A disappointing update to a troubling Batson case we’ve previously covered, Broadnax v. Davis. In a recent opinion, the U.S. Court of Appeals for the Fifth Circuit did exactly what we feared it might, ruling that the shocking and rare evidence of racial discrimination was procedurally barred from consideration. Let’s be clear: we’re talking about the prosecution of a 20-year old Black defendant who was convicted and sentenced to death by a jury that would have been all-white, had the trial judge not intervened and forced the state to take one juror of color that it tried to strike. This is a case where the prosecution’s own documents prove they were tracking the race of potential jurors and where the state used its peremptory strikes in its quest to eliminate all potential jurors of color. It just doesn’t get much more absurd or representative of the broken system than that. As they have done many times before in capital cases with crucially-important evidence of racial discrimination, the Fifth Circuit denied Broadnax’s appeal, thus ending this legal path to get the evidence considered on its merits.
Broadnax is a Dallas case, so the Fifth Circuit’s decision to block consideration of an alleged Batson violation is particularly outrageous because the Dallas District Attorney’s Office has already been rebuked by the courts for its atrocious practices regarding racial discrimination during jury selection. The U.S. Supreme Court put it this way in its 2005 Miller-El decision: “The final body of evidence confirming the conclusion here is that the Dallas County District Attorney’s Office had, for decades, followed a specific policy of systematically excluding blacks from juries.”
Four years after that ruling, in 2009, the Dallas DA’s office showed the same patterns while seating the Broadnax jury. After 47 potential jurors qualified to serve in the capital trial, both the defense and the State were given the chance to use peremptory strikes to exclude jurors they didn’t want on the jury. The State proceeded to strike 100 percent of the remaining prospective jurors of color from the pool (one Latinx person and seven Black people). As Broadnax’s 2016 habeas petition notes, he would have been tried by an all-white jury, but ”when prosecutors struck the lone remaining African- American on the venire (Juror Patterson), the trial court eventually sustained the defense’s objection, found a Batson violation, and voiced discomfort with the State’s effort to obtain an all-white jury.” The Judge apparently saw some of the state’s discrimination at trial, but it was years later, when Broadnax’s federal appeals began, that the District Attorney’s Office finally disclosed their jury selection notes, including the juror spreadsheet with names of potential Black jurors – and only potential Black jurors – indicated in bold.
Looking at the narrow legal question of whether the spreadsheet evidence should be considered by the lower district court, the Fifth Circuit panel found the new evidence was neither exculpatory nor Brady material. The court’s decision placed the spreadsheet “on essentially the same footing as any other evidence newly found, or created for the first time in federal habeas proceedings.” (Under the Pinholster decision, new evidence can only be introduced in federal court in very narrow circumstances; the federal courts focus instead on the evidence the state courts considered, even when new evidence is compelling, as it is in Broadnax.) The Fifth Circuit’s determination that the spreadsheet was prohibited from consideration under Pinholster is a familiar kind of failure for the criminal justice system, in which important information with serious constitutional ramifications is often barred from consideration due to technical, procedural rules. Time and again, we see the process destroys these kinds of claims of racial discrimination and leaves intact the insidious and unconstitutional practice of removing prospective jurors of color from the jury.
However, the Fifth Circuit ruling doesn’t stop at a denial on technical grounds. It further undermines any chance of holding the prosecutors in Broadnax’s case to account by endorsing the state’s preposterous rationalization for creating a racially-coded spreadsheet:
The spreadsheet, at most, places Broadnax’s Batson claim “in a stronger evidentiary position;” in no way does it “fundamentally alter” the preexisting claim. As the district court noted, the spreadsheet “does nothing more than indicate that the Dallas County District Attorney’s Office made a point of memorializing the ethnicity and gender of the remaining members of the jury venire prior to the exercise of its peremptory challenges.” … But the prosecution was still required to – and did – provide racially neutral reasons for each of the strikes. The spreadsheet alone is no smoking gun; it fails to render all those reasons merely pretextual.
The Fifth Circuit then absurdly repeats the district court’s argument that the prosecution demarcated the Black jurors in order to protect those jurors from possible racial discrimination, given the Dallas County DA’s Office’s problematic history with Batson. The circuit court writes:
Moreover, the district court observed that the Dallas County District Attorney’s Office has twice been criticized by the United States Supreme Court for the use of racially discriminatory peremptory strikes. The office would have had considerable motivation to identify which jury venire members belonged to a protected class when preparing to defend its use of peremptory challenges.
Misrepresenting an intentional, racially discriminatory practice designed to deny the constitutional rights of Black citizens – both jurors and defendants – is unconscionable. It’s doubly offensive to then claim the racial memo was created as a precaution meant to protect the right of Black citizens to be free of racial discrimination in jury selection. Remember, the prosecution struck every single Black juror; if the spreadsheet was some kind of reminder not to discriminate, it failed miserably. But obviously it was not that kind of reminder. And yet, the state successfully sold that lie to the Fifth Circuit. In a footnote, the tone-deaf court even goes so far as to point out that Broadnax was prosecuted while the office was headed by its first-ever Black District Attorney. That footnote was a not-so-subtle hint that, at least in the minds of the Fifth Circuit panel, racial discrimination simply couldn’t occur in a context with a Black boss. This thinking is deeply problematic on multiple levels, including the way it fails to understand just how ubiquitous and damaging this misconduct is or how it contributes to racially-skewed sentencing outcomes. Mountains of data tell us that in cases like this, with a Black defendant and a white victim, the state is far more likely to secure a conviction and/or death sentence if they can manage to seat an all-white or almost all-white jury, as happened here. That’s why prosecutors frequently choose to commit Batson violations in the first place – because optimizing their chance of winning the outcomes they seek is easier when they systemically exclude Black jurors.
We’re hopeful that the U.S. Supreme Court might agree to consider the case. It should not take a spreadsheet that telegraphs the prosecution’s plan to exclude jurors of color to establish a Batson violation. But, for the courts to turn their back on such evidence when it is discovered is nothing short of a judicial endorsement of race discrimination. Only one court now has an opportunity to address a blatant injustice. They should do it, not only for a just outcome for Broadnax, but since the Dallas DA’s office is still defending its illicit tactics and winning that argument in the lower courts.
