Monday’s decision by the Georgia Supreme Court making it easier for prosecutors to strike citizens from juries spurred the court’s first African-American member to remind his colleagues what it was like a few decades ago when minorities were called to jury service in Georgia.

Justice Robert Benham concurred with the result of a decision upholding the murder conviction of a black man but wrote separately to oppose the court’s disavowing prior case law on jury selection, sounding concerned that the court was forgetting why such rules were needed in the first place.

“As president of my local bar association I would watch the prospective jurors, with subpoena in hand beaming with pride and anticipation that they too would be allowed to become a part of government as jurors,” wrote Benham. “As they entered the jury box they made sure that they were well-groomed, polite and well-mannered. They would look up at the judge and out at the lawyers with pride and respect. But, as the process began, their joy turned to gloom as white citizens were retained and black citizens were stricken even though they gave almost identical answers. Looking disappointed and dejected they would leave the jury box crestfallen, sad and feeling less than a full citizen.”

Precedent undone

The otherwise unanimous decision in an Albany murder case was not the only opinion issued by the court on Monday that undid precedent. In a Forsyth County death penalty case, the justices overruled cases that said defendants have a right to appeal a denial of a constitutional speedy trial motion without first taking the case to trial.

In the Albany case, Kasaem Toomer was appealing his conviction for the murder of Justin Cox, a 19-year-old man whose body was found floating in the Flint River. According to District Attorney Gregory Edwards, the two men had met up with another man for a sexual rendezvous. Toomer, who is black, complained on appeal that Edwards had used three of his peremptory strikes to remove African-Americans from the jury pool solely because of their race.

In the 1986 decision of Batson v. Kentucky, the U.S. Supreme Court said that in some instances a party to a criminal case must offer a race-neutral explanation for striking a prospective juror. As recounted in Monday’s opinion by Justice David Nahmias, Edwards said he struck one prospective juror because he “kept … his head in his hand and was not giving his full attention.” Another prospective juror also was deemed by the prosecution to be too “disinterested.” The prosecutor said he struck a third prospective juror because the prosecutor “felt some pattern of sympathy” for the defense.

The trial judge, Dougherty Circuit Superior Court Judge Stephen Goss, pressed the DA to say more about that last prospective juror, asking, “Well, what do you base that on? I mean, was it—some body motion … ?” The prosecutor replied, “[b]ody language.” The judge said, “body language, facial expressions,” and the prosecutor replied, “Yes, sir.”

Goss allowed the prosecution to use its peremptory strikes on all three prospective jurors, and the case proceeded before a jury of four African-American jurors and eight white jurors. According to Nahmias’ opinion, Toomer did not testify at trial but the defense conceded that Toomer had punched the victim after the two had argued, and the victim had died as a result. The defense argued that Toomer was overwhelmed with emotion when he struck the victim, did not intend to kill him and confirmed that the victim was not breathing before Toomer and the third man threw the body into the river. The jury convicted Toomer of murder, and he received a life sentence.

Toomer based the part of his appeal over jury strikes on a group of Georgia Supreme Court decisions suggesting that in addition to being race-neutral, the justification for a strike must also be “case-related” and “specific.” The defense cited another case, a 1997 plurality opinion by Benham that said a party’s explanation couldn’t support a strike if the explanation were first supplied by the trial judge.

Under U.S. Supreme Court precedent and other Georgia Supreme Court cases, wrote Nahmias, the requirement that a “race-neutral” justification be provided does not include a requirement that the justification be “case-related” and “specific.” He said the court was disapproving any statements to the contrary in decisions by the Georgia appellate courts, thus overturning the precedents the defense had cited.

Nahmias noted that, even after a facially race-neutral explanation is offered, the trial judge must decide whether the opponent of the strike has proven discrimination in light of all the circumstances. At that stage, the credibility of the party seeking to make the strike comes into play, he said, and implausible explanations that are vague or not related to the case could lead the judge to decide the use of the strike was discriminatory.

Nahmias said the court also was disavowing Benham’s 1997 plurality opinion in Walton v. State, 267 Ga. 713. Nahmias wrote that although trial judges should resist the urge to help a proponent of a strike come up with a justification, that best practice should not be elevated to the level of a constitutional edict. Under Benham’s approach, wrote Nahmias, “if the proponent has a perfectly valid and credible race-neutral explanation for a peremptory strike but does not express it before the trial court does, that explanation cannot be considered, and a strike that was not in fact motivated by racial discrimination nonetheless is invalidated as a violation of equal protection.”

In conclusion, Nahmias wrote that although “[t]he prosecutor’s explanations may not be compelling … the trial court’s ultimate finding is entitled to great deference on appeal.” Toomer hadn’t demonstrated the judge was clearly wrong, wrote Nahmias.

Although Benham agreed with the court’s decision to uphold Toomer’s convictions, he said he disagreed with the court’s decision to disavow Georgia case law on challenges to jury strikes. Benham practiced in Cartersville in the 1970s and early 80s before becoming the first African-American on the Court of Appeals in 1984. He recalled in his concurrence that during the early 1950s, his neighbor, the Rev. Joseph Slocum, became the first black person to serve on a jury in his circuit.

He also recalled an African-American woman saying that since she had been rejected for jury service, she would no longer help the court system, whether by volunteering to be a witness or showing up for jury duty. “I realized then that the damage done when legitimately qualified citizens are denied service goes beyond the denial of a fair trial to those who appear before the bar of justice,” he wrote.

Edwards, the DA who tried the case, said, “It’s good that judges are directed to make these decisions by looking at the totality of the circumstances.”

He noted that he is African-American and said he shares some of Benham’s thoughts: “I’m fully invested in making sure everybody has an opportunity serve on juries, because that’s the only way we can have true justice.”

Toomer’s appellate lawyer, Assistant Public Defender Kevin Armstrong, declined to comment on Monday’s ruling. The case is Toomer v. State, No. S12A0976.

In the Forsyth County death-penalty case, Marcin Sosniak was charged with two others in the murders of four people. He’s been incarcerated since his March 2006 arrest.

Part of the delay in Sosniak’s case is due to his appeal, resolved against him in 2010, of several pretrial rulings by Bell-Forsyth Circuit Superior Court Judge David Dickinson. Sosniak’s court-appointed lawyers, William Finch and Charles Haldi Jr. of Cumming, also have complained about funding problems.

After Dickinson denied a motion for a continuance filed by Sosniak in October 2011, Sosniak asked him to dismiss the case because his constitutional right to a speedy trial had been denied. Dickinson denied that request.

Writing for the unanimous court, Justice Harold Melton said Dickinson hadn’t erred in concluding Sosniak’s speedy trial right wasn’t violated. Moreover, said Melton, Sosniak shouldn’t have been allowed an automatic pretrial appeal in the first place.

Melton acknowledged the latter conclusion required the court to overrule its prior precedent. But he said that precedent had departed from a ruling by the U.S. Supreme Court, which had concluded that allowing direct appeals from pretrial denials of speedy trial motions would undermine the purpose of the constitutional guarantee—a provision designed to benefit not only defendants but society as a whole by resolving a case quickly.

Nahmias penned a concurrence, joined by Justice Keith Blackwell, writing that constitutional speedy trial appeals rarely succeed and often create more delay. Nahmias pointed out the defendants still may seek a pretrial appeal after obtaining a certificate of immediate review from the trial court and asking the appellate courts to hear the case. And if the request for an interlocutory appeal is denied, Nahmias added, the defendant can raise the issue in a post-trial appeal if he’s convicted.

District Attorney Penny Penn said the decision takes away from defense attorneys what she said is a favorite ploy for delay in her circuit.

“This is just huge,” she said.

Reached midday Monday, Haldi said he hadn’t had time to read the opinion. He said, regardless of what the court will do with future speedy trial appeals, he was very disappointed in the court’s analysis of his client’s case.

The case is Sosniak v. State, No. S12A0799.