The jury’s still out for three St. Louis Metropolitan Police officers charged in federal court with beating a colleague working undercover during a 2017 protest. And after a juror on the original panel suffered a medical or family emergency last week, the jury deciding the officers’ fate is no longer entirely white.
But while one white juror being excused mid-trial led to the jury’s first Black member being empaneled, questions about jury selection in the case remain. Luther Hall, the former St. Louis police officer left badly beaten by his colleagues, is Black. The officers charged with his assault — former officers Dustin Boone and Christopher Myers and current officer Steven Korte — are white. (A fourth officer, Randy Hays, pleaded guilty before trial and has testified against his colleagues.)
Earlier in the trial, which kicked off March 15, federal prosecutors objected to the all-white jury, invoking a Batson challenge. Those challenges take their name from a 1986 Supreme Court ruling holding that race cannot be the sole reason for a potential juror’s dismissal. Once a challenge is issued, attorneys must give a “race-neutral” reason for the jurors they excused.
Speaking on St. Louis on the Air’s Legal Roundtable Monday, attorney Nicole Gorovsky of Gorovsky Law explained that it’s then up to the judge to decide if the reason is race neutral (or gender neutral, when that’s at issue). In this case, U.S. District Judge Catherine Perry ruled that one juror had been struck for racially biased motives. She was put back into the pool, the St. Louis Post-Dispatch reported. But she ended up as an alternate.
Perry said she had “great concerns” about the jury’s composition but had no choice but to follow the law and seat the panel.
As Gorovsky explained, the trial is taking place in federal court. That means a much bigger jury pool than the city circuit court, which is split nearly 50-50 Black and white. The federal district covers all of eastern Missouri, extending south of Cape Girardeau and north of Hannibal. Black residents are a much smaller percentage of the total.
Beyond that, judges have discretion to accept or reject an attorney’s explanations on each individual juror. In cases like these, said attorney Eric Banks of Banks Law LLC, “ultimately, the good judge is going to apply the smell test.”
He said: “Any attorney who is worth her or his salt to be able to try a criminal defense case in federal court is going to be able to come up with some type of race-slash-gender neutral explanations, even if it’s as simple as ‘he or she did not laugh at my jokes’ or ‘he or she did not make eye contact with me.’ And then the judge is going to do what he or she thinks is right under the circumstances.” In the “nuclear” option, the judge can force attorneys to put jurors back onto a case.
Banks noted that this case is unusual in that prosecutors, not defense attorneys, are raising the Batson challenge. Gorovsky noted that prosecutors are less likely to get the benefit of the doubt on appeal, leaving them with little choice in many cases but to go along with adverse rulings.
Bill Freivogel, an attorney and professor of journalism at Southern Illinois University-Carbondale, said he believes the case shows the limits of the Supreme Court’s Batson ruling. “While definitely a good decision 30, 35 years ago, [it] hasn’t been as effective as people had hoped,” he said. “Some defense lawyers, civil rights lawyers think that peremptory challenges” — dismissals of jurors in which lawyers don’t have to give a reason, like the ones in this case — “should be entirely removed.”
The panel also discussed other matters involving the judicial system in Missouri. That includes the ongoing battle over the case of Lamar Johnson, a St. Louis man in prison for murder. St. Louis Circuit Attorney Kim Gardner has sought to free him but has been rebuffed by the courts, including most recently the Missouri Supreme Court.
It also included discussion of a wrongful conviction lawsuit filed against St. Charles County sheriff’s officers and O’Fallon, Missouri, police officers by Jonathan Irons, who spent 23 years in prison before having his conviction overturned.
Panelists noted that Irons would have to show malice to win in court. But, based on the facts of the case, they believed that was not outside the realm of possibility.
“There’s some blatant police misconduct in this case,” Freivogel said. “I think there’s a lawsuit that has some legs to it.”
But winning won’t be easy, Banks warned.
“I think that as often as not, the legislatures will make a special appropriation to try to right the wrong a little bit, but absent that, in a regular lawsuit, unfortunately he would be hard-pressed to get past sovereign immunity,” he said.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
