Volume 29, Number 3

Sauce for the Gander

Fred Cohn

Appellate Counsel: May it please the court, I represent Ishmael Davis, a black man convicted of shooting and killing a police officer. He was sentenced to life in prison without the possibility of parole.

Chief Judge Newman: You really don’t expect a lot of sympathy here, do you?

Appellate Counsel: The last thing I want, or need, if you want the truth, is sympathy. I want justice, achieved on an equal playing field.

The prosecution in this case excluded from the jury five black, male potential jurors. A facial violation of the settled law that they couldn’t do that without a believable race-neutral reason. In fact, the prosecution was honest and said that the reason was because they were black males.

Judge Newman: And the trial judge allowed the exclusions?

Appellate Counsel: Yes, your honor, and to understand the wackiness of the case, you have to go back to the events leading up to the killing which came out at trial.

Mr. Davis was driving home after a day at work. He is a 55-year-old black man, married with two children. He is gainfully employed and has absolutely no criminal infractions in his past. He was a licensed owner of a handgun, which, as he did that night, when he is forced to drive through a bad neighborhood, he keeps on the passenger seat next to him to be available if necessary. He may have been slightly, and I emphasize slightly, exceeding the speed limit that night. He was pulled over by the officer who approached this otherwise inoffensive car with his gun drawn.

Mr. Davis was terrified. Like every other black male in the country, he was aware of the unjustified killings of black men by police officers who defended their actions on the claim that something the deceased said or did, otherwise innocuous, had made them fear for their lives. In the rare event that they were charged, they were acquitted, often without a jury on that claim. When he saw the officer’s gun was drawn for a speeding stoop, his terror kicked in, and he reached over for his gun and shot the officer, killing him.

During jury selection the prosecution destroyed the defense by pointing out that every black potential juror admitted being aware of the common belief by black males that such shootings by police officers were often unjustified and prompted purely by overt racism or as often by a secondary racism, a fear of black people coupled with the unreasonable belief that any black male was a threat.

One of the potential jurors said that he could not put that belief aside, He was discharged for cause. We don’t challenge that ruling. The other four all said that they could and would set it aside and apply the law of self-defense as the judge gave it to them. Two of them said that they did not necessarily subscribe to the theory. All of them said that they could set it aside. The judge properly overruled the prosecution’s objection for cause. They used peremptory challenges to rid the panel of Mr. Davis’ peers, citizens whose life experiences made it possible that they would accept his testimony that he was in fear of his life and therefore acquit him on the grounds of self-defense.

The defense, set out to a jury of eleven white jurors and one Latino woman, was unsuccessful, which is why we’re here.

Judge Newman: I have to admit it was an otherwise acceptable reason to peremptorily discharge a juror. I also have to admit it was clearly not race-neutral.

Appellate counsel: I’m gratified to hear you say that, Judge.

Judge Newman: Don’t be consumed by your gratefulness. It appears the trial judge was in a bad spot. Us too, maybe.

Appellate counsel: Your honor, I don’t think a declaration that a ruling that effectively pronounced millions of citizens of this country to be excludable is that difficult. If we assume that African Americans comprise about twenty percent of the three hundred fifty million people in this country and fifty percent of the adults in that community of men, assuming, just for arguments’ sake that twenty percent of that population were not adults and therefore not eligible to be jurors, that leaves about 28,000,000 citizens of this country who could be excluded from sitting on a jury of a black man asserting his belief, reasonable on its face if you read the newspapers. That is the number you get who probably accept to some degree, the argument available to Mr. Davis, that there was a reasonable fear that the cop was going to kill him And, your honors, while we’re talking about it, the only reason we weren’t talking about black women, who the television cameras more often than not, catch wailing over the bodies of their sons and husbands who were killed by police, is that no black women on the panel, if there were any, had their names drawn by the judge's clerk to be seated in the box for questioning.

Judge Newman: But that was a race-neutral reason for the exclusion.

Appellate counsel: I respectfully disagree. Your Honor. The Supreme Court Rule was a recognition of the fact that different populations looked at things differently. Here our police have, arguably, alienated a huge segment of the population, many of whom can be identified by the color of their skin. In some parts of this country an appreciable percentage of white people accept this as a fact as well. A doubt in this case generated by hundreds of years of history and decades of a particular police habit using black men for target practice, given the testimony by a witness who has nothing in his history that would support disbelief, is surely reasonable.

I respectfully ask that you reverse the conviction.

Judge Newman: We’ll take the case under consideration.

Author’s note: The Supreme Court, in Batson v. Kentucky, flatly forbade the exclusion of jurors because of race.