As a continuation of our discussion about the Clark County District Attorney’s office and its use of racist jury selection practices from last week, the Nevada Supreme Court reversed the death sentence of Jason McCarty after finding that the Clark County DA’s office violated Batson again.
This instance followed the typical pattern where prosecutors eliminate Black jurors on pretext. During jury selection at McCarty’s trial, prosecutors Marc P. Di Giacomo and Christopher Lalli initially claimed that they struck a Black female juror, because “the State of Nevada’s not going to leave somebody who works at a strip club on their panel.” They discovered this after running a background check on the woman and learning that she had obtained a work card to serve cocktails at an adult nightclub in Las Vegas three years earlier.
However, when questioned further by the court, the prosecutors admitted that they only ran a background check on one of the other 35 remaining prospective jurors. The court criticized the prosecutors for using background checks as a way to conceal their discriminatory practices:
If, indeed, prospective juror 36’s possession of a valid work card for an adult nightclub made the State uneasy, it should have also been worried about the other 34 prospective jurors on whom it did not conduct a [ ] background check to determine whether they had obtained a valid work card within the last three years. This kind of disparate treatment supports our conclusion that it is more likely than not that the reasons given for striking prospective juror 36 were mere pretext for purposeful discrimination.
When they realized that their initial pretext wasn’t persuading the court, the prosecutors then argued that they had struck this juror not because of the strip club, but because her brother was prosecuted 13 years earlier. The State argued that it did not want jurors who had family members convicted of violent crimes. However, the court was also dubious of this claim. It noted that there was no evidence that the prospective juror’s brother was ever convicted of a violent crime. Furthermore, when questioned, the prospective juror said that she had “very little” relationship with her brother and that she believed the State had treated him fairly. The prosecutor responded, “So obviously . . . you don’t harbor any resentment against my office.”
The court also rebutted the State’s argument by pointing out that a white juror whose father had a criminal record had not been excluded. The court said that the State could not be “seriously concerned” about having jurors whose family members had a criminal history if it asked the white juror one question and the Black juror 15 questions about the family members’ prior prosecutions. It found that the disparate questioning by prosecutors of struck jurors of different races or ethnicities is “evidence of purposeful discrimination.”
This is the third time in two years that the Nevada Supreme Court has questioned the Clark County district attorney’s office about Batson. In 2014, the Nevada Supreme Court reversed a conviction after the court found the State’s new, race-neutral reasons for striking a Black juror were belied by the record. “A race-neutral explanation that is belied by the record is evidence of purposeful discrimination,” the court established in its opinion.
And again, just five months ago, a Nevada Supreme Court justice blasted Clark County prosecutors for similar behavior during oral arguments:
This isn’t the first time we’ve been in the rodeo on Batson with the Clark County District Attorney’s Office…[L]istening to the argument, I just don’t understand knocking these two Black women off. I just don’t understand why it’s so necessary in these cases. You’re so afraid of losing a case that you’re knocking off African-Americans consistently.
The decision is still pending in that case.
The Clark County District Attorney’s office has had two separate convictions or sentences overturned in less than two years–and a third case is pending–because of racially discriminatory jury selection. The Clark County District Attorney’s office undermines the credibility and reliability of the criminal justice system by deliberately excluding a segment of the community from juries. According to some studies, racially-diverse juries make fewer factual errors, deliberate longer, and consider a wider array of perspectives than all-white juries. If the Clark County District Attorney’s Office does not change its jury selection policies and practices, then this will not be the last time the Nevada Supreme Court embarks on the Batson rodeo with the office, and more convictions may be overturned.