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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

“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism

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. Foster 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 the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 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 20 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? Because Batson 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 30 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 satisfy Batson. First, he listed over 30 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 30 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.’”

Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”

Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”

As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”

The result is a perpetuation of the institutional racism of the judicial system itself.

First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”

Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”

Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)

As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”

What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.

But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?

One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.

Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.

Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.

It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.

But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.

In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”

 

By: Jay Michaelson, The Daily Beast, September 28, 2015

September 30, 2015 Posted by | African Americans, Criminal Justice System, Judicial System, Prosecutors | , , , , , , , | 2 Comments

   

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