August 23
'I just felt like I was lynched' -- Man convicted of armed robbery says he
never had chance with white jury after 5 blacks rejected
Emanual Fields' guilt was decided in a Dallas courtroom years ago, but the
26-year-old from Pleasant Grove cannot let go of how he ended up with an
all-white jury.
"I just felt like I was lynched," Mr. Fields said during a prison
interview in May. "I tried to speak up for myself, but they wasn't hearing
it."
Serving three concurrent 60-year prison terms for armed robbery, Mr.
Fields believes that he didn't receive a fair trial because of racial
discrimination during jury selection.
In October 2002, after 3 hours of juror interviews, the prosecution used
1/2 of its 10 allowed peremptory strikes to exclude the five eligible
black jurors.
Defense attorney Kevin Brooks objected, alleging that prosecutors rejected
the black jurors because of race, in violation of U.S. Supreme Court
rulings.
But state District Judge John Nelms upheld the prosecution's
justifications for the strikes as "racially neutral."
According to a transcript of the proceedings:
-3 of the black prospective jurors had a relative who was either serving a
jail term or who had recently been in jail.
-A 4th black juror allegedly slept during part of the juror interview
process.
-The 5th black juror, a bus driver, was cut for having gold teeth and
wearing "a big gold necklace."
Prosecutor Marc Moffitt noted that case law was clear on his right to
strike a prospective juror for wearing gold chains. "It didn't have to do
with race. It had to do with the big gold chain," he told the judge.
"You're telling the court that had [the juror] been a white person or
Asian wearing - if he had gold teeth and a gold necklace - that he would
have been a goner?" Judge Nelms asked.
"Correct," Mr. Moffitt answered. He added that the same juror was
unacceptable because he didn't answer a group question posed by the
defense.
An appeals lawyer examining the trial transcript months later noticed that
3 white jurors who also had relatives with criminal records were allowed
on the jury while the black jurors were not.
But the argument that jurors in Mr. Fields' case had been subjected to
"disparate treatment" - one of the Supreme Court tests for race bias in
jury selection - failed to sway 2 state appeals courts.
Frustrated with Texas courts, Mr. Fields wrote his own appeal to the
Supreme Court, asking it to review what happened at trial. But in June,
the high court declined to hear the case.
During jury selection, Mr. Fields made an impassioned plea for a racially
diverse jury, according to the transcript.
"Excuse me, your honor," Mr. Fields addressed the judge. "I just wanted to
ask you that I feel that it's unfair that I have no African-Americans on
my jury panel."
Judge Nelms told Mr. Fields he regretted that no black jurors ended up on
the panel.
"You know, it's the luck of the draw. It's like playing a card game," the
judge said, according to the transcript. "You get aces or you get low
cards."
When Mr. Fields interrupted a second time to complain of an unfair trial,
while the jury was being seated, the judge cautioned him to play by the
rules of the court.
"Yes, sir," Mr. Fields answered. "I just want you all to play by the
rules, too, sir."
In his prison interview, Mr. Fields again questioned rejecting a juror
solely for wearing gold jewelry.
"He was a person with his own mind," Mr. Fields said of the juror. "What
did any of this have to do with his appearance?"
COURT RULINGS
The major Supreme Court decisions on racial discrimination in jury
selection:
Strauder vs. West Virginia (1880) - Ruling in the case of a black man
convicted of murder, the court struck down a state law limiting
eligibility for jury service to white males, saying it violated the equal
protection clause of the Constitution.
Norris vs. Alabama (1935) - The court reversed the conviction of 1 of the
9 black teenage defendants in the "Scottsboro Boys" interracial rape case,
ruling that the exclusion of blacks from jury rolls violated the equal
protection clause.
Hill vs. Texas (1942) - Ruling in the prosecution of a black man in
Dallas, the high court ruled that Dallas County court officials had
illegally excluded blacks from serving on grand juries.
Swain vs. Alabama (1965) - The court upheld the right to use peremptory
challenges in jury selection but said such strikes could not be based on
race. To win a bias claim against prosecutors, however, a defendant had to
show "systematic exclusion."
Batson vs. Kentucky (1986) - The court modified the scope of peremptory
challenges by requiring prosecutors to give "race-neutral" reasons for
striking minority jurors. It established a 3-step process to investigate
bias claims.
Powers vs. Ohio (1991) - The court expanded its ban on race bias in jury
selection to include prospective jurors, saying they had "the right not to
be excluded ... on account of race."
Georgia vs. McCollum (1992) - The court expanded its ruling in Batson to
prohibit defense attorneys from exercising peremptory strikes based on
race.
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Disputed practice still a courtroom fixture -- Peremptory challenges
survive calls for reform, decades of controversy
Prejudice is what peremptory challenges are meant to combat.
But Justice Thurgood Marshall knew that history told a different story
when he warned in 1986 that the U.S. Supreme Court's attempt to ban
lawyers from using discretionary strikes to exclude jurors because of race
was destined to fail.
The high court's Batson vs. Kentucky ruling, he predicted, "will not end
the racial discrimination that peremptories inject into the jury selection
process. That goal can be accomplished only by eliminating peremptory
challenges entirely."
In June, Justice Stephen Breyer agreed that Batson was flawed and urged
his colleagues on the court to consider reforms.
Writing about a 19-year-old Dallas County death penalty case that the
court overturned because of race bias in jury selection, Justice Breyer
said, "a jury system without peremptories is no longer unthinkable."
He echoed a host of legal commentators and jury experts who contend that
the 3-step process established in the Batson decision to investigate
claims of bias in jury selection is too easy to circumvent.
"[T]he use of race- and gender-based stereotypes in the jury selection
process seems better organized and more systematized than ever before,"
Justice Breyer noted.
In Dallas County, for example, although blacks appear on juries,
prosecutors rejected them at twice the rate they excluded whites, an
analysis of court data by The Dallas Morning News showed. Race was found
to be among the most important factors in determining whom prosecutors
selected and rejected.
"We're a long way, frankly, from solving the problem," said George
Kendall, a New York civil rights lawyer who filed a brief in the same
Dallas County case that Justice Breyer used to highlight his concerns
about peremptories.
Trial lawyers maintain that the ability to exclude prospective jurors for
even a suspicion of bias, which peremptories allow, is crucial to the
guarantee of a fair trial.
"The peremptory strike is the great equalizer," said Robert Hirschhorn, a
nationally known jury consultant based in Lewisville.
Richard Wintory, vice president of the National District Attorneys
Association, agreed. "Batson and its progeny have struck the right
balance," he said.
Texas is 1 of 9 states allowing each side in a criminal trial 10
peremptory challenges. Only 4 states allow more.
Previous attempts to change that status quo in Texas have failed.
In 1995, Texas Supreme Court Justice Raul Gonzalez wrote that peremptory
challenges were dead and said the law should be changed to reflect that.
Neither he nor his colleagues addressed the subject of reform again.
A task force appointed by the court's chief justice spent a year in the
late 1990s studying potential jury reforms but made no recommendation on
peremptories.
Legal lobby
Frank Newton, a former State Bar of Texas president who headed the task
force, said civil and criminal trial lawyers rejected extensive research
showing that they do a poor job of identifying bias in jurors.
"Even though it is more a talisman than it is reality, it nonetheless is a
talisman that matters," he said of the peremptory strike.
That's no small matter when considering the size and power of the legal
lobby.
"Lawyers have grown comfortable with it and are afraid to give up a tool
that makes them feel better," said Michael Saks, a professor of law and
psychology at Arizona State University. "And they have enough influence
over what the rules are that they are going to keep things the way they
are."
Charles Baird, a former judge on the Texas Court of Criminal Appeals,
acknowledged that eliminating peremptory challenges would end jury
discrimination. But he said it was unlikely to happen in Texas.
The peremptory "is too accepted of a practice," he said. "I think
prosecutors would fight it, and they have a strong lobby. And actually I
don't think that criminal defense lawyers would be in favor of it,
either."
State Sen. Royce West, D-Dallas, a former prosecutor and criminal defense
attorney, predicted that there would be no support in the Legislature to
reduce or eliminate peremptory challenges.
"I hadn't seen or heard of any compelling reason to do it," he said.
The history of the peremptory challenge is older than America itself.
Scholars trace its use to medieval England. Provided only to a defendant,
peremptories were a check on the king's power to seat a partial jury.
The English common-law version became American statutory law after the
Revolution. Although not afforded the status of constitutional law, the
peremptory was included in the criminal codes of every state and the
federal government. States did not provide peremptory challenges to
prosecutors until after Reconstruction.
The Supreme Court enshrined the peremptory challenge in an 1893 decision
as "one of the most important of the rights secured to the accused."
But after the high court ruled in 1935 that blacks could not be excluded
from juries by law or practice, prosecutors began routinely using their
peremptory strikes to remove them, said Doug Colbert, a University of
Maryland law professor.
Controversy about peremptories and racial bias has raged ever since.
Academics denounce their inherent unfairness. Judges hate the wrangling
and time delays they can cause. Lawyers acknowledge they are still used
for discriminatory reasons.
Tom Munsterman, director of the Center for Jury Studies in Arlington, Va.,
said he was assisting a legal conference in Georgia three years ago where
participants were asked whether they believed race was the primary reason
for the use of peremptories.
"I think 94 percent said yes," Mr. Munsterman said. "I was just
downtrodden, and everybody looked at me like, 'Tom, get real.'"
There have been proposals to fight bias by reducing the number of
peremptory challenges allowed each side. Mary Rose, an assistant professor
of sociology and law at the University of Texas at Austin, said that would
prevent lawyers from using peremptories to eliminate all blacks from a
jury pool.
But only Maryland has done so, and then only to save time.
Batson called 'charade'
Constance Baker Motley, for one, got tired of waiting for change to come.
9 years ago, the senior federal judge in New York declared that peremptory
challenges were unconstitutional and refused to allow them in her court. A
former colleague of Justice Marshall's at the NAACP Legal Defense and
Education Fund, Judge Motley said her old friend's assessment of the
Batson decision was correct.
"It is now time to put an end to this charade," Judge Motley wrote in a
1996 decision. "We have now had enough judicial experience with the Batson
test to know that it does not truly unmask racial discrimination."
(source: Dallas Morning News)
