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In capital murder trialswhere a defendant may be sentenced to death lawyers will often tell you that the outcome is decided before either side makes an opening statement or presents any evidence. The critical part of the trial, these lawyers say is the selection of jurors. In high profile murder cases, both sides may spend tens of thousands of dollars on psychologists and other consultants who try to predict the behavior of individual jurors. But selecting the "right" jury is not an exact science. And the "right" jury is not necessarily a fair jury.
In capital murder trialswhere a defendant may be sentenced to death lawyers will often tell you that the outcome is decided before either side makes an opening statement or presents any evidence. The critical part of the trial, these lawyers say is the selection of jurors.
In high profile murder cases, both sides may spend tens of thousands of dollars on psychologists and other consultants who try to predict the behavior of individual jurors. But selecting the "right" jury is not an exact science. And the "right" jury is not necessarily a fair jury.
In 1999, two California psychology professors, Craig Haney and Mona Lynch conducted an experiment with 350 people who were eligible jurors. 86 percent of the study group was white, and everyone in the group said he or she would be able to impose a death sentence in at least some situations. Each subject was shown a videotape of what appeared to be the penalty phase of an actual capital murder trial.Tape from the Haney video experiment:
Good afternoon ladies and gentlemen…The judge will instruct you about the law that is to guide you in making a penalty decision. These instructions list certain factors in aggravation and in mitigation. And you will decide how much weight to give them in determining the life or death verdict….(tape continues) He packed a pair of socks, his own athletic dirty socks along with his gun when he headed out to Dominoes that night. He stuffed those soiled socks so deep into the mouth of John Emerson that he nearly choked to death before he had the chance to bleed to death.
According to Professor Haney the videotapes shown to each of the subjects were identical in every detail except one.
"We varied the race of the defendant, either black or white," explains Haney. "And we varied the race of the victim, either black or white."
A judge in each video instructed jurors about which factors to consider in deciding whether the defendant would live or die. Haney found that jurors who understood those instructions sentenced whites and blacks to death at approximately the same rate.
Among the low comprehension participants, there was massive discrimination. The people who understood the instructions poorly were much more likely to sentence the African American defendant to death than they were to sentence the white defendant to death.
Presented with identical facts, 60 percent voted death for the black defendant, but only 40 percent voted death for the white.
When it came to mitigating evidence, that is evidence which was supposed to lessen the defendant's culpability, the largely white jurors were more likely to sentence a drug-abusing white to life and a drug-abusing black to death. Astonishingly, the same held true for child abuse: a white defendant who was abused as a child was more likely to get a life sentence, but a black with the same background got death.
"People who didn't understand the instructions," explained Haney "appeared in a sense to be freed up to act on the basis of their prejudices, to disregard information that was intended to be mitigating when it was presented on behalf of an African-American, but take it into account when it was offered on behalf of a white defendant."
The Supreme Court has been largely unsympathetic to academic studies of racial discrimination among jurors, insisting that bias must be demonstrated in a specific jury with specific evidence. But even when jurors have come forward with that kind of evidence, appeals courts have often rejected it.
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.
But how do jurors with racial biases get seated in the first place? Is it purely by chance? Or is it by design?
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.
After 17 years here on Texas's death row, Thomas Miller-El is waiting for the U.S. Supreme Court to decide whether the Dallas district attorney used racial profiling in the selection of his jury in 1986. Now 51, Miller-El says the Supreme Court, which hears the case this fall, is the end of the road.
"That's it. That's it. If the Supreme Court don't decide to grant me a new trial, a reversal, if they decide to deny me relief, then 30 days after they deny relief then I'll be executed," says Mill-El. "If they decide to send my case to the Fifth Circuit Court, then I'm dead."
The New Orleans-based Fifth Circuit is famous for its rejection of appeals by death row inmates.
Miller-El insists he's innocent, but no court has bought that claim. He was sentenced to die for shooting Douglas Walker two times in the back during an armed robbery at a Holiday Inn in Irving Texas. Walker died of his wounds. Another hotel employee, Donald Ray Hall, Jr., was found bound and gagged in a bellman's closet next to Walker. Hall was also shot in the back and rendered a quadriplegic.
Miller-El says blacks were systematically excluded from his jurythat the one black seated at his trial testified that murderers should be tortured to death.
"They asked him, well what do you think about executions," recalled Miller-El. "And he said, 'I don't think the death penalty is good enough. I think they should be staked down like the Indians used to do 'em and have honey poured over 'em in the ants' bed, and let 'em be ate up by ants.'"
Wayman Kennedy is planting a vegetable garden for his wife beside his new home 40 miles south of Dallas. In 1986, when he was called as a juror in the Miller-El case, Mr. Kennedy was a full-time employee at IBM. He recalls telling the court that he supported the death penalty. But Kennedy was rejected as a juror.
"I was thinking that I was mainly being stricken by the defendant's side who didn't want the death penalty for their client and not from the prosecutors side and I later found out it was the prosecutors side. And I was in favor of the death penalty but I was still stricken," says Kennedy.
Kennedy later learned that he was one of ten black death penalty supporters who were rejected by the prosecution.
The fact that the prosecutor kept cards noting the race of each prospective juror convinced Kennedy that he was struck solely because he is black.
"If, in fact, you're going to put on the cards what the race of that particular person is, the gender, so you would know what that person is for your selection process, then that is racist. Because if it didn't matter, why would you put it on there?"
What Kennedy didn't know was that during the six years leading up to and including Miller-El's trial, the DA's office used its peremptory strike powers that is, its authority to remove jurors without stating a reasonto strike 90% of black jurors.
Larry Baraka, a former state criminal court judge runs a small, private law practice from an elegantly restored downtown Dallas office building. When he worked for the DA in the late 1970s, Baraka says the office kept a manual that explained to prosecutors how to discriminate in jury selection.
"In that manual, recalls Baraka, "it would tell you certain people that you should not select for various reasons: blacks, Jews, women particularly, Hispanic, college educated. Different types of things."
"You are not looking for a fair juror," the manual states, "but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind, rather than degree."
The current Dallas District attorney insists racial profiling in his office is ancient history, that the Supreme Court's 1986 Batson decision, which prohibited discrimination in jury selection, effectively put an end to it. Judge Baraka says the Batson decision merely forced prosecutors to come up with "race neutral" reasons for eliminating blacks.
"Have you ever had any problems with the police?" quotes Baraka. "Have you ever been stopped or arrested or anything? No never been arrested. Have you ever gotten a ticket? Yes. Did ya think it was fair? Well, probably not. Have you ever been locked up - a cousin, somebody arrested? Well, hell... So, of course, if you've got a relative who's arrested or prosecuted, do you think they were treated fairly? Well, man, trust me on this one. You're gonna find a significant bunch of black people who been in the criminal justice system that did not think it's fair. Cause it's not."
"So when they answered that question, hell they're doomed anyway. You understand what I'm saying. So they ask those kinds of questions so when the lawyer makes the objection. Well, give me a race neutral. Well he didn't think he was treated fairly. OK, you're excused."
Recent court records are replete with cases in which prosecutors allegedly used all their peremptory challenges to strike African-American jurors. In the Miller-El case, black jurors who had relatives in trouble with the law were struck; whites in the same situation were seated. Whether race is a factor in jury selection is, in the end, a call made by a judge. In some cases, bias may be difficult to detect. In others, judges may not be looking for it or simply choose not to see it.
Sitting in a closed room, shut off from any outside scrutiny, 12 individuals more or less rationally discuss extinguishing the life of another human being.
Today, most legal authorities agree this truly awesome responsibility is best given to jurors rather than judgesthe only obvious alternative. Yet we know that juries not only make mistakes, but that they are often confused by much of what goes on in the courtroom and that they sometimes fail to discharge their responsibilities according to the law.
When the government concluded its obstruction of justice case against the accounting firm Arthur Anderson for destroying documents related to Enron, it quickly became clear that many jurors simply didn't understand the government's arguments. The issues and the law in death penalty cases are no less complex. Unlike the case of the besieged accounting firm, however, in a capital murder case when jurors fail to comprehend the facts or the law or they don't get answers from a judge, someone may pay with his life.