Race Bias Pervades Jury Selection
By STEVE MCGONIGLE and ED TIMMS / The Dallas Morning News
Editor's Note: This story first appeared in The Dallas Morning News on March 9, 1986.
Dallas County prosecutors routinely have excluded nine out of 10 blacks qualified to serve as jurors, perpetuating a decades-old pattern of racial discrimination on felony juries.
For four out of five black defendants, the selection process means that the constitutionally guaranteed impartial jury of their peers will be an all-white jury.
An eight-month investigation by The Dallas Morning News shows that prosecutors routinely manipulate the racial composition of juries through their use of peremptory challenges -- legal objections that allow lawyers to dismiss prospective jurors without explanation.
District Attorney Henry Wade, however, denied that his assistants exclude prospective jurors solely because of race, although he acknowledged that race may be a factor in whom they dismiss. Prosecutors, Wade said, act within the spirit of the adversary legal system to exclude anyone if they believe it will give their client -- the people of Dallas County -- "a fair trial."
While blacks comprise 18 percent of Dallas County's population, The News' analysis of 100 randomly selected felony trials found that fewer than 4 percent of jurors were black. In fact, the chance of a qualified black serving on a jury was 1-in-10, compared to a 1-in-2 chance for a qualified white.
Of those blacks struck from juries by peremptory challenges, the study found, 92 percent were barred by prosecutors. Blacks were excluded from juries at almost five times the rate of Anglo jury candidates and twice as often as Hispanic candidates.
Several legal experts characterized the findings as showing that Dallas County prosecutors are engaging in a "systematic exclusion' of black jury candidates that violates not only the defendants' right to a fair trial, but also the right of black citizens to participate equally in administering justice.
Defense attorneys contend prosecutors, while picking what they perceive will be the most conviction-prone juries , are ignoring their legal duty to uphold justice.
"I think that the black population, being a significant portion of Dallas County, is being totally discriminated against, and if I were a black person I'd be up in arms about it," said Dallas defense lawyer Kerry FitzGerald, head of the Texas Criminal Defense Lawyers Project.
Wade, Dallas County's chief prosecutor for 35 years, said that in some cases, he believes blacks may be "more likely' to convict defendants than those who actually are selected for juries.
"I'm frankly trying to get more on ( juries )," Wade said of blacks. "We don't take them on just to balance the jury."
City Council member Al Lipscomb, an outspoken critic of jury selection in Dallas County, charged that prosecutors are using "racist tactics' that alienate blacks from the judicial system.
"The criminal justice system itself should be indicted here in Dallas for tampering with the law, for tampering with the rights of citizens," said Lipscomb, one of two black members on the City Council.
The U.S. Supreme Court has ruled that systematic exclusion of an identifiable group of potential jurors is unconstitutional. It has reversed criminal convictions on such grounds -- including three cases from Dallas County in the 1940s in which racial bias in the selection of grand jurors was alleged.
FitzGerald contended that "stacking' the racial makeup of juries denies defendants of all races their constitutional right to have their fates determined by a representative cross section of the community.
Increasingly, similar arguments are being voiced throughout the nation. Supreme courts in four states and three of the 11 federal circuit courts of appeal, for example, have modified peremptory challenges because of concern about their racially biased use by prosecutors.
In Texas, prosecutors and defense lawyers each have 10 peremptory challenges in non-capital felony trials. The peremptory challenge allows lawyers to cull prospective jurors without having to give cause.
The U.S. Supreme Court is studying the "cross section argument' -- that defendants have a right to a trial by a representative section of the community -- in a Kentucky case to decide whether to modify a controversial 1965 decision that permits racially based peremptory challenges in individual cases.
The court stated in Swain v. Alabama that a prosecutor's use of his peremptory challenges is not unconstitutional unless he uses them "in case after case' to exclude blacks for no reason related to any trial strategy.
Critics of Swain contend that it gives prosecutors free rein to exclude blacks and imposes an impossible burden on defendants to prove unconstitutional exclusion because of the lack of records identifying potential jurors by race.
Arch McColl, president of the Dallas County Criminal Bar Association and Criminal Defense Lawyer, said The News' study exemplifies the type of race discrimination by state action that the high court consistently has condemned. It also demonstrates, McColl said, that prosecutors still adhere to jury selection guidelines suggested in a controversial 1969 paper.
The paper, written by then-Assistant District Attorney Jon Sparling, noted that minorities "almost always empathize with the accused' and therefore do not make good jurors for the prosecution.
"You are not looking for a fair juror," Sparling advised in the paper, which later was made part of a manual for Texas prosecutors, "but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind rather than degree."
Sparling, now a candidate for the Republican nomination for district attorney, said he was repeating "the conventional wisdom of the time' and that he no longer believes the guidelines are valid.
"I don't see that there is a good reason, and I don't think there's ever been a good reason, to systematically exclude blacks," Sparling said.
State District Judge Larry Baraka, a former prosecutor and the county's first black felony court judge, said The News' findings also demonstrate the failure of judges and defense lawyers to stop the exclusion of qualified blacks from jury service.
"I'm in shock," Baraka said. "I thought things had gotten a lot better, but apparently they haven't."
Wade said his assistants are trained to use their peremptory challenges to dismiss potential jurors they believe will empathize with the defendant. He said, however, that not all his assistants may use their peremptory challenges intelligently.
"You're trying to get either a completely unbiased juror or one that may be biased in favor of the state," said Wade, who is not seeking re-election. "And I suspect a lot of those (blacks) being cut would probably be better jurors than the ones they end up with."
Wade suggested that the high rate of black exclusion revealed in The News' study might stem from a disproportionately large number of blacks who express doubt about assessing maximum punishments or who have personal knowledge of criminal cases.
Wade said he was not convinced by The News' findings that his assistants engage in an illegal, systematic exclusion of blacks. "It indicates, maybe, that," he said.
The News' study is based on a computer analysis of Dallas County court records from 100 felony jury trials conducted during 1983 and 1984. The trials were selected at random from among the 1,036 trials held during that period.
The study examined records on 4,434 prospective jurors to determine the racial composition of juries , as well as the race of persons excluded from jury service by judges, prosecutors and defense lawyers.
Among the major findings of the study are:
* Juries in 72 of the 100 trials had no blacks. Of the 28 juries with black members, eight sat in judgment of black defendants while 20 decided the fate of Anglo and Hispanic defendants.
*Only two of 54 black male defendants included in the study were tried by juries that had black males. None of the seven male Hispanic defendants had a male Hispanic juror. All 38 Anglo defendants had a majority of Anglos on their juries.
*Of those blacks eliminated from jury service by peremptory challenges, 92 percent were struck by prosecutors. Four percent were excluded by defense lawyers, and 4 percent were dismissed by both sides. (Neither side knows the other's challenges until the judge receives them at the end of the preliminary examination.)
*Forty-seven Hispanics and 46 blacks served on juries , although the number of blacks summoned for jury duty was five times greater than the number of Hispanics.
*The percentage of blacks disqualified from jury service by judges was 1 1/2 times the percentage of disqualified Anglo or Hispanic jury candidates. However, blacks were excluded by prosecutors at almost five times the rate of Anglo jury candidates and twice as often as Hispanic candidates.
Prosecutors maintain that blacks themselves are partly responsible for their underrepresentation on felony juries because many disqualify themselves by saying they cannot judge others or consider a life sentence in cases where state law provides such punishment upon conviction.
Under Texas law, prospective jurors who say they cannot follow the law because of personal convictions or bias are disqualified for "cause."
After those disqualified are dismissed by the judge and both sides exercise their peremptory challenges, the first 12 people who remain are chosen to sit on the jury.
Peremptory challenges, in varying forms, have existed since the 13th century in English law. Historically, they were granted only to the defense in a criminal case. It has been in the last century in the United States that prosecutors were granted the right to exercise such challenges.
Defense lawyers argue that the use of peremptory challenges by Dallas County prosecutors to exclude blacks from juries stems from a racial stereotype that blacks are less inclined to convict and assess harsh penalties.
The stereotype has been passed from generation to generation of prosecutors and is particularly acute in Wade's office, defense lawyers say, because of its heavy emphasis on conviction rates as the means for earning promotion.
"You don't get hired unless you can play that game, and you certainly don't progress," said Vincent Perini, president of the Dallas Bar Association.
"What they are, really, is a bunch of SMU frat rats who are, you know, putting in a little postgraduate work down there kicking nigger ass before going on to the real world, the respectable world, the Dallas Country Club and the civil law firm," Perini said.
Norman Kinne, one of Wade's top three felony prosecutors and a member of his staff for 14 years, strongly denied Perini's characterization of the district attorney's staff.
"I can't believe the elected president of the Dallas Bar Association, in one fell swoop, manages to insult Southern Methodist University, fraternities, the black race, the Dallas Country Club and all civil law firms," Kinne said.
"However, we have tried over the years to provide, under Mr. Wade's guidance, professional prosecution of which all citizens may be proud. The record of this office and the quality of life in Dallas speaks for itself."
Baraka said stereotyping blacks as being less inclined to convict and assess tough sentences is "absurd."
"Skin color has nothing to do with the process of your damn brain," he said.
Defense lawyers say the practice of excluding blacks has diminished as the number of black prosecutors in Wade's office has increased, but they say that even black prosecutors succumb to the pressure to win at all costs. Eight of the 42 felony court prosecutors on Wade's staff are black.
Black lawyers, in particular, maintain that blacks, more than whites, have more reason to dislike criminals because of the higher crime rate in the black community.
"People, be they black, white or brown, are tired of crime; they're just tired of it," said Royce West, a black former prosecutor and a Democratic candidate for district attorney. "I think that when blacks and browns are systematically included on juries that they will give stiffer punishments."
Added defense lawyer Frank Hernandez: "Blacks, Mexican-Americans, women are just as tough, if not tougher, on a defendant who meets their minority status because they look upon that person with some sort of anger sometimes: "You are causing our whole group to be looked upon in this (bad) way."
"Just because you're black doesn't mean that if the defendant is black he gets away," said Hernandez. "Blacks don't like to be shot at in 7-Elevens any more than anybody else. Nor do Hispanics like to be burglarized."
The practice of prosecutors excluding blacks is so commonplace that defense lawyers say they routinely incorporate it into their trial strategy, rarely dismissing even prosecution-minded blacks, anticipating that prosecutors will use one of their peremptory challenges to do the job for them.
In The News' study, only 3.3 percent of the peremptory challenges exercised by defense lawyers were against blacks; 2.5 percent were against Hispanics. Ninety-four percent of the defense strikes were exercised against Anglos.
Dallas County Public Defender Ralph Taite said he routinely warns black clients that they will likely face "a white jury composed of housewives, sometimes rednecks, a lot of middle-class people who come from the suburbs, who have very little contact with them."
"There's not going to be anybody on that panel who's going to be able to say, "Yeah, that's the way it is over in South Oak Cliff, or South Dallas, or West Dallas," ' Taite said.
The only time blacks get on a jury , defense lawyers contend, is when there are too many white non-conformists who appear to prosecutors to be even worse risks.
"You get about 12 hippies and 14 painted-up women and a bunch of cab drivers and bartenders, and they (prosecutors) will be inclined to take chamber of commerce-type blacks -- you know, business-looking, good background with job," said veteran defense lawyer Charles Tessmer.
Defense attorney Richard Aguire said The News' findings that Hispanics serve on juries in a greater proportion than blacks confirms observations that prosecutors prefer Hispanics over black jurors.
The reason, Aguire said, is that prosecutors believe Hispanics will follow the lead of the Anglo majority on a jury. According to defense lawyers, prosecutors also believe that Hispanics will not favor black defendants because of what prosecutors perceive as historical antipathy.
Members of the judicial system argue the impact that exclusions of minorities have on sentencing, but many agree that the practice has a wide-ranging impact on the appearance of justice in Dallas County.
The threat of an all-white jury prompts some black defendants to waive their right to a trial and seek a plea bargain, lawyers say; other defendants change their pleas after learning that their jury contains no member of their race.
"Black people don't like to go to trial, regardless ... They don't believe they're going to get a fair trial from white people," explained defense lawyer Carl Gaines, the second black prosecutor hired by Wade.
Nor does the impact of black exclusion stop with defendants. Blacks called for jury service say the absence of blacks on juries causes them to question whether the judicial system is color-blind.
Many families of defendants leave the courtroom believing they have witnessed "white man's justice," said Peter Lesser, a defense attorney and a Democratic candidate for district attorney.
"I think that hurts the judicial system because then they're not concentrating on the fact that Johnny is a no-good scumbag who beat up this old lady, stole her purse, put her in the hospital and nearly killed her," Lesser said. "They're concentrating on the fact that, well, it's racist."
Jessica Guillory was one of nine black potential jurors summoned in February for a case involving a black woman charged with welfare fraud. Mrs. Guillory said she felt intimidated after watching the panel reduced to an all-white jury.
"It made me know that I better not ever get in trouble, that I don't feel like justice is all it's supposed to be," said Mrs. Guillory, one of six blacks dismissed by the state.
Baraka said blacks have been so conditioned to expect unfairness from the justice system that many do not consider jury service a possibility.
"As a defendant, we don't stand a chance. We're arrested more often, we're convicted more often, we receive more punishment. I mean, those are just the facts," Baraka said. "And as honest, law-abiding citizens who believe in God and the American way and pay taxes to send our children to school, we're still told we're not anything of value."
West, a defense attorney, said that even black professionals contemplate ignoring a jury summons, believing that because of their race, their opinions are not wanted by the justice system. "There's no sense going down there (to the courthouse) because they're going to strike them just because they are black," West said.
Still other blacks have a more visceral reason for avoiding jury service, according to state District Judge Ed Kinkeade, who oversees operation of the central jury pool.
"They tell me, "I'm afraid of the courthouse; nothing good happens at the courthouse, and I don't want to be a part of it," ' Kinkeade said.
Racial discrimination in jury selection in Dallas County dates back at least to the 1930s when riots narrowly were averted after blacks appeared at the courthouse, insisting they be considered for jury service. In 1938, a black college president was thrown head-first down the courthouse steps by two white men when he refused to leave the central jury room.
In the 1940s, the U.S. Supreme Court, in three separate cases, told Dallas County that its method of selecting grand jurors was unconstitutional because it intentionally excluded blacks.
Evidence presented to the Supreme Court in one Dallas case in 1942 showed that no black ever had served on the Dallas County grand jury . Two grand jury selection officials said they had not summoned any blacks because they knew of no qualified black in the county, which then had 55,000 black residents.
The law was then the most common form of exclusion. Most blacks were simply disqualified from jury service because, in order to be an eligible juror, a person must have paid a poll tax -- a required fee for voting -- and be a property owner.
Blacks who did qualify for jury service in Dallas County were rarely served with summonses; those who were served and appeared at the courthouse frequently were told by judges that their services were not needed.
Not until 1949 did a black serve on a trial jury in Dallas County, 81 years after blacks were granted full rights as citizens by the 14th Amendment to the U.S. Constitution.
When Wade took office as district attorney in January 1951, he said, he made it a priority of his office to prosecute more crimes against blacks, because of the higher crime rate in predominantly black neighborhoods. That policy has remained a priority ever since, Wade said.
However, Wade said he has never had a policy of preventing blacks from serving on juries and has seated blacks on juries as far back as the 1950s.
But state District Judge Jack Hampton, who served on Wade's staff from 1958 to 1962, recalled being reprimanded by Wade when he allowed a black woman to serve as a juror on a misdemeanor drunken driving case. The case ultimately ended in a mistrial because the woman could not reach a verdict.
"'If you ever put another nigger on a jury, you're fired,""' Hampton quoted Wade as saying. "That was the way things were back in 1958."
Said Wade: "That didn't happen, so far as I'm concerned."
Hampton said he did not put another black on a jury for the remainder of his career as a prosecutor.
Five years later, a treatise on jury selection credited to Assistant District Attorney Bill Alexander, then one of Wade's top aides, reiterated the belief that certain minorities were not appropriate state's jurors.
"Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury , no matter how rich or how well educated," Alexander advised prosecutors. "I may like these people, but they will not do on juries."
Alexander, now a federal prosecutor in Dallas, said he accepted blacks as jurors when he was in Wade's office and does not remember writing the treatise that advised against selecting minorities. "I just won't take responsibility for that," he said.
In 1963, when the treatise appeared, the number of blacks appearing for jury duty remained small. But by the end of the decade, that number was increased significantly with the abolition of the state poll tax in 1966 and the advent of a new law designating voter registration lists as the source lists for juries.
It was then, according to defense lawyers, that prosecutors began in earnest to exercise their peremptory challenges against blacks.
In 1969, Sparling, then an assistant district attorney, delivered what became a highly publicized speech to a training session for prosecutors. Sparling's suggestions on jury selection, in fact, were the subject of a Time article in 1973 that carried the headline: "Women, Gimps, Blacks, Hippies Need Not Apply."
In addition to minorities, Sparling's recommendations warned against selecting "free-thinkers," people with physical afflictions and the overweight -- especially women and young men.
Wade and his assistants maintain the Sparling manual never was followed blindly and never has been read by most current prosecutors. They insist that prosecutors are trained to make individual decisions on jurors based on a combination of demographic factors and personal observations.
"Why do I want 12 white people on a jury when one of them is a person who's been unemployed for a while or not much of a work record, and came to court without a coat and tie, and you struck this young black business executive just because he was black?" said Jerry Banks, formerly one of Wade's top assistants. "That's dumb."
Any prosecutor who allowed his racial prejudices to interfere with his judgment in selecting the best possible jury , Banks said, would not have lasted long in Wade's office.
Defense lawyers claim that prosecutors with the least experience are the most likely to rely on stereotypes handed down by more experienced prosecutors.
"If Douglas MacArthur wrote his memoirs on the campaign in the South Pacific and you wanted to be a great general, what would you do?" asked Aguire, a former prosecutor. "If you're an inexperienced prosecutor, you do what the old master says."
The process of culling black jury candidates is apparent almost every Monday in the Dallas County Courthouse. Dozens of blacks, along with other potential jurors, enter the central jury room and later are sent to a felony court for jury questioning. But when the jury is seated, blacks more often than not are left sitting in the audience.
Inside the courtroom, prosecutors commonly exercise peremptory challenges against blacks who voice similar views and appear to possess similar qualifications to whites who are selected on the jury.
The News witnessed prosecutors repeatedly dismissing black professionals in favor of blue-collar whites, even though the whites may not have lived in the county as long. The practice was particularly pronounced when the defendant was black.
Selecting a jury , lawyers agree, is part gamesmanship and part psychology, with each sides attempting to guess how the other will use its 10 peremptory challenges to sculpt a jury of people most inclined to favor its side of the case.
Previously in The News:
03/09/1986: Race bias pervades jury selection
- Most blacks trust selection system, survey finds
- Picking juries is an inexact science, lawyers say
03/10/1986: Black youth's trial illustrates imbalance
- Jury selection biased throughout Texas
03/11/1986: Judge plans to urge action to end jury selection bias
- Some states act to reduce jury-selection bias
05/20/1986: Dallas man gets stay of execution
- Special Report: Striking Differences
Article by Arch McColl, Criminal Defense Attorney.