Smulls v State Mo 1996

8/13/2019 Smulls v State Mo 1996

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circumstances in this division ever take judicial

notice of the number of people who are black.

And I believe thats counsels responsibility to

prove who is black and who isnt or who is a

minority and who isnt. There were some dark

complexioned people on this jury. I dont know

if that makes them black or white. As I said, Idont know what constitutes black. Years ago

they used to say one drop of blood constitutes

black. I dont know what black means. Can

somebody enlighten me of what black is? I

dont know; I think of them as people. I

listened to the responses of Ms. Sidney. I

watched her attitude very briefly as it may have

been, and Im not going to sit here and say to

you that Ms. Sidney is not black. But Im not

going to make a judgment as to whether

anybody else on the panel was, so in any event,

Im merely telling you that for the record. Idrather not even discuss it on the record. But, in

any event, Im going to deny your motion for a

mistrial on the basis stated. Are we ready to

proceed?

* * *

We restate our focus: the issue we address here

is neither the propriety of the trial judges ruling

on the Batson issue, nor whether the trial itself

was tainted. The relevant issue is whether this

trial judge should have sustained a motion torecuse * * *. The standard by which we determine

the question is not whether the trial judge is

actually prejudiced. Instead, the standard is

whether there is an objective basis upon which a

reasonable person could base a doubt about the

racial impartiality of the trial court.

Batson is a race-centered standard. The

threshold question is the race of the challenged

venireperson. * * * The trial court cannot add

subtle burdens to theBatsonprocess by refusing

to take note of race where trial counsel properlyplaces it at issue.

Courts must be vigilant in enforcing the laws

of this state and nation that prohibit overt acts of

racial prejudice by public servants. Those laws

have not eradicated prejudice. Rather, they have

forced prejudiced persons to disguise their bias by

hiding behind neutral-sounding language.

Therefore, we may not simply accept ostensibly

neutral language as showing an absence of

prejudice. Statements must be considered in the

context in which they are offered.

Here, the trial judge made his remarks in the

context of aBatsonchallenge.Batsonis not race-neutral. It requires the trial judge to focus his or

her attention solely on race. Race-neutral language

has but one purpose in aBatsonsetting to deny

the effectiveness of the race-focused Batson

inquiry. The trial judges gratuitous statements

raise serious questions about his willingness to do

what Batson requires. His words suggest an

inability or hostility to taking notice of a

venirepersons race, no matter how obvious it is.6

A judge should recuse where the judges

impartiality might reasonably be questioned . . . .This rule expresses the obvious truth that, in our

courthouses, judges set the tone. Judges control

the participants. Judges define the boundaries of

appropriate and inappropriate conduct. And

judges make the decisions as to the rights and

responsibilities of the participants in the course of

litigation.

Because judges control the courtroom, judicial

behavior must be beyond reproach. * * *

* * *

The judges gratuitous remarks manifest a lack

of understanding of the import of the issues

underlying Batson, and of what the codewords

one drop of blood mean to many participants in

the judicial system. It is not the judge to whom7

6. Both defense counsel and the prosecution had

stated on the record that the challenged venireperson,

Ms. Sidney, was black.

7. One drop of blood is an offensive phrase because

it is reminiscent of the manner in which slaveholders

sought to increase the supply of slaves, and by which

laws denied many legal protections to mixed-race

citizens. See, e.g., An Act Concerning Free Negroes

and Mulattoes, 1, RSMo 1835, 413-14:

Every person, other than a negro, of whose

grandfathers or grandmothers any one is or shall

have been a negro, although all his or her other

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opinion and held the state courts rejection of the

claim was not contrary to or an unreasonable

application of Batson or an unreasonable

determination of the facts as required by the Anti-

terrorism and Effective Death Penalty Act. Smulls

v. Roper, 535 F.3d 853 (8th Cir. 2008) (en banc).

Judge Bye dissented, arguing that the strike wasa flagarant disregard of Batson and that the

AEDPA neither requires nor permits us to

sacrifice fidelity to constitutional principles at the

altar of federalism. Id. at 868.

Smulls challenged the states lethal injection

procedures and sought disclosure of the

compounding pharmacy from which it obtained its

execution drug, pentobarbital, arguing there were

questions about whether the drug would produce

a painless death. Such pharmacies are not subject

to oversight by the U.S. Food and DrugAdministration. A United States District Court

authorized discovery. The State, on behalf of

George Lombardi, director of the Department of

Corrections, sought a writ of mandamus from the

Eighth Circuit to prevent the discovery. A panel

denied mandamus, but the en banc Court

overruled the panel, holding Smulls had no

constitutional claim because he had not

demonstrated that the risk of severe pain from

the states intended drug protocol would be

substantially greater than a readily available

alternative. Thee judges in dissent argued theholding places an absurd burden on death row

inmates. In re Lombardi, __ F.3d __ (8th Cir.

No. 13-3699, Jan. 24, 2014).

Missouri executed Herbert Smulls, injecting

the drugs into him on January 29, 2014.

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Smulls v State Mo 1996