The Constitution prohibits lawyers from excluding prospective jurors on the basis of race. This basic tenet of equal protection, enshrined in the famous case Batson v Kentucky (1986), may be unfamiliar to an entire prosecutors’ office in Clark County, Nevada. Looking at a recent spate of judicial decisions granting new trials to criminal defendants in the Las Vegas area, one could fairly conclude that prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it. Fortunately, Nevada’s Supreme Court has largely stepped up and enforced the law (joining state courts in Washington and California in this effort, but standing apart from state courts in Alabama and Georgia that fail to enforce Batson).
Remarkably, the Supreme Court of Nevada has reversed Clark County convictions in at least four cases in the past four years. Three of these cases had landed defendants on the state’s death row. Batson is strong medicine, but these reversals have not yet alleviated the county’s dual addiction to the death penalty and prosecutorial misconduct.
In 2014, the state high court reversed the conviction and death sentence of Charles Conner, a man convicted in a cold case DNA-match prosecution. Rather than accept the defendant’s offer to plead guilty and serve a life-without-parole sentence, the prosecution decided to take the case to trial and seek the death penalty. While picking the jury, the State used nine peremptory strikes in total, excluding minority jurors with six of them. In response to the defendant’s Batson objection, the prosecutor gave a generic explanation, arguing that all of these prospective jurors were “weak” on their willingness to give the death penalty. The defense argued that this generic explanation was legally insufficient and factually untrue for some jurors, and further argued that the prosecution should give individualized reasons for each strike. Observing that it would “not pay extra fees for my kid to be at daycare after 6:00 o’clock,” the court “quickly” took the State’s individual reasons, gave the defendant no opportunity to respond, denied the challenge, and swore in the jury.
The Supreme Court of Nevada was not impressed with the trial court’s management of the Batson proceedings, and even less so with the quality of the State’s purported reasons for striking one juror in particular. As the defendant did at trial, the court lifted up juror 157, an African-American man who was not weak on the death penalty. He was an Air Force Reserve officer and a full-time correctional officer, and had before served as a naval officer and police officer. The court explained:
“Conner reminded the district court that this prospective juror told both parties during voir dire that he could consider all three forms of punishment and was not concerned about his ability to impose the death penalty. . . . Furthermore, a review of his answers during voir dire reveals that he did not switch any of his answers from what he wrote on his questionnaire. Thus, the State’s general explanations for striking this prospective juror were belied by the record. A race-neutral explanation that is belied by the record is evidence of purposeful discrimination.”
When the trial court invited the prosecution to give individualized reasons, it “abandoned its two general explanations” and gave two new ones. The Nevada Supreme Court first noted that it was inherently skeptical of the new explanations, which “reek[ed] of afterthought.” Then it shredded both of them. On the State’s claim that juror 157 would have too much influence in the jury room, the court sensibly found: “we find it unusual that the State based its decision on this prospective juror’s law enforcement experience.” In other words, it is disingenuous for the prosecution to pretend that it does not want someone with the very work experience juror 157 brought to the courthouse. As for the second claim—that juror 157 believed in the possibility a person could be rehabilitated—the court identified several other non-minority jurors who shared similar views but about whom the State expressed no reservations. With that, prosecutors forced through a costly trial resulting in nothing more than a vacated conviction, a case undone by the State’s choice to racially discriminate.
Two years later, the Supreme Court of Nevada struck down another capital conviction on Batson grounds, this time in the case of Jason McCarty. Yet again, Clark County prosecutors disproportionately struck qualified prospective minority jurors, excluding two of three eligible African-American jurors. Again, the prosecution initially gave one reason for its strike of one juror (she had worked in a strip club), then relied on another explanation later on (that her brother had committed a crime years earlier). And again, the trial court failed to identify the State’s pretextual justifications. Relying on clear precedent from the U.S. Supreme Court, the Nevada Supreme Court found a pattern of disparate treatment. The prosecution had only run the type of background check on which it relied to prove the excluded juror had worked in a strip club on two of the 36 potential jurors, showing that this was not a genuine across-the-board concern. The prosecutors also disparately questioned minority jurors who indicated that a loved one had a criminal history: they asked the relevant African-American juror 15 follow-up questions, but asked a similarly-situated white juror just a single leading follow-up question that only required a ‘yes’ or ‘no’ response. In granting Mr. McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.”
Two other cases from Clark County bear mentioning. In State v. Bradford, the court reversed a capital conviction under Batson (the order can currently be found at a link on this page). The primary issue was that, before conducting the Batson hearing, the trial court dismissed prospective jurors who had been struck, thereby curtailing the possibility of recourse if discrimination could be proven. While that error rests with the trial judge and not necessarily the prosecutors, the Clark County DA’s recent history of discrimination may have motivated the Supreme Court of Nevada to ensure that defendants had recourse readily available. Finally, in State v. Sanchez—a non-capital case—the state supreme court found that the State’s reasons for striking the only two available African-American prospective jurors were pretextual, and that discrimination was the real reason. It reached this conclusion by noting that when the same justifications also applied equally to white prospective jurors, the issues at hand apparently did not worry the State in the same way. This comparative juror analysis—when done meaningfully—is a powerful tool for sniffing out discrimination. (To see the Sanchez opinion, click on the “Final Order” here.)
Perhaps it is naïve to hope that these cases can motivate changes in the way Clark County approaches jury selection. After all, other offices that have been reversed repeatedly continue to engage in unethical and unconstitutional behavior. And in Clark County, it is not just Batson that bites. A history of Brady violations lurk as well. Serial prosecutorial misconduct was most recently underscored by the full pardon of Fred Steese, an innocent man pushed into an Alford plea deal by aggressive prosecutors. Whatever is going on in Vegas, it has serious ramifications for individual constitutional rights and public safety. It’s reassuring to know that at least when it comes to Clark County’s problems, it appears that the highest level of the state’s judiciary is equipped to remedy the race discrimination and enforce the Constitution’s demand for equal protection.