Supreme Court refuses to hear death row appeal even though juror admitted racist belief

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The Supreme Court ruled on Monday to refuse to hear a death row inmate’s appeal, even with a juror’s admittance to holding racist sentiments. In the case of Kristopher Love, a Black man convicted of capital murder in the course of a robbery in Texas, prospective jurors were asked if they harbor bias against members of certain races or ethnic groups and if they believe some races or ethnic groups “tend to be more violent than others,” according to elements of the case laid out in Justice Sonia Sotomayor’s dissenting opinion.

The juror in question, No. 68, answered “no” to the first question but “yes” to the second. “He explained that ‘[s]tatistics show more violent crimes are committed by certain races. I believe in statistics,’” Sotomayor wrote of the juror’s words.

She said in her opinion: “When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it ‘poisons public confidence’ in the judicial process.”

The juror also claimed that he had seen statistics to this effect in “news reports and criminology classes” and that his answer was based on those statistics, rather than his “personal feelings towards one race or another.” He said according to court documents that he did not “think because of somebody’s race they’re more likely to commit a crime than somebody of a different race” and he told the defense that he would not feel differently about Love “because he’s an African American.”

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Love’s attorney tried to get the juror excluded before he was seated, arguing that “leaving this man on the jury would be an invitation” to a possible death sentence based “on his preconceived notions and beliefs that have to do with the race of the defendant.” The court denied the attorney’s challenge without explanation, and Love was convicted and sentenced to death, according to Sotomayor’s dissent.

Love argued on appeal that he was “denied the constitutional right to an impartial jury” because the trial court seated a “racially biased juror.”

Sotomayor wrote:

Rather than address this federal constitutional claim on the merits, the Court of Criminal Appeals of Texas held that, ‘even if we assume that the trial court erred in denying Appellant’s challenges [to the juror at issue and another prospective juror] for cause,’ Love could not show any harm under Texas law.

Sotomayor deemed the lack of appeal review a violation of the Sixth and 14th Constitutional Amendments guaranteeing the right to an impartial jury. She wrote:

Instead, the Court of Criminal Appeals “assume[d]” that the juror at issue was biased, but concluded that allowing him to sit on the jury was harmless.2021 WL 1396409, *24. That is an inherently contradictory determination. If the juror were indeed biased, then because he sat on the jury, Love’s conviction and sentence “would have to be overturned.”

Justices Stephen Breyer and Elena Kagan joined Sotomayor’s dissenting opinion. “Over time, we have endeavored to cleanse our jury system of racial bias. One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias,” Sotomayor wrote. “Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.

“The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.”

Legal experts and journalists called out Republican justices and appeals court officials alike for their inaction. Slate legal reporter Mark Joseph Stern tweeted: “The court’s refusal to consider Love’s case is another good example of how the six conservative justices can effectively overrule left-leaning precedent by simply letting bad decisions stand.”

Shanlon Wu, a former federal prosecutor, tweeted that “racism in the law can never be ‘harmless error.'”

“Justice Sotomayor dissent rightly states that Texas appeals court reached an ‘inherently contradictory determination’ by reasoning that allowing a biased juror could be harmless error,” Wu said in another tweet. “In upholding this decision SCOTUS upholds racism in the law by pretending it can be ‘harmless.’”

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