High court passes on case of Georgia man on death row who says Black jurors were wrongly purged

ATLANTA -- The U.S. Supreme Court on Tuesday declined to consider the case of a Black man on death row in Georgia who says his trial was unfair because the prosecutor improperly excluded Black jurors.

Warren King, 48, was convicted of murder and other crimes in the September 1994 shooting death of convenience store clerk Karen Crosby during a robbery in southeastern Georgia. At his trial, the prosecutor used strikes to eliminate 87.5% of the eligible Black jurors and only 8.8% of the eligible white jurors, all women.

A 1986 U.S. Supreme Court decision established what is known as the “Batson” rule, which prohibits the exclusion of prospective jurors based on their race. King's lawyers say the prosecutor in his case violated that rule and ranted against it when King's trial attorneys raised concerns during jury selection that he was striking Black jurors because of their race.

“Discrimination based on race and gender must have no role in our criminal legal system and certainly not when a man’s life is at stake," Anna Arceneaux, one of King's lawyers, said in a statement. “The U.S. Supreme Court should have stepped up to enforce this core constitutional principle, given the glaring and abhorrent nature of the prosecutor’s discrimination in this case.”

The Georgia Supreme Court affirmed King's convictions and sentence without any mention of prosecutor John Johnson's long statements critical of the Batson rule or the rate at which he struck Black and female jurors. In the final phase of the appeals process, the 11th U.S. Circuit Court of Appeals called the record in the case “troubling” but deferred to the state court's findings.

King's lawyers asked the Supreme Court to intervene. The high court did not give a reason for declining to hear King's case. But Justice Ketanji Brown Jackson wrote a dissent, joined by Justice Sonia Sotomayor, saying she would send the case back to the 11th Circuit to consider King's claims under the Batson rule without deferring to the state court findings.

Reached by phone Tuesday, Johnson declined to comment, saying the Supreme Court's decision “pretty well speaks for itself.”

During jury selection, each side has a number of “peremptory strikes,” that can be used to dismiss a juror without having to give a reason. But if lawyers believe the other side is getting rid of jurors solely because of their race, they can raise a Batson challenge.

When King's trial lawyers challenged the state's use of strikes, the judge instructed Johnson to explain his reasoning. Before doing so, he objected to the use of “statistical analysis” to establish potential discrimination and objected to the Batson process.

He then gave reasons for his strikes. The judge accepted his explanations until he said he struck one juror because “this lady is a black female” who was from the same area as King and knew him and his family. The judge noted that the woman had said she didn't know King or his family, found that her elimination violated the Batson rule and ordered her seated on the jury.

Johnson then spoke out against the Batson rule again, arguing, in part, that “Batson now makes us look (at) whether people are black or not. Not whether they’re black or white, but black or not. ... it is uncalled for to require people to be reseated on a jury that I have a problem with in this case,” according to court filings.

He told the judge he was “very angry right now” but suggested that the woman be seated on the jury while his other strikes be allowed to stand. The judge and King's attorneys eventually agreed, and the jury that convicted King was made up of 10 white and two Black jurors.

A law governing the final phase of appeals says a federal court must defer to state courts' determinations on factual issues unless the state court's findings were unreasonable.

“The Georgia Supreme Court's blinkered assessment of each of prosecutor Johnson's strikes — divorced from context — ignored highly relevant facts and circumstances in three critical areas” Jackson wrote in her assessment, arguing that the court disregarded “highly salient facts.”

She said the Georgia Supreme Court ignored the “flagrant nature” of the violation for the stricken juror who was eventually seated. The court also said nothing about Johnson's “multiple heated outbursts, all of which made his hostility to Batson patently obvious," she wrote. And, she noted that ”racial disparities in a prosecutor's exercise of peremptory strikes are highly probative of discriminatory intent" and the court made no mention of the fact that Johnson was about 10 times more likely to exclude a Black juror than a white juror.

For those reasons, Jackson wrote, the 11th Circuit should have reviewed the merits of King's claims without giving deference to the state court's factual findings.