What Innocent Victims Have to Teach Politicians

On March 15, 2019 By admin

• Breaking News

At least one terrorist murdered forty-nine people in Christchurch, New Zealand, today as they gathered to worship at two mosques. The gunman is believed to have published a manifesto urging violence to achieve a white ethno-state.

Words offer little solace when innocents are murdered. But they can light the way forward, as Martin Luther King, Jr. showed in the 1963 eulogy he delivered for the victims of another white supremacist terror attack on a house of worship.

He declared that the slaughtered did not die in vain, for “God still has a way of wringing good out of evil,” and its victims have something to tell us in their deaths.

“They have something to say to every politician who has fed his constituents with the stale bread of hatred and the spoiled meat of racism,” King said. “They say to us that we must be concerned not merely about who murdered them, but about the system, the way of life, the philosophy which produced the murderers.”

Do you support any politician who seeks power in part by stoking group hatred, or excuse Internet posters who engage in demonization or calls for violence, telling yourself they are just words, as if words are not actions that matter? If so, may this atrocity clarify the stakes and inspire a redemptive change.

Friday round-up

On March 15, 2019 By admin

• Breaking News

Briefly:

• At The National Law Journal (subscription or registration required), Tony Mauro reports that “[a] gathering to celebrate U.S. Supreme Court Justice Ruth Bader Ginsburg’s 86th birthday Friday afternoon won’t be an ordinary event”: “500 of her enthusiastic followers have decided to follow her lead of physical fitness by dropping to the ground and planking in front of the Supreme Court.”
• At Law.com, David Ogden weighs in on Flowers v. Mississippi, which asks whether a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution, arguing that “Flowers’ case presents an important opportunity to show the public that equal protection under the law is meaningful, and to reinforce the U.S. Supreme Court’s 1986 Batson v. Kentucky ruling prohibiting the use of a prosecutor’s peremptory strikes to eliminate potential jurors based on their race.”
• In an op-ed for The New York Times, Linda Greenhouse explains why, in The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, “[i]t really matters how the American Humanist Association and the other nonreligious plaintiffs lose.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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This is what life is like in Venezuela when the lights go out

On March 15, 2019 By admin

• Breaking News

CARACAS — If you’ve ever been inconvenienced by a power outage, imagine living in a complete blackout amid a food shortage, a medicine shortage, and a political power struggle that has pitted Venezuelan President Nicolas Maduro’s embattled government against the U.S.-backed opposition party.

That’s what many Venezuelans have been facing every evening since March 7, when a massive blackout plunged most of the country into darkness. And while power has has been almost fully restored, according to the country’s communications minister, Venezuelans are still coming to terms with a historic outage that left millions of people in the dark.

Some people went without electricity for more than 96 hours. Schools were closed, hospitals struggled to keep patients alive, and basic necessities like clean water and fresh food became even harder to come by.

“I handed out the food so it wouldn’t go to waste,” Luisa Changir, a 60-year-old Caracas resident, told VICE News on Monday. “Water is pumped with electricity, so we don’t have any now.”

Changir is a diabetic, and being without power also meant having to use insulin that had not been properly refrigerated.

“Things are looking quite bleak for us here,” she said.

Maduro’s government said a failure of the automatic control system at the Guri hydroelectric plant — the country’s main producer of electricity — was behind the power outage. He blamed the failure on his opponents, whom he accused of trying to “sabotage” him. But Guri’s facilities have long been overstretched, and blackouts are not new to Venezuela: In the state of Zulia, for example, people have been dealing with multiple daily power outages for more than a year.

“We don’t have any accurate information about when the service will return to normal,” Changir said.

Still, Maduro has reason to be worried if the blackouts continue. With his grip on power already threatened by an increasingly popular opposition candidate, prolonged national power outages could finally push the military, whose support is crucial to Maduro’s rule, against the embattled president.

This segment originally aired March 12, 2019, on VICE News Tonight on HBO.

Argument preview: Justices to weigh allegations of racial discrimination in jury selection

On March 15, 2019 By admin

• Breaking News

During jury selection, some potential jurors can be removed “for cause” – that is, when a judge believes that a juror cannot be impartial in deciding the case. The lawyers trying the case also have a certain number of “peremptory strikes,” which allow them to reject jurors without providing a reason. However, the Supreme Court ruled in Batson v. Kentucky that prosecutors cannot use their peremptory strikes to remove prospective jurors from the jury pool based only on the jurors’ race. Next week the Supreme Court will hear oral argument in the case of a Mississippi death-row inmate who was convicted by a jury that included just one African-American juror. The inmate, Curtis Flowers, argues that the jury selection in his case violated the Constitution; in particular, he contends, the lower courts should have considered the lead prosecutor’s history of racially motivated strikes.

The 2010 trial at the heart of the Supreme Court proceedings was the sixth time that Flowers – who is African American – had been tried for the 1996 murders of four people in a Mississippi furniture store. The local district attorney, Doug Evans, served as the lead prosecutor at all six of the trials.

At each of his first two trials, Flowers faced only a single murder charge. Evans used his peremptory strikes to eliminate all 10 potential African-American jurors. Flowers was convicted and sentenced to death, but both convictions were later reversed by the Mississippi Supreme Court, which found that Evans had engaged in intentional misconduct, such as introducing evidence of the other murders.

At his third trial, Flowers was convicted and sentenced to death for the murder of all four victims. But the Mississippi Supreme Court also overturned those convictions. Evans had used all 15 of his peremptory strikes to remove African-American members of the jury pool, the state court ruled, in violation of the U.S. Supreme Court’s decision in Batson.

When Flowers stood trial a fourth time, Evans used 11 peremptory strikes to remove potential African-American jurors, resulting in a jury with seven whites and five African-Americans. That jury deadlocked, as did the jury in Flowers’ fifth trial; Evans used five peremptory strikes in that trial, but there is no record of the race of the jurors whom he struck.

At Flowers’ sixth trial, six of the 26 potential jurors in the jury pool were African-American. Evans allowed the first one to be seated but then struck the next five prospective African-American jurors, resulting in a jury of 11 white jurors and just one African-American. Flowers was convicted and sentenced to death for all four murders.

After the Mississippi Supreme Court upheld Flowers’ conviction and sentence, Flowers asked the U.S. Supreme Court to weigh in. The justices sent the case back for the state courts to take another look in light of their 2016 decision in Foster v. Chatman, holding that the use of peremptory strikes to remove potential African-American jurors, as reflected in prosecutors’ notes, was unconstitutional. On remand, the state court again upheld Flowers’ conviction and sentence. Flowers returned to the U.S. Supreme Court, which agreed last fall to take up his case.

In their briefs in the Supreme Court, Flowers and his supporters emphasize that Evans has a “lengthy and stark” record of striking African-American jurors. During his 25 years in the district attorney’s office, the NAACP Legal Defense & Educational Fund notes, Evans has “used peremptory challenges on African American jurors at 4.4 times the rate of white jurors.” And in his prosecutions of Flowers specifically, Flowers stresses, Evans used his peremptory challenges to strike virtually all the African-American jurors that he could. During the first four trials, he struck 36 African-American jurors; during the sixth trial, he allowed the first African-American juror to serve – no doubt, Flowers suggests, because Evans had learned from the previous trials, in which Flowers’ convictions had been reversed, and wanted to hide his true motives. But Evans then struck the remaining five, offering what Flowers characterizes as excuses for removing them.

What’s more, Flowers continues, Evans asked potential African-American jurors more questions than their white counterparts, presumably to look for possible bias: He asked the five potential African-American jurors whom he struck a total of 145 questions, while he asked the 11 white jurors who were seated on the jury a total of 12 questions. And Evans cited relationships with either Flowers’ family members or defense witnesses as reasons for striking African-American jurors, even though white jurors who were seated on the jury also knew family members or defense witnesses. Evans also “made no effort to follow up when white panelists disclosed facts or circumstances suggestive of bias,” Flowers says, but Evans “worked hard” to show that African-American jurors were biased because they had been sued over money owed to the business where the crime occurred, even though the lawsuits had been resolved long ago.

The Mississippi Supreme Court should have looked at all this evidence, Flowers contends. Instead, it regarded Evans’ track record of peremptory strikes as irrelevant and focused on whether Evans had offered a reason, unrelated to race, that “was neither directly contradicted by the record nor squarely applicable to a white juror he did not strike” – which, in the state court’s view, he had. But if you look at all the evidence, Flowers insists, keeping in mind Evans’ history, it’s clear that “race, once more, was the determining factor in both his questioning and his strikes.”

Flowers concedes that Evans’ history of discrimination does not, standing alone, show that Evans discriminated when he struck potential African-American jurors in Flowers’ sixth trial. But, Flowers adds, that history should definitely be considered when determining whether Evans’ explanations for those strikes “should be accepted as truthful or rejected as pretexts for discrimination.”

The state urges the justices to allow Flowers’ convictions and death sentence to stand. If Flowers were to win here, it argues, it would essentially mean the end of any peremptory challenges whenever a prosecutor has ever violated Batson in the past. But that can’t be right, the state asserts. When the Mississippi Supreme Court found that Evans had violated Batson during Flowers’ third trial, Flowers got a new trial. Flowers should not automatically be entitled to another new trial now based on that same violation, the state maintains. Instead, what matters is what happened in his sixth and most recent trial.

Of course, the state acknowledges, a prosecutor’s past can be considered if it is relevant – and the lower courts did consider it in this case. But, as the lower courts concluded, Evans had valid reasons, unrelated to race, for striking each of the five African-American jurors. For example, one juror worked with Flowers’ father and had been sued by the furniture store after the murders. Another juror worked with Flowers’ sister and raised doubts in her jury questionnaire about whether she would impose the death penalty. By contrast, none of the white jurors who were seated on the jury worked with any of Flowers’ family members, had been sued by the furniture store or expressed doubts about the death penalty.

Finally, the state stresses that appellate courts should defer to the trial court’s conclusions about whether a prosecutor’s decision to strike a juror was truly unrelated to race. Because the trial court is able to observe the prosecutor in person and is therefore in the best position to review the prosecutor’s credibility and demeanor, the state explains, appeals courts should only overrule the trial court’s conclusions when they are clearly wrong – which, the state argues, they were not in this case.

A decision is expected by summer.

This post was originally published at Howe on the Court.

***

Past cases linked to in this post:

Batson v. Kentucky, 476 U.S. 79 (1986)
Foster v. Chatman, 136 S. Ct. 1737 (2016)

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