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.