Ali Awad Mahmoud Irsan v. Texas

Texas law invests trial courts with the discretion to excuse venirepersons in capital cases when the parties agree to do so: “One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.” Tex. Code Crim. Proc. Ann. art. 35.05 (emphasis added). The statute constrains neither the bases for the parties’ agreement nor the trial judge’s discretion to implement those agreements. Such agreements— which are commonplace in Texas and elsewhere—often exclude far more prospective jurors from service than either for-cause or peremptory challenges, as happened in this case. Here defense counsel agreed to excuse an apparently qualified Black venireperson and—after the venireperson could no longer hear what counsel was saying—informed the trial court and the prosecutor that he agreed to excuse her because she was a Black woman. After a short exchange that made plain the trial court apprehended counsel’s race-based motivation, the trial court speculated that defense counsel must have a “good reason” for it. The trial court not only exercised its discretion to excuse the juror at issue, but subsequently excused other Black women at the request of the parties. This case presents the following questions:

1. Does the knowing judicial enforcement of defense counsel’s explicitly race-based agreement to exclude a Black woman from the venire violate the Equal Protection Clause?

2. Does a prosecutor’s knowing acquiescence in defense counsel’s racially motivated efforts to exclude Black women from jury service violate the Equal Protection Clause?

3. Do the Equal Protection rights of prospective jurors and the integrity of the courts require a remedy when the “officials responsible for the selection of [a jury] panel” fail in their “constitutional duty to follow a procedure . . . which would not ‘operate to discriminate in the selection of jurors on racial grounds’”? 1 1 Avery v. Georgia, 345 U.S. 559, 561 (1953) (internal citation and quotation marks omitted).