Toomer sentence upheld in 2007 murder

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Below is the summary of the opinion issued by the Supreme Court of Georgia:

The Georgia Supreme Court has upheld the convictions and life prison sentence given to Kasaem Toomer in Dougherty County for the 2007 murder of 19-year-old Justin Cox.
Toomer had appealed on several grounds, including his claim that the prosecutor had used three of his peremptory strikes to exclude prospective jurors solely based on their race, in violation of Toomer's constitutional right to equal protection.

"We disagree," says today's opinion, written by Justice David Nahmias.

Under its 1986 decision in Batson v. Kentucky, the U.S. Supreme Court established a three-step process for ferreting out racial discrimination in jury selection: (1) the opponent of a peremptory strike must make a minimum showing of evidence that racial discrimination may exist; (2) the party proposing the strike must then provide a race-neutral explanation for the strike; and (3) the court must then decide whether the opponent of the strike has proven the proponent's discriminatory intent. In this case, Toomer's Batson claim focused on step two.

In a jury trial, each party may challenge an unlimited number of prospective jurors for cause. In addition, the parties have a limited number of "peremptory strikes," which allow the parties to remove a prospective juror without stating a reason. In Toomer's trial, the parties each had nine peremptory strikes. The defense used all nine of its strikes, including three against African Americans; the state used eight of its strikes, including five against African Americans. Toomer objected to three of the state's peremptory strikes. The trial judge did not rule on whether Toomer made an initial showing of racial discrimination, moving directly to step 2 of the Batson process by asking the prosecutor to explain his reasons for the challenged strikes. The prosecutor told the judge that he removed one prospective juror because the man seemed "tired or disinterested," and he removed a second because she too had a demeanor that made her appear "disinterested." As to the third, the prosecutor stumbled over articulating his reason, stating "it was just a feeling that this particular jurorâ|was perhaps more sympathetic to the defense." The judge asked what he based that on â" "was it some body motionâ|?" The prosecutor replied, "[b]ody language." The judge said, "body language, facial expressions," and the prosecutor said, "Yes, sir." The judge said, "Got to tell me what you're basing it on," and the prosecutor responded, "what the court just said. It was body language, facial expressions."

Toomer's attorney argued that the prosecutor's explanations were inadequate because they were based on demeanor, and demeanor is not the "kind of concrete, tangible, race-neutral, case-related and neutrally applied reasonâ|[that is] sufficient to overcome" a Batson challenge. Toomer argued that under the Georgia Supreme Court's 1996 decisions in Blair v. State and Turner v. State, and the Georgia Court of Appeals' 2011 decision in Veasey v. State, the proponent of the challenged strike can carry his burden only by offering an explanation that is "case-related" and "specific," in addition to being race-neutral.

But in today's opinion, the high court rules that "the proponent of the strike need only articulate a facially race-neutral reason for the strike." As a result, "[a]ny statements to the contrary in Veasey, Parker, Blair, Turner, and any other Georgia case are hereby disapproved," the opinion says. Toomer's attorney also argued that the third juror's "body language" and "facial expressions" cannot count as race-neutral reasons because they originated with the trial court and not the prosecutor. Toomer relied on the Georgia Supreme Court's 1997 decision in Walton v. State. But "[n]othing in Batson or its progeny suggests that an appellate court is prohibited from considering a proponent's race-neutral explanation for a peremptory strike offered at Batson step two solely because the words used to articulate the explanation were first uttered by the trial court rather than the proponent," today's opinion says.

"We therefore decline Appellant's invitation to impose such an addition to the three-step analysis set forth in Batson and repeatedly reaffirmed by both this Court and the United States Supreme Court, and Division 5 of Walton is hereby disapproved," today's opinion says. Toomer therefore "failed to show that the trial court committed reversible error in rejecting his Batson claim."

In a 9-page, heartfelt special concurrence, Justice Robert Benham writes that while he agrees with most of the majority opinion, he disagrees with the majority's disapproval of Walton v. State, Blair v. State and Veasey v. State. Recounting his personal experience as a young lawyer in north Georgia, he writes that, "[t]he legal journey to a destination in the law where race and gender are impermissible factors in determining whether a person is allowed to serve on a jury, and a litigant's right to have a jury untainted by race and gender consideration, has been long and arduous."

"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. 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. It is with this background in mind that I consider the action of the majority in disapproving the efforts in a line of cases that sought to flesh out, in a more meaningful and practical way, the right to jury service."

The special concurrence does not take issue with the U.S. Supreme Court's decisions cited by the majority. "I acknowledge that as a state we must accept the U.S. Supreme Court's determinations as to the United States Constitution as well as federal statutes and regulations. However, as the Supreme Court of Georgia, we are free to interpret the Georgia Constitution in a manner that acknowledges the federal floor, but nevertheless raises that floor to provide our citizens with greater rights." Justice Benham argues that for years, "our courts continued for many years to require that justifications for peremptory strikes be 'specific,' 'case-related,' and 'concrete.'"

"Trial judges need flexibility in using legal tools so that they may shape and mold the law to fit the particular situation," the special concurrence says. "The majority opinion has given them an inflexible formalistic approach that elevates form over substance. There are times during the jury selection process that the trial court needs to be able to compress the process to get to the heart of the matter so that justice can be done not only to the parties, but also to the prospective jurors."

Reciting a poem, the special concurrence concludes: "One size does not fit all. It is this flexibility that I seek to preserve for trial judges and lawyers throughout this state, and it is with respect for our use of the jury system that I pen this special concurrence."