Read the newest Batson case from the Sixth Circuit and you'll treat courtroom cameras with new respect.
"The other one is already off"
The voir dire in Frederick Harris's 1998 trial for kidnapping and robbery must have seemed absolutely typical. The prosecutor used four peremptory challenges to strike black jurors, offered a race-neutral explanation for each strike, and got a conviction.
There was only one problem. The courtroom was equipped with video cameras to record certain proceedings, and as the prosecution team huddled to choose their last strike, the cameras were on. The lead prosecutor didn't know he was being recorded as he recapped the strikes so far:
Okay, this is who we got guys so far. We got 76, [name deleted]. That’s the guy we at first liked, but who had been accused by his girlfriend. We’ve got 128, [name deleted], kind of hippy, with the beard and the hair, who sat behind [name deleted]. He was on the not guilty jury. We’ve got [name deleted], 82. She was the last person on the second row. She was also a juror on the carrying concealed deadly weapon charge, which was a 10-2 to acquit. We’ve got [name deleted], who is the girl at Seiller and Handmaker [a local law firm]. We’ve got 77 [name deleted], who you originally liked, but who was a juror on the Robbery I case. We’ve got [name deleted], 138. She was the black female who said her cousins were charged and convicted of armed robbery. We’ve got [name deleted], 49, she’s the old lady, the black lady. The other one is already off. Then there’s [name deleted], 160, the first guy out here, who was sleeping. We’ve got one more to go. What do you guys think?
What "other one"? The only other black female, something a prosecutor might say if he was trying to strike them all? Or, as the prosecutor later claimed, another juror who had been joking with No. 49, a juror who was white?
The trial judge never had a chance to ask. The tape was discovered after Harris was sentenced (to 75 years) but before his first appeal, and it has been the centerpiece of divided opinions ever since, first in the Kentucky state system and now in the federal courts on habeas. Today, for the first time, Harris won. The Kentucky Supreme Court had reviewed the tape and decided that the prosecutor's words didn't mean his strikes were based on race. In Harris v. Haeberlin today, the Sixth Circuit held that the Kentucky Supreme Court should have remanded the case to the Kentucky trial court to assess the prosecutor's credibility in light of the tape.
Key points from this one:
- The Supreme Court's Batson jurisprudence isn't easy. The Harris majority sifted through a long list of cases to get to its ruling; a spirited dissent worked through the same list to the opposite conclusion.
- Let's be honest: any lawyer could have said what's on that tape. A racist prosecutor could have said it; so could a completely innocent lawyer just trying to be clear about whom he meant. (Which is exactly why the Sixth Circuit majority said the case should have gone back to the trial court, because it showed the prosecutor's "demeanor," which the trial judge could have analyzed in context.)
- Congratulations to David Debold of Gibson Dunn & Crutcher LLP (and, we can guess, a happy team of lawyers who worked with him), Harris's lawyers in the Sixth Circuit.
- Watch out for courtroom cameras.
(Photo by halloween jack at http://www.flickr.com/photos/halloweenjack/47269493/; license details there.)