Bailey v. State (Unpublished Memo): Evocative, provocative, loaded with death. A reproach, but not a relic. Yet sometimes, a source of justice. Bailey is an African-American. There were no African-Americans on his jury. The Tyler court affirms his conviction of aggravated assault with a deadly weapon.
Bailey appeals on Batson grounds. In 1986 the Supreme Court of the United States shifted the burden in jury selection. Before Batson, defendants who felt that the prosecutor struck a prospective juror over race had to come up with proof that the prosecutor had an improper motive. A daunting task as long as the prosecutor kept tight lips on the matter. But the Batson decision changed that. All a defendant need do is allege that a prospective juror was excluded based on race, and the burden then falls on the prosecutor to come forward with a race-neutral basis for the exclusion. The move-counter-move doesn’t end there. The defendant can offer proof that the prosecutor’s supposed legitimate basis is nothing but a pretext.
The Tyler court finds that the prosecutor’s reasons were not a pretext. The prosecutor used four of his ten strikes on four African Americans. When Bailey lodged a Batson challenge, the prosecutor said that he struck the four because they were young, favored rehabilitation over punishment, or knew the defense attorney. Bailey then pointed out that whites meeting those criteria had not been struck. The prosecutor testified those prospective juror’s ties to law enforcement outweighed their youth and rehabilitation leanings. The trial court believed the prosecutor, and the Tyler court believed the trial court.
Bailey isn’t exactly Tom Robinson. Bailey admitted that he was the shooter, but said that he was’t shooting at anyone — he was just shooting in the air. To prove a point to a man in the front yard, and in front of a house full of children. “But,” says the Tyler court, “shooting in a person’s direction is not required to commit an aggravated assault.” Normally, that would end things.
The prosecutor, however, unnecessarily alleged that Bailey shot at the man in the front yard. Even so, the Tyler court doesn’t get into the question of whether the prosecution must prove allegations that go beyond the statutory elements of the crime. Let’s assume they did have to prove it. There was plenty of evidence that Bailey was lying — that he was shooting at someone. Thus there is evidence to support the conviction.
