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tv   Politics and Public Policy Today  CSPAN  June 22, 2019 12:06am-1:02am EDT

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c-span, your unfiltered view of government. this week on newsmakers, mike rogers of alabama, a ranking member of the homeland security iran,tee, talks about immigration, and border security funding, sunday at 10 a.m. here on c-span. watch the program on our website or listen on our free app. today, the supreme court ruled that a mississippi whencutor violated the law he dismissed potential jurors because of their race. an african-american death row inmate in mississippi was sentenced for killing four people at a furniture store in 1996. two ofhad six trials and them were declared ms. trials. legal team had constitutional concerns with the
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district attorney who tried each of the cases and his methods to remove potential african-american jurors in the selection process. judge brett kavanaugh wrote the majority opinion. argumenthe oil -- oral from march. we will hear argument this morning in case 179572. flowers versus mississippi. ms. johnson. >> may it please the court. the only possible interpretation of all of the evidence viewed cumulatively is that doug evans began with an unconstitutional end in mind to seat as few african-american jurors as he could. the numbers alone are striking. trials, mr. four evans exercised 36 challenges, all of them against
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african-american jurors. exercisedx trial, he five out of six of his challenges against african-american jurors. if we look at the numbers of his regarding his questioning, they are likewise stark. struckd of the african-american jurors an average of 29 questions. jurors an average of 1.1 question. numbers do not stand alone. mr. evans was twice found to have discriminated on the basis of race in the exercise of numbd alone. his challenges against african-american dependence in trials of the same case against the same defendant. a recordno one who has of discrimination adjudicated like that of mr. evans.
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>> the history of the case prior to this trial is very troubling. you have summarized that. it is cause for concern and it is relevant to the decision that ultimately has to be made in the case. suggesting i am not this is the way this should be analyzed but if we were to disregard everything that happened before and after this trial anwe looked at the strikes of the black perspective -- prospective jurors as we other case, do you think you would have much chance of winning? >> the evidence still is clear and convincing that mr. evans acted with discriminatory motivation in this case even if his history and the reasons he was unwilling to tell the truth. >> if we look at the jurors in question, one by one, there are
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aspects that i think would cause any prosecutor anywhere to want to get that jury, that juror off the jury. there is a juror who said that she could not view the evidence objectively. she could not make a decision based just on the evidence. there is one who said that she because of her acquaintance with members of the family, she would lean toward the defendant. another one who admitted that she may have -- made a false statement on her juror questionnaire because she would say anything to get off the jury. do you think those are claims that would succeed if this troubling history had not preceded this case? has -- court has demanded a sensitive inquiry into the circumstances that prove racial discrimination and history,ing aside this there are many circumstances motivation.ggest
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there is an extraordinary record of disparate questioning and the questioning is not limited to those numbers but to the tone of this questioning. one of the responses that you quoted came from an extremely aggressive pursuit of an african-american juror who initially said she would not be troubled and said it is possible. a prosecutor could take that approach with every juror. if he took that aggressive approach with every juror, there would be nothing to complain about but he did not take that approach with white jurors. and then there is the out-of-court investigation of three african-american jurors. and then there are -- >> what is wrong with that. putting aside the reasons be suspicious. i did not work, i don't work closely with the defendant's sister. i don't work close to the defendant's sister and the prosecutor has reason to suspect
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that is not true. is there something wrong with the prosecutor going to the at thatlations person place of employment and bringing that person and to testify they work nine to 10 inches apart, is there something wrong with that? >> there's nothing wrong with that if there was reason to disbelieve. the juror volunteered that she knew her, that she worked in that place. mr. evans cited no reason that he should not believe her. but also what happens after that is somewhat suspicious which is he bring someone in to say, they worked very close together and that someone says and i could produce the evidence and when asked to produce the evidence, the record says she does not come back with that evidence. prosecutorrtainly, a and a rich prosecutor might investigate all. >> was this ready that same day?
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>> he brought the witness back the next day. >> what is the strongest strike? >> must, the clearest case is carolyn wright. made carolyn wright, he three false statements. the first statement he made was that her wages were garnished. >> we have found in the record with the state exhibit on it a judgment that shows that her wages are garnished. >> no. there is a line that shows there was such a request but the trial court and the mississippi supreme court looked at that record and found that her wages had not been garnished. >> we can look at the judgment but the fact remains that she was them a this was, one of the victims was the proprietor of the family-owned store, right? that is a family-owned store. the store suitor.
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-- sued her. >> the victim had not sued her. the son-in-law later suitor. >> normally would and that, put aside the history. we cannot do it but if you did, do you think the prosecutor or any attorney would be very wary had been a juror who sued by one of the parties? >> i think that if this prosecutor had pursued by his with respect to white jurors and african-american jurors and may that strike, that would be a strike that would be a permissible strike but in fact, he did not do that. i do want to notice that this symptoms. four it seems unlikely that a person would be highest by a subsequent suit of one of their relatives. even if we thought that were true, one would have imagined the prosecutor would have inquired with respect to the
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other victims. >> was your question asked of the entire array whether they debts to the store? >> yes. there was no question asked with thets or disputes other three victims. nor was there an inquiry into bias that i think any rational prosecutor would have made if concerned truly about bias which was lawsuits, prosecutions of the jurors and their close relatives by his office. inquiryecutor made no about that. if you were worried about bias, you would be worried about that. miss wright how she felt about that suit and whether it would affect her? >> she was asked and when she was asked what she said was she had paid the debt and she had no ill will toward the parties. and indeed, if we follow up on
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this reason, this reason is especially suspicious. he cited the same reason with respect to edith burnside. falseed, he repeated the statements that her wages have been garnished yet -- garnished. and then he said that he was striking her in part on that basis. but ms. burnside -- >> could you go back for a second, you said to justice alito that the record, the state record that says something about garnishment, that the state board found that was not adequate. could you ask when why not question mark the judgment in the record. it is a form in the record. >> the form in the record reflects a suit and there is a check by garnishment. if you look at the order of the end there is no irishman order. the trial court looked at that
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and the mississippi supreme court looked at that and they are the export -- experts and they said there was no garnished. >> what if it turned out there were garnishment, how would that affect your argument? >> that would mean he only made to false statements about the juror. the two false statements were and new knew his sister flowers' sister. then there would be too. if i could go back for a moment to ms. burnside when he repeated the story. is pretext of this reason apparent when you look at ms. burnside. ms. burnside worked for her. caring for her mother. ms. burnside was helped during her divorce. whatever she might have felt negative about the son-in-law, the feeling she would have had about the victim herself could only have been positive. and yet he cited the same
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reason. when you look at that, what we see -- >> she did not want to judge anybody, she said repeatedly. >> she did not want to judge anyone, she did not -- he did say that. >> you think that is not a legitimate reason for striking a juror who will have to judge whether someone who is accused of the serious crime is guilty or not? >> that is a legitimate reason excuseiking a judge -- me. striking a juror. the problem is not whether the reason is a legitimate reason but whether the reason was pretext and when we look at what he did with respect to citing the relationship having been sued by the party it looks like everything she is saying is pretext. if i could go back to the rest of your question about juror three, there were
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misrepresentations and they cited the number of defense witnesses that she knew. the prosecutor did not question prospective white jurors about the relationships with defense witnesses nor did he strike them when he had an opportunity to do so. quick she also worked with the defendant's father? >> she worked in the same location as the defendant's father. >> within the same store. >> she worked at the same store. trialas the -- what the court described it as. hen she was asked, does still work there, she did not even know if she still work there. to there?ll work >> she did. >> i thought she had left. >> that is another juror. with respect to cora flowers. what i -- and she did not know if he still works there.
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kamala -- her with pamela. that comparison is the one i am most interested in. >> i was about to do that. i think that it is true working with someone under some circumstances might produce bias. it is interesting that the only thing she said that might suggest the closeness of the relationship is she did not know if he still work there and evans did not ask about the closeness of the relationship nor did she worry about the closeness of the relationship and five of flowers' family members. bank where all five of them came. she -- >> she knew the father as well. >> yes, she knew the father and the mother and two sisters and a brother. doug evans -- how is the relationship
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different from someone who is a coworker who encounters someone in the work setting on a daily basis? >> it is a different relationship or it could be a very different relationship. we can't even know the closeness of either relationship unless there was inquiry. but dog evans did not make that kind of inquiry and did what he said. professional relationship. he did not ask whether she had a close relationship, whether she was worried. he instead presumed, reassured everyone. >> the questions that we have been addressing here, the same sort of questions you would get in a typical case looking at the circumstances of the potential jurors that were struck in this case. as my colleagues have recognized , the case is unusual because you have the extensive history
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and that is probably why the case is here for review. role weed because the adopt will not apply in other cases. how far your argument that we need to look at the past history is pertinent. one batchsecutor had in violation and his 30 year career 20 years ago, is that something that should be wrought out and pertinent in the assessment of the current challenges? >> may i say one thing about carolyn wright that i don't want to forget? though -- the other thing that is noteworthy is she put on her questionnaire she was strongly in favor of the death penalty. when you look at her as a whole, the prosecutor looking in a colorblind way would have it attracted. now for your question and i apologize. i was worried i would not it
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back to that. i think this is an extra your case. cases and ithe cannot find any case -- years, istion is 30 that pertinent to the consideration of the current case? >> i did not understand the question. but it is pertinent weekly probative. i think when we conduct a sensitive inquiry we look as we went in a criminal case. we look at how recent the fabrication has been. whether it is on a relatively similar matter whether the person has the same motive. a case that occurred 30 years ago would be different in terms of motive. it also would be different in terms of the established law of this court. someone who violates that before it is announced or violates thatiately that -- after,
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is less probative than someone who has done so. >> what is the role he would have us adopt as a general rule, not just in a particular case as extreme as this one. >> the general rule is a rule that you have already adopted, which is that in stage three, upon factor that bears credibility is relevant. that is the general rule and i suppose if we say that in another way, the mississippi supreme court was -- asked only the question of is there a reason for this juror left standing that is not contradicted by the record and matched by a white juror question mark that is not the right rule. the right rule is a sensitive inquiry. >> in return. >> you go first. >> and want to pursue the chief justices questions further. i can understand what you will have us do in the next case. let's suppose this case, file six was perfect and strikes were
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without taint otherwise. but we have this history with this prosecutor. with that be a problem still are no violation of those circumstances? >> if there were not eight misrepresentations. >> you are fighting the hypothetical again. let's suppose that this case, there were strikes they were explained by nondiscriminatory reasons. here we have this prosecutor with this history. how should the court assess the case like that? >> if there are other no instances the defendant has not proof byurden of proving prior discrimination. >> we need this from a nation in this trial to have a medicine violation.
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-- madison violation. >> swain said history was the only way you could prove a violation. they said you can look at the individual case but madsen did not say you no longer take account of the history. --r reading of swain [indiscernible] i think that is entirely correct. even in swain, a history was relevant and to look more broadly in arlington heights, this court said history is relevant. is not a new rule about history being relevant. the mississippi supreme court ignored what this court has said about history being relevant. iseverything the court said [indiscernible] to the history.
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what are we to make of that? >> if the court had taken into account the history could not have come to this conclusion. there's many reasons in the opinion to believe they did not. they said considering the history, it is not alter our opinion and they pasted in their prior opinion that was history blind. they said history does not undermine his stated reasons. that is wrong. it undermined those reasons. it may or may not be sufficient for anistory of a desire of-white tour, a history willingness to miley the constitution and a history of willingness to make all statements, those things in the past with respect to three other jurors, that does [indiscernible] and when we look at what they did there is no point in which they say, yes, we are more skeptical of the reasons that he stated because he was dishonest
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before. or my yes, when i look at the false statements he made here, the eight false statements he made here, those match with false statements he made before. they never did that. they did not consider its history nor do they consider anything else that would be consistent with the insistence we look at the totality of the circumstances and conduct a sensitive inquiry. one of your complaints is there were more questions asked of african-americans potential jurors but that was not true in wright's case. she was asked only three questions. is that correct? districtlevance of the questioning is not nearly to ask how many questions this juror was asked. in -- it might be as the
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mississippi per supreme court said that with respect to some jurors it was legitimate to ask more questions because more of them new flowers' family. the point still remains and this is the point that this court made, disparate questioning of even another juror is relevant. it does suggest the prosecutor is looking for reasons to strike an african american juror as opposed to being interested in bias or death penalty attitudes or anything else. >> sometime ago justice alito asked you about the prosecutor's ' investigation of certain potential jurors. how many jurors did the prosecutor separately allstigate and african-american? >> all of them african-american and when defense counsel said he is investigating african-american jurors, there is no evidence that he investigated anyone else.
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he said nothing. he had an opportunity to say i have investigated everyone and he did not say that. >> can i ask you about the disparate questioning. you refer to something that struck me as i read through all of this. cases, it ise some a small town. where everybody knows everybody, apparently or many people know many people. town a largely segregated that you might think african americans knew more african-americans than they would whites or vice versa. account for some of the differential questioning? in other words, sort of looking at the environment and saying i whether xsh more on new why because given the circumstances of the town, x might have well have known why. >> if -- the mississippi supreme
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court accounted for questioning and that is correct. there are more african american jurors who report witnesses -- relationships with the defense's family. there are white jurors who report such relationships. aboutosecutor did not ask those relationships. >> where they relationships because of working at the same place or living in the same neighborhood? in the case of the white jurors? >> none of the relationships were working at the same place. asked about whom they knew, white jurors responded that they knew defense witnesses and they were not questioned about those witnesses. we can't really know what the
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nations of those -- nature of those relationships are if we do not ask questions. >> is that in your brief somewhere? >> it is in the brief. >> i found it strange, maybe -- or unusual, not strange, unusual, that there were some white jurors who had people accused of crimes in jail, relatives accused of crimes and jails. questionsre there any about how that affected those white jurors? >> no. there were no questions about that at all. three of them and there was a brief question for two of them. i think that goes to the question of was he really investigating bias when you ask .he question about being sued if you are investigating bias you would be concerned about i.s. against your office. he was not interested in that.
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courts permission i will reserve the rest of my time. >> thank you, counsel. >> may it please the court. case isory in this troubling. but the history is confined to mr. chiefand is justice pointed out, it is unusual. trialare, this is the six in this small town, a small town the questioning of whether the makeup or limited number of individuals in the town was one of the reasons for follow-up is accurate. let me say the mississippi
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supreme court's decision was commensurate with batson and its progeny. i would return to justice gorsuch's question of, if we disengage this troubling history -- i agree i am not suggesting as justice alito said, however if we take that out of the case, we don't have any tank. >> could the attorney general have said, enough already, we are going to send one of our own people to try this case, preferably in a different county where so many people don't know so many other people? could he have done that? ag davis: the attorney general's office is allowed to take over only if requested. we were not so requested. >> you said if we take the history out of the case. we can't. ag davis: that is not what i am saying.
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>> 42 potential african-americans, 41 are stricken. >> that is relevant, yes, your honor. court has held, history is part of the consideration. jus. sotomayor: you agree it is not only adjudicated violations that are relevant, but the number of strikes such as justice kavanaugh listed? ag davis: i do. the strikes were unique. the strikes in this case are supported in the record. each of the jurors that were struck, either worked with a relative, were related or new -- knew intimately, the defendant's family or others, up to one juror who lied on her questionnaire and then lied on the stand. jus. ginsburg: you have a strange position on potential jurors who lie because it was the case of a white to juror who
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said he had no knowledge of the flowers case when in fact he was 2007 panel. you said that doesn't matter that he lied because he didn't admit to lying. i think if someone lies and didn't admit to it, that would be a count against that person rather than in that person's favor. ag davis: the trial court made the distinction the juror struck for lying on a questionnaire admitted on the stand she lied intentionally, not the case with juror huggins. it would seem it appeared that his participation in the panel, and he was dismissed before he got anywhere near selection, that he either forgot that or completely left his mind at the time he was questioned. jus. sotomayor: let's go back to that.
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if we are looking at whether this is pretext, mr. evans was willing to give an excuse to this juror and keep him, despite the fact there was direct evidence he knew about the case. he was willing to accept the white line but not under oath in front of the judge. -- the white lie but not under oath in front of the judge. doesn't that suggest pretext? ag davis: the issue as it reads from the record is that the juror who lied on a questionnaire admitted she lied for the purpose of getting off the jury. jus. sotomayor: if that were the case, i don't think one to take one juror and not push them on those questionnaires and come up to an intentional understatement or overstatement.
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ag davis: again, your honor, that was -- that is the issue is that each one of these strikes, we don't have one single reason. jus. roberts: let's look at them, but you do have history. uses peripheries, strikes all five. trial two, as much as possible, uses all five, strikes all five blacks. trial number three, 17 black possible. uses only 15 this time. he ran out of peremptory's and only had 15. fourth trial, 16 black, only struck 11. maybe only had 11 peremptories. now we come to this trial. i don't think it will take much. let's look at one black juror, one white one potentially. let's call them one and two. both are women.
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both are in their mid-40's. both have some college education. both strongly favor the death penalty. the potential black actually has a brother serving as a prison guard. you might have thought that would favored the prosecution in the prosecutor's mind. that is one difference. don't think that gets favor. anybody arrested? neither have. do they know people in the case? yeah, they each know something over 30. same, same, same. now is there a connection with the flowers family? the black juror did in fact possibly work at some distance, we don't know what with the father at walmart and the white one knew his father, mother, sister, cousin through her work as a bank teller. and the last one that was crucial was the black potential juror was sued for overdue
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credit. she paid the garnishment of $30. the white juror had been a friend of the victim's daughter in high school. there we have it. potential black, potential white. we have the whole background. looking at that, you tell me what was the difference as to why he could strike if that background, caroline wright, the potential african-american juror, number four, and pamela chesterton, the potential white american juror, who was number 17. what is the difference? given all this similarities? ag davis: caroline wright was struck because she was sued by tardy. caroline wright worked with the defendant's father at walmart. the distinction would be -- sen. breyer: you didn't add juror 17 was a friend of the
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victim's daughter in high school and knew flowers' father, mother, sister and a cousin through her work as a teller at the bank. ag davis: wright's relationship with the father was a work relationship. chesterton saw them coming in through the bank. this was an employee and customer relationship which the mississippi supreme court made a distinction. sen. breyer: it was closer to the first. >> i've read that the first was closer, then seeing them every week. will it say that? >> i don't think it will because it said how closely physically did you work with the father and there was no answer to that question. ag davis: the record would bear out the district attorney only
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struck those individuals that worked with members of his family. that was consistent. sen. breyer: so that is the reason. i go back in the record and have to say, knowing flowers' father, sister, mother, cousin through the work of a bank teller is not a reason for striking somebody but working with flowers' father at some unknown distance at walmart is the crucial difference i will find. i have the history plus now i have narrowed it down. narrowed it down to that being the difference. ag davis: i would also say one of the differing things was she was sued by tardy, which was -- sen. breyer: i also should look at that and decide whether that is more significant than the fact 17 was friends with the victim's daughter in high school. sometimes your high school pals, you don't forget.
quote
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anything else? ag davis: i think that is enough. >> i do too. jus. kagan: ms. wright is a perfect juror for a prosecutor. she favors the death penalty, uncle a prison security guard, relative is the victim of a violent crime, except for her race, you would think this is a juror a prosecutor would love. isn't she? ag davis: not if she works with the defendant's family and was sued by the workplace of one of the victims. that is the distinguishing factor here. jus. breyer: you have directed me, the two relevant parts of the record, and before i make up my mind, i will read those relevant parts both sides.
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ag davis: ok. >> council, we are conducting this if it were one case. in terms of a broader rule, do you recognize, or do we recognize in our president any restriction -- precedent any restriction with respect to what can be brought up? ag davis: no, your honor. far be it for me to presume the basis, but i see it as one of the issues before the court as your honor asked, how far are we to go, and what does it matter? what part does the history play? jus. roberts: is there anything that suggests they should be limitation looking to the history of the prosecutor involved? ag davis: there is no limitation.
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certainly the precedent says you have to consider it. i am not aware of any language for this particular circumstance where we have six trials by the same district attorney. i am not aware of any. this is unique in that regard. jus. gorsuch: justice breyer pointed out a dichotomy that in other areas might be exploitable but if all of the history is relevant as you have acknowledged, what light does that shed on what otherwise might appear to be an innocent strike, and what rule would you lay down? it is hard to do but we are taking cases to guide future disputes, not just this one. how would you write the rule as to the relevance of the best information with when we are looking at the current trial?
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ag davis: when we use the word history, we are limiting it to this case. the district attorney in his 25 years of experience, having searched for additional cases and no case decided by the petitioner outside of this case in regards to a violation, so the history is limited here. the question is what to do in a case like this? how much does the specter of those prior violations come into play in the analysis in this? i think it has to be looked at. i believe the trial -- jus. sotomayor: is it just the specter of the violations were there not the cases overturned in which prosecutorial misconduct -- at least the first was overturned on prosecutorial misconduct. they didn't even reach the challenge. ag davis: yes, your honor. jus. sotomayor: doesn't it tell
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you something about this man's passion? i don't need to call it anything else. doesn't that tell you how you should be looking at this case? ag davis: i can't speak to his passion. i can speak to his pursuit of conviction in the sense of the six trials in which there were -- jus. sotomayor: i understand he didn't ask the attorney general to step in, which he could have, to prosecute the case, but i understand he lobbied to legislators to try to change the venue legislatively. is that correct? ag davis: that is my understanding. try the case outside of montgomery county. jus. sotomayor: instead of giving the attorney general to try the case. in his own county.
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ag davis: we are strict the -- strictly prohibited from interjecting ourselves in cases we have tried, not in this case but in another in our supreme court. jus. roberts: in batson, we held a prosecutor cannot state he challenged jurors in the defendant's case of the defendant's race on his assumption or intuitive judgment, they would be partial to the defendant because of shared grace. that was the critical sentence in batson and the sentence disagreed with that. you can't just assume someone will be favorable to someone to someone because they shared the same race. when you look at the 41 -- how do you look at that and not come away without thinking what
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was going on there was what the dissent said? the majority said it was not permissible that there is a stereotype you are going to favor someone because they are the same race as the defendant. ag davis: i respectfully in this case in no way agree that that was some prior because of this person's race, they were not going to be favorable. this case spanned 23 years now in this small community. jus. kagan: in this case there were three adjudicated batson violations. ag davis: two. jus. sotomayor: ok. two. >> [laughter] ag davis: flowers three and flowers two both had adjudicated batson issues. the trial court was aware of that, it was evident. the same trial judge presided
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over the fifth trial, and in this case we have same defense counsel, counsel moved in, motioned offered in the -- joint appendix 42. motion number 57, to borrow prosecution from exercising for -- peremptory strikes, exercising against nonwhite minority members. the judge adopted his prior rulings. his ruling on that also included caution, to both parties that if there is any objections were challenges based on demeanor or based on a juror's appearance, and if it wasn't in the record, he was not going to consider. [speaking simultaneously] jus. sotomayor: could you just -- did you just say the same judge who tried the fifth trial also tried the sixth trial?
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ag davis: yes, your honor. jus. sotomayor: wasn't he the judge that prosecuted in the holdout, and didn't mr. evans do that and the attorney general take over the case and say there was no basis? ag davis: there were two jurors bound over perjury. one pleaded guilty and the other was no look crossed -- that was and by the attorney general's office, not my division, but another. jus. sotomayor: i think the attorney general did that because there was no races for -- basis for prosecution. ag davis: i don't know there was not a basis, but it was done. >> in this case because of the unusual and really disturbing history, this case could not
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history, this case could not have been tried this sixth time by the same prosecutor. you can't untangle what happened before. before the particular strikes in this case. ag davis: hindsight is 2020. i was not involved in consideration on that. had i been, it might have been a suggestion of mine it might be the case. but the record in this case by no means supports the conclusion that the mississippi supreme court's decision ran afoul of batson progeny. court's decision ran afoul of i would like to return to what i said about trial judges being aware of the history. judge loper said the transcript -- i know what flowers three said. he cautioned the state, saying i will look closely at this. the judge acknowledged he be diligent making sure the same type of error did not occur again.
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>> how closely did he look? let's talk closely about the questioning in this case. the numbers themselves are staggering. the number of questions asked to african-americans versus whites but more than the numbers, you look at the way, what these questions were targeted to do, let's take for example questions on the death penalty. this prosecutor would question the white person who said he or she had reservations about the death penalty, and the questions are designed to rehabilitate the person. the prosecutor said if the law required you to do it, the person would say yes. if an african-american said they had calls about death penalty, qualms about death penalty, the prosecutor would say the opposite. they would say something like, it would be hard for you to apply the death penalty then. so this disparate questioning, it looks as though he is designing, trying to create a
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record for striking black jurors that will end and for distinguishing black jurors from white jurors by means of his questioning which is sort of completely opposite from the questioning he gets to whites. ag davis: the questions the district attorney asked were a direct result of those responses the jurors provided. jus. kagan: it is not two jurors, one white, one black says i have reservations and he says to the white one, you can follow the law, and he says to the black one, i don't know, i guess you can't follow the law. ag davis: respectfully, that is not the case if i read the record. each juror that indicated they were against the death penalty was certainly one that in the
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general context a prosecutor would not want to be on the jury. we had in this case vacillation amongst jurors. jones, on her questionnaire, said she was against the death penalty but during questioning said she could consider it. then she admitted she lied on her juror questionnaire. the questions they district attorney asked were to follow up on what was on the juror questionnaire with regard to their statements therein regarding the death penalty. >> in this case, the record itself shows the district attorney offered valid reasons for each strike, each strike was considered by the trial court who made the parties aware of,
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he was aware of the history of the case, and the record supports that all the jurors that were struck were struck because they were sued by tardy furniture, either related to the defendant, friends with or have worked with members of the defendant's family area these are all valid race neutral reasons. jus. ginsburg: there were no questions of white jurors who said they had relationship with defense witnesses. there were no follow-up questions for them. ag davis: the only to my recollection is pamela indicating she knew flowers' family but only because she was said they had relationship with defense witnesses. a bank teller and see them come in. jus. ginsburg: they said they
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had a relationship with defense witnesses, that they weren't asked what is the relationship. ag davis: regarding the one who said they knew the witnesses, yes, in the mississippi supreme court we noted -- this is part and parcel of the case. 5000 people in the town, everybody knows everybody and about the case. mississippi supreme court noted these witnesses on both sides knew numerous witnesses for both prosecution and defense. that is part of the analysis. you have to look at the reasons that were offered by the district attorney and in this case, they all support the strikes. >> part of batson was about fairness of the criminal justice system. that was against a backdrop of a lot of decades of all white juries convicting black
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defendants. swain said let's put a stop to that, but didn't give the tools for eradicating discrimination. another 21 years of that until batson, then batson said we will give you the tools to eradicate that so not just for the fairness to defendant and juror but community has confidence in the fairness of the system. can you say you have confidence in how this all transpired in this case? ag davis: i have confidence in this record. i have confidence in the strikes confidence in the strikes based on the four corners of this record. i have confidence that if reviewed with an eye towards what actually transpired, it supports the mississippi supreme court's decision in this case. that i have confidence in. jus. sotomayor: [indiscernible] how this case was prosecuted?
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ag davis: yes, i do. jus. sotomayor: one of the first things i did when i found this case was to try to do some research. at least my former state prosecutor's office would have substituted attorneys long before the sixth trial. regrettably, i wasn't able to find any formalized guidance on that. but it does seem odd to me that any prosecutor would continue to try a case with this history. ag davis: i would agree we have an unusual circumstance and case with these trials having been all tried by the same prosecutor, but i would resubmit again the decision of the mississippi supreme court in this instance was not violating
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batsin and its progeny. jus. roberts: four minutes remaining, ms. johnson. ms. johnson: unless the court has further questions, i will wave rebuttal. >> could you tell me whether or not you exercised any directories? ms. johnson: i was not the trial lawyer. >> were any exercised by the defendant? ms. johnson: they were. jus. thomas: what was the race? ms. johnson: only against white jurors. i would add her motivation is not the question here, but the question is -- jus. sotomayor: she didn't have any black jurors to exercise peremptories except the ms. first one. johnson: except the first one. jus. sotomayor: but so did the prosecutor accept the first one. after that, every black juror available on the panel was
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struck. ms. johnson: he seated one african-american juror. at the very end, struck one white juror. when all of the evidence in this case is considered, just as in foster versus chapman, the conclusion race was a essential part of evans' motivation is inescapable and mississippi supreme court's decision to the >> c-span's washington journal live every day with news and policy issues that impact you. coming up saturday morning, a look at recent tensions between the u.s. and iran with steph jones for the center of strategic and international studies. and then a news reporter talks about the epa's announcement repealing president obama's climate change policy, the clean power plan.

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