A prosecutor training videotape featuring former Philadelphia assistant district attorney Jack McMahon discussing techniques to keep African Americans off of juries has resulted in yet another murder conviction reversal. Noting that the tape is “compelling evidence” that McMahon “regularly acted with discriminatory animus toward African-American jurors,” a practice made unconstitutional by the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, the U.S. Court of Appeals for the 3rd Circuit affirmed the reversal of the murder conviction of Zachary Wilson because McMahon improperly struck numerous African-Americans from Wilson’s jury. The ruling upholds an April 2004 decision that found that McMahon used at least nine of his 16 peremptory challenges against African Americans and had discriminated on the basis of race for at least one of the jurors struck.

In the section of the tape involving death penalty cases, made one year after the Supreme Court’s Batson decision, McMahon states, “Let’s face it … the blacks from the low-income areas are less likely to convict… . There is a resentment for law enforcement, there’s a resentment for authority and, as a result, you don’t want those people on your jury. And it may appear as if you’re being racist or whatnot, but, again, you are just being realistic. You’re just trying to win the case.” He also advised, “The best way to avoid any problems with it is to protect yourself. And my advice would be … when you do have a black jur[or], you question them at length. And on this little sheet that you have, mark something down that you can articulate at a later time if something happens.”

(The Legal Intelligencer, October 15, 2005). See Race and DPIC’s report, “The Death Penalty in Black and White.”