Prosecutors Disciplined For Striking Blacks From Jury Panel

By TChris, Section Misconduct
Posted on Fri Mar 27, 2009 at 07:21:00 AM EST
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Here's something you don't see every day:

Saying they were negligent and incompetent when they struck seven blacks from the jury pool in a recent murder trial, Harris County [Texas] District Attorney Pat Lykos castigated two of her prosecutors Thursday, docking their pay and removing them from trial work.

Lykos said the prosecutors were negligent when they removed every black member of the jury panel in the murder prosecution of a black defendant. The prosecutors claim they were "shocked" when they looked at the dozen jurors who made the final cut and saw no black faces. Lykos said the prosecutors were merely incompetent, not racist, in their decision to strike all the black panel members. "If I thought for a moment that there were racial motives, they would have been fired,” she said.

But what are "racial motives"? [more ...]

The defense attorneys who represent Ricky Whitfield disagreed ... saying that Donnelly and Newaz relied on stereotypes — that whites are more conservative and blacks are more liberal — to exclude the black panelists.
“It’s the stereotype associated with being black that caused the prejudice in the first place, which is the nature of racism, it’s the basis for it,” attorney Jacquelyn Carpenter said.

When asked to respond to a defense challenge to the prosecutors' exercise of their strikes, "Donnelly and Newaz told the judge that the black panelists were indecisive about whether the criminal justice system should punish or rehabilitate." The judge didn't buy it, given that some white panelists expressed the same indecision but were left on the jury. The judge dismissed the jury and set a new trial date.

Even if she can't bring herself to find a racial motivation in the decision to strike all the black panelists, Lykos deserves praise for disciplining the prosecutors. As Mark Bennett, president of the Harris County Criminal Lawyers Association, said:

“It’s an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones.”

Can't argue with that.

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Prosecutors Disciplined For Striking Blacks From Jury Panel | 3 comments (3 topical)

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It's not clear to me from this (none / 0) (#1)
by Bemused on Fri Mar 27, 2009 at 07:47:59 AM EST

whether she is only upset because the actions of her assistants caused a delay and increased expense for her office and the court, in the same way she might be upset if an assistant made a "value neutral" mistake or omission with the same result.

It may well be true that the assistants' motivation was purely to put the state in the best position to win a conviction against a person the prosecutors believe in good faith is guilty, and their GOAL was not racially motivated. However, the defense points that the METHOD employed counts as well should be acknowledged by Lykos.

It is also worth remembering that it's not only the defendant's right to a fair trial at issue, but also the right of blacks to serve on juries.

"racial motives" (none / 0) (#2)
by diogenes on Fri Mar 27, 2009 at 08:04:27 PM EST

Do you think that the prosecution would have the right to strike black jurors from the OJ murder trial? Or is it only white people who as a group are biased in favor of those of their own race whereas blacks are entirely impartial observers? I suspect that prosecutors try to strike Jews from juries that are trying Jews. They'd try to strike Republicans from the Scooter Libby jury. The idea that a jury with two blacks on it will somehow rule differently from an all white jury smells like a hope for nullification.

: Exercising peremptory strikes (none / 0) (#3)
by Bemused on Sat Mar 28, 2009 at 10:20:56 AM EST

by the prosecution is governed by Batson v. Ky.
The law is not that the prosecution cannot use a perepmtory strike against a black prospective juror when the defendant is black. (just using "black" could be other protected classes)
In a nutshell, the law is that when a prosecutor does so and the defendant objects, a prima facie case of discrimination has been established. The burden is now on the prosecutor to articulate a "race-neutral" explanation for the strike. If he cannot do so the strike is invalid. If he does do so, then the burden shifts back to the defendant to show that the articulated reason is a pretext offered to conceal a racial motive.
That's why you ofren see, as in the case discussed in the original post, a comparison of the prosecutor's decisions concerning black and white jurors. If the "race neutral" reason offered by the prosecution to strike a black is "she informed us her sin had been arrested, so we were concerned that reason might colr her perception," but a white juror whose son had also been arrested was not struck that supports the pretext argument.