Race

STUDIES: Death-Penalty Jury Selection “Whitewashes” Juries and is Biased Towards Death

As support for the death penalty has declined in America, the process of "death-qualification"—which screens potential jurors in death-penalty cases based upon their views about capital punishment—produces increasingly unrepresentative juries from which African Americans are disproportionately excluded and, according to a new study by researchers at the University of California, increasingly biases juries in favor of conviction and death sentences. Death-qualification, the researchers say, "systematically 'whitewashes' the capital eligible pool [and] leaves behind a subgroup [of jurors] that does not represent the views of its community." Professor Mona Lynch (pictured, l.) of University of California-Irvine's Department of Criminology, Law, and Society, and Professor Craig Haney (pictured, r.) of University of California-Santa Cruz's Department of Psychology conducted two surveys of jurors in Solano County, California—which has the highest concentration of African Americans in the state—18 months apart to examine how racial differences in death-penalty opinions affect the composition of capital juries. As support for the death penalty has declined in recent years, the gap between the views of Whites (and particularly White males) and the views of African Americans and women has grown, exacerbating what the authors call "tension between the constitutionally sanctioned practice of death-qualification and a capital defendant’s constitutional right to be tried by a representative and unbiased jury." The researchers asked respondents about their views on the death penalty, and about whether those views would interfere with their ability to apply the law in a death-penalty trial, which would make them legally excludable from a jury. They found that the death-qualification process excluded a far greater percentage of people who said they opposed the death penalty than said they supported it, and that the rate of exclusion was even more disproportionate for African Americans. And while nearly equal percentages of White men and women were excluded by the process, the women who were excluded were much more likely to oppose capital punishment. The death-qualification process, they said, also contributed to racially disparate use of discretionary jury strikes by the prosecution by providing a facially race-neutral reason for disproportionately excluding African-American jurors. When the researchers asked jurors about their attitudes towards potentially aggravating and mitigating evidence, they found that a majority of White jurors—and particularly White male jurors—disregarded most mitigating evidence that would be offered to spare a defendant's a life and that a significant minority of these jurors inappropriately viewed many of these mitigating factors as reasons to impose a death sentence. They also found that White respondents "were significantly more receptive to aggravating evidence and were more inclined to weigh these specific items in favor of a death sentence compared to African American respondents." The process, they said, "creat[es] a jury whose members are unusually hostile to mitigation," which may "functionally undermine" the fair consideration of a capital defendant's case in mitigation. "This risk," the authors wrote, "is particularly high in cases involving African American defendants, especially where white men dominate the jury." The overall result, they said, is that, "[i]n a county in California where support for and opposition to capital punishment are beginning to approach parity, death qualification still has the potential to produce jury pools that are significantly more likely to favor the death penalty." 

From Slavery to the Death Penalty: New Museum and Memorial for Peace and Justice Open in Montgomery, Alabama

On April 26, 2018, the Equal Justice Initiative (EJI) opened the Memorial for Peace and Justice and its accompanying Legacy Museum, which tell the stories of the more than 4,000 men, women, and children killed by racial terror lynchings in the century following the Civil War, and trace the connections between slavery, segregation, capital punishment, and mass incarceration. The opening drew thousands of visitors from across the country, theatrical headliners, and a host of civil rights legends—including Congressman John Lewis and the surviving plaintiffs and lawyer who brought the lawsuit that ended segregated seating on public buses. The memorial and museum arose out of the criminal defense work of the Equal Justice Initiative and its founder, Bryan Stevenson, first representing indigent prisoners on Alabama’s death row and later expanding to fight juvenile life sentences and other manifestations of mass incarceration. Stevenson said, “It really springs from that experience of representing people in courts and beginning to see the limits of how committed our courts are to eradicating discrimination and bias. I want to get to the point where we experience something more like freedom. … I don’t think we are going to get there until we create a new consciousness about our history.” EJI’s research on lynchings, including the 2015 report, Lynching in America: Confronting the Legacy of Racial Terror, shows a clear link between lynchings and the death penalty. Counties and regions that today carry out the most executions are the same places in which lynchings were most likely to take place, and the ongoing racial bias in the application of the death penalty reflects the legacy of racial terror lynchings. “[I] believe that capital punishment is the stepchild of lynching,” Stevenson said. “It was disproportionately used against people of color; it still continues to be shaped primarily by race.” As America’s global allies pressured the country to end lynchings after World War II, Stevens said, “lynchings moved inside. We still executed mostly black people after proceedings that were unreliable and unfair. We promised ‘swift justice,’ which was intended to be the same thing as lynching without the spectacle, without the optic, without the mob.” Stevenson said he was motivated to create the memorial and museum because a discussion of the past is necessary to create a more just and equal society. “We haven’t created spaces in this country that tell the history of racial inequality, of slavery, of lynching, of segregation that motivate people to say, ‘Never again,’” he said.

Powerful New Documentaries Explore Death-Penalty Issues

Three powerful new documentaries that explore the modern death penalty in the United States are set to premiere this April. Oscar-winning actress Viola Davis and Julius Tennon are executive producers of The Last Defense, a new documentary series premiering for the first time at the 2018 Tribeca Film Festival on April 27. The seven-episode documentary series exposes flaws in the U.S. justice system through the personal narratives of death row prisoners Darlie Routier and Julius Jones, both whom maintain their innocence, and premieres June 12 on ABC. On April 30, PBS will air the television premiere of Jamie Meltzer's documentary True Conviction, which follows the detective agency started by Christopher Scott, the late Johnnie Lindsey, and Steven Phill—three wrongly convicted Dallas men who were exonerated after spending a combined 60 years in prison—as they work to attempt to free death-sentenced Max Soffar and other wrongly convicted prisoners. Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project have hailed the film as "unprecedented" in its approach, "focusing on the experiences of a group of exonerees who are themselves learning to investigate" and "highlight[ing] the challenges and roadblocks of investigating and proving another man’s innocence." The film premiered at the 2017 Tribeca Film Festival and was awarded a Special Jury Mention in the Best Documentary Category. On April 11, the American University School of Communications premiered excerpts of another documentary film, In the Executioner's Shadow, produced by AU professors Maggie Burnette Stogner and Richard Stack. That documentary weaves the intersecting stories of Vicki and Syl Scheiber, whose daughter was murdered, Boston Marathon bombing survivor Karen Brassard, and former Virginia state executioner Jerry Givens, who had carried out 62 executions, as they grapple with moral and personal issues arising from their involvement in capital punishment. In a panel discussion moderated by the producers, Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, joined the film's protagonists in discussing those issues. Stack is a former public defender and author of two books on the death penalty Dead Wrong: Violence, Vengeance, and the Victims of Capital Punishment and Grave Injustice: Unearthing Wrongful Executions. He said he hopes the film will spark dialogue on the complex subject. "We've discovered through our various interviews that one side talks past the other. It's a mutual predicament. And we're trying to get people to talk to each other," Stack said. Following a screening of the first hour of the Julius Jones case in The Last Defense, the producers will lead a panel discussion with death-penalty lawyer Dale Baich.

Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate Review

Less than three months after the U.S. Supreme Court directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal-court review of his claim that he was unconstitutionally sentenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, saying he had never presented the issue to the state courts. Citing “principles of comity and federalism,” the court denied Tharpe’s application for a certificate of appealability—a federal court prerequisite for a habeas petitioner to appeal—on the grounds that the Georgia state courts “have yet to examine” Tharpe’s juror-misconduct claim. Tharpe was sentenced to death by a Georgia jury that included a racist White juror who called him a “ni***er,” and questioned “if black people even have souls.” The juror, Barney Gattie, signed an affidavit saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race influenced his own vote. When Tharpe first presented the claim to the state and lower federal courts, it was denied based on a state-court rule prohibiting courts from considering evidence questioning why jurors reached their verdict. However, after Tharpe’s claim was rejected, the U.S. Supreme Court decided a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule cannot insulate a juror’s overt expressions of racial bias from judicial review. While Tharpe faced imminent execution in September 2017, he asked the state and federal courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his execution was scheduled to start, the U.S. Supreme Court issued a stay of execution based upon his federal appeal. On January 8, 2018, the Court granted Tharpe’s petition for certiorari and vacated the judgment of the Eleventh Circuit. The Court said the fact that Gattie had never retracted his “remarkable affidavit” strongly suggested that “Tharpe’s race affected Gattie’s vote for a death verdict.” Tharpe is expected to ask the Supreme Court to review the circuit court’s latest ruling. On April 2, he filed a separate petition asking the Court to review the Georgia state court’s denial of the issue.

NEW PODCAST—Racial Discrimination in Death-Penalty Jury Selection: A Conversation with Steve Bright

Race discrimination exists at every stage of the death-penalty process, says veteran death-penalty and civil-rights lawyer Stephen B. Bright (pictured), but “the most pervasive discrimination that is going on is in jury selection.” In a new Discussions With DPIC podcast, Bright—the former President of the Southern Center for Human Rights who has argued jury discrimination cases three times in the U.S. Supreme Court—calls the “rampant” racial discrimination in jury selection “a matter of grave urgency.” In an interview with DPIC’s Anne Holsinger, Bright speaks about the most recent of those cases, Foster v. Chatman, a Rome, Georgia case in which the Court granted Timothy Foster a new trial as a result of intentional discrimination by prosecutors. New evidence, Bright says, now shows that prosecutors in Columbus, Georgia systematically struck African-American jurors in at least seven other capital cases, including three in which defendants have already been executed. Bright explains how jury-selection notes were critical in proving that prosecutors had unconstitutionally targeted African-American jurors in Foster’s case because of their race. Those notes, he says, allowed defense attorneys to “pull back the cloak of secrecy” that usually shrouds decisions on jury strikes. Jury-selection notes recently uncovered from the files of Columbus prosecutors—including the same prosecutor found to have discriminated against Foster—showed the systemic and long-standing nature of this unconstitutional practice. In 1986, in Batson v. Kentucky, the Supreme Court declared the intentional striking of any juror on the basis of race to be unconstitutional. “Thirty years after [Batson] was decided,” Bright says, “it’s pretty clear that it has failed completely to prevent race discrimination in jury selection.” Batson “doesn’t really have any teeth,” he says, because it permits prosecutors to evade clear inferences of discrimination by providing race-neutral pretextual explanations for striking jurors of color that the trial courts routinely accept. To address the problem, Bright proposes a new legal standard for finding discrimination, moving away from ;a subjective assessment of whether the prosecutor intentionally discriminated to an objective assessment of whether “a reasonable person knowing all of the facts” would think the jurors had been stricken on the basis of race. Increasing the representation of people of color on juries would result in “much more faith in the courts and the integrity of the courts,” Bright says, because trials with all-white juries, judges, prosecutors, and defense attorneys erode the community’s confidence in the legal system. “People do not think that ... those trials are legitimate, because a big portion of the community has been completely excluded from participating in the judicial process.”

Jury Notes Show Georgia Prosecutors Empaneled White Juries to Try Black Death-Penalty Defendants

New court filings argue that Columbus, Georgia prosecutors had a pattern and practice of systematically striking black prospective jurors because of their race, discriminatorily empanelling all- or nearly-all-white juries to try black defendants on trial for their lives in capital murder cases. In a supplemental motion seeking a new trial for Johnny Gates (pictured)—a black man sentenced to death by an all-white jury in 1977 for the rape and murder of a white woman—lawyers from the Southern Center for Human Rights and the Georgia Innocence Project presented evidence from seven capital trials involving his trial prosecutors, showing that they carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. “Race discrimination undermines the credibility and reliability of the justice system,” said Patrick Mulvaney, managing attorney for capital litigation at the Southern Center. “Mr. Gates is entitled to a new trial that is fair and free of race discrimination.” Jury selection notes from the seven cases contain “W”s next to the name of each white juror and “N”s next to the names of the black jurors, and variously describe black jurors as “slow,” “old + ignorant,” “cocky,” “con artist,” “hostile,” and “fat.” They say one white male would be “a top juror” because he “has to deal with 150 to 200 of these people that works for his construction co.” Prosecutors also kept racial tallies of the empaneled jurors, with twelve marks in the white column and none in the black column. In Gates' case, prosecutors rated jurors on a scale of 1 to 5, with 5 being the most favored, and ranked every black juror a “1.” The only white juror ranked a “1” had said he was opposed to the death penalty. The Muscogee County District Attorney’s Office’s office repeatedly refused to disclose the jury notes to Gates’s lawyers until the trial court issued an order in February directing them to do so. The notes were never disclosed to the defendants in the other cases, three of whom—Jerome Bowden, Joseph Mulligan, and William Hance—Georgia has already executed. Gates was prosecuted by Douglas Pullen and William Smith. Pullen prosecuted five capital trials involving black defendants between 1975 and 1979, striking all 27 black prospective jurors and successfully empaneling five all-white juries. A decade later, he prosecuted Timothy Foster, another black defendant sentenced to death by all-white Columbus jury for strangling an elderly white woman. Foster's lawyers subsequently discovered jury selection notes that documented similar discriminatory practices in his case, and in May 2016, the U.S. Supreme Court vacated Foster’s conviction saying that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Gates’s second prosecutor, Smith, was one of the prosecutors in four capital trials of black defendants between 1975 and 1979. In three of those case, prosecutors struck all of the black prospective jurors. In the fourth, Gates’s motion says, prosecutors struck ten black prospective jurors, but could not empanel an an all-white jury “because the final pool of prospective jurors had more black citizens than the prosecution had strikes.” Gates was taken off death row in 2003 because of intellectual disability. He is also challenging his conviction on grounds of innocence and arguing that prosecutors withheld exculpatory evidence in the case. Blood found at the scene was a different blood type than both Gates and the victim and DNA testing of implements used to restrain the victim did not match Gates. After interrogation by police, Gates gave a taped confession that was inconsistent with the physical evidence. A different confession, given earlier by a white man caught fondling the victim’s body in the funeral home, more accurately described the crime scene. The next court hearing in the case is scheduled for May 7.

North Carolina Supreme Court Agrees to Hear Racial Justice Act Death-Penalty Cases

The North Carolina Supreme Court announced on March 2 that it will hear appeals from three of the four prisoners whose death sentences were reduced to life without parole under the state's Racial Justice Act, then reinstated after the legislature repealed the law. Passed in 2009 and repealed in 2013, the landmark legislation allowed death-row prisoners to challenge their sentences on the basis of statistical evidence of racial discrimination. Marcus Robinson (pictured), Quintel Augustine, Christina Walters, and Tilmon Golphin all received reduced sentences in rulings by Cumberland County Superior Court Judge Gregory Weeks. The defendants presented evidence of jury strikes or acceptances of more than 7,400 jurors from 173 capital cases tried over a twenty-year period. The study showed that for the entire period covered, prosecutors across the state consistently struck African-American jurors at approximately double the rate of other jurors, and disproportionately removed African-American jurors irrespective of their employment status, whether or not they expressed reservations on the death penalty, or whether they or a close relative had been accused of a crime. Weeks determined that the study was “valid [and] highly reliable” and showed “with remarkable consistency across time and jurisdictions” that prosecutors had systemically excluded African-Americans from juries in death-penalty cases. In 2015, the state Supreme Court vacated Weeks’ rulings and remanded the case to the Superior Court to permit more evidence to be presented. At that point, prosecutors argued that the prisoners could no longer rely on the Racial Justice Act because it had been repealed, and a new judge, Erwin Spainhour, agreed. The North Carolina Supreme Court will decide whether Spainhour's ruling stands in the cases of Robinson, Augustine, and Walters. It did not yet announce whether it will hear Golphin’s case. Two additional death-row prisoners, Rayford Burke and Andrew Ramseur, will present related issues to the court. Their Racial Justice Act claims were filed, but not heard by a judge, before the law was repealed. James Ferguson, one of the attorneys who worked on the Racial Justice Act cases, said, “All we want is for the courts to look at the facts and make a fair decision. When you really look at the evidence, it’s clear that race is influencing how we use the death penalty in North Carolina. This is a chance for the state’s highest court to declare, definitively, that racial bias in the death penalty is an urgent civil rights issue that cannot be swept under the rug.”

BOOK: Death-Row Exoneree Anthony Ray Hinton Publishes “Heart-Wrenching Yet Ultimately Hopeful” Memoir

Anthony Ray Hinton spent thirty years confined on Alabama's death row for murders he did not commit. Three years after his exoneration and release, he has published a memoir of his life, The Sun Does Shine: How I Found Life and Freedom on Death Row, that recounts stories from his childhood, the circumstances of his arrest, the travesty of his trial, how he survived and grew on death row, and how he won his freedom. The book, co-authored with Lara Love Hardin, has earned praise from Kirkus Review as an “urgent, emotional memoir from one of the longest-serving condemned death row inmates to be found innocent in America,” and "[a] heart-wrenching yet ultimately hopeful story about truth, justice, and the need for criminal justice reform." Nobel laureate Archbishop Desmond Tutu called Hinton's book "an amazing and heartwarming story [that] restores our faith in the inherent goodness of humanity." The memoir begins: “There’s no way to know the exact second your life changes forever.” He was arrested in 1985 and capitally charged in connection with the murder of two fast-food restaurant managers, even though he had been working in a locked warehouse 15 miles away when that crime was committed. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton's incompetent trial lawyer did not know and did not research the law, and erroneously believed the court would not provide funds to hire a qualified ballistics expert to rebut the state expert's unsupported claim that the bullets that killed the victims had been fired from Hinton's gun. Instead, his lawyer hired a visually impaired "expert" who did not know how to properly use a microscope, whose testimony was destroyed in front of the jury. Hinton was convicted and sentenced to death. Hinton speaks candidly about the psychological effect executions of other prisoners had on him as he feared execution for crimes he did not commit. Writing about the 1987 execution of Alabama prisoner Wayne Ritter, Hinton says, “I didn’t even realize they had executed [him] until I smelled his burned flesh.” Faced with this gruesome reality, Hinton realized, “I wasn’t ready to die. I wasn’t going to make it that easy on them.” In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from a single gun at all. In 2014, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings. Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Hinton's lead attorney in the efforts to overturn his conviction and obtain his freedom was Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy. In the forward to The Sun Does Shine, Stevenson writes that Hinton’s story “is situated amid racism, poverty, and an unreliable criminal justice system.” Hinton, he writes, "presents the narrative of a condemned man shaped by a painful and tortuous journey around the gates of death, who nonetheless remains hopeful, forgiving, and faithful." Hinton—the 152nd person exonerated from America's death rows since 1973—says he hopes his story will increase public awareness of the risks of executing the innocent and the irreparable failures of the nation's capital-punishment system. "The death penalty is broken," he writes, "and you are either part of the death squad or you are banging on the bars.”

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