Justice in Sheets…A Jury of Peers – Dismissing Black Jurors

The process of eliminating black jurors from a trial has been around for a while, even though it was declared unconstitutional by the Supreme Court. It is a commonly used tool in some parts of the country where the prosecutor’s case is weak, the defendant is black and the victim is white – or to cover some misconduct by Law Enforcement. It typically assures conviction – even when obvious exculpatory evidence exists. Once again – this deception is headed to the Supreme Court, where by the fact of it’s conservative majority – there is little likely to be done about it. I mean – it is hard to believe based on past rulings that Uncle Tommie Clarence would object to a black person being convicted by a jury wearing white robes and hoods.

The Jury Selection has been perfectly fair, Your Honor!

How Prosecutors Get Away With Cutting Black Jurors

A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: every black prospective juror was dismissed. He was convicted, and sentenced to death, by an all-white jury.

Even more curious: there were 42 prospective jurors that morning, five of whom were black.  All dismissed, four of whom by “peremptory challenge,” in which theprosecutor strikes a juror at his or her discretion.  In Georgia, where Foster’s trial took place, prosecutors have ten such options.

Peremptory challenges were entirely unreviewable for most of American history.  That was their function: in addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get twenty such challenges) leeway to strike potentially problematic jurors without explanation.

That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky.  In Batson, the Court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.

Foster’s trial, though, took place after Batson.  How is that possible?  BecauseBatson has proven to be almost worthless in practice.  All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do.  Maybe the juror didn’t make eye contact.  Maybe she was female.  Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.

Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.

Except Foster’s case has turned out to be different.  During the lengthy appeals process (nearly thirty years and counting), the prosecutor’s notes were made public.  And they are laughable and tragic at the same time.  Black prospective jurors are annotated as B#1, B#2, et cetera.  Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.”  And so on.

And then there were the absurd pretexts the prosecutor provided to satisfyBatson.  First, he listed over thirty different reasons, basically throwing everything against the wall to see what would stick.  He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not.  He said one was close in age to the 18-year-old defendant; she was 34.

All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.

And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth.  The Court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly thirty years on death row.

“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty.  Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection.  And he says that Foster’s case is not unusual in the least.

“What went on at trial was typical,” he told the Daily Beast.  “What’s unusual is we know what’s in the prosecutor’s files.  These notes that show not just a consciousness of race but an obsession with race.”

Batson has failed to prevent discrimination, says Bright, for at least three reasons.

First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give.  They even distribute reasons in advance.  Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”

That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail.  “They just say, ‘take a lot of notes when you strike a black juror.’”

 

The New Jim Crow – Jury Selection

The staff of the Equal Justice Initiative (EJI) has looked closely at jury selection procedures in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee. We uncovered shocking evidence of racial discrimination in jury selection in every state. We identified counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service. We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries. We found evidence that some prosecutors employed by state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias. In many cases, people of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias.

Funny - But Not Far From the Situation Faced By Many Black Defendants in Certain States

Blacks blocked from serving on Southern juries, study says

In Mississippi, Alvin Robinson, an African-American man, was on trial for murder after he’d allegedly had an altercation with and killed a white man following a frightful traffic incident. During the jury selection for his trial, an African-American woman showed up dutifully for service, but was turned away because she had “no ties to the community,” though she’d worked for the same local company for six years. One by one, the African-Americans who had been summoned were dismissed from service.

In a silent protest to being stricken from the jury for what she suspected to be a thinly-veiled attempt to maintain the racial homogeny of the all-white jury, this woman returned to the courthouse each day, only to watch Mr. Robinson be found guilty for murder (even though three of the jurors slept through portions of the trial) and sentenced to prison.