Rival lawyers reject whites at higher rate

04:19 PM CST on Tuesday, January 24, 2006

By STEVE MCGONIGLE, HOLLY BECKA, JENNIFER LAFLEUR and TIM WYATT / The Dallas Morning News

Racial discrimination was once so raw in Dallas County that a black college president who tried to serve on a jury was flung headfirst down the courthouse steps while sheriff's deputies watched.

RICHARD MICHAEL PRUITT/DMN

Prosecutors excluded blacks from juries at more than twice the rate they rejected whites, a study of felony trials showed.

This past March, nearly 70 years later, a young black man had to show a judge his teeth in order to serve.

The all-white jury – that enduring image of Jim Crow justice – is a fading sight around the Frank Crowley Courts Building. But while times, laws and leaders have changed, race still matters.

Prosecutors excluded eligible blacks from juries at more than twice the rate they rejected eligible whites, The Dallas Morning News found. In fact, being black was the most important personal trait affecting which jurors prosecutors rejected, according to the newspaper's statistical analysis. Jurors' attitudes toward criminal justice issues also played an important role, but even when blacks and whites answered key questions the same way, blacks were rejected at higher rates.

District Attorney Bill Hill denied that his prosecutors exclude, or strike, jurors on the basis of race.

"The statistics may show we strike more blacks, but it's not because they're black," he said. "It's because for one reason or another, they [prosecutors] don't think they are going to be fair and impartial."

But the son of Dallas County's most famous district attorney said prosecutors continue to pick juries based on race, albeit in less obvious ways.

"I think it's institutional," said state District Judge Henry Wade Jr., whose father's office was cited repeatedly for race discrimination in jury selection.

Supervisors may no longer preach racial stereotyping, and some try to combat it, Judge Wade said, but it remains a part of the office's culture. "I think informally prosecutors talk and say, you know, 'What can we do to get minorities off the jury panel?' "

The News' study showed that blacks served on Dallas juries in proportion to their population – because prosecutors did not eliminate all blacks and defense attorneys excluded white jurors at three times the rate they rejected blacks.

The dueling tactics of prosecution and defense have produced only an illusion of equal rights, and one that flouts the intent of several U.S. Supreme Court rulings, legal experts said.

"We're talking about the court of law, and there is blatant disregard and violation of the law going on," said law professor David Baldus, a nationally recognized expert on race bias in jury selection. "If one doesn't care about the Constitution, then one won't be fazed by it."

The president of the Dallas Criminal Defense Lawyers Association said the newspaper's findings confirmed his courtroom experiences.

"It's shocking that race continues to play a significant role in the dynamics of the jury system in Dallas County," Peter Barrett said. "Justice should not be motivated by partisanship or race or any other factor which is prohibited by equal protection of the Constitution."

As part of its two-year investigation, The News examined 108 non-capital felony cases tried in 2002. Reporters interviewed prosecutors, defense lawyers, jurors, judges and scholars. They reviewed more than 6,500 juror information cards, read transcripts of juror questioning and analyzed lawyers' strike patterns.

Several experts said the newspaper's analysis was the most thorough to document race bias in jury selection, the last vestiges of which the Supreme Court sought to abolish in its 1986 landmark decision, Batson vs. Kentucky.

That ruling made it illegal to exclude even one black juror because of race and said it could be grounds for a new trial. The court later ruled that race discrimination also violated jurors' constitutional rights.

In June, the high court overturned a 19-year-old death penalty case, declaring former District Attorney Henry Wade's office a symbol of race discrimination in jury selection. It was the third time in two decades the high court had highlighted racism in the Wade administration.

No one disputes race is an issue in the criminal justice system, but none of Mr. Hill's prosecutors said it was a problem in jury selection.

But Phillip Hayes, who was a prosecutor under Mr. Hill for five years, said he learned from supervisors and more experienced peers to be wary of blacks.

"No one ever came out and said it aloud – or put it in writing – but the pervasive side was that many didn't think that African-Americans made good jurors for the state," said Mr. Hayes, who left the district attorney's office last year under disputed circumstances. He is now a defense attorney.

Jeanine Howard, who worked until the 1990s for Mr. Hill's immediate predecessor, said her supervisors taught her to make up excuses that would allow strikes against blacks to stand.

As a defense attorney, she now sees Mr. Hill's staff offering the same explanations.

"Having been on both sides, I know what they're doing," Ms. Howard said. "They know there are techniques you can use."

Juan Sanchez, another former prosecutor-turned-defense attorney, said he saw disturbing patterns. "When I represent black clients, the black people get struck [from the jury pool]. I think it's more than a coincidence."

In trials examined by The News, prosecutors sometimes cited fashions or physical traits associated with black culture, such as gold teeth, to justify their rejection of black jurors.

Mr. Hill said that his prosecutors don't make up excuses to strike jurors and that the newspaper's analysis was "unfair and biased." He agreed, however, with the newspaper's findings that defense attorneys strike a disproportionate number of whites.

A former track star with a country twang, Mr. Hill became district attorney in 1999 after 25 years as a criminal defense lawyer. Early in his career, he spent six years as an assistant to Mr. Wade, the district attorney from 1951 through 1986 best known for the prosecution of Jack Ruby and the abortion-rights case Roe vs. Wade.

Mr. Hill, 63, considers the late Mr. Wade a role model and has a large portrait of him hanging in his office. Still, he and his staff have tried to distance their office from any racial discrimination of the Wade era.

It was under Mr. Wade that the Dallas County district attorney's office was first embarrassed in 1973 by the disclosure of a stereotype-laced training paper on jury selection that instructed prosecutors on how to use their peremptory strikes. "You are not looking for any member of a minority group which may subject him to oppression – they almost always empathize with the accused."

Peremptories are one of three tools lawyers use to reduce jury pools to 12 jurors. In Texas, lawyers on each side can use their peremptory strikes to exclude up to 10 jurors for any reason, as long as it is not based on race or gender. Twelve other states allow lawyers at least 10 peremptories.

Lawyers also can excuse for cause those who cannot fulfill their legal duties, or can reach agreements with opposing counsel to excuse those jurors whom both sides prefer to avoid.

But the peremptory is by far the most controversial jury selection tactic. One Colorado judge has called it "the last best tool of Jim Crow," and two Supreme Court justices have wondered publicly about its abolition.

In 1986, The News revealed that Dallas prosecutors were using their peremptory strikes to exclude nearly all blacks from juries. Since then, strike rates of blacks have dropped from almost 90 percent to less than 60 percent. And training papers urging exclusion have been replaced by an official policy of racial equality.

"If I felt like I was dealing with lawyers who were holding on to those biases and prejudices from years ago, quite frankly, I don't think I'd be district attorney, or they wouldn't be working for me," Mr. Hill said.

When the Supreme Court this summer overturned the conviction of Thomas Joe Miller-El, it cited "a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race."

The justices found prosecutors' explanations for striking blacks implausible. They noted the history of race discrimination in Dallas County juries, the reordering of jury panels to try to move blacks to the rear, and the different standards of questioning applied to black jurors and white jurors.

The court highlighted instances during Mr. Miller-El's 1986 trial of prosecutors rejecting blacks even when their answers to jury selection questions were similar to those of whites who were seated as jurors.

Two decades later, The News found that felony prosecutors were still using some jury selection tactics condemned by the Supreme Court.

Prosecutors maintain that it's how prospective jurors answer their questions, not race, that determines who gets selected and rejected.

"I don't care who you are," said Rick Jackson, a chief felony prosecutor. "It's what you say to me or what you don't say to me in answering the question that matters in whether or not you get struck."

Prosecutors say certain questions play a fundamental role in their screening of prospective jurors. For instance, Toby Shook, one of Mr. Hill's top assistants, said felony prosecutors don't want jurors who believe that rehabilitation, instead of punishment, is the main goal of sentencing.

"They are nice people. I want them to be my neighbors. I don't want them on my jury because they are going to give a guy a break, whatever race they are," he said.

Mr. Hill said his prosecutors seek jurors who have had positive encounters with authorities.

"A disproportionate number of minorities are struck by the prosecution not because of the color of their skin, but because their own negative experience with law enforcement, or that of a close friend or family member, may have tainted their view of the system as a whole," he said in a statement.

But the newspaper's analysis found that prosecutors treated the responses of blacks and whites to key questions differently. A review of transcripts of juror questioning, available in 59 of the 108 cases studied by The News, showed that:

•Juror views on rehabilitation were the most important factor in determining who was excluded, but prosecutors rejected 79 percent of the blacks who favored rehabilitation over punishment or deterrence, compared with 55 percent of the whites who gave the same answer.

•Prosecutors excluded 78 percent of the blacks who acknowledged that they or someone close to them had had contact with the criminal justice system, compared with only 39 percent of whites.

•About 2 percent of all jurors in the study said they or someone close to them had had a bad experience with police or the courts. Prosecutors rejected every black who gave that answer, compared with 39 percent of the whites.

"If a prosecutor's proffered reason for striking a black panelist applies just as well to a white panelist allowed to serve, that is evidence tending to prove purposeful discrimination," the Supreme Court ruled in its Miller-El decision.

Nineteen years ago in its Batson ruling, the court said purposeful discrimination was proof that a juror had been wrongfully excluded.

The justices also said prosecutors must be able to offer "race-neutral" reasons for excluding jurors. As a result, critics contend, prosecutors today use questions about jurors' contact with the legal system or their views on punishment as a subtle way to exclude blacks.

"I believe that prosecutors ask questions so that they can strike persons who can compromise their ability to win their case," said the Rev. L. Charles Stovall, who leads a group that monitors alleged police brutality and racial profiling.

Judge Wade said that when prosecutors ask jurors whether punishment, deterrence or rehabilitation is the main purpose of sentencing, the question is calculated to try to get blacks off juries.

"That's just a taught question," he said. "A lot of the minorities are going to say rehabilitation, so you strike everybody who says rehabilitation and you're covered under Batson. I think that's the only reason they ask it."

For its analysis, The News used logistic regression, a statistical tool that computes the relationship between variables such as a potential juror's race and whether the juror was struck by the prosecution.

While it's not possible to know everything that influenced a prosecutor's strike, the newspaper analyzed all factors in the public record, such as age, race, education, occupation, socioeconomic status and answers to questions that prosecutors say help them spot a good or bad juror.

Even after accounting for all available reasons that a potential juror might be struck, the newspaper's analysis showed that prosecutors rejected black jurors at higher rates than whites.

If the difference in strike rates between blacks and whites could have been explained by some other factor, the strength of race would have been greatly reduced when those factors were added to the analysis. But no factor reduced the importance of race.

Had race played a minor role, the analysis would have found no difference in the strike rates for blacks and whites with similar characteristics. But there were differences. Within each income group, for example, blacks were struck at about twice the rate of whites.

The News asked the nation's leading experts on jury selection to review its findings and give their opinions.

"Proof like this would make a prima facie case of systemic discrimination," Mr. Baldus said.

"I think you can say they are intentionally violating the law," he added.

Mary Rose, an assistant professor of sociology and law at the University of Texas at Austin, agreed that the study showed a clear pattern of exclusion. But that does not prove prosecutors intentionally discriminated, she said.

"It's hard for me to say that they are in their head going, 'Here comes a black person; no way in hell are they going to be on my jury,' " Ms. Rose said. "I just know the end result. And it doesn't look good."

Mr. Hill consulted two criminologists about The News' findings. Both praised the thoroughness of the analysis, but said it did not prove prosecutors were intentionally excluding blacks because of race.

"You see hardworking prosecutors who are trying to get the best jury they can to get a person convicted of a crime," said Robert Taylor, chairman of the Department of Criminal Justice at the University of North Texas.

He theorized that race and socioeconomic status were so intertwined that prosecutors disproportionately struck minority jurors because they are poor and have greater contact with the criminal justice system.

The district attorney hired Mr. Taylor to review his office's operations after a fake-drug scandal in 2001 in which prosecutors sought drug convictions against Hispanics who had been framed by police. Based on his experience, Mr. Taylor said, he was convinced that racism was not an issue in Mr. Hill's office.

Mr. Hill said The News' study failed to account for one important variable that could not be found in court transcripts: a juror's demeanor – how he looked and acted, how he reacted to defense attorneys and prosecutors.

"When we see a juror who looks like they want to wring our neck or spit in our face – things that don't show up [in the record] – we're going to strike that person," he said.

Courts have upheld demeanor as a legitimate reason to exclude a prospective juror. But the disparity in strike rates found by The News is too wide to be explained by demeanor alone, said Ms. Rose.

"It would be shocking to me if there were that many African-Americans making faces and not whites, because I've been to jury service, and no one's happy to be there," said Ms. Rose, whose study of peremptory challenges in North Carolina found similar strike patterns.

In the trials examined by The News, some judges allowed prosecutors to strike jurors for failing to make eye contact with the lawyer, smiling at the defense attorney or allegedly sleeping.

When attorneys suspect a juror has been rejected because of race, they can request what's known as a Batson hearing. In a review of all Batson transcripts available in cases studied by The News, prosecutors cited demeanor only seven times to justify their 51 strikes of minorities.

"It's a feeling you get from people. A guy with tattoos and a bandanna is probably not a guy that likes authority," said Nancy Mulder, a chief felony prosecutor.

On the other hand, she said, someone who has "been attentive ... smiled at me, nodded at things I've said – we're not going to have a problem."

The late Supreme Court Justice Thurgood Marshall worried that strikes for demeanor could become a cover for prosecutors whose perceptions are warped by their prejudices.

"A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is 'sullen' or 'distant,' a characterization that would not have come to his mind if a white juror had acted identically," he wrote in the Batson case.

For at least one member of the high court, those concerns have not diminished with time. In a concurring opinion to the Miller-El decision, Justice Stephen Breyer noted that in Dallas and elsewhere, "The use of race- and gender-based stereotypes in the jury selection process seems better organized and more systematized than ever before."

In the six years Mr. Hill has been in office, none of the thousands of cases brought to trial has been reversed on a Batson challenge.

Batson objections were found in only 16 cases reviewed by The News. None was sustained by the trial judge, and only five made it to appeals courts.

Prosecutors say that proves they're following the law.

"I think we're doing it right," said Lori Ordiway, chief of the district attorney's appellate section. "There is nothing from which to make a claim."

Critics, however, say the lack of successful appeals merely proves how weak the Batson protections are.

"Very frankly, any attorney worth his salt can make up something to get over a Batson challenge," said Mike Byck, an assistant public defender in Dallas County. "And, literally, they do make it up. We do."

Although the Batson decision was meant to end racial discrimination in jury selection, the Supreme Court's ruling left open the question of what constituted a race-neutral strike.

In subsequent rulings, the high court made enforcing Batson more difficult, essentially declaring that judges should accept all but the most obviously racial reasons for a strike.

As a result, Texas appeals courts have allowed prospective jurors to be rejected for "body English"; gum chewing; wearing a pink hat, snakeskin belt or sunglasses; or having unkempt hair, mustaches or beards.

Ms. Howard, the former prosecutor, said her supervisors in the district attorney's office taught her how to get around Batson.

"Always say they're sleeping," said Ms. Howard, who now specializes in appeals. "I was told that."

The newspaper also found that when defense attorneys question whether race is the reason behind a prosecutor's strike, the lawyers often handle it informally and it is not made part of the trial record. Defense and prosecution also regularly agree off the record, sometimes with the judge's participation, about which jurors to excuse.

The reluctance to make a formal Batson challenge is not just the result of vague legal guidance, but a reflection of how unwilling most lawyers are to accuse colleagues of racism.

"Nobody likes to be accused of something as horrible as that," said Robert Hirschhorn, a nationally known jury consultant who is based in Lewisville and works mostly with the defense.

Prosecutors, judges and many defense attorneys have worked together for years, and collegiality is a hallmark of the Dallas County courthouse.

But Stephen Cooper, a Dallas appellate attorney, denounced such informal measures as an end-run around Batson that precludes the issue of race discrimination ever being raised on appeal.

Mr. Miller-El's attorneys set the foundation for a successful appeal of his death-penalty conviction by making their allegations of race bias in jury selection a part of the trial record.

Mr. Hill said he does not track Batson challenges. If a prosecutor were found to have violated Batson, it would come up in the evaluation process or he would hear about it on the courthouse grapevine, Mr. Hill added.

RICHARD MICHAEL PRUITT/DMN

District Attorney Bill Hill called the analysis of his office's jury selection practices 'unfair and biasd.' But he agreed that defense attorneys stroke a disproportionate number of whites.

One such incident caught his attention in March after The News requested a transcript of jury selection proceedings.

A felony court prosecutor had acknowledged to state District Judge Faith Johnson that stereotypes guided at least one of her strikes.

In response to a Batson challenge from the defense, Kerri New told the judge that she had rejected a 22-year-old black man because he had missing teeth and looked disheveled.

"It fits him into a socioeconomic stereotype, which the state feels is a group that's detrimental to the state," said Ms. New, who used nine of her strikes to exclude potential black jurors.

The judge had the young man brought back into court and asked him to show his teeth.

She disallowed the prosecutor's strike and put the man on the jury, which later convicted two young black men of robbery.

In May, Ms. New quit the district attorney's office. She declined in an interview to discuss the reasons for her departure but insisted she had mistaken the young man for an older black man seated in front of him.

Mr. Hill acknowledged that he demoted Ms. New, the first time in his six years in office that he has disciplined a prosecutor for a Batson-related issue. He said he disagreed with her philosophy on jurors.

"It doesn't make a difference how much money you have," he said.

The News also found two cases last year in which a judge ruled that another of Mr. Hill's prosecutors had violated Batson.

That prosecutor, Lara Peirce, rejected a black truck driver whom she described as "liberal" because he was wearing a gold chain with what she incorrectly described as a theater mask medallion. She also rejected a black secretary who she wrongly said was skeptical of police.

Ms. Peirce said that she alerted Mr. Hill to the incidents, had valid race-neutral reasons for excluding the jurors and did not understand why the judge found them unacceptable. "There's no problem with why I struck these people," she said in an interview.

Mr. Hill blamed the Batson rulings on a personality conflict between the state district judge and Ms. Peirce.

The judge, Mary E. Miller, disagreed. "It had absolutely nothing to do with personality conflict, and it had everything to do with following the law," Judge Miller said. "You have to look at whether it [the strike] is race-neutral, but you also have to look behind it and make sure they're not just making something up."

Six months after the second Batson ruling, Mr. Hill commended Ms. Peirce's performance in another case.

The district attorney said he does not necessarily make Batson violations part of employees' personnel files.

"We look at each individual case to determine whether there is some kind of deception or ill motive or something where there's an intentional or perceived intentional violation of Batson," Mr. Hill said. "We get objections sustained every day that we don't think are right."

Mr. Hill strongly objected to any suggestion that he or his staff engage in racist behavior, and on the surface, his felony prosecutors seem a different breed from the Wade era.

Fourteen of the 93 felony court prosecutors are minorities. All but seven earned their law degrees after the 1986 Batson ruling.

New prosecutors in Mr. Hill's office receive a 45-page training paper devoted to jury selection, which instructs them to follow the law. All are instructed to follow a written policy prohibiting jury selection based on race.

"The kids now, they're being raised in a different culture," state District Judge Keith Dean said. "They don't have to consciously reject the lies that some of us were exposed to when we were younger."

State District Judge John Creuzot, one of only two black felony court judges in Dallas County, said he was surprised by The News' findings.

"They seem to be doing a very good job, from my perspective, of handling the cases in a fair and impartial manner," he said.

But several legal analysts said they believed that prosecutors unconsciously engage in unfair stereotyping because they are under immense pressure to win and often must rely on superficial information.

"Your job as a prosecutor is to get a conviction, just as your job as a defense attorney is to get an acquittal," said Marc Mauer, assistant director of The Sentencing Project, a reform organization based in Washington, D.C. "In your personal life, you may have very good relationships with African-Americans and other groups, but your number crunching tells you that your goal needs to be to get as many blacks off the jury as you possibly can.

"Racist or not, the end result is certainly a racist one."

There is also an entrenched belief among prosecutors and defense attorneys that racial stereotypes are still valid indicators of what makes a "good" juror, said Mr. Baldus, a death penalty opponent and a professor at the University of Iowa whom many academics regard as the nation's leading researcher on jury selection bias.

"Maybe they aren't aware that they are indulging in these stereotypes when it comes to race," he said. "[But] if it isn't conscious, it's based on perceptions that are highly correlated with race and race alone."

Prosecutors worry that blacks will empathize with defendants because research shows that blacks are more likely to have bad experiences with the legal system, such as racial profiling by police.

Mr. Hayes said that when he worked in Mr. Hill's office, the stereotypical profile of a black juror was someone who supported rehabilitation of criminals, favored lighter prison terms and had a higher rate of bad experiences with law enforcement and the justice system.

"Everybody with experience seemed to have a story of how a jury hung up when a black juror wouldn't put another black person in jail," he said.

Studies show that while black jurors may alter the tenor of deliberations and improve the thoroughness with which evidence is examined, their presence usually does not change a trial's outcome. There is a greater chance that black jurors will be more lenient in sentencing.

However, the amount of influence blacks can have on a verdict depends on their numbers in the jury, scholars say.

"The research shows that if you only have one, two or three blacks [on a jury] or as many as four, they don't have any real influence on the system," Mr. Baldus said.

In the 108 trials examined by The News, 101 had four or fewer black members. Ten juries contained no black members. Only one jury had a majority of black members; the defendant in that case was white. Blacks made up 56 percent of the defendants.

All-white juries have tended to be harsher on black defendants, said Phoebe Ellsworth, a professor of law and psychology at the University of Michigan.

"White people worry about being racist when they're reminded of it," she said. "But when it's all white people, it just doesn't occur to them to remember their egalitarian values."

Prosecutor Ada Brown, whose mother is white and father is black, believes it's best to talk to prospective jurors about race rather than have it surface later in deliberations.

"I have an 80-year-old grandfather who thinks everybody brown is of Satan," said Ms. Brown, the only one of 13 felony prosecutors interviewed by The News who acknowledged raising race during jury selection.

She has black relatives who distrust the state too much to be fair jurors, she added.

"I use those two extremes to try to get people discussing the topic that nobody wants to discuss – and that is, that race sometimes matters," Ms. Brown said.

The Supreme Court has grappled with jury discrimination since the first decade after adoption of the Civil War Amendments to the Constitution, which guaranteed blacks the rights of full citizenship, including jury service.

Batson in 1986 was the first court ruling to put limits on how lawyers could use their discretionary strikes.

But Justice Marshall, the court's first black member, predicted that would not be enough and called for the abolition of peremptory strikes.

He had seen up close the consequences of race discrimination in jury selection. In 1938, as counsel to the NAACP, he came to Dallas to investigate an attack on George Porter, the president of Wiley Junior College who was thrown down the courthouse steps after refusing to be excused from jury service.

"Even if all parties approach the court's mandate with the best of conscious intentions," Justice Marshall wrote almost 50 years after that incident, "that mandate requires them to confront and overcome their own racism on all levels – a challenge I doubt all of them can meet."

Two decades later, writing in the Miller-El case, Justice Breyer recalled Justice Marshall's warning and said it was time "to reconsider Batson's test and the peremptory challenge system as a whole."

Some judges and legal scholars believe that the only way to eliminate discrimination in jury selection is to do away with peremptory strikes – or at least limit them. Having 10 strikes per side, they say, gives lawyers too much leeway.

Beyond the constitutional debate over peremptory challenges, community leaders say race discrimination in jury selection tells an entire group of people that it's unfit to serve and undermines the foundation of the justice system.

"The end results are that you exclude a category of people," said Hank Lawson, chairman of the South Dallas Weed and Seed Committee, which works with police to prevent crime. "You can't get around that."