Page:Thomas v. Lumpkin (Supreme Court).pdf/12

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THOMAS v. LUMPKIN

Sotomayor, J., dissenting

U. S. 363, 366 (1966) (per curiam) (a defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors”); United States v. Martinez-Salazar, 528 U. S. 304, 316 (2000) (“[T]he seating of any juror who should have been dismissed for cause … would require reversal”). These concerns are even greater in capital cases involving interracial violence. See Turner, 476 U. S., at 37.^[1] As the Fifth Circuit has held, these (and other) precedents clearly establish that a defendant suffers prejudice when trial counsel fails to challenge biased jurors. See Virgil v. Dretke, 446 F. 3d 598, 613–614 (2006).

Thomas’ offense involved not only interracial violence, but also interracial intimacy. Historians have long recognized that interracial marriage, sex, and procreation evoke some of the most invidious forms of prejudice and violence. “No other way of crossing the color line is so attended by the emotion commonly associated with violating a social taboo as intermarriage and extra-marital relations between a Negro man and a white woman.” 2 G. Myrdal, An American Dilemma 606 (2009). Far from avoiding these incendiary topics, the State fanned the flames in urging the jury to sentence Thomas to death. The prosecutor asked the jury

↑ The Court specifically observed in Turner that a racially biased juror might be more likely to find aggravating factors and less favorably inclined toward mitigation evidence, particularly in a case involving interracial violence. 476 U. S., at 35 (plurality opinion). Subsequent social science literature has underscored that concern. See generally M. Lynch & C. Haney, Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide,” 45 Law & Soc. Rev. 69 (2011). The concern is as applicable here as it was in Turner: Much as Turner argued “mental disturbance as a mitigating circumstance” at the penalty phase, 476 U. S., at 35, Thomas’ counsel argued that Thomas suffered acute psychosis from a lifelong mental illness, see 995 F. 3d 432, 439 (CA5 2021).

Social science evidence also confirms Turner’s teachings regarding the importance of questioning jurors about potential racial bias. See, e.g., P. Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Online 180, 181–183 (2015) (summarizing studies).

[1] The Court specifically observed in Turner that a racially biased juror might be more likely to find aggravating factors and less favorably inclined toward mitigation evidence, particularly in a case involving interracial violence. 476 U. S., at 35 (plurality opinion). Subsequent social science literature has underscored that concern. See generally M. Lynch & C. Haney, Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide,” 45 Law & Soc. Rev. 69 (2011). The concern is as applicable here as it was in Turner: Much as Turner argued “mental disturbance as a mitigating circumstance” at the penalty phase, 476 U. S., at 35, Thomas’ counsel argued that Thomas suffered acute psychosis from a lifelong mental illness, see 995 F. 3d 432, 439 (CA5 2021).

Social science evidence also confirms Turner’s teachings regarding the importance of questioning jurors about potential racial bias. See, e.g., P. Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Online 180, 181–183 (2015) (summarizing studies).

[1]