Clark County, Nevada Losing Capital Convictions Because of Prosecutors’ Race Discrimination in Jury Selection

The racial­ly dis­crim­i­na­to­ry jury selec­tion prac­tices of the Clark County, Nevada, District Attorney’s office are now caus­ing it to lose con­vic­tions in cap­i­tal cas­es. In a December 18 arti­cle, the pros­e­cu­to­r­i­al watch­dog, The Open File, details repeat­ed vio­la­tions by Clark County death-penal­ty pros­e­cu­tors of the con­sti­tu­tion­al pro­scrip­tion against strik­ing prospec­tive jurors from ser­vice on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new tri­als in Clark County cas­es because pros­e­cu­tors vio­lat­ed the U.S. Supreme Court’s 1986 deci­sion in Batson v. Kentucky by dis­crim­i­na­to­ri­ly exclud­ing jurors of col­or, includ­ing in three cas­es in which the death penal­ty had been imposed. The Open Files writes that ​“pros­e­cu­tors in the Clark County District Attorney’s office either do not know, ignore, or gam­ble on Batson, unsuc­cess­ful­ly hop­ing the courts will not hold them account­able to it.” In June 2014, the Nevada Supreme Court reversed the con­vic­tion and death sen­tence of Charles Conner, after pros­e­cu­tors used six of their nine peremp­to­ry strikes against jurors of col­or, claim­ing that the jurors were ​“weak” on the death penal­ty. The court ruled that this pur­port­ed­ly race-neu­tral jus­ti­fi­ca­tion was pre­tex­tu­al, not­ing that one of the black jurors to whom pros­e­cu­tors claimed the jus­ti­fi­ca­tion applied was an Air Force Reserve offi­cer and full-time cor­rec­tion­al offi­cer, who had pre­vi­ous­ly served in the Navy and as a police offi­cer. The court found that the pros­e­cu­tors’ expla­na­tions for strik­ing this juror were ​“belied by the record” and that man­u­fac­tur­ing “[a] race-neu­tral expla­na­tion that is belied by the record is evi­dence of pur­pose­ful dis­crim­i­na­tion.” In March 2016, the court grant­ed African-American death-row pris­on­er Jason McCarty a new tri­al after Clark County pros­e­cu­tors exclud­ed two of three eli­gi­ble black jurors, pre­tex­tu­al­ly attempt­ing to jus­ti­fy­ing the strikes on the grounds that one worked in a strip club and the oth­er had a broth­er with a crim­i­nal record. However, pros­e­cuters had run detailed employ­ment back­ground checks on only two of the 36 poten­tial jurors, sug­gest­ing to the court that pros­e­cu­tors had not been gen­uine­ly con­cerned about the exclud­ed juror’s employ­ment. The pros­e­cu­tors also dis­parate­ly ques­tioned jurors whose fam­i­ly mem­bers had crim­i­nal his­to­ries, ask­ing the black juror whom they struck 15 fol­low-up ques­tions, while ask­ing a sim­i­lar­ly-sit­u­at­ed white juror a sin­gle fol­low-up ques­tion. In grant­i­ng McCarty a new tri­al, the court observed: ​“Discriminatory jury selec­tion is par­tic­u­lar­ly con­cern­ing in cap­i­tal cas­es where each juror has the pow­er to decide whether the defen­dant is deserv­ing of the ulti­mate penal­ty, death.” In October 2017, the court also grant­ed a new tri­al to third death-row pris­on­er, Julius Bradford, after the tri­al court had per­mit­ted the pros­e­cu­tion to strike one Hispanic and one African-American juror with­out pro­vid­ing the defense an oppor­tu­ni­ty to con­test the race-based nature of the strikes.

Clark County sen­tenced four defen­dants to death in 2017, the sec­ond high­est total of any coun­ty in the United States, and is one of only four coun­ties in the coun­try to have imposed eight or more death sen­tences over the course of the last five years. It has imposed 14 of Nevada’s last 15 death sen­tences. In 2016, Clark County was iden­ti­fied by Harvard University’s Fair Punishment Project as one of the nation’s ​“out­lier coun­ties” whose over­pro­duc­tion of death sen­tences was accom­pa­nied by ​“a his­to­ry of racial bias.”

(“NV: Clark County DA: Racially Discriminating … and Losing Convictions,” The Open File: Prosecutorial Misconduct and Accountability, December 18, 2017; B. Botkin, ​“Nevada Supreme Court revers­es death row con­vic­tion,” Las Vegas Review-Journal, October 25, 2017; ​“CLARK COUNTY, NEVADA, ​‘RODEO ON BATSON’ CONTINUES,” Fair Punishment Project, April 5, 2016.) Read the Nevada Supreme Court’s deci­sions in Connor v. Nevada, McCarty v. Nevada, and Bradford v. Nevada. See Prosecutorial Misconduct, Race, and Sentencing.