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On The Case

Why is diversity so important? Read Orrick’s amicus brief on jurors and #BLM

(Reuters) - The last thing Tiffany Wright needed was more work.

A former U.S. Supreme Court clerk who’s now part of the Supreme Court and Appellate practice at Orrick Herrington & Sutcliffe, Wright has been spending most of the daylight hours since March caring for her 2-year-old while her husband is at work. Her own workday starts at around 8 at night and goes until the wee hours of the morning, leaving just a few hours for sleep.

But when Wright’s former Orrick colleague Easha Anand, now at the MacArthur Justice Center, called to ask Wright to draft an amicus brief in a California state court appeal involving a juror who was struck because of her support for the Black Lives Matter movement, Wright couldn’t say no.

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“It was personal to me,” said Wright, who grew up in the Southeast section of Washington, D.C., went to Georgetown Law at night while working full time as a paralegal and was the only Black clerk during her term at the Supreme Court. (The Washington Post reported in 2017 on Wright’s journey to the high court, including her father’s murder when she was 7 years old.) “I feel so strongly about diversity in appellate practice. If you don’t have it, those perceptions are lost.”

It was worth giving up a couple of those scant hours of sleep, Wright said, to work on a brief that allowed her to explain why, in the words of the amicus brief filed last Friday in California v. Silas, “striking a Black prospective juror for supporting Black Lives Matter is tantamount to striking a Black juror for believing in her own dignity and humanity — a prospect that white Americans do not encounter.”

The brief, which Wright drafted with Orrick colleagues Elizabeth Cruikshank and Sarah Sloan, was filed on behalf of MacArthur, the American Civil Liberties Association, California’s Office of the State Public Defender and other civil rights groups. It was a true collaboration, Wright said, with lawyers from all of the public interest groups chiming in on Orrick’s first draft. For her, she said, the effort was an affirmation of her decision to focus on appellate work. The paucity of diverse voices in that practice, Wright said, makes her all the more determined to speak up. “That’s the only way you can tell the story,” she said.

The amicus brief argues that the 2016 trial of Sheldon Silas, Reginald Whitley and Lamar Michaels for a double murder was tainted by questioning about Black Lives Matter to prospective juror Crishala Reed. Reed, who was known at trial as Juror 275, had said in her juror questionnaire that she supported Black Lives Matter. During jury selection, the lead prosecutor pressed her about the group, asking what Reed thought about demonstrations that lead to property destruction.

“Your support for Black Lives Matter, do you agree or do you disagree with that type of behavior, that is, destroying other people’s property?” Reed was asked. She said she did not agree. Reed also said she believed she could be a fair juror. Prosecutors nevertheless called for her to be excused for cause, arguing that it was “well known within the media” that Black Lives Matter demonstrations involved “open rioting where private property was damaged.”

The judge, Clare Meier of Contra Costa County Superior Court, declined to strike Reed but said it was “a very close call.” Judge Meier said she had “read up” on Black Lives Matter and was concerned about the group’s civil disobedience. “If that’s supported by the person, it gives cause to question whether or not they’re going to support our system here,” the judge said. “It’s disobeying the law.”

Reed was later slated to be seated as an alternate juror but prosecutors used a peremptory challenge to strike her from the jury. Judge Meier denied defendants’ challenge to the strike under the Supreme Court’s 1986 ruling in Batson v. Kentucky.

Defendants raised Reed’s exclusion, among other issues, in their briefs appealing their convictions to the California Court of Appeal, First Appellate District. Prosecutors said in response that there was no Batson violation: The trial judge, according to the state’s brief, correctly determined that prosecutors dismissed Reed based on her demeanor, not for racially discriminatory reasons.

The Marshall Project featured the Silas appeal in a report last month about prosecutors across the country questioning prospective jurors about their support for Black Lives Matter. Appellate courts in Minnesota, Nevada and North Carolina have already considered appeals in which defendants argued that questions about Black Lives Matter have racial implications. Only the Nevada court agreed.

In the new amicus brief in the Silas case in California, Wright and her fellow drafters sought to provide historical context for the Black Lives Matter movement, likening BLM demonstrations to civil rights protests of the 1960s. Black Lives Matter supporters, the brief said, are not “lawless” and the movement’s tactics don’t render its backers unfit to serve as jurors.

“Every criticism that is thrown at Black Lives Matter was thrown at the abolitionist movement, the civil rights movement,” Wright said. “The way history repeats itself is extraordinary.”

But what’s truly striking about the brief is its explanation of why asking Black jurors hostile questions about a movement intended to promote the dignity and value of Black lives is inherently race-based and discriminatory. “Support for Black Lives Matter is … inextricably intertwined with race because of what the movement represents,” the brief argued. “Questions asked of a Black juror about Black Lives Matter target that juror’s racial identity and rarely have a parallel to questions asked of white jurors; strikes made of a Black juror for supporting Black Lives Matter similarly have no parallel among strikes made of white jurors.”

The nuance and power of those explanations, said MacArthur’s Anand, come from Wright. “She understands at a deep, personal level how entwined Black Lives Matter is with Black identity,” Anand said. “It’s a complicated argument to make.”

It’s important to remember, Wright told me, that overall public attitudes about Black Lives Matter were different in 2016, when Reed was questioned in the Silas case, than they are today. When she was beginning her Supreme Court clerkship, Wright said, friends warned her not to include the phrase Black Lives Matter in her profile because it was considered too radical. Now, she said, her neighbors put up Black Lives Matter lawn signs.

“This moment gives me a little hope,” said Wright. She’s hoping for change in the courts as well. “Maybe this case puts a red flag in prosecutors’ minds: ‘You just don’t want to go there,’” Wright said. “I don’t want to have to write this brief again.”

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