Study Finds Blacks Excluded From Southern Juries

MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Today, we're going to spend some time looking at our criminal justice system. In a few minutes, we'll hear from a member of a Justice Department review panel that met last week to look into reports about sexual abuse experienced by juveniles while in detention.

But first, we're going to hear about a new report suggesting that despite laws to the contrary, prosecutors in at least some parts of the country are still trying to create all-white juries, despite the fact that their jurisdictions are extremely diverse.

It's been 25 years since a landmark Supreme Court case, called Batson v. Kentucky, said lawyers must provide reasons beyond race for striking people from jury panels.

But a study of eight Southern states found areas in each state where black jurors were far more likely to be struck from jury panels than whites. The states include Tennessee, Arkansas, Louisiana, Mississippi, Alabama, Georgia, Florida and South Carolina.

With me now: Bryan Stevenson, the executive director of the Equal Justice Initiative, which offers legal representation to indigent defendants and prison inmates. It commissioned the study.

I'm also joined by Brenda Green, an African-American resident of Alabama. A court case found that she, in fact, had been illegally barred from jury service. Welcome to you both. Thank you for joining us.

Mr. BRYAN STEVENSON (Executive Director, Equal Justice Initiative): Good to be with you.

Ms. BRENDA GREEN: Thank you for having me.

MARTIN: Now, Bryan Stevenson, how do you say attorneys are getting around laws meant to prevent the exclusion of jurors based on race? What did you find in the study?

Mr. STEVENSON: Well, what we found is that in particularly serious criminal cases and death penalty cases, prosecutors continue to exclude people on the basis of race. The law that was passed in 1986 - or that was issued by the court requires the prosecutor to give reasons if it appears that people of color are being excluded.

But in too many courthouses, trial judges are accepting really absurd reasons for striking people of color. They frequently accept false reasons for excluding African-Americans. And appellate courts have not acted as aggressively as we think they need to, to enforce these laws. Right now, what happens when a prosecutor excludes someone on the basis is race is nothing meaningful, even in cases where courts have found illegal racial discrimination.

These prosecutors face no sanctions. There are no fines. There's no threat of disbarment. And I think the ability to exclude people on the basis of race with impunity has allowed this practice to continue.

MARTIN: Well, let's just talk a little bit more about this study, which was developed by which was issued by the Equal Justice Initiative. There is a case of a prosecutor in Madison County, Alabama, who struck 11 of 14 black potential jurors in a capital murder case.

And when the district attorney was questioned, he said one seemed arrogant and pretty vocal; in another, he said he detected hostility. He also questioned the sophistication of a former Army sergeant. He said that one analyst didn't appear to be sophisticated in her questionnaire. But how did you then determine that these were racially based responses?

Mr. STEVENSON: Yeah. Well, what happens is, is that you look at the history of exclusion, and that's what the courts look at as well. There have been two other cases where the courts have found illegal racial discrimination in jury selection in that county. And so the issue was raised to the Alabama Supreme Court. They found a prima facie case of racial bias and discrimination, which is what required the prosecutor to give these reasons.

You know, prosecutors don't ever say, I'm going to exclude you because I don't want any African-Americans on the jury. And so you're left looking at these inferences of discrimination. You look at whether white jurors are being excluded in the same way. In that particular case, there were many white jurors with less education than these African-Americans, who had similar backgrounds, made similar responses, but were allowed to serve on the jury. And that's the way you kind of analyze these issues.

MARTIN: Brenda Green, you have lived in Talladega County your entire life. You've been called to serve four times, and you actually served one time. Have you ever when you're excluded, what happens? Do you what's it like when you show up to serve?

Ms. GREEN: Well, we show up and we sit, and we listen to different procedures that they go through. And we're called as a group up to about, I guess, six at a time. We have to give...

MARTIN: No, no, I understand, I'm sorry, forgive me. I understand the process. I think a lot of people who've been called understand that you're asked a series of questions. When you've been it's called voir dire and they try to find out, you know, what your background is and if you have any biases and so forth. So, when you've been excluded, has anybody ever given you a reason?

Ms. GREEN: No, just that I was not needed and thank you, and - for the service and that was it.

MARTIN: That's it. Do you believe that you have not been called more often -given that you've lived in this community for a long time and presumably, you're a registered voter, and you meet all the other qualifications - because of your race? Do you think your race is a reason?

Ms. GREEN: That has to be because I've been in the residence I'm in now 14 years, going on 15, and I haven't been called since - well, in 15 years. And at the previous residence, I was there 17 years, and I was called about four or five times, and I think I served one time.

MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. We're talking about a new study by the Equal Justice Initiative, which found that African-Americans were excluded from juries far more frequently than whites in parts of eight southern states - leading to questions about whether prosecutors are still engaging in a pattern of trying to exclude jurors from juries because of or potential jurors - because of their race.

We're joined by Brenda Green. She has lived in the same community for many, many years. She's been called four times, has only served on one jury. And we're talking with Bryan Stevenson from the Equal Justice Initiative, which conducted the study.

Bryan, have you ever served on a jury? Have you ever been called?

Mr. STEVENSON: No, I've never been called.

MARTIN: Never been called?

Mr. STEVENSON: I've never been called. No. And you know, that can be an indicator. But sometimes, the evidence is much more direct. In Ms. Green's case, she was called for a case in the early '90s, where she was one of 10 African-Americans that were summoned to court, were qualified to serve on the jury. And then they were all excluded, resulting in an all-white jury.

And the Alabama Court of Criminal Appeals did find in that particular case that Ms. Green and these other nine African-Americans were the victims of racial discrimination, and had been illegally excluded because the reasons that the prosecutor asserted for striking Ms. Green and others were found by the court to be false. And the way this works is that oftentimes, people of color are sent home, and they don't even know what the prosecutor has said.

In Ms. Green's case, the prosecutor alleged that members of her family were engaged in criminal activity and drug dealers, which when we talked with her, ended up being entirely false. But that's part of the problem, is that oftentimes these false reasons are asserted by prosecutors. And many of the excluded jurors don't even know that the sometimes quite humiliating and denigrating things have been said about them.

MARTIN: So you're saying the prosecutor said that she had members of her family, but it wasn't who were engaged in illegal activity, but this simply wasn't true.

Mr. STEVENSON: That's right.

MARTIN: How did you figure it out? How was it determined that that had been said?

Mr. STEVENSON: Well, the court concluded that because it looked at the notes that the prosecutor took during voir dire, and as the court found, none of the notes matched up with any of the reasons that were asserted for these African-Americans. And of course, when we spoke with Ms. Green, she also confirmed that that was simply false.

And a lot of times, these inaccurate assertions will be made about people not having lived there for a long time when they've actually lived there for 20 or 30 years, or people being employed in one occupation when in fact, that's not the accurate occupation that they exercised. And then sometimes they're a lot more subjective: too old, looked tired, unsophisticated.

MARTIN: Chewed gum.

Mr. STEVENSON: Chewed gum.

MARTIN: Chewed gum, in one case.

Mr. STEVENSON: Exactly.

MARTIN: How much...

Mr. STEVENSON: Too old at 43 - by the way, too, Michel.

(Soundbite of laughter)

Mr. STEVENSON: We're not talking about someone who's much, much older. And that's part of the reason why this has been so vexing to people who have observed case after case, where many people are being tried by all-white juries in counties that are 40, 45 percent African-American.

MARTIN: Well, let me ask you a question here. Some of the cases you've cited, it was clearly intentional conduct.

Mr. STEVENSON: Yes.

MARTIN: I wanted to ask if you think this is - what, as a sort of ongoing human error, or do you think that there are policies in place where in fact, prosecutors are taught this, that they are taught to do this. Do you think that there is actually intentional a pattern of intentional conduct by jurisdictions, by whole jurisdictions? Or are this - individuals acting on their biases, if we can use that word?

Mr. STEVENSON: Yeah. I think both things are in play. But I don't think there's any question that in many of these jurisdictions, it is intentional conduct. We found cases in counties where prosecutors admitted that they had been instructed to exclude people of color. There are training manuals that have been identified in Texas and Pennsylvania. And some of these states - Mississippi and Alabama -that expressly directed prosecutors to exclude people of color.

The consistency with which there is exclusion of most, if not all African-Americans makes it too difficult to accept that this is something other than a policy. I think there are some prosecutors who just want jurors to presume the guilt of the accused and feel better when the jury isn't going to apply the presumption of innocence and therefore, they exclude people of color because they don't trust them as much. I think some of that subjective and unconscious bias can play a role in this as well.

MARTIN: Well...

Mr. STEVENSON: I think there's some intentionality.

MARTIN: Well, now that just if we could conclude our conversation where it began, the law has been, for some years now, that this is not acceptable. But you're saying that the practice continues. So do you have a solution to this? I mean, given the leeway afforded to prosecutors and lawyers in general in jury selection, are there some solutions that you can recommend that would address this?

Mr. STEVENSON: Absolutely. I think that if courts apply standards like the Florida Supreme Court is now applying - where they require the reasons to be factual, that they be accurate, that they be based on the record - that would make a substantial improvement if courts enforce the law. And we create some sanctions that deter this kind of conduct, I think we can make real progress. And then I think we have to educate anyone in these communities to be much more proactive, asking their district attorney to make jury selection open, diverse and accessible to everyone, regardless of race.

MARTIN: Bryan Stevenson is the executive director of the Equal Justice Initiative. That's an organization offering legal representation to indigent defendants and prison inmates. If you want to read the study that we're talking about, we'll have a link on our website. Just go to npr.org. Click on programs, then on TELL ME MORE.

We were also joined by Brenda Green. She's an African-American resident of Alabama. And she's been found to have been discriminated against in the jury selection process. I thank you both for speaking to us.

Mr. STEVENSON: Thank you.

Copyright © 2010 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.