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Abuses of prosecutorial authority are not limited to the selective laying of capital charges. The jury selection process for death penalty trials permits both the defence and the prosecution to question prospective jurors and to exercise a set number of "peremptory challenges" - the right to exclude individuals deemed to be unsuitable without giving a reason. In a host of cases involving black defendants, prosecutors have used their challenges to create all-white juries, in order to increase the likelihood of a conviction and death sentence.
In the case of Albert Jefferson, black, convicted of the murder of a white victim in Chambers County, Alabama, in 1983, a prosecutor removed 26 potential black jurors in order to obtain three all-white juries (one jury was for a hearing on Jefferson's mental competence to stand trial, another for guilt and a third for sentencing). During post-conviction proceedings, lawyers representing Jefferson discovered lists made by the prosecutor prior to jury selection, in which the prosecutor divided prospective jurors into four categories: "strong", "medium", "weak", and "black".
However, a state circuit judge in Chambers County ruled that no racial discrimination occurred in the selection of the juries, as there were race- neutral reasons for each of the potential black jurors to be removed from the jury. In 1994, the conviction and death sentence were overturned on the grounds that the prosecution had withheld evidence favourable to proving Jefferson innocent. He was later convicted of a lesser offence.
In 1986, the US Supreme Court ruled in Batson v. Kentucky that the removal of potential jurors on the grounds of race was unconstitutional and that prospective jurors could only be removed on "race neutral" grounds. The Court held that a defendant must show that "purposeful discrimination has taken place in the jury selection process", in order to prevail on appeal under the new ruling. The impact of the decision was further limited by the Court's requirement that it would not apply retroactively.
One year after the Batson ruling, the Assistant District Attorney for Philadelphia made a training videotape for the city's prosecutors. On the video, he describes how to select a jury more likely to convict, including the removal of potential black jurors:
"Let's face it, the blacks from the low-income areas are less likely to convict. There's a resentment to law enforcement... You don't want those guys on your jury... If you get a white teacher in a black school who's sick of these guys, that may be the one to accept."
The video also instructed the trainee prosecutors on how to hide the racial motivation for the rejection of prospective jurors in order to avoid successful claims of racial discrimination from defence lawyers. The tape did not become public until 1997. Immediately after its release, a journalist monitored the selection of juries in Philadelphia. Of the four trials he looked at, the prosecution used 27 out of 27 strikes to eliminate potential black jurors.
As one Illinois appellate court judge sarcastically noted, "Surely, new prosecutors are given a manual, probably entitled 'Handy Race-Neutral Explanations' or 'Twenty Time-Tested Race-Neutral Explanations'?" The judge listed the many vague explanations given by Illinois prosecutors to remove blacks from the jury, which included:
"too old, too young, divorced, unkempt hair, freelance writer, wrong religion, social worker, renter, lack of family contact, single, lack of maturity, improper demeanor, improper attire, lives alone, lives in an apartment complex, mis-spelled place of employment, unemployed, employed as a part-time barber, spouse employed as school teacher, failure to remove hat, living with girlfriend, deceased father."
Amnesty International believes that the Batson decision, with all its good intentions, has manifestly failed to prevent racial bias in the jury selection process. Proving "purposeful discrimination" is nearly impossible, since prosecutors need only fabricate a vaguely plausible non-racial reason for dismissing potential jurors to conceal their real intent. The Supreme Court ruling has not eliminated trials involving racially imbalanced juries that appear to have been chosen on racial grounds, or the execution of black prisoners tried by all-white juries after the exclusion of all potential black jurors.
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