In a case last month, Wharton County, Texas prosecutor Nathan Wood eliminated all Black individuals from the jury pool, leaving an all-white jury in violation of the Supreme Court’s holding in Batson v. Kentucky that a prosecutor cannot strike a juror for race or gender. After Judge Randy Clapp rejected his argument that the cuts were for “race neutral” reasons, Wood revealed that his boss, DA Ross Kurtz, advised him to exclude Black residents from juries “as a matter of trial strategy.” Wood later admitted that this explicit instruction to exclude Black jurors made him feel “uncomfortable.”
Sadly, this news out of Wharton County is not an isolated incident. Discriminatory training for jury selection is still a systemic problem in the United States. In 1986, the year the Supreme Court ruled on Batson, Philadelphia ADA Jack McMahon created a training film that taught prosecutors to exclude black citizens from juries. In the video, McMahon explicitly advises that prosecutors strike black people, especially those who are low-income or female. He goes on to describe that black women as “downtrodden in two respects,” race and gender, concluding that they “somehow want to take it out on somebody and you [the prosecutors] don’t want it to be you.” Despite the unknown length of the time the training video was used, it had a long-term impact: a 2001 study of strike decisions over a seventeen-year period in 317 Philadelphia County capital murder trials found that prosecutors struck on average 51% of the black jurors they could strike, compared to only 26% of comparable non-black jurors.
And in Texas the history of excluding black jurors has even deeper roots. Dallas County prosecutors maintained a decades-long policy of systematically excluding African Americans from jury service in criminal cases, even going so far as to codify this practice in a training manual used throughout the 1970s.
During the 1940s and 50s, the U.S. Supreme Court twice (Hill v. Texas and Cassell v. Texas) found Dallas County’s method of selecting jury pools unconstitutional. In response, Dallas County DA Henry Wade– who once reprimanded an ADA by saying “If you ever put another nigger on a jury, you’re fired”– developed a system of training prosecutors to excuse people of color, women, people of Jewish faith, and the physically challenged from criminal juries. The end result was the “Sparling Memo,” named after former ADA Jon Sparling. The memo was first used in a training program in Dallas County, but then became progressively more popular throughout the 1970s, eventually drawing prosecutors from as many as 220 different Texas counties.
It would seem as though prosecutors’ strategies have become more progressive since the 1950s, but, in fact, courts are still routinely reprimanding and tossing out decisions where the DA’s used discriminating criteria in violation of Batson. Last year, the Supreme Court heard Foster v. Chatman, a case where prosecutors used peremptory strikes against all four of the qualified black jurors. There was no argument this was coincidental. One prosecutor had highlighted black jurors’ names with a green marker on four different copies of the jury list, marked their names with a “B,” circled the word “BLACK” in six prospective jurors’ questionnaires, referred to three prospective jurors as “B #1,” “B #2,” and B #3” in their notes, and ranked black prospective jurors against each other in case “it comes down to having to pick one of the black jurors.”
Eight prominent former state and federal prosecutors filed a friend-of-the-court brief offering statistics on the persistent discrimination against blacks in jury selection: “Some prosecutorial misconduct is shockingly blatant, but most discrimination occurs under the guise of purportedly ‘race-neutral’ justifications prepared by prosecutors with the specific objective of defeating Batson challenges.” The prosecutors warned the justices, “If this court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.” The decision is still pending.
Meanwhile, Missouri executed Herbert Smulls in 2014 and Andre Cole in 2015. Both men were sentenced to death by all white juries even though roughly ¼ of the residents of St. Louis County, home of Ferguson, Missouri, are black. The prosecutor for both Smulls and Cole, Dean Waldemer, created the “Postal Gambit,” which allowed prosecutors to eliminate black jurors by targeting postal workers, based on the assumption that they were generally black. Waldemer, defended the “Gambit” by saying that he treats postal workers “with great suspicion,” because they are “disgruntled, unhappy people” and “make every effort to strike back.” The Missouri Supreme Court, however, disagreed, and found in 2004 that the “Gambit” “masked racially discriminatory peremptory challenges with absurd rationales.” Despite this decision, Missouri courts have found in five separate trials that the St. Louis County DA’s Office engaged in racially discriminatory jury selection.
Last year in Nevada, a sitting justice on the Nevada Supreme Court criticized Clark County prosecutors for similar behavior:
[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 underrepresentation and exclusion of people of color from juries has seriously undermined the credibility and reliability of the criminal justice system, and there is an urgent need to end this practice,” said Bryan Stevenson, Equal Justice Initiative’s Executive Director. These discriminatory practices are systemic, but ADA Wood’s “uncomfortable” reveal of his office’s unconstitutional practices could encourage other offices to comply with Batson.