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“How America Tolerates Racism In Jury Selection”: Discrimination In Jury Selection Is Indeed A National Problem

On Monday, the Supreme Court will hear oral arguments in Foster v. Chatman, a case that challenges the all-too-common practice by which prosecutors deliberately exclude African-Americans from criminal juries.

The Supreme Court tried to outlaw this practice in 1986 through its landmark ruling in Batson v. Kentucky. But prosecutors routinely ignore that decision, excluding black jurors because of marital status, manner of dress, last names and other allegedly “race neutral” reasons.

This is problematic because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries, according to several studies.

It’s time for the court to meaningfully enforce the ban on racial discrimination in jury selection.

In 2010, the Equal Justice Initiative, a nonprofit law firm, studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — and found the problem to be rampant.

For example, from 2005 to 2009, prosecutors in Houston County, Ala., struck 80 percent of qualified black jurors from death penalty cases. Consequently, in a county that’s 27 percent black, half of death penalty juries were all-white. The other half had one black citizen each.

Another study of death penalty trials in North Carolina shows that from 1990 to 2010, prosecutors excluded black jurors over twice as often as nonblack jurors.

An analysis of over 300 felony jury trials in Caddo Parish, La., from 2003 to 2012 found that of 8,318 qualified jurors, nearly half of black jurors were struck, compared with only 15 percent of nonblack jurors.

Clearly, Monday’s case will have national implications.

About 30 years ago, a black man, Timothy Foster, went on trial for his life in Georgia. He was accused of killing an elderly white woman. During the jury selection process, the prosecutors struck all four potential black jurors. Then, they argued before the all-white jury for a death sentence to “deter other people out there in the projects.” They probably would have made a different argument if the jury had included at least one of the black citizens called to serve.

The jurors complied and sentenced Mr. Foster to death.

In at least six different ways, the prosecutors singled out eligible black jurors: Notes from the jury selection list show they marked their names with a “B” and highlighted them in green on four separate copies; circled the word “black” on their juror questionnaires; noted several as “B #1,” “B #2”; ranked potential black jurors against one another “in case it comes down to having to pick one of the black jurors”; and wrote “Definite NOs” on the list of priority strikes, which had all four possible black jurors.

And how often are whites or blacks, women or men, gays or straights, muslims or Christians, etc. dismissed because the defense strikes them?…

Although the prosecution has never admitted that race played a role in selecting a jury for Mr. Foster’s trial, some of its “race-neutral” reasons for strikes were inaccurate and inconsistent.

For example, prosecutors struck a black juror for being a social worker — but she was a teacher’s aide. Meanwhile, prosecutors accepted every white teacher and teacher’s aide in the jury pool.

When the prosecutors asked a white juror and a black juror whether the defendant’s age, which was close to that of their children, would be a factor in the sentence, the black juror said “none whatsoever” but was struck based on his son’s age. The white juror answered “probably so” and was accepted.

Along with other former prosecutors, I joined a friend-of-the-court brief in support of Mr. Foster. We recognize, and refuse to condone, the blatant unconstitutionality of the prosecutorial misconduct in this case. Moreover, my own experience suggests that discrimination in jury selection is indeed a national problem, despite over a century of attempted legislative and judicial remedies.

In 1995, at a workshop hosted by North Carolina’s district attorneys, the attendees were given a handout titled “Batson Justifications: Articulating Juror Negatives.” It listed acceptable reasons for striking potential jurors, like body language, attitude and other factors, that the prosecution could present in the face of a Batson challenge. These vague explanations are virtually impossible for future courts to interpret as race-based, although they often are.

Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct. The prosecution’s notes show purposeful racial discrimination in jury strikes. A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow.


By: Larry D. Thompson, Op-Ed Columnist, The New York Times, October 30, 2015

November 3, 2015 Posted by | Criminal Justice System, Judicial System, Prosecutorial Misconduct | , , , , , , , | 1 Comment

“Deathwatch Coverage”: Why The Media Are Digging Jeb Bush’s Grave

Why hasn’t Jeb Bush started complaining about the liberal media yet? Maybe it’s because he knows that at this critical moment for his campaign, it’s important to look sunny and optimistic. But he’d have a much better case to make than his primary opponents, who are all whining about how CNBC was mean to them at their last debate. The coverage of Jeb’s campaign right now is unremittingly negative, in ways that are, if understandable, not exactly fair. The Jeb Bush Deathwatch has begun, and it’s going to be awfully difficult for him to get past it.

Back in 1983, scholars Michael Robinson and Margaret Sheehan first wrote about “deathwatch coverage” in their book about the media’s role in the 1980 presidential campaign, Over the Wire and on TV. “The deathwatch generally begins with a reference to the candidate’s low standing in the polls,” they wrote, “moves on to mention financial or scheduling problems, and ends with coverage of the final press conference, in which the candidate withdraws.” Even before it gets to that terminal point, however, the press can decide as one that you’re circling the drain, and the result will be a wave of intensely negative coverage.

Let’s take a little tour of the articles about Jeb in the media just from one day, last Friday. “Can Jeb Bush Come Back?” (Washington Post). “Jeb Bush’s Existential Crisis” (CNN). “All the Money In the World May Not Save Jeb Bush’s Campaign” (Los Angeles Times). “Jeb Bush Campaign Faces Criticism, Skepticism Following Debate” (USA Today). “Jeb Bush Seeks to Recover Momentum After Debate” (Wall Street Journal). “Jeb Bush: Campaign ‘Is Not on Life Support'” (NBC News).

The headlines only partly convey how brutal things are getting for Bush. All the questions he now faces are about process—not “How would your tax plan work?” but “Why aren’t you doing better?” They’re questions about the campaign itself, not about what he wants to do if he becomes president. Reporters have also taken to asking Jeb whether he’s having fun on the campaign trail, which has a whiff of cruelty about it. He plainly isn’t, but what is he supposed to say? It’s almost as though they just want to see how he’s going to squirm. They might explain that they’re asking him this question because in January 2014 he said he intended to campaign “joyfully,” and there’s not much joy in Jebville right now. But that’s an excuse, not a justification.

So the frame of almost every story about Bush is how he’s floundering, struggling, and sinking. When you’re operating within that frame, it determines the kinds of questions you ask, not just of Bush himself when you get the chance, but of the other people you interview, and of yourself as you’re writing your story. Those questions will be things like: What’s he doing wrong? Why don’t people like him? What mistakes has he made?

When you set out to answer those questions, everything you produce will reflect poorly on Bush. That doesn’t mean there’s anything inaccurate about the coverage, just that it focuses on one particular aspect of reality and not others.

Now let’s compare that to Marco Rubio, whom most knowledgeable people have now concluded is the most likely Republican nominee. If you wanted, you could ask similarly uncomplimentary questions about him. Why has this guy who was once hailed as the savior of the Republican Party been unable to get more than 10 percent or so of the vote in national polls? Why is he stuck in fourth place in Iowa and sixth place in New Hampshire? How come he’s being beaten in fundraising by the likes of Ben Carson and Ted Cruz?

Those are perfectly legitimate questions, but if the focus of your story about Rubio is how he’s on the rise, they’re the kinds of things you’ll either leave out completely or deal with quickly (in the inevitable “To be sure…” paragraph).

Now for my own “To be sure…” paragraph: To be sure, there are perfectly good reasons why a reporter would describe Jeb’s campaign the way it’s being described and ask the questions he’s being asked. Expectations for him were very high. He was supposed to be this year’s version of the well-established, middle-aged white guy the GOP always nominates, and his super PAC quickly raised a staggering $100 million. For a time, he was indeed the frontrunner (though he never averaged more than 15 percent in the polls), so the fact that he’s now in fourth place or so is a significant fall. And Jeb hasn’t been particularly compelling on the stump, to say the least. He has struggled with things like trying to figure out whether the Iraq War was a mistake, and he seems flummoxed by the competition he’s gotten from other candidates, particularly Donald Trump.

But let’s not forget that no one has actually voted for president yet. The Iowa caucuses are still three months away. Super Tuesday isn’t until a month after that. The voters of California, our most populous state, don’t vote until June, a full seven months from now. A heck of a lot is going to happen just between now and Iowa.

Not only that, while Jeb’s place in the polls is certainly nothing to be proud of, other candidates getting much more positive attention aren’t doing much better. In the Huffpost Pollster average, Jeb is at 7.5 percent, admittedly no great shakes. But Rubio, who is now luxuriating in an invigorating bath of positive press coverage, is at a whopping 8.5 percent. Everyone seems to think Rubio is probably going to be the nominee, but the voters themselves don’t seem to be aware of it yet. Ted Cruz, whom insiders think has shrewdly positioned himself to be a strong contender as the race winnows? He’s at 5.5 percent.

One of the attractions of the deathwatch story for reporters always looking for a new angle on the presidential race is that it’s novel and, in its way, rather dramatic. And like much of what the press does, it can become a self-fulfilling prophecy: Say that a candidate is toast often enough, and before long donors won’t want to contribute to him and voters won’t bother to support him. But we’re still far enough away from the primaries that another new story, the exciting Jeb Comeback, is still a possibility. He might even earn that exclamation point after his name. Is it likely? Maybe not. But you never know.


By: Paul Waldman, Senior Writer, The American Prospect, November 2, 2015

November 3, 2015 Posted by | GOP Presidential Candidates, Jeb Bush, Marco Rubio, Media | , , , , , , , | 3 Comments

“Reading The 2016 Tea Leaves”: GOP Candidates Shaping Up To Be No Match For Hillary Clinton

Pull up a chair and step into my political therapy and prediction parlor.

Jeb Bush, let’s start with you. It’s over. Seldom has the nation’s political class expected so much promise – and seen and heard so little – from a presidential contender.

On Aug. 31, in this space, I declared the former Florida governor “unelectable.” Few pundits and pollsters grasped that at the time. Except for Maureen Dowd, who just published a sharp-edged elegy for Jeb in The New York Times. She’s the leading observer of the Bushes in the wild in Washington, Florida, Texas and Maine.

All I knew was that Jeb had nothing smart, witty or winning to say. My friends and I were gobsmacked that there was a Bush we liked less than the warmongering George W. Bush, who left the country trashed just like his Yale fraternity house. Jeb’s dreary, dutiful campaign came across like peeling an onion and ending up in tears.

His frail father, the 41st president, recently restated the Bush philosophy in a note to Jeb: “Go win.” Letting down “Poppy” (George H.W. Bush’s nickname) will be the the unkindest cut for Jeb.

But entitlement and mediocrity don’t sell well a second time around the block. Clueless Jeb thought his last name was an asset and found no fault with “my brother.” That’s how he was raised in the competitive family jock compound, from mother’s milk on: Bushes win, whatever it takes. (Case in point: Florida in 2000.) Sorry, but he deserves to lose before the first ballot is cast for boring us silly.

Jeb feels doubly betrayed, first because the party could not save his place, his rightful first place in the race. Second, young Sen. Marco Rubio of Florida rebuked him in the last debate for making a snide remark about Rubio missing Senate votes. (Jeb managed to insult France, too.) That was utterly devastating moment for Bush, shaking up his blue-blooded order of things. Refusing to defer, Rubio met his mentor as an equal on the field of battle and drew blood. Anything but nimble, if Jeb can’t nail an opponent for missing votes (a cardinal sin), then let him be gone. In Donald Trump’s words: “You’re fired.”

Now it’s your turn, Sen. Rubio, the new media darling, because that’s how fickle we are. I’ve actually watched him in the Senate, when he shows up, and can tell you he is seen as a show horse, not a workhorse. That’s a quaint distinction, but it’s as if it were invented for Rubio, who has done virtually nothing of weight. There were high hopes in 2013 that he might build a bipartisan immigration bill, but he did not have the legislative chops to make that happen. Simply put, Rubio does not command enough respect among his 99 colleagues to do something big in a divided body. Lately, his open scorn for the job is hurting his Senate Q score even more.

Now comes Sen. Ted Cruz, another young, southern Republican in the running. He is probably the least-liked senator, known for his tea parties of one on the Senate floor and his insults and barbs across the aisle. He even “dissed” his own majority leader, Mitch McConnell, which is just not done in public. Cruz doesn’t care. He was a champion debater at Princeton and clearly loves politics as a blood sport. He’s also shrewd enough to cast his lot with Trump, who looks like the jovial Muffin Man next to Cruz.

Brighter and meaner than Rubio, still Cruz shares something important in common with him. They’re both children of Cuban immigrants. Fidel Castro’s influence still reaches down to the children of the exiled generation, who have dominated the political scene in Miami. They hold important seats in Congress, too, always a vehemently conservative coalition. And I mean, even more reactionary than your average elephant. Most prominent Cuban-Americans in national politics are still acting out in anger (or reacting) over the Castro revolution. That event happened more than 50 years ago, before Rubio and Cruz were born. Let’s move on, shall we?

It’s ironic that just as President Obama unlocks the door to diplomatic relations with Cuba, there are two candidates to succeed him that have been shaped by furious anti-Castro feeling as an article of political faith. It would be sad if this hostility reached the level of the White House.

To wrap up, Vice President Joe Biden was wise not to go to the deep end of the pool and run for president for a third time. He will be 73 this month. While many swooned for him, fellow scribes, I wrote weeks ago the likable Biden was not really electable, either. I won’t go into all that again.

Let me count the most important reason Biden was right – getting in history’s way. They call the zeitgeist wind Hillary Clinton, and my muse is reading it right so far. Let’s say this from the parlor: She is going to blow them all away.


By: Jamie Stiehm, Washington Whispers, U. S. News and World Report, November 2, 2015

November 3, 2015 Posted by | Election 2016, GOP Presidential Candidates, Hillary Clinton | , , , , , , , , | 1 Comment

“Nothing To Do With Race”: The Simplistic Way Many Of Us Perceive The All-American Conundrum Of Race

It had nothing to do with race.

So said Sheriff Leon Lott, last week, in discussing a violent arrest by one of his officers, a white deputy named Ben Fields, of a black female student at Spring Valley High in Richland County, South Carolina. Fields, a school resource officer, was called in when the girl reportedly ignored a teacher’s instruction to stop using her cellphone and leave the classroom. He ended up overturning her desk and slinging her across the floor like a sandbag or a sack of dog food.

His actions, caught on cellphone video, have detonated social media, many observers expressing visceral fury over this treatment of a black child. But Lott, who later fired his deputy, said he doesn’t think Fields acted from racial prejudice because he has an African-American girlfriend.

It is a statement of earnest, staggering obtuseness that sheds no light on the officer’s overreaction, but reveals with stark clarity the simplistic way many of us perceive the all-American conundrum of race. Granted, it is not inconceivable that a white girl could have been subjected to the same brutality in a similar situation. But it is a matter of statistical fact that it’s more likely to happen to a child of color.Multiple studies have shown that those kids are subjected to harsher discipline in school than their white classmates. Indeed, numbers released last year by the federal government show that this begins in preschool where the “students” are little more than toddlers, yet black kids, who account for 18 percent of the population, get 42 percent of the suspensions.

Nothing to do with race?

The people who habitually say that operate under the misapprehension that racial bias requires intent or awareness and that it leaves obvious evidence of itself: a tendency toward racist comments, let’s say, or membership in the Ku Klux Klan. In that worldview, racial bias is incompatible with having a black girlfriend.

But that worldview is naive. Bias is frequently subterranean, something you carry without meaning to or knowing you do. In a country that has used every outlet of media, religion, education, politics, law and science for over two centuries to drive home that black is threatening, black is inferior, black is bad, it is entirely possible Fields could have acted from unconscious racial bias and yet had a black girlfriend. For that matter, he could have acted from unconscious racial bias and had a black face; African-American people are no more immune to the drumbeat of negativity surrounding them than is anyone else.

So “nothing to do with race” is a reflexive copout many of us embrace against all reason because to do otherwise is to face a mirror whose reflection does not flatter. Which is why the usual suspects — Steve Doocy, Mark Fuhrman, Glenn Beck and etcetera — have attempted to fix the blame for what happened here on the girl.

Let’s be very clear in response. It doesn’t matter if she was disruptive. It doesn’t matter if she was disobedient. It doesn’t matter if she was disrespectful. Those things justify discipline, but they emphatically do not justify this child being lifted and flung by a grown man as if she were an inanimate object. If she were white, that would likely go without saying.

One is reminded of all the other African Americans we have seen in just the last few years brutalized and even killed for no good reason. One is reminded of Trayvon Martin and Walter Scott and Eric Garner and Charnesia Corley and Oscar Grant and Tamir Rice and Sean Bell and Levar Jones and more names than this column has space to hold, more blood than conscience can contain. And how many times have we been offered the same simplistic assurance in response?

This had nothing to do with race, they say.

Of course not. It never does.


By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, November 2, 2015

November 3, 2015 Posted by | African Americans, Police Brutality, Racism | , , , , , , | 1 Comment

“Failure To Fact Check”: The Real Problem With The CNBC Debate Was The Moderators’ Inability To Call Out The GOP’s Nonsense

Big applause lines: “lamestream media,” a la Sarah Palin, or “Democrats who have the ultimate super PAC, it’s called the mainstream media,” a la Rubio. When in doubt, bash the media.

And it didn’t take long before the Republican National Committee blasted out a press statement that because of the CNBC debate, it was ready to cancel the party’s upcoming NBC debate. Over the weekend, the various campaigns met to “set the rules” about future debates.

Now let me get this straight: the Republicans get 24 million viewers on Fox, 23 million viewers on CNN and 14 million viewers on CNBC – up against the second game of the World Series – and they are complaining? Trump bragged about how he and Ben Carson changed the rules of the CNBC debate by threatening to pull out. Maybe this group would like to determine not only who asks the questions but what the questions are?

But make no mistake, it plays to their base to bash journalists and it also serves to intimidate the media. Sad but true.

If there was a fault with CNBC it was that the moderators were not tough enough on this crowd of candidates. They raised questions that were answered falsely or not at all and did not hold the candidates’ feet to the fire. There simply weren’t enough follow up questions. Whether they were intimidated or did not have the full research in front of them is hard to say, but they should have pushed harder.

Some examples: Cruz would not answer the question about his opposition to the debt limit and instead used his time to attack moderator Carl Quintanilla. Finally, Cruz shot back: “You don’t want to hear the answer.” It reminded me of the great scene in “A Few Good Men” when Jack Nicholson loses it on the stand and shouts, “You can’t handle the truth!”

Cruz should be forced to compare his position on raising the debt limit to Ronald Reagan’s and to that of every other president who understood what it would do to the country if we were to default.

Becky Quick asked Donald Trump about his criticism of Mark Zuckerberg for urging an increase in visas and Trump shot back that it was false. She backed off, but in fact it was true. Trump’s claim got a “Pants on Fire” from Politifact.

Carly Fiorina made the outrageous statement that 92 percent of jobs lost during President Barack Obama’s first term were women’s jobs. Politifact rated that false, and noted that the number of women with jobs actually increased by 416,000.

Ben Carson said it was “total propaganda” to assert he was involved with the disgraced nutritional supplement company, Mannatech, and the anchors had the evidence but, again, did not push back. Politifact also rated Carson’s statements false.

Probably the most important debate should have been on the various tax plans from the candidates. The New York Times editorialized against them,citing the absurdity of the 10 percent and 15 percent flat tax proposals. The effect of the Republicans’ economic policy is the same old trickle down with the biggest tax benefits going to the wealthy who, lord knows, don’t need it. As the Times’ editorial made clear none of the Republicans “has a tax plan coherent enough to be the basis of a substantive discussion, let alone one that could meet the nation’s challenges.”

It is the job of the press and, let’s face it, the Democrats, to point out that this crew of emperors has no clothes.

With all their bashing of the media and the attempt to use it to mobilize their base, it became clear that the Republicans simply did not have the answers. Pollyanish predictions of astronomical economic growth was all they could offer.

The candidates complained afterwards that there wasn’t enough time to talk about substance. Baloney. They simply don’t want hard questions. The most destructive result of all the back and forth after the CNBC debate, complete with the Fox Business Channel attacking CNBC in paid ads, would be if the Republicans intimidate the press and control the format and the questions. After all, this isn’t Russia, the last time I looked.


By: Peter Fenn, U. S. News and World Report, November 2, 2015

November 3, 2015 Posted by | CNBC Debate, GOP Primary Debates, Media | , , , , , , , , , | 5 Comments

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