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75 Years After Scottsboro Racial Profiling In Jury Selection Is Alive and Well

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On March 19, the United States Supreme Court handed down a pivotal decision on racial bias in jury selection. While the ruling in favor of an African-American ex-marine found guilty by an all-white jury is gratifying, and ironic in view of its timing, it does not go to the heart of racial injustice in the criminal justice system.

The timing is ironic not only because it comes on the heels of Barack Obama's inspiring plea for a new dialogue on race. It also marks the 75th anniversary of the Palm Sunday, 1933, conviction of Haywood Patterson, one of the nine defendants known as the Scottsboro Boys.

Patterson, who was sentenced to death for a rape that never occurred, appealed the conviction all the way to the Supreme Court, and won a landmark verdict that was supposed to change the way juries are selected.

The case had started two years earlier, on March 25, 1931, when an Alabama posse stopped a freight train and rounded up nine black youths, ranging in age from thirteen to nineteen. Their offense was fighting with white boys -- until two white girls in men's overalls turned up in one of the railroad cars. Though the girls showed no signs of abuse, fast as anyone anyone could say Jim Crow, a cry of rape went up.

In four days, the state of Alabama tried, convicted, and sentenced eight of the nine boys to the electric chair. A mistrial was declared for the ninth, a thirteen-year-old, whom some, but not all, of the jurors deemed too young for capital punishment.

A year-and-a-half later, the United States Supreme Court ordered new trials on the grounds that the youths had been denied right of counsel. Though by then one of the girls had changed her story and admitted no rape had occurred, an all-white jury convicted again. This time, however, a competent defense attorney had laid the foundation for an appeal on different grounds.

Samuel Leibowitz, a New York criminal lawyer known for defending Al Capone and other underworld figures, had never argued before the Supreme Court before. He made history on this occasion when Chief Justice Charles Evans Hughes, in an unprecedented allowance of evidence before the high court, permitted him to present jury books. They showed that the names of African Americans had been added after the trial.

The court ruled that the exclusion of blacks from jury rolls deprived defendants of their rights to equal protection under the law as guaranteed in the Fourteenth Amendment. But as long as attorneys can use peremptory strikes to eliminate prospective jurors, racially mixed juries remain an elusive dream.

In jury selection, attorneys may remove potential jurors in two ways. They can challenge for cause, which means the lawyer must provide a specific reason. They can also eliminate a prospective juror for no stated reason. This is called a peremptory strike.

In 2003, the Louisiana Crisis Assistance Center (now the Louisiana Capital Assistance Center) released a study of of 500 trials involving 23,000 jurors during the previous decade in the New Orleans bedroom community of Jefferson Parish. Prosecutors from the District Attorney's Office struck African-American prospective jurors at more than three times the rate of white.

"Black striking," the use by an attorney of peremptory strikes to eliminate African American jurors, is not unique to the South. In 1997, a training tape made a decade earlier by Jack McMahon, an Assistant District Attorney in Philadelphia, instructed new prosecutors on the importance of keeping African Americans off juries in high level criminal cases. "Young black women are very bad," he told the new recruits, and "blacks from low-income areas are less likely to convict." He also made clear the consequences of ignoring his guidelines. "You'll lose and you'll be out of office."

McMahon's training tape was made in response to a 1986 decision. In Batson v. Kentucky, the United States Supreme Court ruled that race cannot be a factor in disqualifying a juror. The problem with Batson, however, is that mind-reading is not practicable in a court of law.

Only an incompetent lawyer could fail to come up with a logical sounding non-racial reason for a racially motivated peremptory strike. Indeed, the Philadelphia D.A. instructed his team to "ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race."

Thus the defense must find either a pattern of racism in a series of cases, an endeavor even the best public defenders rarely have the time, money, or resources for, or other evidence in the particular case.

In 2005, the Supreme Court overturned the twenty-year-old murder conviction of Texas death-row inmate Thomas Miller-El on the grounds that Dallas prosecutors had deliberately excluded African-Americans from the jury. In this case, mind-reading was unnecessary. A Dallas County District Attorney's training manual listed the various minorities who "will not do on juries...no matter how rich or how well educated."

At the same time the Supreme Court, with Justice Sandra Day O'Connor still sitting, ruled on Miller-El, it instructed the Louisiana Supreme Court to reconsider Snyder v. Louisiana, the case decided last week. The key question was whether a Jefferson Parish prosecutor, Jim Williams, violated the defendant's constitutional rights by striking all potential African-Americans from the jury at the start of his 1996 trial. Williams' motives are unknowable, but his words were clear. "This is my O.J. case," he told reporters after Snyder turned himself in for stabbing to death the boyfriend of his estranged wife.

There is a story about racially mixed juries and Scottsboro defender Sam Leibowitz that is so good any normally skeptical individual cannot help fearing it is apocryphal. As biographer Quentin Reynolds recounted it, Leibowitz's wife finally persuaded her work-obsessed husband to take a holiday in Miami Beach. Bored with sun and sand, Leibowitz soon struck out for the nearest courtroom. Though the trial was mundane, the single black juror peaked his curiosity. He mentioned to one of the local attorneys that he thought blacks were not permitted to sit on juries in the South.

The lawyer shook his head unhappily and replied they never used to be, but a few years earlier some New York lawyer named Leibowitz took an Alabama case to the Supreme Court in Washington, and now they had to put those -- here he used an epithet -- on their juries.

The story is morally satisfying, but current facts tell a different story. Three-quarters of a century after nine young African-American men were sentenced to death, again and again, by all-white juries for a crime that never occurred, we pride ourselves on the strides we have made. But thanks to peremptory strikes, too many of our juries bear an uncanny resemblance to those of Depression-era Alabama.