Sustained!: Justice Restored: Race in Jury Selection in Harris County Texas

Wednesday, April 15, 2009

Justice Restored: Race in Jury Selection in Harris County Texas

Recently, co-counsel (Jackie Carpenter) and I were involved in a murder trial in Harris County, Texas. During jury selection, the prosecution used seven of its ten peremptory challenges to strike all (100%) of the eligible African American jurors. We raised a Batson Challenge, which required the prosecution to come forward with "race-neutral" reasons for striking the African American prospective jurors. Once the prosecutors came forward with "race neutral" reasons, the Judge was required to determine whether or not their reasons were genuine or whether or not they were a "pretext" for discrimination. Ultimately, the Judge SUSTAINED! the objection. She had the option of seating the improperly struck jurors or striking the entire panel. She opted to strike the entire panel largely because she did not want to hold the entire panel over the lunch hour.

Nevertheless, I was surprised when it happened. The prosecutors were people I had known and respected for years. However, the next day we showed up in court to begin selecting a new jury and we learned that the prosecution had shuffled the panel. The prosecution rarely requests a shuffle. In Texas, a shuffle occurs when one party does not like the make-up of a panel and seeks to have everyone shuffled and reseated. I did not see the panel because the shuffle occurred prior to my arrival in court. But again there were several African Americans on the panel. During questioning of prospective jurors, the prosecutor singled out a few African Americans to ask questions. The entire transcript of the process will reveal that African Americans were inordinately singled out by the State. The questions were very pointed and were intended to establish cause to strike those jurors.

Furthermore, the "race neutral" reasons cited by the prosecutors seemed contrived. They were at the bench thinking of reasons why they struck the jurors. For example, they argued that they struck one African American juror for being indecisive. She said that she thought you needed both rehabilitation and punishment in the criminal justice system. This was a "race neutral" reason, but it was a pretext. Usually, the prosecution wants jurors who are "pro-punishment" because they are more likely to convict. You see, the prosecutors in our case left at least two white people on the jury who were for a criminal justice system geared toward rehabilitation. A juror who thought both were needed, from a prosecution standpoint, would be superior to one who thought the system should be geared towards rehabilitation. And another white juror, against whom they did not exercise a strike, was also indecisive in her answers to questions. Additionally, some of the reasons stated by the prosecutors were just wrong... just dead wrong. They gave reasons for some jurors that weren't true. They argued that one juror equivocated, when the juror did not equivocate.

Nevertheless, word got to our newly elected DA and she disciplined the two ADAs involved. The story made the front page of the local newspaper here in Houston.

I think for years we had overlooked a frightening truth......It had become customary by ADAs to consider race as a negative factor in jury selection. No ADA would say so for fear of being branded a racist. But many Prosectors usually set out during voir dire seeking to establish reasons/justifications to strike African American jurors if the Defendant was an African American. If some prosecutors were honest, they would admit it.

The reaction of many prosecutors and/or former prosecutors following this incident told the story. They were outraged that the DA disciplined the two prosecutors involved. Without knowing the facts, without recognizing that she was trying to change a culture, without recognizing that there are legitimate reasons minorities lack confidence in the fairness of the criminal justice system; they criticized her. In fact, this incident happened over two weeks ago and they are still criticizing her. Supprisingly, the prosecutors involved are alleged to have said that they "were surprised" when they saw that they had struck all of the Black jurors. At the bench arguing against the Batson motion and in favor of the jury with no African Americans on it, they never said they were surprised. Additionally, the race of every prospective juror is listed at the top of the jury questionaire. So when a lawyer is exercising a strike, that lawyer knows the race of the prospective juror.

I guess they would be surprised if race did not matter in jury selection. But if they looked into the pool of truth, their hearts would swim with a different result. For far too long in the Harris County District Attorney's Office, the opposite has been true. Race mattered in jury selection. Check out this video from a prosecution training session. http://www.youtube.com/watch?v=rv9SJPa_dF8

Whether or not one agrees with having African Americans on juries, Batson is the law. To quote Batson v Kentucky, 476 U.S. 79 (1986), "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Id. at 82. Perhaps our new DA's actions may restore some of that confidence in our justice system.

9 comments:

AnonymousApr 16, 2009 08:27 PM
Question from a law student - When you raise a Batson challenge, is it the rights of the defendant or the excluded juror that are violated?
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Eric J. DavisApr 16, 2009 09:07 PM
When you raise the objection during a criminal jury trial, you are seeking to protect the defendant's rights. However, the Supreme Court recognized that both the defendant and the prospective jurors' rights were being violated. Specifically, the Court held that "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror." Batson v. Kentucky, 476 U.S. 79, 88-89 (1986).
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AnonymousApr 17, 2009 06:42 AM
As a former prosecutor for HDCA did you strike black jurors? Did you ever attend a training session that taught you how to get the black jurors off the panel?
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Eric J. DavisApr 17, 2009 08:58 AM
I served as a prosecutor in Jacksonville, Florida from 1994 to 1997. I rarely exercised peremptory challenges against black jurors. I was never taught to strike black jurors for no reason in that office. But I recall striking a black juror and getting a Neil Challenge, which was Florida's system for dealing with alleged race based peremptory challenges (The Florida Supreme Court added additional safeguards to a defendant's constitutional rights; Batson and the Federal Constitution only provide "a floor." Individual state legislatures and state courts can always provide more constitutional protection - To date,Texas has not done so in the area of jury selection). I do not recall my reasons for striking the juror since it was over ten years ago, but I do recall having a bad feeling about the juror. The Judge SUSTAINED! the objection and seated that juror. We proceeded to trial with 50% of the jury being minority and the jury found the defendant guilty of an Armed Robbery in less than five minutes. African Americans are not soft on crime. Some prosecutors just believe stereotypes.

I speak about the Harris County District Attorney's office only from my experiences trying cases against their office and dealing with Judges who are from their office. One judge who had recently left the DAs office got upset at me during a trial years ago when I made a Batson Challenge. It was apparent from the Challenge that that Judge did not know the law. But in his experience lawyers just did not make those claims. Moreover, few people are as brazen as the ADA in the video in speaking about race in jury selection. In Harris County, an ADA sent an email referring to some jurors as "Canadians" - racist code for black. The ADAs involved were noty fired as a result. They were still allowed to be promoted and advance in the office before our new DA took over.

I was in a trial recently and as I looked across the table as both sides were exercising their strikes, I could see a look of concern on a younger prosecutor's face as that prosecutor discussed their strikes with a supervisor. Before the juror was even seated I told my co-counsel, "get ready to make a Batson Challenge." And, as expected, there was a Baston issue to raise.
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AnonymousApr 17, 2009 10:35 AM
Thanks for responding in such a well spoken, non-judgmental, rational manner. It seems some of the other blogs rely on name calling and borderline bullying to get their point across. Your blog is a fresh face and a wonderful change of pace.
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AnonymousApr 18, 2009 04:01 AM
you are a good lawyer and your blog will offset the other one which is constantly making bad statements against Judge Lykos. Not all the racist people are gone ,but another one is leaving May 1st. Don't be fooled by what they are saying. Prejudice is alive and well with many of the prosecutors. Thank you for having the courage to speak out. Judge Jefferson is smiling down on you. signed, a white boy who respects you-------
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AnonymousApr 18, 2009 04:33 PM
Most ADA were not outraged that the prosecutors were disciplined. We were outraged that they were called incompetent, negligent and racist on the front page of the Chronicle and had their careers and reputations ruined. She cited a "lack of training" under the former administration as a reason for what happened. Yet we have received no training under her administration or warning that if a Batson gets sustained that we would get demoted, our pay docked and then we would get thrown under the bus in the media. In the voir dire training we received the week after this happened we were told by the speaker that our job was "to make the DA look good." Seriously -- what happened to seeking justice? Our job is now "to make the the DA look good." The speaker made sure to tell us that repeatedly. Oh -- and we did not receive Batson training during the CLE.
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AnonymousApr 25, 2009 08:59 AM
I am so glad that your voice is added to the blogosphere. It is a needed counterbalance to the shrill speculators, especially on this issue. After reading your description of what happened it amazes me that a prominent blogger who was not there and who is viscerally pro-State could defend the indefensible so far as to question the integrity of Judge Barr. To say that she sustained the Batson challenge even though she did not believe it should have been sustained.

I suppose anything is better than recognizing the truth of the matter.
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Bishop MNov 17, 2011 08:38 AM
HELLO EVERYONE MY HEART IS HEAVY RIGHT NOW BUT I'M GLAD I CAME ACROSS THIS SITE, THANK ALL OF YOU FOR YOUR INPUT,I JUST SIT IN COURT WITH MY ONLY SON FOR SEVERAL WEEKS TWO MISSED TRIALS WITH BOTH BLACK AND WHITE JURORS MY SON HAS TWO FELONIES THIS WOULD BE A THIRD HE CHOSE A TRAIL BECAUSE HE DIDN'T DO IT,AND IT WAS CLEARLY NOT HIM IN THE VIDEO,THE DA PULLED OUT OF THEIR CASE LOAD FILES AT THE H.C.DA OFFICE IN HOUSTON, TX. NOTE, THE NEXT JURY WAS ALL WHITE. THE DA SENT WORD TO MY SON THAT EVEN HIS GOD COULD NOT SAVE HIM NOW. I OVERHEARD THE DA TELLING THEIR BLACK FEMALE WITTINESS WHILE SHE WAS IN TEARS CONVINCING HER WHAT SHE SHOULD SAY, THERE WAS ANOTHER BLACK MALE WITTINESS WHO WAS A RANKING MARINE OFFICER, WHO SAW THE SAME PERSON IN THE ROBBERY AND COULD NOT IDENTIFY MY SON.IT TOOK THE ALL WHITE JURY LESS THEN THREE HOURS AND ONLY ONE JUROR STAYED TO HEAR THE SENTENCING THAT WHITE LADY WAS IN TEARS ALL THE TIME SOMETHING HAPPEN IN THAT JURY ROOM (?}THE JUDGE GIVE MY ONLY SON LIFE IN PRISON. QUESTION..WOULD YOU SAY THIS IS A CASE OF Batson challenge? AND WHAT CAN BE DONE TO SAVE MY ONLY SON. SOS!! PLEASE HELP! CONTACT ME NOGM@PEOPLEPC.COM THANK YOU. GOD BLESS YOU AND YOUR FAMILY. AGAPE
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