August 23
TEXAS:
Juries and Race: Reform selection process to ensure fair trials
Justice is supposed to be color-blind. Jury selection in Dallas County
doesn't seem to be.
This is a key issue raised by a two-year Dallas Morning News investigation
of jury selection in Dallas County. The three-part series, which concludes
on the news pages today, found that prosecutors and defense attorneys
routinely produce juries that reflect troubling racial patterns.
The U.S. Supreme Court, in the landmark 1986 case Batson vs. Kentucky,
ruled that lawyers cannot use race to screen prospective jurors. Yet
Dallas County prosecutors bounce prospective black jurors at more than
twice the rate that they exclude whites. Defense attorneys here are three
times more likely to reject white jurors than black jurors. Although both
sides say they're not engaging in racial gamesmanship, statistics and
interviews in the "Striking Differences" news series give us considerable
pause.
In fact, the newspaper's review of court records and interviews with
prosecutors, defense attorneys, jurors, judges, jury consultants and legal
scholars illustrates that jury selection is akin to the strategy of a
poker game, with both sides trying to bluff and gamble for the best
possible hand.
We're not naive. Of course, defense attorneys have a right to try to shape
a jury that will be favorable to their clients' interests. And it's clear
why prosecutors would do the same in reverse. But both sides have an
obligation to follow the law in doing so, and the Batson ruling makes it
clear that it's illegal to use race to screen juries.
This disturbing investigation updates a Morning News examination of jury
selection practices in 1986 that found prosecutors routinely excluding
most blacks from juries, a practice so outrageous that Justice Thurgood
Marshall cited the newspaper's investigation in his concurring opinion in
the Batson case.
The U.S. Supreme Court continues to take this matter seriously. This
spring, the court overturned a murder conviction of Thomas Joe Miller-El,
who was sentenced to death 19 years ago. The court granted him a new trial
on grounds that Dallas County prosecutors systematically excluded blacks
from the jury.
Yet local prosecutors and defense attorneys still seem at times to inject
race into the selection process, and judges are slow to crack down on
selection techniques that smack of racial gamesmanship. A few reforms are
in order:
-Texas allows defense and prosecutors 10 peremptory challenges, or
opportunities to exclude would-be jurors, and this number is higher than
most states allow. Many legal scholars warn that so many challenges make
it easier for attorneys to manipulate jury makeup. It's time for Texas to
reduce the number of challenges.
-Texas is the only state to allow defense attorneys and prosecutors to
"shuffle" the order in which prospective jurors are interviewed, a tactic
that can dramatically change the racial makeup of a jury by moving jurors
of one race ahead of another. A legal task force in the late 1990s urged
Texas legislators to abolish this procedure, but no legislator has ever
introduced a bill to change it. This "shuffle" needs to end.
-We're concerned that a database, available only to prosecutors and used
to weed out prospective jurors, is contributing to inappropriate jury
politics. If a juror previously acquitted a defendant, it's less likely
that a prosecutor - after reviewing that person's "juror history" on the
database - will approve him for another trial. That strikes us as
improper, potentially disqualifying a juror for not agreeing with the
prosecution in an unrelated case.
Despite U.S. Supreme Court safeguards intended to ensure race-neutral jury
selection, there still seems to be a troubling racial pattern in Dallas
County's criminal justice system. The practices are sufficiently flagrant
for experts and scholars to question whether the fundamental
constitutional guarantee of a right to a fair trial is being protected.
"Striking Differences" raises disturbing questions that this community and
state must confront in the interest of justice. Striking differences:
Review this series and find background material including a glossary,
trial transcripts and The News' 1986 investigation into jury stacking.
(source: Editorial, Dallas Morning News)
