Fault Lines
12 August 2017

The Value of Gold Teeth in Georgia

February 22, 2017 (Fault Lines) — WSB-TV went with a sensational but misleading headline for its article about the Georgia Court of Appeals reversing the trial court’s refusal to give Duvall Minor and Robert Clayton a new trial:

Convictions thrown out because of juror’s gold teeth

Some people will just see that and shake their heads, convinced the system is awful and some bad guys walked free simply because a juror had gold teeth. They might mutter to themselves about activist judges. The headline doesn’t really tell them anything about the case, though. In fact, it conveys nothing at all about the actual substance of what the court did. Those who click through will see reality is a little more complicated than the headline makes it seem:

Two men serving time for armed robbery could get another trial or possibly walk free because of the way a Cobb County prosecutor eliminated a juror.

Channel 2’s Ross Cavitt learned the convictions were thrown out because of that juror’s gold teeth.

“The reason that they gave was not race neutral,” attorney Ashleigh Merchant told Cavitt.

Merchant had filed the appeal on behalf of Duvalle Minor and Robert Clayton. In late 2011, jurors found the pair guilty of armed robbery and a judge sentenced them to serve 10 years in prison.

The situation arose due to what’s called a “Batson Challenge.” As long as prosecutors have been trying cases before juries, they’ve been striking jurors based on race, ethnicity and sex. The challenge is named for the Supreme Court case Batson v. Kentucky, which established a right to object to the use of a peremptory challenge to exclude a juror from the jury pool based on race.

Prosecutors apparently used to be blatant about their opinion that a black juror wouldn’t be on their side in a case against a black defendant, an Hispanic juror wouldn’t be on their side in a case against an Hispanic defendant, and so on. They have to hide it now due to Batson. In practice, what happens is that they still strike jurors based on race, but the defense can object and they then have to give a race-neutral reason for the strike.

As you can probably imagine, the result is that many prosecutors just make up a reasonable-sounding excuse for the strike, as it isn’t hard to do. Sometimes the justifying excuse stares right at them. “He had criminal history.” “His brother was charged with a crime just like this.” Other times they’re just vague. “I didn’t like his body language.” “He was looking at us with a frown.” It takes a prosecutor who’s either stupid, not prepared for the challenge, unusually honest, or exceedingly confident that the court is going to blindly go along with whatever thing he says in order for anything come of a Batson Challenge. Here, it’s hard to tell which it was.

Had the prosecutor just said, “I don’t like the cut of his jib,” Minor and Clayton’s convictions might stand. Instead, the prosecutor cited something that can arguably be race-based. Given that it’s so simple to overcome a Batson challenge, it’s a remarkable situation. It’s that way not just because of the prosecutor’s apparent gaffe mentioning the gold teeth, but because the appellate court didn’t brush away the issue due to the prosecutor’s other stated reasons:

The assistant DA told the judge he objected to the potential juror because of his criminal record and because he had gold teeth. He said his opposition to gold teeth was not racially based; he thought anybody who had them liked to stand out.

“We are entitled to have a jury that people have not been excluded because they’re members of certain races. And so you can’t get around that, by saying, ‘I’m going to exclude this person because they have gold teeth,'” Merchant told Cavitt.

The Cobb County prosecutor told Judge Adele Grubbs that his gold teeth argument was not race based. She agreed.

What’s interesting here is that the court just decided the juror’s criminal history was enough, as criminal history is generally a reliable way for prosecutors and courts to do racist things while appearing race-blind.

The statistics are pretty clear. If prosecutors are citing criminal history, a common reason they give for using a peremptory strike that typically satisfies courts, it’s inextricably tied up with race. Blacks are incarcerated at six times the rate of whites, so if you’re striking jurors because of serious criminal history, the sort that would result in incarceration, you’re striking black jurors six times as often as white jurors. It would be amazing if the court had actually said criminal history had a racial component as well, but it’s still fascinating that the appellate court didn’t use criminal history to avoid dealing with the gold teeth issue altogether.

Here, the outcome seems to hinge somewhat on whether the court is willing to accept the existence of a stereotype or not. Plenty of white people have gold teeth. Plenty of other people who aren’t black do too. It’s not like only black people have gold teeth, but it would be interesting to know if people who are black are in fact more likely to have gold teeth than people who aren’t. Regardless of its validity, however, the stereotype endures. If you ask most people to guess the race of a person based only on the fact they have gold teeth, most people are probably going to guess black.

The trial court did the expected thing. The prosecutor probably struck the guy with gold teeth because he was black, but prosecutors might reasonably want to avoid having jurors who like to stand out. The prosecutor’s excuse probably felt to the judge like an easy out, as there’s at least an arguable link between gold teeth and wanting to stand out.

On the other hand, what the appellate court did was anything but expected. Not only did it explicitly acknowledge that having a full mouth of gold teeth is a racial stereotype associated with African Americans, but it determined gold teeth and being black were so linked that, even when a prosecutor outright says it was what the teeth say about the person’s personality and not the person’s race that matters, that still isn’t a valid race-neutral reason.

Sadly, this isn’t an opinion likely to affect cases in the future, as prosecutors will just continue improving their excuse-making. At the least it provides a comforting glimpse into the minds of a couple of Georgia’s appellate judges, however. Their willingness to acknowledge a stereotype is interesting, and the fact a prosecutor gave them a reason and they didn’t take it as complete truth and at face value is refreshing.

2 Comments on this post.

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  • Jeff Davidson
    23 February 2017 at 4:56 am - Reply

    I see what you did there.

    • David Meyer-Lindenberg
      23 February 2017 at 10:07 am - Reply

      Oh damn, now I do too. Very sneaky, Matt.