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.”


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