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.”