The Last Confession: Chapter Twenty Two, Batson v. Kentucky

Perhaps the reason that Marcos Duendes jury came back in twenty minutes with their verdicts of guilty to the charges against him of Attempted Murder, Aggravated Assault, and Disorderly Conduct With A Weapon was because there were not any Hispanics on the jury. Perhaps not . . . but no one will ever know because the prosecutor Jones Osgood illegally kept off the jury the one Hispanic who had made it to the final pool of jurors from which each side could strike three with what are called peremptory challenges, a challenge to a potential juror not made for any good cause but just because the state law allowed for such no reason strikes.

And the Honorable James Earl Todd who was the trial court judge and Osgood’s drinking buddy let his friend “Jonesy” do it.

In Batson v. Kentucky, a state prosecutor used all of his peremptory challenges to strike all the African Americans on the prospective jury pool when he successfully prosecuted James Kirkland Batson of burglary and possession of stolen property. Batson’s convictions were affirmed in the state’s appellate courts, but the United States Supreme Court took Batson’s petition for writ of certiorari to condemn the widespread practice of race-based use of peremptory challenges by prosecutors across our country in violation of The Equal Protection Clause of the United States Constitution.

Our Supreme Court ruled:

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposely exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

The United States Supreme Court held that a trial court could inquire into the reason why a prosecutor used a peremptory challenge if the criminal defendant could make a prima facie showing that the prosecutor’s peremptory challenge was based on race. Then the prosecutor would have to state the reason or reasons for his or her peremptory challenge of a member of a racial minority, and if the reasons were not race neutral, the judge could declare a mistrial and the prosecutor could be disbarred from the practice of law. Jones Osgood knew this law, and so did Judge Todd, and so did Duendes’ Public Defender who had her eyes set on running for County Attorney in the next election.

With even the Hispanic secretaries in the County Attorney’s office showing sympathy with Marcos Duendes for defending his wife’s honor, a matter of his duty to his family, they said, Jonesy had sworn to his fellow prosecutors in the office, “I’ll be damned if I let one spic on that jury.”

When as luck would have it, one Hispanic made it to the final jury pool, Osgood made good on his threat and used one of his three peremptory challenges to strike the potential juror. The Public Defender reluctantly challenged Osgood’s strike, and Judge Todd asked Osgood in chambers with a clerk and court reporter present, “You struck a Mexican, Mr. Osgood, why’d ya do it?”

Ready for the question, Jones Osgood answered, “He’s young, Your Honor, and is not married, has no children, doesn’t even have a job. He has no stake in our community, Judge. I want members of this jury to be real representatives of our community, stakeholders, if you will.”

Judge Todd thought a few seconds and then said, “I think you’re on mighty thin ice, Mr. Osgood, but there’s nothing race-based in your answer, so I’m gonna let ya get away with it.”

The Public Defender never even threw this perfectly valid issue in with the suppression issues when she later appealed the arguably racially discriminatory convictions of Marcos Duendes.


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