Robert Bacon Case

Pamela Smith lives with her husband and baby girl on a tidy cul-de-sac, a stone's throw from the Camp Lejeune Marine base in Jacksonville, North Carolina. In 1991 Mrs. Smith, who is white, sat on a jury that sentenced Robert Bacon, Jr. to death for murdering his girlfriend's husband. Bacon is black. The girlfriend, who dreamed up the plot and participated in it, is white. Bacon was sentenced to death. The girlfriend, tried by a separate jury, got life in prison.

During sentencing deliberations, Smith says, some jurors commented that it is "typical" of blacks to be involved in crime and made other racially charged comments.

"They did state that they thought it was wrong to have, you know, a black man date a white woman," says Smith. "You could just tell that some people were not very comfortable with that situation. I mean, they just thought that he got what he deserved being a black man and, you know, for what he did."

Smith was convinced these views led to Bacon's death sentence. But when information about these racial comments was brought to the court's attention, it was ruled inadmissible. Bacon, as it turns out, got lucky. His sentence was commuted to life in prison without parole by the state's governor three days before he was slated to be executed last year.

William Henry Hance was not so lucky. A jury of 11 whites and one black sentenced him to die. One white juror testified after the trial that Hance was referred to during deliberations as a "typical nigger" and that jurors said executing him would result in "one less nigger to breed." But the courts refused to address the issue. The State of Georgia electrocuted Hance in March of 1994.

Philadelphia

But how do jurors with racial biases get seated in the first place? Is it purely by chance? Or is it by design?

AUDIO EXCERPT Jury Instruction with Jack McMahon (Real Audio, 10:43 min) Background In the 1986 landmark U.S. Supreme Court decision, Batson vs. Kentucky, it was decided that removal of potential jurors on the basis of race was unconstitutional. In response to this decision, the Philadelphia District Attorney's Office asked Jack McMahon, who was DA at the time, to give a training session on jury selection. McMahon wasn't informed of the subject of the session until shortly before he presented, but his 45-minute presentation on jury selection was recorded in the form of a training video. Then the video disappeared from the public eye for ten years. It is unknown whether it was actually used during that time by the District Attorney's Office for jury selection training. In 1997, Philadelphia District Attorney Lynn Abraham was running for reelection. When Jack McMahon emerged as her opponent, Abraham publicly released the training video. Subsequently, several cases have cited its unconstitutional nature as evidence of discrimination in jury selection by city prosecutors. The Philadelphia's District Attorney's office says the McMahon video represents nothing more than the views of one man. A spokesman says the office does not engage in racial profiling in jury selection.

In support of the latter view, Exhibit A would have to be a videotape of a former homicide prosecutor named Jack McMahon. The videotape, prepared by the Philadelphia District Attorney's office in 1987 for use in instructing new prosecutors, records a one-hour lecture by McMahon on the art of selecting a jury.

"The case law says that the object of getting a jury is to get a competent, fair and impartial jury. Well, that's ridiculous."

According to McMahon, the law is not only ridiculous, but the job of the prosecutor is not to see that justice is done but rather to win.

"The only way you're going to do your best is to get jurors that are as unfair, and more likely to convict than anybody else in that room."

Since most citizens and most jurors are, presumably, pretty fair-minded, eliminating them from a jury could be a daunting task. McMahon suggested specific strategies for going about this. For example:

"You don't want smart people. You do not want smart people. Because smart people will analyze the hell out of your case. They have a higher standard. They take those words "reasonable doubt" and they actually try to think about 'em. You don't want people that are gonna think it out. You want people. You want people who come in there and say, 'Yup, she said he did it, he did it.'"

McMahon believes those less likely to convict include: social workers, doctors, and most teachers. Jurors he believes are especially "bad" include young black women and low-income blacks.

"You don't want those people on your jury. And it may appear as if you're being racist or what not, but again, you're just being realistic. You're just trying to win the case."

Needless to say, one way to identify "those people" is the color of their skin. Another is by considering where they live. Prosecutor's rule of thumb: white neighborhoods good; black neighborhoods bad.

"People from Mayfair are good and people from 33rd and Diamond stink."

You get the picture.

The problem with McMahon's prescriptions are that they're illegal. In 1986, the Supreme Court ruled in Batson versus Kentucky that eliminating jurors on the basis of race violated the jurors' rights under the Constitution. "The harm from discriminatory jury selection," the Court ruled, "extends beyond that inflicted on the defendant and the excluded juror to touch the entire community."

McMahon left the district attorney's office in 1990 after successfully prosecuting 36 murder defendants at trial. Several of those convictions are now being challenged because of this videotape. McMahon, now a criminal defense lawyer, did not return phone calls requesting an interview. But he has previously defended his remarks as an accurate description of how "real juries are picked."

Robert Dunham, director of training in the Federal Defender's Office in Philadelphia, says a study done for his office proves that the kind of racial profiling McMahon promoted 15 years ago still goes on.

"What the data shows is that over a period of 15 years, the Philadelphia District Attorney's office is twice as likely to strike a juror who is black than any other juror," explains Dunham. Among all these other jurors, who are not black, the office is twice as likely to strike you if you live in an integrated neighborhood as opposed to a highly segregated white neighborhood."

Dunham says racial profiling by prosecutors leads to a significantly higher number of death sentences among blacks.

"The odds that a defendant will be sentenced to death in Philadelphia are more than tripled if you consider one thing and that is the color of the defendant's skin," says Dunham.

A spokesman for the Philadelphia District Attorney's office denied that there is discrimination in jury selection. He said prosecutors today do not see racial discrimination as a strategy that is in their interest. He dismissed the McMahon video as nothing more than the view of one former prosecutor and said allegations of bias in McMahon's cases will be resolved by the courts.

Thomas Miller-El