Sunday, September 22, 2019

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III. Jury Participation: the Systematic Exclusion

I looked around the courtroom. The judge was white. The prosecutor was white. My lawyer was white. The jury was white. Even though I was innocent I knew I had no chance.

Exonerated Death Row Prisoner

In 1880, shortly after Reconstruction, the Supreme Court case of Neal v. Delaware held that race would not be a factor in the jury selection process pursuant to the Fourteenth Amendment Equal Protection Clause. However, most states in the South defiantly refused to allow African Americans to serve as jurors, seeing them as non-citizens. In the 1950's, Georgia jury commissioners prevented African Americans from serving on juries by using different colored tickets to identify potential black and white jurors. In 1998 in Georgia, the District Attorney sent a letter during a capital murder case requesting the jury commissioner to place as few African American jurors as possible in the potential jury pool for that case. In 1935, the court clerk in Norris v. Alabama planned to eliminate African Americans from being selected for jury duty by placing “col” after their names. In the Dallas County District Attorney's office in Texas, a training manual was uncovered in 1973 that instructed prosecutors to use their peremptory challenges to strike all people of color from the jury panel. The manual instructed, “Do not take Jews, Negros, Dagos, Mexicans or a member of any minority race, no matter how rich or In the 1990's, that same office trained its young prosecutors to circumvent any challenge by striking Blacks for allegedly ““sleeping.” The manual instructed its prosecutors to ask potential black and white jurors different questions. Two years after the decision in Batson v. Kentucky, a prosecutor in the case of Goggins v. State struck black jurors pursuant to a jury selection training course.

In the Philadelphia District Attorney's office in 1987, a training tape was found that gave advice on how to use pretextual reasons for striking African Americans. The tape offered detailed techniques and methods to decide a jury. The tape was titled How to Pick a Jury and presented by a former Philadelphia District Attorney. When discussing potential black women as jurors, the prosecutor stated, “Black women are very bad. There's an antagonism. I guess maybe because they're down-trodden in two respects--they're women and they're black and they want to take it out on somebody and you don't want it to be When discussing black jurors in general, the prosecutor said, “Let's face it, Blacks from the low-income areas are less likely to convict .... There's a resentment of authority, and, as a result, you don't want those people on your The prosecutor further elaborated on potential black jurors, entering the room:

Another thing to do is when the forty people come in the room, count them. Count the blacks and whites. You want to know at every point in the case where you are. You'll never get it just right--you don't want to go: Is there a Black back there? Wait a minute. Are you a black guy?

That same office also conducted a jury seminar and taught, “[t]he ideal jury, 12 Archie Bunkers will convict on little Archie Bunker is a fictional sitcom character from the TV series, “All in the Family” that was popular in America in the 1960's and 1970s. Archie was an older, white male, uneducated, blue-collar worker with bigoted and ignorant views, and' who consistently made insensitive, stereotype-laced racial and gender comments for comic relief. “If you wanted, you could strike almost all Blacks. This gives you an This long-lived practice of judicial obstruction has allowed the courts, prosecutors and some defense lawyers to view African Americans as a hybrid citizen, who should not be allowed to participate in the judicial process as white citizens do. Prosecutors' frustrations with the possibility that African Americans will identify with criminal defendants shows a deep-rooted bias against the African American community. Some prosecutors view African Americans as “shucking and jiving” when they walk, a strikable offence according to prosecutors. Further, in the Philadelphia District Attorney's office, researchers conducted a study from 1981 to 1997 on race-based jury selection. The research showed that the District Attorney's Office struck African Americans jurors twice as often as jurors of other races. African Americans were struck at an even greater rate (three times as often as whites) in the District Attorney's Office in Jefferson Parish, Louisiana, pursuant to a 2003 study by the Louisiana Crisis Assistance Center.

A report published in 2010 by the Equal Justice Initiative examined patterns of unfairness in jury selection in eight southern states, including Louisiana. The report documented instances where prosecutors provided unlawful or suspect reasons for removing black jurors from venires. Prosecutors struck African Americans from jury service because they appeared to have “low intelligence,” wore eyeglasses, walked in a certain way, dyed their hair, and countless other reasons that courts rubberstamped as “race-neutral.” Some district attorneys' offices trained prosecutors to exclude racial minorities from jury service and taught them how to mask racial bias to avoid a Batson violation. In Houston County, Alabama, eight out of ten African Americans qualified for jury service were struck by prosecutors in death penalty cases. In Jefferson Parish, Louisiana, there was no effective African American representation on the jury in eighty percent of criminal trials.

In the Federal Circuit, a 1994 survey on the success rate of Batson challenges in seventy-six cases revealed that only three challenges were successful. However, the most disturbing tactic is when prosecutors describe black jurors as having some type of direct or indirect criminal connection. It is a well-known practice during voir dire to ask during questions like: “Are any of your relatives drug dealers?”“Have any of your relatives been arrested?”“Have any of your relatives had any run-ins with In some jurisdictions over forty percent of Blacks defendants still find themselves facing an all-white jury. The reason may be the lack of diversity in district attorneys' offices and on state and federal courts. Despite the growing size of minority populations in America, ninety-eight percent of prosecutors are white in death penalty cases and ninety percent are white on the state and federal courts. African Americans make up only six percent of judges in the United States.

Researchers on race and jury selection analyzed the behavior of the Philadelphia District Attorney's office towards empaneled and excluded jurors from 1981 to 1997. The research showed a history of racial profiling in capital murder jury-selection cases. In Jefferson Parish, Louisiana, the District Attorney's office struck Blacks three times as often as whites, as reported by the Louisiana Crisis Assistance Center in 2001. In the capital murder trial of Albert Jefferson in Chambers County, Alabama, the prosecutor divided the potential jurors into four categories: ““strong,” “medium,” “weak,” and “black,” and then removed all twenty-six of the Blacks from the “black” category. An all-white jury convicted Mr. Jefferson, sentencing him to death. In another criminal trial, Emanual Fields was convicted by an all-white jury in Dallas, Texas. In that trial, prosecutors struck an African American for having “gold teeth” and “wearing gold necklaces.”

North Carolina took a step toward eradicating racism in its local justice system with a newly enacted law, The North Carolina Racial Justice Act of 2009. The law states that a capital defendant could state a claim under the act upon a finding that, “race was a significant factor in decisions to exercise peremptory challenges during jury The first inmate to challenge his sentence under this act was Marcus Robinson, who has been on death row since 1994. On April 20, 2012, Superior Court Judge Gregory Weeks ruled that Mr. Robinson was the victim of clear discrimination in jury selection. Judge Weeks found “race was a significant factor in decisions to exercise peremptory challenges” in death-penalty cases in the state generally and in the county where Mr. Robinson was tried. Almost forty percent of county residents were black, yet the jury was made up of nine whites, two Blacks and one American Indian. Statewide, fifty-two percent of death row inmates are black, although Blacks only make up twenty-two percent of the state population. The judge found that “highly reliable” statistical evidence from a study by the Michigan State University College of Law showed racial discrimination in removing Blacks from juries in all but four of the state's 100 counties. The study found that prosecutors used peremptory challenges to remove Blacks from juries at a rate more than twice that of whites, a disparity even more pronounced in the trials the researchers examined in Cumberland County and in Mr. Robinson's trial in particular. Judge Weeks also found that state prosecutors “intentionally discriminated,” and called their arguments against personal bias “irrational,” “inaccurate” and ““misleading.” Prosecutors have indicated they will appeal the decision. In response to the ruling Republican leaders in the General Assembly vowed to continue in their attempts to repeal the Racial Justice Act. The Republican House Speaker maintained that “The Racial Justice Act allowed a convicted murderer to evade justice and punish a suffering family. The leadership of the General Assembly will continue to work to repeal the Racial Justice Act and provide fair and just laws to ensure that only the guilty are The Republican leaders made no mention of discriminatory peremptory challenge practices in their state or the laudable attempts to rectify this ongoing problem.

Obstruction of jury participation illustrates the insecure nature of full citizenship rights for African Americans, both in the ability to be judged by one's peers and the right to sit on a jury. This notion of citizenship in name only has a historical and current context to African Americans exercising their right to full jury participation.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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