Batson advanced in the former cradle of the confederacy

Feb 18, 2009 Batson advanced in the former cradle of the confederacy

Bill of Rights. (From the public domain.)

Remnants of the confederacy are still heavily highlighted all over Virginia, which closes its courts and other government offices on Lee-Jackson day, has the miles-long [Robert E.] Lee Highway that stops just a half mile from Washington, D.C., has the confederate flag prominently displayed on many trucks, and has a confederate soldier statue standing guard outside the Loudoun County courthouse in northern Virginia, without a Martin Luther King, Jr., statue or anything else nearby the statue to promote a color-blind justice system. Virginians can warn me all they want that I will come across as a carpetbagger to complain about this state of affairs, but the discomfort continues as I recall the slavery, severe racism and Jim Crow that drenched the state’s soil right into the 1960’s.

Fortunately, offsetting the foregoing state of affairs is this week’s Batson-reaffirming decision from Virginia’s Court of Appeals. Hopkins v. Virginia, ___ Va. App. ___ (Feb. 17, 2009). In a cocaine distribution case, the prosecution exercised all its four peremptory strikes on African-Americans. The defense justifiably brought a Batson challenge. and the prosecution said that two of the potential jurors were stricken for having had criminal records. The prosecution said that the remaining two of the potential jurors were stricken because they had family members charged with drug-related offenses.

However, seven potential jurors had family members charged with drug-related offenses. Only three of the seven were stricken for this reason, leaving four of that groups still on the jury. The trial judge rejected the Batson challenge. However, the Court of Appeals reversed, correctly concluding that the prosecution "did not explain its inconsistent treatment in light of the common stated reason applicable to African-Americans and non-African Americans… Thus "the reason asserted [was] not a satisfactory race-neutral explanation for the Commonwealth’s strikes." Hopkins.

The Court of Appeals did right. Why did the trial court go wrong on Batson, though? Jon Katz

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