(In re: Ryan Clark Petersen v. State of Alabama) (2020)

WRIT QUASHED. NO OPINION.

I concur in the decision to quash the writ. Nevertheless, I write to express my view that Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991), and its progeny are due to be overruled.

In Bankhead, this Court undertook a plain-error review when the defendant, despite not making an objection at trial, claimed that the prosecution engaged in race discrimination when striking the jury. But the review framework that has developed since Bankhead for unpreserved claims of race and sex discrimination in jury selection goes beyond the scope of plain-error review and is thoroughly unworkable. See Ex parte Phillips, 287 So. 3d 1179, 1238 (Ala. 2018) (Stuart, C.J., joined by Main and Wise, JJ., concurring specially and explaining that the holding of Bankhead “is problematic for several reasons” and calling for it to be overruled), and 287 So. 3d at 1255 (Sellers, J., concurring specially and agreeing with Chief Justice Stuart's discussion of Bankhead). Additionally, the review framework is not required by the United States Constitution; in fact, multiple federal appellate courts have held that defendants have no right to review of unpreserved claims of race or sex discrimination in jury selection. See United States v. Reid, 764 F.3d 528, 533 (6th Cir. 2014); United States v. Brown, 634 F.3d 435, 440 (8th Cir. 2011); United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996). Moreover, I am not aware of any provision in the Alabama Constitution that requires the review framework that this Court has come to apply since Bankhead. For these reasons, I would be in favor of overruling Bankhead and its progeny in an appropriate future case.

PER CURIAM.

Parker, C.J., and Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Bolin and Mitchell, JJ., concur specially. Mendheim, J., recuses himself.