Thread by @robertltsai

Today’s writing inspiration: Charles Ogletree, known affectionately as “Tree” to friends. Ogletree, an alum of PDS, taught at @Harvard_Law. In 1990, Tree, Steve Bright & Bryan Stevenson worked on the appeal of James Ford, who had an IQ of 73 and was under a death sentence.

During Ford’s trial, the prosecution used 9/10 peremptory strikes against black jurors. Ford was a black man accused of killing a white woman. His lawyers knew that local prosecutors had a reputation for aggressively removing black jurors so they filed a pretrial motion. /2

His lawyers cited the Sixth Amendment, but didn’t mention the 14th Amendment. But both the judge and the prosecution understood the motion raised a jury composition issue and alleged racial discrimination in the state’s jury strikes. /3

The prosecutor asked the judge whether he should explain why he removed so many black jurors, but the judge said there was no need to do so under existing law. He just denied the defense motion. /4

Under Swain v. Alabama, SCOTUS made it nearly impossible for a defendant to prevail when he believed a prosecutor removed a juror on account of race. Prosecutors don’t have to give reasons for peremptory challenges and Swain demanded proof of a systematic practice. /5

While Ford’s cert. petition was pending before SCOTUS, Batson v. KY came down and made it slightly easier for defendants to raise equality challenges to jury strikes. SCOTUS vacated Ford’s conviction and sent the case back to GA Sup. Ct, ordering it to review under Batson. /6

If a defendant timely objected to the state’s jury strikes and could make out a prima facie case (by pointing to a suspicious pattern even in a single case), then under Batson a prosecutor now had to give a race neutral reason for his strikes and the judge would decide. /7

The Georgia Supreme Court refused to consider Ford’s case under Batson. In fact, it didn’t even allow further briefing on remand. Instead, it applied a new procedural rule re: when Batson claims had to be raised to bar Ford’s claim. /8

In highly convoluted logic, the GA Sup Ct. said Ford raised his Swain claim and lost on the merits and couldn’t raise the Batson claim on appeal for the first time (claiming that the two were different claims). /9

The upshot was that if the GA Sup. Ct. had its way, Ford would not get the benefit of the SCOTUS opinion even though it had been made applicable to cases on appeal like Ford. So they had to return to SCOTUS and hope it would act again, and swat back a defiant state court. /10

Steve and Bryan convinced Tree to argue Ford’s case before SCOTUS. At argument, he told the justices that the GA Sup Ct was splitting hairs by treating Batson as if it had created a new constitutional right rather than clarified how judges should apply an existing one. /11

Justice Souter, writing for a unanimous SCOTUS, overturned the GA Sup. Ct and again remanded for further proceedings. Here’s the money shot. /12

In other words, Ford had raised the jury strike issue at the time and that’s what mattered most. The substantive law might change, as it often does, but procedural rules shouldn’t be bent out of shape or applied inconsistently so as to lead to harsh results. /13

As I discuss in my forthcoming book, this case is part of a broader effort by Steve, Bryan, @CliveSSmith and others to challenge parts of the legal system that tolerate racist practices and all-white juries to persist. As they came to see it, judges are part of the problem. /end