Ala. Finds No Jury Selection Bias After SCOTUS Remand

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By Lance J. Rogers

Nov. 21 — A prosecutor who used his peremptory challenges to strike 10 of the 11 black jurors and who marked the code letter “B” next to all the black candidates in the jury pool didn’t violate the rights of a capital murder defendant, the Alabama Supreme Court ruled Nov. 18 ( Floyd v. State , 2016 BL 384661, Ala., No. 1130527, 11/18/16 ).

The ruling is notable because the U.S. Supreme Court vacated the original finding of no bias and remanded the case back to Alabama this past July because the alleged racial animus bore a striking resemblance to the egregious violation flagged in Foster v. Chatman, No. 14-8349, 2016 BL 162869 (U.S. May 23, 2016).

The courts said that notwithstanding some factual similarities between the two cases, there wasn’t evidence of a “concerted effort to keep black prospective jurors off the jury.”

Heightened Batson Concerns

According to Christopher Anthony Floyd’s certiorari petition, the prosecutor had a documented history of racial discrimination, marked black venire members with a “B” on his strike list, then used his peremptory strikes to knock out 10 of 11 black candidates.

But the Alabama court, in an opinion by Justice Jacquelyn L. Stuart, found no discriminatory intent. It said the prosecutor marked the race of potential jurors in his notes only because the trial court had expressed a heightened concern that the parties comply with Batson v. Kentucky, 476 U.S. 79 (1986).

The court noted that prosecutor defended his strikes with the following reasons:

  •  several of the potential jurors had past convictions;
  •  one was opposed to the death penalty;
  •  one nodded in agreement whenever defense counsel spoke;
  •  one had religious beliefs that the state felt would inhibit her ability to be impartial;
  •  one was 77 years old; and
  •  one wasn’t satisfactorily responsive during voir dire.

Floyd, who is white, was convicted in 2005 for robbing and killing a grocery store owner.

Justices Michael F. Bolin and Glenn Murdock dissented without opinion. Justices Greg Shaw and Alisa Kelli Wise recused themselves.

Randall S. Susskind, of the Equal Justice Initiative, Montgomery, Ala., represented Floyd. The Alabama Attorney General’s Office, Montgomery, represented the state.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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