On October 3, 1995, the defendant, known popularly as “O.J. Simpson” was acquitted of two counts of murder in the case of The People of the State of California v. Orenthal James Simpson. The case was widely reported in the press as an example of racially motivated jury nullification; however, legal pundits agreed, despite outward appearances to the contrary and nine African American jurors, that the prosecution was fraught with problems. Therefore, “jury nullification,” while debatable in the case of O.J. Simpson, was far from certain.
In the case of Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court handed down a landmark decision as it pertains to black jurors and prosecutorial pre-emptive strikes during voir dire: Strikes for cause are unlimited; however, pre-emptive strikes are limited to six by each side, prosecution and defense. The cited decision created case law that changed the threshold for these “strikes” so that, if challenged, the prosecution must articulate a “race-neutral” reason for striking an African American juror even if the strike was pre-emptive.[i]
Now let’s jump forward to September 18, 2014, at 5:49 p.m. On that date at that time, according to arrest documents filed in the case, Dayonte “Moochie” Omar Resiles, 20, of Lauderdale Lakes, FL, was booked into the Broward County Jail, charged with 1st Degree Murder “While Engaged in Certain Felony Offense(s),” to wit: Home Invasion Robbery. Resiles was accused of breaking into the Davie home of Nan Yo and Jill Haliburten Su, a married couple. While inside the home, he encountered and murdered Jill Su, who was later discovered lying dead in her tub by her son, Justin Su, after his father called him and told him to check on his mother, when he could not access the closed-circuit camera inside the house.[ii]
Based on the recorded testimony and cynical comments made by the jury foreperson who spoke in disbelief after the first trial against Resiles ended in a mistrial on December 8, 2021, the evidence against the defendant was overwhelming: The jury foreman, a 36-year-old mother who described herself as a “mixed-race Puerto Rican,” told the Sun Sentinel, “If it was my brother who was accused and the same set of facts was presented, I could have voted guilty of first-degree murder.” But it was not to be, as three jurors – based exclusively on the defendant’s skin color – said “I don’t want to send a young Black male to jail for the rest of their life or have him get the death sentence.”[iii] One or more of these recalcitrant jurors even threatened the foreperson for suggesting that the case was not about race.
What was not known to the jurors was that Resiles had multiple open criminal cases pending when he allegedly murdered Su. Not that any of that would have swayed these three myopic jurors. Resiles also escaped from custody in 2016, when he fled from a Broward County courtroom during a hearing on the murder case. Some used the hashtag “#runmoochierun” in support of the absconded fugitive while he remained at large for six days before being captured by deputies at a hotel in West Palm Beach. A local rapper even wrote a song in Moochie’s honor.
There can be little doubt that in the case of Dayonte Omar Resiles, racially-motivated jury nullification was indeed the underlying reason for the mistrial. Three jurors adamantly refused to convict, despite the apodictic level of proof as to his guilt, simply because he was a “young Black male.” The jury foreperson in that first trial said it perfectly when she recommended that “[In the] society we live right now, it needs to change, and just not look at the color of skin…I feel we need to look at each other as human beings.” What a novel idea!
Su’s husband and son have been permanently and irreparably scarred by the tragedy that befell them in the fall of 2014; society writ large has been diminished by the horrendous acts of this young man. And jurisprudence is being satirized and attenuated by narrow-minded bigots who cannot get past their own warped sense of racial identity politics. So I ask you, can we maintain that Batson v. Kentucky remains good law?
Society is changing, and some, based solely on their subjective and largely misguided sense of reality, are increasingly convinced that the corner stones of civil society, that is morality, the rule of law, the idea that you reap what you sow, and faith in God, are dispensable, malleable, or ill-advised. These changes in societal thinking may require that we rethink our current existential paradigm. Arthur M. Schlesinger’s Cyclical Theory posits that “the United States’ national mood alternates between liberalism and conservatism.”[iv] Maybe it’s time that functions of government and the judiciary – like the doctrine of stare decisis – align with the cyclical nature of politics.
We cannot, as a nation – indeed, as a civilized society – allow for abnormal notions of reality by a minority, marginalize actual normalcy for the many. Our societal equilibrium will undoubtedly be destabilized and, possibly, irreparably perverted. Behavior that two-or-three decades earlier would have caused widespread shock and awe, barely raises an eyebrow in today’s reality. We have undergone a shared metamorphosis in the last two decades – most of it due to politically divergent forces aided by the support of a co-opted mainstream media machine.
However, I remain unconvinced. I firmly believe that the 74 million voters who legitimately voted for Donald J. Trump in the 2020 presidential election, and millions more who failed to go to the polls for myriad reasons, are out there scratching their collective heads much as I do whenever I read articles like this one, which portray the ostensibly normal vicissitudes of life in the 21st Century. These Americans who go to work every day, attend PTA meetings or complain to their school superintendents, pray in church on Sundays, and plan for their family’s future, as they make their way through life…they’re out there. And I remain hopeful, in keeping with Schlesinger’s Cyclical Theory, that a red tsunami is on the horizon, both politically and societally, and our children and their children will ultimately inherit a world where true north is once again true north.
As Noam Chomsky, a renowned American linguist and philosopher, once said, “Optimism is a strategy for making a better future. Because unless you believe that the future can be better, you are unlikely to step up and take responsibility for making it so.”
I pray he was right.
[i] G. Epps (28 October 2015) When Is It Constitutional to Purge Black Jurors. The Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2015/10/race-based-strikes/412825.
[ii] A. Finnie & A. Torres (22 November 2021) Detective testifies about crime scene during Resiles’ trial for Jill Haliburtun Su’s murder. Local10.com. Retrieved from https://www.local10.com/news/local/2021/11/22/detective-testifies-about-crime-scene-during-resiles-trial-for-jill-halliburton-sus-murder.
[iii] R. Rosenberg (11 January 2022) Florida murder trial that ended in mistrial over race is set to start anew. Fox News. Retrieved from https://www.foxnews.com/us/florida-murder-trial-ended-mistrial-race-set-start-anew.
[iv] A. Schlesinger, Jr. (1986) Cycles of American History. Houghton Mifflin Harcourt Publishing Company
