed beliefs, and intentional behavior [and] (3) implicit bias influences evaluations of and behavior toward those who are the subject of the bias . . .."). 4 See Levinson, Justin D., Cai, Huajian and Young, Danielle, Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test (September 10, 2009). Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1471567 (finding that participants have strong implicit associations between "Black" and "Guilty," and that these results (independent of the traditional IAT) have strong predictive validity. 5 But see Ralph Richard Banks & Richard Thompson Ford, (HOW) DOES UNCONSCIOUS BIAS MATTER?: LAW, POLITICS, AND RACIAL INEQUALITY, 58 Emory L.J. 1053 (2009) (noting that the implicit association test could be measuring conscious racism that the beholder would rather the public not know rather than unconsciously held beliefs); id. at 1068 ("The great contribution of the IAT may be not that it captures a new type of bias, so much as that it employs a subtle and sophisticated means of measuring bias, which has become ever more elusive as research participants attempt to outsmart any test that would label them a racist."). 6 See Justin Levinson and Danielle Young, Compelling (Skin Tone) Evidence: Implicit Racial Bias and Judgments of Ambiguous Evidence, West Virginia Law Review (forthcoming 2010). Professor Levinson tested whether implicit race bias impacts jurors' interpretation of ambiguous evidence. Levinson provided a group of jury-eligible participants with a brief background story of a fictional Mini Mart robbery and then had the participants view three pictures from the crime scene for four seconds each. The first and second pictures were innocuous. The third picture--the centerpiece of the study--displayed one masked assailant reaching over the counter with a gun in his left hand. The only identifiable race-cue for the assailant is a small section of visible flesh on his forearm. Levinson altered the skin-tone of the assailant, showing half the participants a light-skinned suspect and the other half a dark-skinned suspect. After watching the short video, suspects were told that a suspect was caught, and then provided with a series of ambiguous evidence about the suspect. Levinson asked the participants to rate the probative value of each piece of ambiguous evidence. The study produced several results. First, participants shown the photo with of the dark-skinned suspect were significantly more likely to find ambiguous evidence more probative of guilt. Participants who viewed the dark-skinned defendant were also more likely to believe that the suspect was guilty--both on a scale of 1-100 and by a traditional guilty / not guilty measure. As Levinson concluded, these results undermine the foundational assumption that guilt is weighed solely based on the probative strength of the evidence. 7 See Justin Levinson, Forgotten Racial Equality: Implicit Bias, Decision Making, and Misremembering, 57 Duke L.J. 345 (2007). Professor Justin Levinson conducted an elegant experiment to test whether implicit race bias impacted jurors' memories of case facts. Levinson provided jury-eligible participants with a fictional story about a confrontation between two men. Some jurors read about "William" the white defendant, while others read about "Tyronne" the Black defendant. The rest of the story remained constant. But when Levinson asked jurors to remember pertinent facts from "the confrontation," he found that the race of the defendant affected how participants recalled the story's details. Participants more frequently remembered aggressive details when Tyronne rather than William was the defendant. Levinson concluded "that the race of a civil plaintiff or a criminal defendant can act implicitly to cause people to misremember a case's facts in racially biased ways." The participants appeared to remember "facts" that did not appear in the story more often when those facts were stereotype-consistent, such as facts that portray Black males as aggressive. 8 See Jennifer Eberhardt, et al, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes. Equipped with a dataset of 600 death-eligible defendants in Philadelphia, Pennsylvania between 1979-1999 (the Baldus dataset), Professor Jennifer Eberhardt set out to determine whether a Black defendant's physical features (and more specifically, his stereotypical Blackness) impacted juror views of the defendant's death-worthiness. Eberhardt took the pictures of the 44 Black defendants (from the Baldus dataset) whom had been convicted of killing white victims and whose trials proceeded to the penalty phase, and she asked participants (who were not told that the men in the pictures were criminals) to rate each picture in terms of stereotypical Blackness. She then took the ratings of the 44 defendants, determined whether each had been sentenced to death, controlled for six non-racial factors known to impact capital sentencing, and then calculated whether the presence of stereotypical Black physical features impacted death verdict outcomes. The results: In white victim / Black defendant cases, not only is the fact of being Black influential, but the degree to which Black defendants appear stereotypically Black (e.g., thick lips, wide nose) correlates with the likelihood of being sentenced to death. Black defendants whose appearance situated them among the top half of the stereotypicality distribution were more than twice as likely to receive a death sentence. Eberhardt also investigated the relationship between the use of non-human terminology to describe Black capital defendants and sentencing outcomes. In earlier laboratory research, Eberhardt had determined that after

Black defendants,9 and judge Black defendants more harshly.10

9. “Implicit social cognition has even been detected in brain scans. As Professor

Sheri Lynn Johnson notes, “brain activation studies show that when annoyance or anger is

triggered in a white person, there is greater and/or longer activation when the source of the

annoyance is black than when he is white.11 Relatedly, the activation of fear lasts longer when

the source is an African American. Scientists can also measure the triggering of emotion by

observing activity in the amygdala, and it turns out that subjects who are high on implicit

measures of racial bias will register higher levels of emotion when viewing unfamiliar African-

American faces than when viewing unfamiliar white faces.”

10. Regardless of whether race-discrimination stems from consciously or

unconsciously held beliefs, the harm to the accused, the excluded juror(s) and the larger

community, is the same. As the United States Supreme Court explained in Miller-El:

Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury, but racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish "state-sponsored group stereotypes rooted in, and reflective of, historical

being flashed a picture of a Black face participants are able to recognize pictures of apes in fewer frames than immediately after being flashed a picture of a white face. Participants were also able to pair the words "ape" and "Black" together more rapidly than other combinations such as "ape" and "feline." When primed with a picture of an ape, participants were more likely to find that a Black suspect being beaten by the police deserved the beating than when participants were primed with a picture of a big cat. Moving from the lab to real capital cases, Eberhardt found that even after controlling for well-known factors that affect death-sentencing, news stories about Black capital defendants made more apelike references than news stories about white capital defendants, and that the number of times news articles made these ape-like references correlates with the rate at which Black defendants are sentenced to death. 9 Lieberman, M. D., Hariri, A., Jarcho, J. J., Eisenberger, N. I., & Bookheimer, S. Y. (2005). An fMRI investigation of race-related amygdala activity in African-American and Caucasian-American individuals, Nature Neuroscience, doi:10.1038/nn1465 (advanced publication online May 8). The amygdala is a region of the brain that mediates emotional responses, including perceived threats. Professor Matthew Lierberman and colleagues conducted an experiment using fmri technology to measure the level of amygdala activity of participants after seeing a Black versus a white face. Lieberman found that amygdala activity in both white and Black participants increased when shown a Black face versus a white face. The authors concluded that the most plausible explanation for this universal increase in amgydala activity is likely due to the activation of the Black-threat stereotype. The Black-threat stereotype appears to play out in practice. Professor Joshua Correll created a video game that depicted a picture of either a white or a Black suspect, and then coupled that suspect with either a gun or an innocuous object (i.e. a wallet). Study participants were asked to play the video game by looking at the suspects as they appeared on the screen and then to determine whether or not to shoot. The results displayed a bias among all participants--but especially white participants--to shoot unarmed Black defendants and to not shoot armed white suspects. See Joshua Correll, Event-related potentials and the decision to shoot: The role of threat perception and cognitive control, Journal of Experimental Social Psychology, Volume 42, Issue 1, January 2006, Pages 120-128. 10 See e.g. Glaser, J., Martin, K., Kahn, K., Possibility of Death Sentence Has Divergent Effect on Verdicts for Black and White Defendants, Available at: available at: http://ssrn.com/abstract=1428943 (last visited December 4, 2009). Professor Jack Glaser utilized a random sample of jury eligible citizens spread across the United States to test whether defendant race mediated guilty / not guilty outcomes in cases with the possibility of a death sentence. Glaser had the participants read materials from a fictional triple murder case (including crime description, closing arguments and witness testimony). Though the participants read the same case summary, half the participants were told that death was the maximum punishment possible while the other half of the participants were told that life without the possibility of parole was the maximum. Half the "defendants" were Black, half white. The participants told that death was the maximum possible punishment convicted Black defendants 25% more often than white defendants. Because defendant race impacts verdict outcome more severely in cases where death is a possible sentence, Professor Glaser concludes that "capital punishment may be more than another domain of racial disparities; it may actually be a cause." Id. (emphasis in original). 11 See n9, supra.

prejudice" Nor is the harm confined to minorities. When the government's choice of jurors is tainted with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial. That is, the very integrity of the courts is jeopardized when a prosecutor's discrimination invites cynicism respecting the jury's neutrality and undermines public confidence in adjudication. Miller el, supra, at 238 (internal citations and quotations omitted).

11. Recent interviews conducted by the Equal Justice Institute with jurors who

were struck peremptorily on the basis of their race confirm the damaging effects of improper

exclusion, which include lost of confidence in law enforcement and in the justice system

generally:

A former bank teller in her forties who has worked two jobs most of her life, Ms. Harris considered herself a supporter of law enforcement. “I like the police, I’ll dial 911 in a second,” she said. But watching the discriminatory tactics used to ensure Mr. Robinson would go to prison has shaken her faith in a system she wanted to trust. “I thought justice was supposed to be blind, and just sitting there, how could anybody vote guilty listening to the evidence with those jury instructions?” After the trial, Ms. Harris visited Mr. Robinson in prison and helped him with his appeal. Eventually, the Mississippi Court of Appeals confirmed her suspicions. The Court reversed Mr. Robinson’s manslaughter conviction because of race-based strikes in selecting the jury. The reasons offered by the State were “so contrived, so strained, and so improbable,” the court found, that they were unquestionably pretexts for purposeful discrimination.12 A Baldwin County, Alabama, prosecutor characterized potential juror Allen Mason as “not very well educated” and having “difficulty understanding the concepts that the state asked him” even though Mr. Mason answered every question, “Yes, sir” or “No, sir,” and clearly explained his beliefs.150 Nearly 20 years later, Mr. Mason grew emotional as he recalled how the prosecutor’s racist actions made him feel unworthy.13 12. “Justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S.

11 (1954). A courtroom where citizens of one’s own race are barely present (or completely

absent even) is not a place that satisfies the appearance of justice requirement. As one wrongly

convicted former death-row inmate put it, “I looked around the courtroom. The judge was white.

The prosecutor was white. My lawyer was white. The jury was white. Even though I was

innocent, I knew I had no chance.”14

13. Moreover, excluding minority group member jurors (and thus securing

disproportionately white juries) is bad for the efficient operating of the jury system itself. Social

science research using meticulously-crafted mock jury studies, as well as juror interviews from

real capital jurors, lend empirical support to the claim by suggesting that diverse juries deliberate

12 Equal Justice Institute, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, June 2010. Available at: http://eji.org/eji/files/Race%20and%20Jury%20Selection%20Report.pdf. (last visited June 11, 2010). 13 Id.

more thoroughly, discuss a broader range of evidence, perceive evidence more accurately, and

perceive themselves as more legitimate than all-white juries.15 Community members also view

verdicts from diverse juries as more legitimate.16

14. The Constitution's Equal Protection Clause prohibits attorneys from striking

jurors on the basis of their race.17 But that does not stop prosecutors from striking Black jurors in

criminal cases.18 In Snyder v. Louisiana,19 Justice Alito wrote the opinion for seven members of

the Court reversing a death sentence out of Jefferson Parish, Louisiana, where the prosecution

struck all five prospective Black jurors.20 Asked by the trial judge to proffer a race-neutral

explanation for striking one of the Black jurors,21 Mr. Brooks, the prosecutor explained that

Brooks looked "nervous" about missing his time as a student teacher (even though the judge

received assurance from Brooks' Dean that his absence would be okay).22 By contrast, the State

did not strike a white juror, Mr. Laws, who was “a self-employed general contractor,” with “two

houses that are nearing completion."23 One of the houses had occupants "moving in [that]

weekend,” and Mr. Laws explained that if he served on the jury then “the people won’t [be able

14 Id. 15 In 2006, Professor Sommers conducted a mock jury experiment aimed at measuring the impact of juror diversity on jury deliberations and outcomes.25 Sommers used 200 jury-eligible participants, who, with the help of local judges and jury-pool administrators, were recruited largely at a Michigan courthouse where the jurors had arrived for jury service. Sommers first divided participants into two types of juries: homogonous juries (six white jurors) and heterogeneous juries (four white jurors and two Black jurors). He then provided each jury with either a race-neutral or race-salient voir dire questionnaire. Next, he showed each jury a 30-minute Court TV video trial summary of a Black defendant in a sexual assault case. Each jury then heard an experimenter read Michigan jury instructions and remind the jurors that their objective was to reach unanimity. Finally, Sommers asked each jury to deliberate for sixty minutes. Heterogeneous juries performed better across every measure of thoroughness and accuracy: The four white / two Black juries deliberated longer (50.67 minutes versus 38.49 minutes), discussed more case facts (30.48 versus 25.93), made fewer factually inaccurate statements (4.14 versus 7.28), had fewer factual inaccuracies left uncorrected (1.36 versus 2.49), cited more "missing" evidence (1.87 versus 1.07), raised more race-related issues (3.79 versus 2.07), discussed possible racism more freely (1.35 versus .93), and displayed less resistance at the very mention of racism (22% of comments met with resistance versus 100%) than all white juries. While Black jurors raised race-related issues (e.g. the role of race in police investigations) most often, white jurors on diverse juries raised these issues much more frequently than white jurors on all-white juries. Interestingly, white jurors serving on diverse juries raised the possibility of racism more than both Black jurors and white jurors on all-white juries. 16 See Leslie Ellis & Shari Seidman Diamond, Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 Chi.-Kent. L. Rev. 1033 (2003). 17 Batson v. Kentucky, 476 U.S. 79, 88-89. ("[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that Black jurors as a group will be unable impartially to consider the State's case against a Black defendant."). 18 In federal capital prosecutions where the shift in the jury pool dilutes minority representation, Batson violations compound the problem. For example, In United States v. Johnson (Black defendant sentenced to death out of Orleans Parish) prosecutors used eight strikes to remove all but two African-American jurors. 19 Snyder v. Louisiana, 552 U.S. 472 (2008). 20 Brief of Petitioner Allen Snyder. ("Although African Americans made up approximately 20% of the population of Jefferson Parish in 1996, nine –10.6% – of the eighty-five prospective jurors questioned in the six panels were Black. Four were dismissed for cause. The prosecution used peremptory strikes to remove the remaining five.") 21 There are three steps to the Batson inquiry: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, _ U.S. _ (2008) (internal quotations omitted). 22 Id.. 23 Id..

to] move in.”24 Moreover, Mr. Law's "wife just had a hysterectomy, so I’m running the kids back

and forth to school, and we’re not originally from here, so I have no family in the area, so

between the two things, it’s kind of bad timing for me.”25

15. The strike-pattern in the Snyder case is not an aberration in Jefferson Parish. The

Louisiana Supreme Court has addressed three convictions in the last decade where Jefferson

Parish prosecutors appeared to exclude jurors on the basis of race.26 Jefferson Parish prosecutors

are particularly adept at keeping Blacks off of Jefferson Parish capital juries: prosecutors

successfully struck 42 of 49 (90%) qualified Black jurors (and attempted to strike two more) in

twelve capital prosecutions.27 These strike rates left zero Black jurors on seven death cases, one

Black juror on four death cases, and two Black jurors on one death case.28 These numbers are

only slightly better in non-capital cases: A study of 390 trials and 10,000 prospective jurors in

Jefferson Parish from 1994 to 2002 reveals that prosecutors struck 55% of qualified Black jurors

but only 16% of qualified white venire persons.29

16. In Miller-el v. Dretke, the Court reversed a capital conviction where prosecutors

used their peremptory challenges to strike 10 of 11 prospective Black jurors.30 The Court noted

that the Dallas, Texas prosecutor's office had a long-standing history of striking as many Black

jurors as possible, used a twenty year-old voir dire manual that instructed line prosecutors to

exclude prospective Black jurors, took advantage of a "jury shuffle" process to dilute the

concentration of Blacks on jury panels, and used different lines of scripted questioning for Black

and white jurors.31 The Court also noted testimony from a district court judge, who was formerly

a prosecutor at the Dallas District Attorney's office, indicating that allowing a Black person to

serve on a jury constituted a fire-able offense at the office during the 1950s and 60s.32 In

Pennsylvania, a study of 317 Philadelphia capital trials, revealed that prosecutors struck 51% of

24 Id.. 25 Id.. 26 State v. Harris, 820 So. 2d 471, 474 (La. 2002) (reversed on Batson grounds where prosecutor gave the following race-neutral reason for striking a Black juror: he is “a single Black male on the panel with no children”); State v. Jacobs, 789 So. 2d 1280, 1283 n.2 (La. 2001) (noting that judge failed to “properly address Batson challenges” where prosecutor struck four-of-five Black jurors and tried to strike the fifth); State v. Myers, 761 So. 2d 498, 500, 503 (La. 2000) (reversing where trial court neglected Batson analysis despite the State striking six of seven Black venire members). 27 Brief of Nine Jefferson Parish Ministers as Amici Curiae Supporting Petitioner, Snyder v. Louisiana, (2008)(No. 06-10119). 28 Id. at 11. 29 Id. at 11 (citing Richard Bourke, Joe Hingston, & Joel Devine, Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges By the Jefferson Parish District Attorney’s Office.) 30 545 U.S. 231 (2005) 31 See id. at 253 (noting the "widely known evidence of the general policy of the Dallas County District Attorney’s Office to exclude Black venire members from juries"). 32 Miller-El v. Cockrell, 537 U. S., 322, 334-335 (2003).

Black jurors but 26% of nonBlack jurors.33

17. Experimental evidence confirms the continued ability of race to influence the

criminal petit jurors. Professor Sam Sommors explains the methodology and conclusions of one

such study:

We conducted such an experimental investigation using three participant samples: college students, law students, and trial attorneys. Participants were presented with a criminal trial summary with a Black defendant and instructed to assume the role of prosecutor. They were told that they had one peremptory challenge remaining and were asked which of two prospective jurors they would challenge. The two jurors exhibited different characteristics that pretesting indicated would concern the prosecution: Juror A was a journalist who had written about police misconduct; Juror B had little background in science or math and stated that he believed people often manipulate statistics such as those used to evaluate the results of forensic lab analysis. We varied the race of the prospective jurors such that in one condition, photographs revealed Juror A to be Black and Juror B to be White, whereas in the other condition, Juror A was White and Juror B was Black. As expected, prospective jurors were significantly more likely to be challenged when Black than when White. This difference was evident across all three samples and was strongest among our sample of attorneys. We also asked participants to justify their decision to the judge, and we coded these open-ended responses. As predicted, very few participants cited race as a factor. That is, self-report measures did not reflect the significant influence of race on peremptory challenge use. Instead, consistent with the [earlier] predictions [], participants focused their justifications on race-neutral characteristics that bolstered their decision. When Juror A was Black, participants were likely to cite as their chief influence his familiarity with police misconduct. When Juror B was Black, participants were likely to identify his skepticism about statistics as their primary concern. These differences emerged even though the content of the juror profiles was constant across conditions. Thus, even though participants were more likely to challenge Black prospective jurors, their explanations for this tendency were both plausible and race neutral.34 18. The United States Supreme Court has reversed at least four post-Batson cases on

race-discrimination grounds, including Snyder v. Louisiana, 552 U.S. --- (2008). The Louisiana

Supreme Court has reversed at least six convictions on Batson grounds. See State v. Coleman,

970 So. 2d 511 (La. 2007); State v. Harris, 820 So.2d 471 (2002); State v. Givens, 776 So.2d 443

(2001); State v. Myers, 761 So.2d 498 (2000); State v. Collier, 553 So.2d 815, 819 (La.1989);

State v. Williams, 524 So.2d 746 (1988). See also State v. Jacobs, 789 So. 2d 1280 (highlighting

Batson error, but reversing on Witherspoon grounds). The federal Fifth Circuit Court of Appeals

has reversed six additional cases on Batson grounds, including four since 2008. The reversals

demonstrate the continued presence of race-influenced jury selection. Given the massive waste

of resources when a conviction is overturned post-trial for an easily preventable (but

33 See id. at 268 (Breyer, J., concurring) citing Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52-53, 73, n. 197 (2001). 34 Sam Sommers, Race and Jury Selection: A Psychological Perspective on the Peremptory Challenge Debate, American Psychologist, v63 n6 p527-539 Sep 2008.

devastatingly harmful) error at the onset of trial, this Court should take the necessary precautions

to empanel an impartial jury now and minimize the risk of reversal later.

19. Moreover, because of the exceptional and irrevocable nature of the death penalty,

the Supreme Court has held that every precaution is constitutionally required to ensure the

fairness and reliability of decisions regarding both guilt and punishment in a capital

trial. Eddings v. Oklahoma, 455 U.S. 104 (1982) (O'Connor, J., concurring)(observing that

"extraordinary measures" are required in a capital trial that are not required in other criminal

cases). In Turner v. Murray, 476 U.S. 28 (1986), the Court held that the trial court's refusal to

allow certain voir dire questions required reversal as to the death sentence even though it did not

require that the conviction be set aside.

20. This motion urges this Court to recognize both the difficulties inherent in the

process of eradicating race-influenced judgments from the jury selection process and the dire

need to ensure that we find a way to do so. To that end, Mr. [Name] requests the following:

I. This Court Should Require the Prosecution to Disclose its Juror Preferences Prior to the Questioning of Any Prospective Jurors. 

21. As noted in the discussion of Snyder and Miller-el, supra, one of the most

effective tools the prosecution possessed for evading Batson is to fabricate after-the-fact

justifications for their strike of a particular juror. Trial courts are notoriously unwilling—or

unable—to discern race-based motivations in these facially race-neutral proffers. One possible

technique for undermining the prosecution’s ability to fabricate race-neutral reasons (without

impeding the prosecution’s ability to exercise legitimate strikes) is to require that the prosecution

articulate before voir dire the particular characteristics that they prefer in jurors. “For example, a

prosecutor with a stated goal of finding jurors sympathetic to police would have difficulty

justifying the challenge of a black juror married to a police officer or the failure to challenge a

white juror with negative police attitudes."35 At a minimum, this Court should require the

prosecution to pre-state its preferences on issues likely to arise frequently as the subject of race-

neutral explanations, such as the age of the juror, whether and in what capacity the juror is

employed, whether the juror has children, what social and religious organizations to which the

juror belongs, what level of education the juror attainted, the neighborhood in which the juror

35 Sommers, Race and Jury Selection, supra.

lived, and the responses as to whether the juror could: vote for a sentence of death, consider

mitigating evidence, and accept a defendant’s 5th Amendment right not to testify.

II. This Court Should Permit the Use of Extensive Juror Questionnaires, Mask the Social Category Identifiers, and then Require the Prosecution to Conduct its First Round of Peremptory Challenges Based on Answers to the Questionnaires.  

22. Social Category Masking eliminates demographic characteristics irrelevant to the

decision-making process in order to limit the risk of implicit race bias. “Research on orchestras,

for example, demonstrates that female musicians are more likely to be hired when they audition

behind a screen, effectively concealing their gender.”36 “Regarding jury selection, much of the

information obtained during voir dire—legal experiences, demographics, educational and

occupational history, attitudes about the case—could be assessed via written questionnaire.” In

order to effectively mask the race of the prospective jurors, this Court should also mask the

names of the potential jurors. See Marianne Bertrand & Sendhil Mullainathan, Are Emily and

Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market

Discrimination, 94 AMER. ECON. REV. 991 (2004) (finding that a simply substituting the

name on a resume from a stereotypically “white” name to a stereotypically “black” name

decreases employer response by 50%). Since the address of the prospective jurors allow the

prosecution to strike jurors who live in typically highly minority group concentrated

neighborhoods, this demographic data should also be masked during the strikes based on

questionnaires alone.

III. This Court Should Permit Extensive Questioning on the Issue of Race. 

23. The Louisiana Constitution guarantees each defendant the right to full voir dire

examination of prospective jurors and the right to challenge jurors peremptorily. La. Const.Art.

I, § 17. In order to effectively use peremptory strikes it is vital that the information available to

the prosecution and the defense concerning potential jurors is accurate and thorough. State v.

Hall, 616 So. 2d 664 (La. Apr. 12, 1993) (reversing capital conviction based upon the trial

court's curtailment of voir dire) Jurors are given wide discretion in the sentencing phase of

capital trials. Thus, voir dire must be sufficient to uncover any racial attitudes that could

influence a juror’s decision in the case. Turner v. Murray, 476 U.S. 28, 35 (1986).

24. Nobel Prize winning author Toni Morrison captures our collective aversion to

talking about race: “The habit of ignoring race is understood to be a graceful, even generous

liberal gesture. To notice is to recognize an already discredited difference.” Yet Morrison wisely

concludes that we need to talk about race nonetheless: “Statements . . . insisting on the

meaninglessness of race to the American identity are themselves full of meaning. The world does

not become raceless or will not become unracialized by assertion.” The Supreme Court agrees.

As the Court explained in Turner,

A juror who believes that African-Americans are violence-prone or morally inferior might well be influenced by that belief in deciding whether the defendant’s crime involved the aggravating factors specified under Virginia law. Such a juror might be less favorably inclined towards the defendant’s evidence of mitigating circumstance. Fear of blacks, which could easily be stirred up by the violent facts of petitioner’s crime, might incline a juror to favor the death penalty.

Talking about race with the jurors helps. ““[T]he results of the current body of research have

found that making a Black defendant’s race salient reduces White juror racial bias. In addition,

we found that salient racial issues at trial reduced White juror racial bias, regardless of the jurors’

level of racism.”37

25. Moreover, as part of its examination into the racial attitudes of the jury pool, the

defense should be permitted to provide a brief overview of implicit social cognition to the jury

and also to administer a brief implicit association test (solely for the purposes of education the

jury, and not as a basis for proof of bias). The need to expose jurors to the concept of implicit

social cognition applies to even the most egalitarian of citizens. As Professor Sommers explains,

“Although aversive racists are motivated not to appear prejudiced, they are also aware of negative stereotypes regarding Blacks that are still maintained by society. Because negative stereotypes about Blacks make aversive racists when information in the environment is ambiguous, aversive racists may not be reminded that their actions could appear prejudiced. In these situations, they utilize negative stereotypes concerning Blacks when making a decision and are more likely to respond to a situation in a prejudicial manner.”38

Further, as Cornell Law School Professor Sheri Lynn Johnson, emphasizes, “Persons who

are shown that their reactions are biased, and then allowed to "practice" neutral judgments are

more likely to make them.”

IV. This Court Should Allow the Defense to Submit Evidence Outside the Four Corners of the Case. 

36 Sommers, Race and Jury Selection, supra. 37 Sommers, Race and Jury Selection, supra. 38 Sommers, Race and Jury Selection, supra.

26. The Supreme Court specifically clarified that, if Batson is to have any teeth at all,

it is incumbent upon a reviewing court to consider more than the race-neutrality of the reason

proffered to rebut a prima facie case of discrimination:

If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson’s explanation that a defendant may rely on “all relevant circumstances” to raise an inference of purposeful discrimination. 476 U.S., at 96-97.

Id. at 2325.

27. In Batson, the Supreme Court held that a reviewing court “should consider all

relevant circumstances” when determining whether the State intentionally discriminated. 476

U.S. at 96-97 (emphasis added). See also Snyder, supra. (“In Miller-El v. Dretke, the Court made

it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson

error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”)

In Miller-El, the Court noted that “[t]he whole of voir dire testimony” is “subject to

consideration.” The Miller-El Court bolstered these findings by looking to “broader patterns of

practice” that evinced discriminatory intent, reviewing not only actions by the prosecutor during

the jury selection of the case but general and systemic patterns of discriminatory practice by the

District Attorney’s Office itself. Id. at 2332. For example, the Miller El Court emphasized the

significance of the evidence of the history of the Dallas County District Attorney’s Office and its

specific policy of systematically excluding African Americans from juries. Id. at 2338.

28. The “broader patterns of practice” demonstrated by the Jefferson Parish District

Attorney’s Office provide a disturbing backdrop. The Louisiana Supreme Court also has held

that Jefferson Parish prosecutors violated Batson in the capital trial of a black defendant. State v.

Harris, 01-0408 (La. 6/21/02), 820 So.2d 471. In that case, the position of the Jefferson Parish

District Attorney’s Office on Batson challenges was clearly articulated during the November

1995 trial. In response to the defendant’s Batson challenge and the trial court’s demand for the

state’s justification for the peremptory strike, the assistant district attorney argued that “Batson is

an old case” and “[t]here’s law that’s changed Batson some,” and suggested that the State was

not required to provide reasons for its peremptory challenge of African-American jurors. Id. at

474. Perhaps more remarkable than this argument was the prosecutor’s position that it was

proper to strike a juror based on race in an effort not to have that juror relate to a defendant of the

same race. The State did not mince words in its explanation: “He’s a single black male on the

panel with no children . . . . I don’t want him relating to the defendant more so than he would the

State’s part of the case.” Id. at 474. Incredibly, the Jefferson Parish trial judge denied the

Batson challenge, finding that the State “has articulated non-racial, neutral reasons.” Id. This

Court soundly rejected the prosecutor’s “thinly veiled” explanations, finding that “in its

dismissal of [the African-American juror], the state has ‘consciously taken color into account,’

and violated the defendant’s constitutional right to equal protection.” Id. at 477 (quoting Cassell

v. Texas, 339 U.S. 282 (1950)).

29. Harris is not the only Jefferson Parish case in which the Louisiana Supreme Court

has expressed concerns that the prosecutor’s use of peremptory challenges was impermissibly

based on race. One year prior to the Harris decision, the Louisiana Supreme Court reviewed and

vacated the 1998 conviction and death sentence of Lawrence Jacobs. State v. Jacobs, 99-1659

(La. 06/29/01), 789 So. 2d 1280. Although reversing on grounds the trial court erred in denying

defense cause challenges to death-prone jurors, the Louisiana Supreme Court specifically

rebuked the trial court regarding the careless manner in which it had addressed the defendant’s

Batson challenges:

[W]hile the trial court’s erroneous denial of the defendant’s challenges for cause as to jurors Dunham and Dyer presents us with the most blatant grounds for reversing the defendant’s conviction and sentence, the defendant’s fourth assignment of error, with respect to the prosecutor’s alleged racial discrimination in the selection of jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), also appears to raise serious questions regarding the propriety of the jury selection process in this case. Though a discussion of the merits of the defendant’s Batson challenges is pretermitted at this time, we take this opportunity to remind the trial court of its unique and integral role in the dynamics of voir dire and to caution it to be especially sensitive to the alleged racially discriminatory use of peremptory challenges. See generally State v. Myers, 99-1803, pp. 5-6 (La. 4/11/00), 761 So. 2d 498, 502.

Id. at 1283, n.2.[44] & [45]

30. Indeed, both the Harris and Jacobs decisions may be viewed against the backdrop

of peremptory-strike practices in Jefferson Parish criminal trials in general that appear to be race-

based.[46] As concluded by a statistical analysis of peremptory challenges exercised by Jefferson

Parish prosecutors, conducted by Tulane Professor Joel Devine, “there is a racial disparity in the

state’s use of peremptory challenges” which Professor Devine observed was “highly significant. .

. . [T]he observed pattern of racial exclusion by virtue of the state’s use of peremptory strikes

strongly supports the defense’s claims regarding the discriminatory jury selection in the District

Attorney’s office.[47]

31. Not only does evidence of the jury selection practices of Jefferson Parish

prosecutors suggest a pattern of intentional race discrimination when seating juries, but the

conduct of members of that district attorney’s office reveals, at best, an extraordinary lack of

sensitivity to racial concerns. In 2003, members of that office were chastised for wearing

neckties depicting a hangman’s noose and grim reaper at a pretrial hearing in Lawrence Jacob’s

case (following this court’s grant of a new trial). See, e.g., Jeffrey Gettleman, Prosecutors’

Morbid Neckties Stir Criticism, The New York Times, 1/5/03, Section 1; Joe Darby,

Prosecutors’ Choice of Neckties Blasted; Noose, Grim Reaper Worn in Murder Case, The Times

Picayune, 1/5/03. According to the New York Times article, Mr. Jacobs’ father found the ties

“clearly racist. Especially the noose. ‘I mean, who else got strung up?’ he asked.”[48] Id.

32. Although characterized by the elected District Attorney as “a joke, although a

poor joke,” Prosecutor’s Choice of Neckties Blasted, supra, the hangman’s noose neckties reflect

more than a sophomoric sense of humor and poor judgment – they display an appalling lack of

racial sensitivity in the context of the most serious action the state can take with respect to a

citizen – the decision to take away a life.[49] _Cf. In re Ellender, 889 So. 2d 225, 233 (La. 2004)

(reprimanding a judge for wearing racist garb at a private cocktail party and imposing one-year

suspension without pay, with six months of that suspension suspended, subject to the judge’s

enrollment in “a course which will assist him in achieving a greater understanding of racial

sensitivity.”).[50]

33. Appendix A to this motion is the Black Strikes report. The Blackstrikes report[7]

produced a statistical analysis of the State’s use of peremptory strikes in some 390 trials. R.

907. As explained, “[t]he unique advantage of the statistical study . . . is that while the

prosecutors can come up with a plausible explanation in individual cases, these explanations are

exposed by proof of a pattern of excluding blacks at a much greater rate than whites.” R. 906.

The report shows that Jefferson Parish prosecutors used peremptory strikes to remove 55% of

African-American prospective jurors who were otherwise eligible to serve, but only peremptorily

challenged 16% of white prospective jurors in the same position. In other words, “[t]he results . .

. show that prosecutors in Jefferson Parish strike blacks from jury service at more than three

times the rate at which they strike whites. Statistical analysis . . . confirm[s] that the study has

established a highly significant racial disparity in the [State’s] use of peremptory strikes.” R.

907. The stark disparity does not end the Batson inquiry in this case, but it shows that the

prosecutors in Jefferson Parish prevented African-Americans from serving on juries at an eye-

opening rate. [8] This Court should review the evidence collected and synthesized from criminal

trials that occurred in Jefferson Parish.

34. This Court should permit the defense to introduce evidence of the [County]

Prosecutors Office’s historical use of race in the jury selection process, including evidence that

the office as a whole, or the particular prosecutors involved in this case, have struck a

disproportionate number of prospective African American jurors in previous civil and criminal

trials. As part of this request, Mr. [NAME] requests that the prosecutor’s office make available to

the defense an exhaustive list of felony criminal trials in which the prosecutors in this case took

part in the jury selection. The defense further requests that a copy of the (1) complete voir dire

transcript, (2) list of the race and gender of each prospective juror, and (3) list of the name, race,

and gender of the actual jury be provided to the defense from each trial in which the prosecutors

in this case took part in jury selection. The defense further requests a copy of any and all jury

selection training materials made relied upon by the [County] Prosecutor’s office to instruct its

lawyers on how to select jurors. If the [County] Prosecutors office has received formal

complaints about the handling of any of its cases or investigations where the substance of the

complaint involves allegations of discrimination, favoritism, or any other issue that touches

about the race, Mr. [NAME] also requests that a copy of those complaints be made available to

the defense.

V. This Court Should Record the Name and Race of Every Prospective Juror.

35. Knowing the race of every prospective juror is plainly essential for a complete

review of the record should this case ever proceed to the appellate stage. The Louisiana Supreme

Court Court “reverse[s] convictions when material portions of the transcript were either

incomplete or unavailable” State v. Landry, 97-KA-0499; see also State v. Ford, 338 So.2d 107,

110 (La. 1976) (“Without a complete record from which a transcript for appeal may be prepared,

a defendant’s right of appellate review is rendered meaningless.”). Moreover, inadequacies in the

record are attributable to the trial judge. See, e.g., State v. Landry, supra, at 3 (“[T]he trial judge

is duty-bound to see that the court reporter makes a true, complete and accurate record of the

trial.”). Recording the race of every prospective juror ensures that the trial record is adequate.

36. Moreover, the name and race of each juror is necessary for the proper

enforcement of collateral remedies for race-discrimination during jury selection. For example, 18

U.S.C. § 243 prohibits the race-motivated removal of any juror in state or federal court by any

“officer or other person charged with any duty in the selection or summoning of jurors.”

Recording the name and race of each prospective juror facilitates the proper enforcement of these

anti-discrimination laws by providing decision-makers with the data necessary to review and

pursue such claims.

VI. This Court Should Provide Daily Transcripts of Voir Dire and Allow the

Defense to Conduct Appropriate Comparative Juror Analysis Prior to the Excusal of Any Prospective Jurors.

37. The United States Supreme Court has emphasized repeatedly the importance of

comparative juror analysis in the quest for smoking out race-motivated jury selection. In Miller-

El v. Dretke, supra, the Court explained that a “side-by-side comparisons of some black venire

panelists who were struck and white panelists allowed to serve” is even more powerful evidence

of discrimination than the “bare statistics.” “If a prosecutor’s proffered reason for striking a

black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimination to be considered at Batson’s third

step.”

38. If side-by-side juror analysis should be considered at step-three of the Batson

inquiry then the defense must be given the opportunity to intelligently provide this Court with

the comparative responses of jurors who were not struck. This requires that transcripts be

provided to the defense as quickly as practicable. Moreover, the defense team must be given

adequate time to track the jurors responses and to compare those responses to white jurors whom

the state did not strike. In order to prevent the need for declaring a mistrial and starting jury

selection from scratch upon a finding that a prospective juror was struck improperly, this Court

should not excuse struck jurors until all of the State’s peremptory challenges have been

exhausted and the defense team has had the opportunity to review the transcripts and articulate

side-by-side comparisons of the jurors. Mr. [Name] also requests that the Court designate a

recorder to categorize juror responses in real time along issues likely to arise frequently, such as

the age of the juror, whether and in what capacity the juror is employed, whether the juror has

children, what social and religious organizations to which the juror belongs, what level of

education the juror attainted, the neighborhood in which the juror lived, and the responses as to

whether the juror could: vote for a sentence of death, consider mitigating evidence, and accept a

defendant’s 5th Amendment right not to testify. When a juror is not asked these questions, the

designated recorder should also note the questions is NA (not asked), as the Supreme Court in

Miller-El also emphasized the evidentiary value of disparate questioning when considering

whether race-discrimination occurred.

VII. This Court should Videotape Voir Dire.

39. On June 2, 2010, with two outs in the bottom of the ninth inning, Detroit Tigers

pitcher Armando Galarraga was one out away from a perfect game, when veteran umpire Jim

Joyce called the Cleveland Indians hitter safe at first base. After the game video image confirmed

that Joyce blew the call, but officially Galarraga’s perfect game had already been lost. Demands

for expanded instant replay were immediate and widespread. In 2010, how could we leave such

important calls in the hands of fallible human beings when inexpensive, ubiquitous, user-friendly

technology allows these mistakes to be avoided altogether?

40. The same logic applies to a trial court’s review of Batson challenges. Demeanor

based judgments are frequently given as a “race-neutral” justification for striking a juror

peremptorily. Did that juror fall asleep for a minute during questioning? Was the juror talking to

other jurors and not paying attention to the prosecution’s questioning? Did the juror look

nervous? Avoid eye-contact? In Focus on Batson: Let the Cameras Roll, Professor Samuels

details the prevalence of demeanor-based race neutral explanations:

The problem, in large part, lies in the fact that many, if not most, of the neutral reasons given for striking a juror are based on non-verbal communication or appearance. In only 10% of cases reviewed in one study did the trial court find that a prosecutor’s neutral reason was not supported by the record. This study analyzed the most popular categories of accepted peremptory challenges. Of the sixteen categories seen, behavior during voir dire was the second most accepted reason by courts for a justified peremptory challenge. The study further broke this category into fifteen subcategories with “inattentive” the most common reason accepted as a peremptory challenge. Additionally, the study found that personal appearance was successfully used to justify a peremptory challenge in 95 cases. Another study reviewed 824 cases decided within the first five years following the Supreme Court’s Batson decision. The study found that the demeanor of a juror is frequently accepted as a neutral explanation because the authenticity of many of the demeanor explanations is completely unverifiable by a judge. The study found that jurors were dismissed for acting “totally off the wall” during questioning; appearing inattentive, strong-willed, headstrong or opinionated; seeming weak or tentative, nervous, and too casual; and displaying grimaces, sympathetic looks,

smiles, nods, and blank stares. 41. In Snyder v. Louisiana, supra, the Supreme Court reversed a conviction on Batson

grounds despite the State’s demeanor based explanation that the struck juror looked nervous. The

Snyder Court noted the trial court’s failure to independently observe the behavior. But as

important as it is to independently confirm demeanor-base explanation, it is equally difficult to

observe them all, much less to observe them correctly. Professor Mimi Samuel explains the

difficulty for trial judges of assessing demeanor-based justifications:

[A] trial judge is at an even greater disadvantage in assessing a Batson challenge than a jury is in finding a historical fact. Given the nature of the Batson objection, the trial judge and defense counsel usually will not have any reason to focus their attention on the behavior or responses of any particular juror or jurors until the voir dire has concluded, the prosecutor has made his strikes, the defendant has challenged them, and the prosecutor has provided the requisite neutral explanations. Thus, the “evidence” is not put in context until the strikes are made and the reasons are given. An explanation based on "demeanor" or "attitude" is also problematic because, unlike a

juror's answers to questions in court or in a questionnaire, a juror's demeanor or attitude may be

transient in nature and may go unnoticed by the trial court or opposing counsel. Yet should the

State remove venire persons from the panel for what they describe as "demeanor" evidence, and

should the defense challenge the reason for the State's strikes under Batson v. Kentucky, 476

U.S. 79 (1986), this Court will need to assess the demeanor of said venire persons and compare

their "demeanor" with similarly situated venire persons of another race or gender.

42. Videotaping voir dire solves the problem by allowing the defense (or the State) to

verify demeanor-based explanation quickly and reliably. Moreover, given the importance of

comparative juror analysis in the quest to eradicate discriminatory jury selection, recording voir

dire allows the defense to conduct side by side assessments of demeanor-based justifications,

which adds meaningful reviewability to an area of the Batson jurisprudence where those of the

mind to discriminate currently have the most leeway to do so. See e.g. State v. Metts, 829 S.W.2d

585, 587 (Mo.App., E.D. 1992) (“[I]n future cases, the State should inform the court of any

perceived "inattentiveness" on the part of a venire member. In this way, a more complete record

will be presented to the reviewing court. An attorney who fails to call the court's attention to

such inattentiveness should be fully prepared to have a strike due to inattentiveness disallowed”);

Daniels v. State, 768 S.W.2d 314, 317 (Tex.App. 1988) (‘No problem is presented when the

venireman's indifference to the proceedings is unmistakable... The difficulty is that in the

ordinary case inattentiveness cannot be so easily or objectively determined... [T]he protection of

the constitutional guarantees that Batson recognizes requires the court to scrutinize such elusive,

intangible, and easily contrived explanations with a healthy skepticism. Otherwise,

"inattentiveness" will inevitably serve as a convenient talisman transforming Batson's protection

against racial discrimination in jury selection into an illusion and the Batson hearing into an

empty ceremony’); United States v. Diaz, 26 F.3d 1533, 1543 (11th Cir. 1994) (“Explanations

based upon a juror's demeanor are, however, difficult to confirm on appeal because the

transcripts that comprise the record before the Court do not portray the unacceptable behavior...

Consequently, to allow meaningful appellate review, trial judges should fully develop the record

regarding the specific behavior by a venireperson that leads to a peremptory strike and should

verify that the stricken venireperson's conduct was conspicuously different from that of the other

venirepersons”).

43. This Court should join the growing number of courts to recognize the benefits of

modern technology and permit the videotaping of voir dire. See e.g. State v. Polnett, No. 43300-

7-I, 1999 WL 1054697 (Wash. App. Nov. 22, 1999) (reviewing a videotape of the trial voir dire

and finding that no smirk was detectable on the challenged jurors face despite that being the race

neutral reason offered to support the strike).

VIII. Finally, if this Court finds that other Proposed Remedies are Inadequate this Court should Place a Wholesale Ban the Prosecution’s use of Peremptory Challenges.

44. Concurring in Batson, Justice Marshall voiced skepticism that the Court’s new

three-step process would successfully ferret out race-discrimination at jury selection: “A

prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a

prospective black juror is "sullen," or "distant," a characterization that would not have come to

his mind if a white juror had acted identically. A judge's own conscious or unconscious racism

may lead him to accept such an explanation as well supported . . . Even if all parties approach the

Court's mandate with the best of conscious intentions, that mandate requires them to confront

and overcome their own racism on all levels -- a challenge I doubt all of them can meet.” “The

decision today will not end the racial discrimination that peremptories inject into the jury

selection process,” Justice Marshall predicted, “[t]hat goal can be accomplished only by

eliminating peremptory challenges entirely.”

45. Two decades later, Justice Breyer expressed the same sense of futility in Miller-El

v. Dretke, comparing Batson to trying to “square a circle”:

As the Court’s opinion makes clear, Miller-El marshaled extensive evidence of racial bias. But despite the strength of his claim, Miller-El’s challenge has resulted in 17 years of largely unsuccessful and protracted litigation–including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary. The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. 46. Citing the support of numerous scholars and other commentators, Justice Breyer,

too, cast his vote for ending the peremptory challenge system:

Finally, a jury system without peremptories is no longer unthinkable. Members of the legal profession have begun serious consideration of that possibility. See, e.g., Allen v. Florida, 596 So. 2d 1083, 1088—1089 (Fla. App. 1992) (Hubbart, J., concurring); Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369 (1992) (authored by Senior Judge on the U.S. District Court for the Eastern District of Pennsylvania); Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997) (authored by a Colorado state-court judge); Altschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 199—211 (1989); Amar, Reinventing Juries: Ten Suggested Reforms, 28 U. C. D. L. Rev. 1169, 1182—1183 (1995); Melilli, 71 Notre Dame L. Rev., at 502—503; Page, 85 B. U. L. Rev., at 245—246. And England, a common-law jurisdiction that has eliminated peremptory challenges, continues to administer fair trials based largely on random jury selection. See Criminal Justice Act, 1988, ch. 33, §118(1), 22 Halsbury’s Statutes 357 (4th ed. 2003 reissue) (U. K.); see also 2 Jury Service in Victoria, Final Report, ch. 5, p. 165 (Dec. 1997) (1993 study of English barristers showed majority support for system without peremptory challenges). I recognize that peremptory challenges have a long historical pedigree. They may help to reassure a party of the fairness of the jury. But long ago, Blackstone recognized the peremptory challenge as an “arbitrary and capricious species of [a] challenge.” 4 W. Blackstone, Commentaries on the Laws of England 346 (1769). If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its representative function. See 1 A. de Tocqueville, Democracy in America 287 (H. Reeve transl. 1900) (“[T]he institution of the jury raises the people … to the bench of judicial authority [and] invests [them] with the direction of society”); A. Amar, The Bill of Rights 94—96 (1998) (describing the Founders’ vision of juries as venues for democratic participation); see also Stevens, Foreword, Symposium: The Jury at a Crossroad: The American Experience, 78 Chi.-Kent L. Rev. 907, 907—908 (2003) (citizens should not be denied the opportunity to serve as jurors unless an impartial judge states a reason for the denial, as with a strike for cause). The “scientific” use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government. See, e.g., S. O’Connor, Juries: They May Be Broke, But We Can Fix Them, Chautauqua Institution Lecture, July 6, 1995. And, of course, the right to a jury free of discriminatory taint is constitutionally protected–the right to use peremptory challenges is not. See Stilson v. United States, 250 U.S. 583, 586 (1919); see also Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (defendant’s loss of a peremptory challenge does not violate his right to an impartial jury).

Justice Goldberg, dissenting in Swain v. Alabama, 380 U.S. 202 (1965), wrote, “Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former.” Id., at 244; see also Batson, 476 U.S., at 107 (Marshall, J., concurring) (same); Edmonson, 500 U.S., at 630 (Kennedy, J.) (“[I]f race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution”). This case suggests the need to confront that choice. In light of the considerations I have mentioned, I believe it necessary to reconsider Batson’s test and the peremptory challenge system as a whole. 47. In 2007, the Mississippi Supreme Court, frustrated by rampant discrimination in

the jury selection process, added its name to the list of advocates supporting a hard-look at the

continued existence of the peremptory challenge system:

Because racially-motivated jury selection is still prevalent twenty years after Batson was handed down and because this case evinces an effort by the State to exclude African- Americans from jury service, we agree that it is “necessary to reconsider Batson’s test and the peremptory challenge system as a whole.” Miller-El, 125 S.Ct. at 2344 (Breyer, J.,concurring). While the Batson test was developed to eradicate racially discriminatory practices in selecting a jury, prosecuting and defending attorneys alike have manipulated Batson to a point that in many instances the voir dire process has devolved into “an exercise in finding race neutral reasons to justify racially motivated strikes.” Howell, 860 So. 2d at 766 (Graves, J., dissenting). When Batson was handed down, Justice Marshall predicted that “[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Batson, 476 U.S. at 105 (Marshall, J., concurring). Unfortunately, as this case has shown, Justice Marshall was correct in predicting that this problem would not subside.

State v. Flowers, supra, at 44-45.

48. The pervasive presence of implicit bias documented in hundreds of thousands of

self-administered tests completed by citizens across the country and confirmed by rigorous

empirical testing in a number of contexts should give us pause. This is especially the case when

considering how to remedy race-motivated decision-making in jury selection, given the

egregious harm race-motivated jury selection causes for the accused, the excluded jurors, and the

larger community. As demonstrated above, there are steps available to redress the effects of

conscious and unconscious bias, but if this Court determines that those procedures will fail to

cure the ailment, then it should prohibit the use of peremptory challenges altogether.

49. The defense respectfully asks that this Court to prohibit altogether the prosecution

from using peremptory strikes, or else to grant the recommended ground rules for creating a jury

selection process calculated to result in an impartial jury.

Respectfully submitted,

___________________________________ Counsel for #NAME#

Certificate of Service

I hereby certify that I have served a copy of the foregoing document upon the #PARISH#

Parish District Attorney’s Office, #ADDRESS#, Louisiana this ____ day of

_______________________, 2007.

__________________________________________

(###)

IN THE #PARISH NUMBER# JUDICIAL DISTRICT COURT

PARISH OF #PARISH NAME#

STATE OF LOUISIANA

STATE OF LOUISIANA,

Plaintiff

v.

#NAME#

Defendant

)

)

)

)

)

)

)

No. #CASE NUMBER#

Judge #JUDGE#, Presiding

ORDER

On the accused’s OMNIBUS MOTION TO ESTABLISH A CONSTITUTIONALLY

ADEQUATE FRAMEWORK FOR VOIR DIRE EXAMINATION, it is hereby ORDERED that

State show cause on ______ of _________ why said motion ought not be granted.

Done this ___ day of __________________, 20##.

____________________________________ JUDGE #JUDGE#

Please Serve: