07/05/2010 03:25 pm ET | Updated May 25, 2011

The Uneven Hand of Justice

There have been a number of articles over the past months on the racial bias of the death sentence and in jury selection. To be more accurate, the issue is one of disenfranchisement of Blacks from their legal right to sit on juries. This is a subject I was involved with in 1991 when I was a pro bono expert witness on precisely this issue. I am not going to recount the details only to say we lost in District Court but won in Appellate Court: 3-0. (Three-zip in an Appellate Court is the equivalent of a grand slam home run.) The Appellate Court agreed with our position that jurors were struck because of race.
Even though I have been thinking about this article since Virginia's Republican Governor Bob McDonnell declared April to be "Confederate History Month," it was Elena Kagan's confirmation hearings that crystallized the focus of this blog. Kagan was cross-examined by Senators Jeff Sessions (R-AL), Lindsey Graham (R-SC), and others who called Supreme Court Justice Thurgood Marshall an activist. Followed by Lindsey Graham asking her where "her people" spent Christmas? Kagan did say: "Chinese restaurants," allowing her to add still a third minority to the hearings. (In fairness, an apparently obscure concept in the Senate, Graham did not say "her people;" it was implied.)
The New York Times commented on a study entitled "Illegal Racial Discrimination in Jury Selection" by the Equal Justice Initiative (EJI). The report discusses the ongoing discrimination of excluding Black jurors in the South to increase the probability of a death penalty verdict.


The game prosecutors play is simple. There is a strong rejection by Blacks of the death penalty (See graph). So Southern prosecutors know the likelihood of successfully seeking the death penalty depends on the exclusion of Black jurors who are part of the jury pool (i.e., voir dire). Because the prosecution has a finite number of challenges (i.e., exclusions), the prosecutor must have a pool of jurors that does not have a high number of Black jurors. It is this balance between challenges and the number of Blacks in the jury pool that dictates whether prosecutors will seek the death penalty. Depending on the demographics of a county, the pool of Black jurors can be so small that a prosecutor can remove all Blacks from serving on a jury for a particular case. The net result of this process is that the death penalty in the South varies by county. Just like real estate: The where matters.
While my own investigation convinced me that the prosecutor in this particular case had a long history of discriminating against Blacks sitting on juries, what concerns me is the huge divide between Black and White views on the death penalty. Is it any wonder that Blacks have a strong opposition to the death penalty? One hundred and thirty-five years after the Civil War, we have a Virginia Governor who wants to celebrate the Confederacy and US Senators questioning a Supreme Court nominee on her "dangerous" association with Justice Thurgood Marshall, one of the great forces in desegregation.
Common sense dictates when we have a reasonable, causal basis for an action, coupled with numerous supportive studies, we accept the fact that race is the single largest contributing factor to the death penalty, when the defendant is Black and the victim White. Yet, common sense seldom prevails.