"Southern trees bear a strange fruit, blood on the leaves and blood at the root..."
Swaying in the wind on an October day in 1934, Claude Neal's body hung from a tree on display in front of the Jackson County courthouse. Days prior, he was taken from his jail cell in Marianna, Florida by an angry white mob. Having been accused of raping and killing a white woman, Lola Cannidy, Claude Neal was tortured and hung by his neck until he was strangled to death. People gathered to watch the lynching, in the name of "justice" for Lola.
Claude Neal's tragic death, which is detailed in James McGovern's Anatomy of a Lynching, is significant to me because he was my grandfather's cousin and because I am a capital defense attorney. Because of my work, I am often confronted by the many historical connections between the death penalty and lynchings. One of the most clear and lasting legacies of the torrid, bloody lynchings that occurred throughout the South in the late 1800s and early 1900s is the fact that today, hundreds of individuals--who are disproportionately Black--face the prospect of a death sentence without a fair trial. While Black men are no longer lynched before all-white crowds gathered on the courthouse lawn, Black men are all-too-often condemned to death by all-white juries that are produced by prosecutors' deliberate exclusion of people of color, particularly Black people, from jury service.
This past Saturday marked the 30th anniversary of the United State Supreme Court's decision in Batson v. Kentucky, which prohibits the intentional exclusion of prospective jurors from service on an individual case based on race. The importance of this landmark decision cannot be overstated because, as the late Supreme Court Justice Thurgood Marshall once commented, "Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well." Peters v. Kiff, 407 U.S. 493, 502 (1972). And contemporary studies bear out the truth of Justice Marshall's analysis: compared to diverse juries, all-white juries spend less time deliberating, make more errors, rely on implicit biases and consider fewer alternative perspectives. Interestingly, studies have shown the effects of diversity were not wholly attributable to the specific performance of Black participants. In fact, the mere presence of individuals from other racial or ethnic groups improves the likelihood of a more well-rounded discussion among jurors.
Despite the weighty legal and practical reasons not to have all-white juries, prosecutors throughout the country continue to pursue them. The Glenn Ford case in Caddo Parish, Louisiana, offers a powerful example of the tragic consequences of this misguided practice. Mr. Ford, a Black man, was charged with the murder of a white man in a community with a long and deep history of racial discrimination and violence. Indeed, the Confederate flag flew outside the courthouse at the time of his trial. Mr. Ford was sentenced to death by an all-white jury even though nearly 40 percent of the community was Black. Nearly 30 years after he was condemned to die, Mr. Ford was found to be innocent and exonerated. Tragically, he died of lung cancer after having only one year of freedom after his release. Considering the well-documented inadequacies of homogenous juries, there is a very real chance that Mr. Ford's fate would have been drastically different, had he been tried by a fairly selected, and appropriately diverse jury.
Unfortunately, the selection of an all-white jury in Mr. Ford's case was hardly anomalous. Thirty years after Batson, the practice is rampant. Thus, every day across this nation, Black jurors are struck from juries based solely on the color of their skin. For example, one study that examined 300 Caddo Parish trials that were conducted between 2003 and 2012 and found that the Caddo Parish District Attorney's office struck Black prospective jurors at three times the rate of non-Blacks in felony jury trials. Similarly, a Michigan State Law School study of trials for defendants on death row in North Carolina as of July 1, 2010, found that in those 173 capital cases, prosecutors excluded 52.8% of potential Black jurors, as compared to 25.7% of non-Black prospective jurors. The same study found that when the defendant was Black, prosecutors excluded more Black prospective jurors (60%), and accepted more non-Black jurors (they excluded only 23.1%). A prosecutors' training manual in Dallas, Texas, provided detailed instructions on the systematic exclusion of Blacks from jury service in criminal cases: "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....[T]hey will not do on juries." And, an Equal Justice Initiative report found that between 2005 and 2009, Houston County, Alabama, state prosecutors used peremptory strikes to remove 80% of potential Black jurors, resulting in half of the death penalty juries being all white and the remainder with only one Black juror.
Prosecutors not only frequently exclude Black jurors, but when faced with Batson challenges, they also make up spurious reasons to cover up their unlawful discrimination. Any day now, the United States Supreme Court will rule on Foster v. Humphrey, a case of discrimination in jury selection that shows the lengths to which prosecutors will go to cover up their discrimination. During Mr. Foster's trial, Georgia prosecutors excluded all of the prospective Black jurors. When challenged, the prosecutors offered "race-neutral" reasons for the jurors' exclusions. Years later, however, it became clear that the Black jurors had been specifically targeted because of their race. Indeed, the trial prosecutors highlighted each Black prospective juror's name in green on four different copies of the jury list.
Prosecutors often offer pre-textual "race-neutral" justifications for their exclusion of prospective jurors of color. Indeed, some prosecutors are explicitly taught to do so. Philadelphia prosecutors were caught training young attorneys to question potential Black jurors in such a way that they would later be able to provide race-neutral reasons for their peremptory strikes. In 1995, the North Carolina Conference of District Attorneys distributed a one-page handout titled "Batson Justifications: Articulating Juror Negatives" that provided a list of ten types of "justifications" a prosecutor might offer in response to a Batson challenge, including age, attitude, body language, and juror response.
These tactics demonstrate the significant challenges faced by courts seeking to root out racial discrimination in jury selection in criminal cases. Foster provides the Supreme Court with an opportunity to strengthen the reach of Batson through greater scrutiny of "race-neutral" justifications. But prosecutors must also be held accountable whenever they exclude jurors on the basis of race by suffering serious penalties for engaging in such unconstitutional conduct. In order to ensure the legitimacy of the judicial process, prosecutors should not evade their responsibility to select impartial and inclusive juries--especially in cases where a defendant's life is literally on the line. Otherwise, the phenomenon of all-white juries imposing death sentences on Black defendants will continue, harkening back to the sordid lynchings of our past.