Illegal Racial Discrimination in Jury Selection:
A Continuing Legacy
Equal Justice Initiative

The Equal Justice Initiative is a non-profit law organization with headquarters in
Montgomery, Alabama.
For more information, please contact:
Equal Justice Initiative
122 Commerce Street
Montgomery, Alabama 36104
(334) 269-1803
www.eji.org
Email: raceandjury@eji.org
June 2010

TABLE OF CONTENTS
Executive Summary ..........................................................................................................4
Summary of Findings and Recommendations..................................................................5
The History of Racial Discrimination in Jury Selection ....................................................9
The First Barrier – Total Exclusion ..............................................................................9
The Second Barrier – Discriminatory Selection ........................................................11
The Continuing Legacy of Illegal Racial Discrimination in Jury Selection......................14
Why the Problem Continues ......................................................................................15
Prosecutors Often Assert Pretextual “Race-Neutral” Reasons ..............................16
Appellate Courts Have Not Reviewed Claims of Racial Bias Consistently ..............19
Variation Among State Courts ..................................................................................22
Near-Total Deference to Prosecutors in Tennessee ..........................................22
Building Blocks for Meaningful Review in Florida ..............................................23
Ongoing Problems in Louisiana ..........................................................................23
Continued Racial Discrimination in Mississippi, Georgia, and Arkansas............24
The Role of Disparate Treatment in Alabama and South Carolina ....................26
Race Discrimination’s Other Victims: Jurors Wrongly Excluded ..................................28
Additional Barriers to Representative Juries..................................................................35
Underrepresentation of Racial Minorities in Jury Pools ..........................................35
Excusing Jurors “For Cause” ....................................................................................37
The Perceived and Actual Integrity of the Criminal Justice System ..............................38
The Absence of Racial Diversity in Other Decision-Making Roles..................................41
The Role of Defense Counsel ....................................................................................43
Recommendations ..........................................................................................................44
Notes ................................................................................................................................51
Credits ..............................................................................................................................61

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EXECUTIVE SUMMARY
oday in America, there is perhaps no arena of public life or governmental administration
where racial discrimination is more widespread, apparent, and seemingly tolerated than
in the selection of juries. Nearly 135 years after Congress enacted the 1875 Civil Rights
Act to eliminate racially discriminatory jury selection, the practice continues, especially in serious criminal and capital cases.

T

The staff of the Equal Justice Initiative (EJI) has looked closely at jury selection procedures in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee. We uncovered shocking evidence of racial discrimination in jury selection in every
state. We identified counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service. We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries. We found evidence that some prosecutors
employed by state and local governments actually have been trained to exclude people on the
basis of race and instructed on how to conceal their racial bias. In many cases, people of color
not only have been illegally excluded but also denigrated and insulted with pretextual reasons
intended to conceal racial bias. African Americans have been excluded because they appeared
to have “low intelligence”; wore eyeglasses; were single, married, or separated; or were too
old for jury service at age 43 or too young at 28. They have been barred for having relatives
who attended historically black colleges; for the way they walk; for chewing gum; and, frequently, for living in predominantly black neighborhoods. These “race-neutral” explanations
and the tolerance of racial bias by court officials has made jury selection for people of color a
hazardous venture, where the sting of exclusion often is accompanied by painful insults and
injurious commentary.
While courts sometimes have attempted to remedy the problem of discriminatory jury
selection, in too many cases today we continue to see indifference to racial bias in jury selection. Too many courtrooms across this country facilitate obvious racial bigotry and discrimination every week when criminal trial juries are selected. The underrepresentation and
exclusion of people of color from juries has seriously undermined the credibility and reliability
of the criminal justice system, and there is an urgent need to eliminate this practice. This report contains recommendations we believe must be undertaken to confront the continuing
problem of illegal racial bias in jury selection. We sincerely hope that everyone committed to
the fair administration of law will join us in seeking an end to racially discriminatory jury selection. This problem has persisted for far too long, and respect for the law cannot be achieved
until it is eliminated and equal justice for all becomes a reality.

Bryan A. Stevenson
Executive Director

4

SUMMARY OF FINDINGS AND RECOMMENDATIONS
FINDINGS
1.

The 1875 Civil Rights Act outlawed race-based discrimination in jury service, but 135
years later illegal exclusion of racial minorities persists.

2.

Racially biased use of peremptory strikes and illegal racial discrimination in jury selection remains widespread, particularly in serious criminal cases and capital cases.

3.

The United States Supreme Court’s 1986 decision in Batson v. Kentucky has limited
racially discriminatory use of peremptory strikes in some jurisdictions, but the refusal
to apply the decision retroactively has meant that scores of death row prisoners have
been executed after convictions and death sentences by all-white juries, which were organized by excluding people of color on the basis of race. Moreover, dozens of condemned prisoners still face execution after being convicted and sentenced by juries
selected in a racially disciminatory manner.

4.

Most state appeals courts have reversed convictions where there is clear evidence of
racially discriminatory jury selection. However, by frequently upholding convictions
where dramatic evidence of racial bias has been presented, appellate courts have failed
to consistently and effectively enforce anti-discrimination laws and adequately deter
the practice of discriminatory jury selection.

5.

EJI studied jury selection in eight states in the southern United States: Alabama,
Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee. State
appellate courts in each of these states – except Tennessee, whose appellate courts
have never granted Batson relief in a criminal case – have been forced to recognize continuing problems with racially biased jury selection. The Mississippi Supreme Court concluded in 2007 that “racially profiling jurors and [ ] racially motivated jury selection [are]
still prevalent twenty years after Batson was handed down.”

6.

Alabama appellate courts have found illegal, racially discriminatory jury selection in 25
death penalty cases in recent years and compelling evidence of racially biased jury selection has been presented in dozens of other death penalty cases with no relief
granted.

7.

In some communities, the exclusion of African Americans from juries is extreme. For
example, in Houston County, Alabama, 80% of African Americans qualified for jury service have been struck by prosecutors in death penalty cases.

8.

The high rate of exclusion of racial minorities in Jefferson Parish, Louisiana, has meant
that in 80% of criminal trials, there is no effective black representation on the jury.

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9.

There is evidence that some district attorney’s offices explicitly train prosecutors to exclude racial minorities from jury service and teach them how to mask racial bias to avoid
a finding that anti-discrimination laws have been violated.

10.

Hundreds of people of color called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal. Many of
these assertions are false, humiliating, demeaning, and injurious. This practice continues in virtually all of the states studied for this report.

11.

There is wide variation among states and counties concerning enforcement of anti-discrimination laws that protect racial minorities and women from illegal exclusion.

12.

Procedural rules and defaults have shielded from remedy many meritorious claims of
racial bias.

13.

Many defense lawyers fail to adequately challenge racially discriminatory jury selection
because they are uncomfortable, unwilling, unprepared, or not trained to assert claims
of racial bias.

14.

Even where courts have found that prosecutors have illegally excluded people of color
from jury service, there have been no adverse consequences for state officials. Because
prosecutors have been permitted to violate the law with impunity, insufficient disincentives have been created to eliminate bias in jury selection.

15.

In some communities racial minorities continue to be underrepresented in the pools
from which jurors are selected. When challenges are brought, courts use an inadequate
and misleading measure of underrepresentation known as “absolute disparity,” which
has resulted in the avoidable exclusion of racial minorities in many communities.

16.

Under current law and the absolute disparity standard, it is impossible for African Americans to effectively challenge underrepresentation in the jury pool in 75% of the counties in the United States. For Latinos and Asian Americans, challenges are effectively
barred in 90% of counties.

17.

The lack of racial diversity among juries in many cases has seriously compromised the
credibility, reliability, and integrity of the criminal justice system and frequently triggered social unrest, riots, and violence in response to verdicts that are deemed racially
biased.

18.

Research suggests that, compared to diverse juries, all-white juries tend to spend less
time deliberating, make more errors, and consider fewer perspectives.

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19.

Miami; New York; Los Angeles; Hartford, Connecticut; Jena, Louisiana; Powhatan, Virginia; Milwaukee, Wisconsin; and the Flordia Panhandle are among many communities
that have seen unrest, violence, or destruction in response to non-diverse criminal jury
verdicts.

20.

The lack of racial diversity among prosecutors, state court judges, appellate judges, and
law enforcement agencies in many communities has made jury diversity absolutely critical to preserving the credibility of the criminal justice system.

RECOMMENDATIONS
1.

Dedicated and thorough enforcement of anti-discrimination laws designed to prevent
racially biased jury selection must be undertaken by courts, judges, and lawyers involved
in criminal and civil trials, especially in serious criminal cases and capital cases.

2.

The rule banning racially discriminatory use of peremptory strikes announced in Batson
v. Kentucky should be applied retroactively to death row prisoners and others with
lengthy sentences whose convictions or death sentences are the product of illegal,
racially biased jury selection but whose claims have not been reviewed because they
were tried before 1986.

3.

To protect the credibility and integrity of criminal trials, claims of illegal racial discrimination in the selection of juries should be reviewed by courts on the merits and exempted from procedural bars or technical defaults that shield and insulate from remedy
racially biased conduct.

4.

Prosecutors who are found to have engaged in racially biased jury selection should be
held accountable and should be disqualified from participation in the retrial of any person wrongly convicted as a result of discriminatory jury selection. Prosecutors who repeatedly exclude people of color from jury service should be subject to fines, penalties,
suspension, and other consequences to deter this practice.

5.

The Justice Department and federal prosecutors should enforce 18 U.S.C. § 243, which
prohibits racial discrimination in jury selection, by pursuing actions against district attorney’s offices with a history of racially biased selection practices.

6.

States should provide remedies to people called for jury service who are illegally excluded on the basis of race, particularly jurors who are wrongly denigrated by state officials. States should implement strategies to disincentivize discriminatory conduct by
state prosecutors and judges, who should enforce rather than violate anti-discrimination laws.

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7.

Community groups, civil and human rights organizations, and concerned citizens should
attend court proceedings and monitor the conduct of local officials with regard to jury
selection practices in an effort to eliminate racially biased jury selection.

8.

Community groups, civil and human rights organizations, and concerned citizens should
question their local district attorneys about policies and practices relating to jury selection in criminal trials, secure officials’ commitment to enforcing anti-discrimination
laws, and request regular reporting by prosecutors on the use of peremptory strikes.

9.

States should strengthen policies and procedures to ensure that racial minorities,
women, and other cognizable groups are fully represented in the jury pools from which
jurors are selected. States and local administrators should supplement source lists for
jury pools or utilize computer models that weight groups appropriately. Full representation of all cognizable groups throughout the United States easily can be achieved
in the next five years.

10.

Reviewing courts should abandon absolute disparity as a measure of underrepresentation of minority groups and utilize more accurate measures, such as comparative disparity, to prevent the insulation from remedy of unfair underrepresentation.

11.

State and local justice systems should provide support and assistance to ensure that
low-income residents, sole caregivers for children or other dependents, and others who
are frequently excluded from jury service because of their economic, employment, or
family status have an opportunity to serve.

12.

Court administrators, state and national bar organizations, and other state policymakers should require reports on the representativeness of juries in serious felony and capital cases to ensure compliance with state and federal laws barring racial discrimination
in jury selection.

13.

The criminal defense bar should receive greater support, training, and assistance in ensuring that state officials do not exclude people of color from serving on juries on the
basis of race, given the unique and critically important role defense attorneys play in
protecting against racially biased jury selection.

14.

Greater racial diversity must be achieved within the judiciary, district attorney’s offices,
the defense bar, and law enforcement to promote and strengthen the commitment to
ensuring that all citizens have equal opportunities for jury service.

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THE HISTORY OF RACIAL DISCRIMINATION IN JURY SELECTION
rom the earliest days of the American republic, the jury system has served as a symbol of
American democracy and a “bulwark of liberty” for citizens who stand accused.1 The right
to trial by jury is enshrined in our foundational legal documents, from the Magna Carta to
the Declaration of Independence and the Bill of Rights, and in every state constitution.2 Yet,
like the larger democracy it represents, the jury’s history as a guarantor of liberty and freedom
has been haunted by race-based exclusion and discrimination.

F

Throughout the Civil War era, jury service was almost universally restricted to white
men. (The first African-American juror in a criminal case served in 1860 in Massachusetts.) In
many parts of the country, government officials flatly excluded African Americans from jury
service for another century after Reconstruction.3 Today, African Americans have secured a
place on the jury rolls, but many prosecutors continue to prevent their service on juries by illegally excluding jurors based on their race.

THE FIRST BARRIER – TOTAL EXCLUSION
In the period directly following the Civil
War, African-American jury service – with other
African-American civil and political rights – featured prominently in debates about the new
shape of society, particularly in the South. Black
citizens pressed for representative grand juries
and trial juries to ensure fair treatment of black
people accused of crimes and enforcement of
the law against white defendants accused of terror and violence against African Americans.4

Black citizens pressed for
representative juries to ensure fair treatment of black
people accused of crimes
and enforcement of the law
against white defendants accused of terror and violence
against African Americans.

Proponents of equal jury rights met with some success during Reconstruction as legislatures, with black participation, repealed formal race-based jury requirements in many Southern states.5 Congress included in the Civil Rights Act of 1875 a provision outlawing race-based
discrimination in jury service.6 The peak of this early progress toward equality and inclusion in
jury service occurred in 1880 with the United States Supreme Court’s decision in Strauder v.
West Virginia, which overturned a state statute that restricted jury service to whites. The
strongly-worded decision condemned the statute as
The Civil Rights Act of 1875 a violation of the equal protection of the laws guaroutlawed race-based dis- anteed to black citizens by the newly adopted Fourcrimination in jury service. teenth Amendment to the Federal Constitution.7
Strauder, however, marked the high point in the struggle for minority jury participation
for over 50 years. By 1880, a backlash against black enfranchisement and political participation
was already underway in the South, and the Jim Crow era of white supremacism, state terrorism, and apartheid had begun.8 The jury service provision of the Civil Rights Act of 1875 was
9

rarely enforced and had little effect on the conduct of local officials.9 Despite its forceful condemnation of race-based exclusion, the rule of Strauder was easily circumvented.10 States
abandoned statutes that expressly restricted jury service to whites, but local officials achieved
the same result by excluding African Americans from jury rolls and implementing ruses to exclude black citizens.11 In some jurisdictions, names of black residents were included on the lists
from which jury panels or “venires” were drawn, but were printed on a different color paper
so they could be easily avoided during the supposedly random drawing of the venire.12 Theoretically valid but vague requirements for jury service – such as intelligence, experience, or
good moral character – were applied in practice to mean “no blacks allowed.”13 Another
method subject to abuse and manipulation was the key man system, in which prominent citizens submitted lists of suitable jurors to jury commissioners.14
Using these techniques to exclude all African Americans from jury service clearly flouted
the Constitution, but the Supreme Court was unwilling or unable to enforce the law during
this period.15 Even if a black defendant could afford a lawyer, and even if that lawyer was willing to challenge local racial orthodoxy to raise the issue, the Court almost invariably accepted local jury
commissioners’ assertions that the total exclusion of African Americans was based not on discrimination but on their inability to find any African Americans qualified for jury service.16

Southern white commentators
threatened that insistence on
black jury participation would
justify a return to lynching.

Trials in many parts of the South during this period took place against the background of state-sponsored and -condoned
terror, in the form of lynch mobs and extrajudicial killings. During the 1920’s and 30’s,
Southern white commentators defended farcical summary trials of black defendants by allwhite juries on the ground that at least they were better than lynching. These observers threatened that insistence on constitutional requirements such as black jury participation would
justify a return to lynching.17
The reality behind this threat
was demonstrated by the case of Ed
Johnson. Johnson was falsely accused of raping a white woman and
convicted and sentenced to death
by an all-white jury in Tennessee in
1906.18 He appealed to the Supreme
Court and challenged the racial composition of his jury. The Court
agreed to hear the case, but on the
same day the telegram reached
Chattanooga, a mob lynched Johnson with the acquiescence of the
local sheriff.19 A note left on Johnson’s body informed the Court,
“Come get your nig--r now.”20
A lynching in Marion, Indiana, 1930. Donated by Corbis-Bettmann ©.

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In 1935, the Supreme Court
finally confronted the rampant exclusion of African Americans from
jury pools. The case of Norris v. Alabama21 involved the appeal of
one of the “Scottsboro Boys” –
nine black teenagers wrongly convicted for raping two white
women on a train in Scottsboro,
Alabama, despite overwhelming
evidence of their innocence.22 The
Scottsboro cases dominated national headlines for months. The
teens were tried by all-white juries; no African American had Nine African-American teens ranging in age from 13 to 19 were wrongly
arrested, convicted, and originally sentenced to death for raping two
served on a local jury in living white
women in Scottsboro, Alabama.
memory.23 A jury commissioner
testified he did “not know of any negro . . . who is generally reputed to be honest and intelligent and who is esteemed in the community for his integrity, good character and sound judgment.”24 This time, however, the Supreme Court found it “impossible to accept such a
sweeping characterization.”25 It reversed
The Supreme Court in 1945 Norris’s conviction and later reversed six
other cases on similar grounds over the
found no constitutional viola- next
12 years.26

tion in a Texas policy that allowed exactly one African
American to serve on each
grand jury.

Norris and the related cases signaled
a major shift: the Court would no longer
tolerate the total exclusion, by law or by
practice, of black citizens from jury rolls.
The next 30 years nonetheless saw continued resistance to African-American jury service, as
well as evasions such as tokenism.27 In a 1945 case, the Supreme Court found no constitutional
violation in a Texas county’s policy of allowing exactly one African American to serve on each
grand jury.28 Not until the 1960’s and 70’s, when the Court adopted a “fair cross-section” standard requiring jury and grand jury pools to hew closely to the demographics of the community,29 did representation of minority citizens in jury pools improve. Pockets of resistance
remained, as demonstrated by a memorandum from a Georgia district attorney that surfaced
in a 1988 capital case, which instructed local jury commissioners to place in the jury pool the
smallest number of African Americans and women that would allow the county to avoid a finding of discrimination.30 Although the conviction in that case was overturned, the district attorney served until his retirement in 1994.31

THE SECOND BARRIER – DISCRIMINATORY SELECTION
By the 1960’s, as discriminatory exclusion from jury lists and venires waned somewhat,
the main front of the jury discrimination battle was shifting to the jury selection process at
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trial. Jury selection begins with a jury panel or “venire,” which usually contains between 40 and
150 potential jurors drawn from a master list. Trial lawyers question the potential jurors (a
process called “voir dire”) to determine possible bias and may then challenge “for cause” any
juror they believe will not be able to try the case fairly and impartially. After removals for cause,
the lawyers exercise “peremptory strikes” to remove additional jurors for any reason. The actual jury is chosen from the group that remains after “for cause” and peremptory strikes.
Gains in minority inclusion on jury lists and venires in the 1960’s and 70’s were immediately counteracted by discrimination in the use of peremptory challenges. In 1965, the
Supreme Court addressed this issue for the first time in Swain v. Alabama.32 Robert Swain, a
black man, was sentenced to death in 1962 by an all-white Alabama jury for the rape of a white
woman. Some African Americans were included on jury panels in Talladega County but were
removed by peremptory strikes, so that no African American had served on a trial jury since
1950.33 The six African Americans on Mr. Swain’s jury panel were struck by the prosecutor,
over the objections of Mr. Swain’s attorneys.34

The 1965 decision in Swain v.
Alabama set the bar so high
for proving discriminatory intent that no litigant was able
to win a jury discrimination
claim for 20 years.

The Supreme Court found no constitutional violation. Conceding it would be illegal
to use peremptory strikes to intentionally exclude African Americans from jury service because of their race, the Court found that the
facts in Mr. Swain’s case did not prove the prosecutor intentionally discriminated against black potential jurors.35 It set the bar so high for
proving discriminatory intent that no litigant won a Swain claim for 20 years.36 As a result, defendants continued to be convicted and executed based on verdicts by all-white juries.

After years of heavy criticism of the Swain standard and its repudiation by several state
courts, the Supreme Court reconsidered the question in a 1986 case called Batson v. Kentucky.37
In Batson, the Court overruled Swain and held that a prosecutor cannot use peremptory strikes
to exclude a potential juror because of his or her race.38 It lowered the standard of proof by
holding that, where the circumstances at
trial support a mere inference of discrimination in the use of peremptory strikes,
the prosecutor must explain why he or
she removed black potential jurors. If the
prosecutor fails to give a legitimate, nonracial reason for each strike, the trial court
can conclude that the prosecutor acted
on the basis of race and put the struck jurors back on the jury venire.39

Batson held that a prosecutor cannot exclude
any potential juror because of his or her race.
12

Batson created a new legal standard Scores of people have been
and a new opportunity to challenge discrimi- executed despite dramatic evnation in jury selection. But Batson did not
idence of illegal racial bias in
apply retroactively, so that death row prisoners and capital defendants whose appeals jury selection.
were completed before 1986 could not benefit from the new rule, even if they were tried by all-white juries selected in blatant violation of
the Constitution.40
Some defendants convicted in such unreliable trials are still serving prison sentences
and many have been executed. Edward Horsley, a black man, was convicted of murder and
sentenced to death by an all-white jury in Monroe County, Alabama – which is 39% black – after
the prosecutor struck all eight African Americans from the jury venire.41 In 1988, the Alabama
Court of Criminal Appeals ruled that Mr. Horsley could not raise a Batson challenge.42 He was
executed in 1996.43 In Utah, William Andrews was executed after his jury discrimination claims
were rejected in a case where a member of his all-white jury handed the bailiff a drawing of a
man hanging from a gallows with the inscription, “Hang the Nig--rs.”44 Clarence Brandley, a
black man, was convicted by an all-white jury of murdering a white child in Texas amid evidence of racial bias by the prosecution.45 Because he was convicted before Batson, Brandley
could not challenge this discrimination effectively. He was saved from execution and exonerated only after the TV program 60 Minutes brought to light serious problems with the evidence
in his case.46
In the modern era, scores of people have been executed despite dramatic evidence of
illegal and unconstitutional racial bias in jury selection that was never addressed because of the
Court’s decision not to apply Batson retroactively. Dozens of condemned persons still face execution despite unreviewed evidence of racially biased jury selection. Thousands more remain
incarcerated despite their discriminatory convictions.47

Herbert Richardson was convicted and sentenced to death by an all-white jury in
Houston County, Alabama, which is 27% black, after African Americans were excluded
from jury service on the basis of race. The prosecutor made racial remarks during
closing arguments, including an appeal for a death sentence because Mr. Richardson
was “a Black Muslim from New York.” Mr. Richardson was executed in 1989 after
courts ruled that laws requiring new trials because of illegal jury discrimination did
not apply retroactively.
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THE CONTINUING LEGACY OF ILLEGAL RACIAL
DISCRIMINATION IN JURY SELECTION
oday, peremptory strikes are used to exclude African Americans and other racial minorities from jury service at high rates in many jurisdictions, particularly in the South. In courtrooms across the United States, people of color are dramatically underrepresented on
juries as a result of racially biased use of peremptory strikes. This phenomenon is especially
prevalent in capital cases and other serious felony cases. Many communities have failed to
make juries inclusive and representative of all who have a right to serve.

T

From 2005 to 2009, in cases where the death penalty has been imposed, prosecutors
in Houston County, Alabama, have used
peremptory strikes to remove 80% of the Prosecutors in Houston County,
African Americans qualified for jury serv- Alabama have used peremptory
ice.48 As a result, half of these juries were strikes to remove 80% of the
all-white and the remainder had only a sin- African Americans qualified for
gle black member, despite the fact that
jury service.
Houston County is 27% African-American.
In 2003, the Louisiana Crisis Assistance Center found that prosecutors in Jefferson
Parish felony cases strike African-American prospective jurors at more than three times the
rate that they strike white prospective jurors.49 Louisiana allows convictions in many cases
even if only 10 of 12 jurors believe the defendant is guilty. The high rate of exclusion means that
in 80% of criminal trials, there is no effective black representation on the jury because only the
votes of white jurors are necessary to convict, even though Jefferson Parish is 23% black.50

The high rate of exclusion in
Jefferson Parish, Louisiana
has meant that in 80% of
criminal trials, there is no effective black representation
on the jury.

In the years before and after Batson, Georgia prosecutors in the Chattahoochee Judicial Circuit used 83% of their peremptory strikes against
African Americans, who make up 34% of the circuit’s population.51 As a result, six black defendants have been tried by all-white juries.52

In Dallas County, Alabama, the State has used the majority of its peremptory strikes
against black potential jurors in 12 reported cases since Batson was decided. In those cases,
the prosecutor used 157 of 199 peremptory strikes (79%) to eliminate black veniremembers.53
In cases where the death penalty was imposed, the data shows the Dallas County district attorney used peremptory strikes to exclude 76% of African Americans qualified for jury service.54
These extremely high rates of exclusion indicate that, even today, African Americans continue to be denied the right to sit on juries because
of their race.

Even today, African Americans continue to be denied
the right to sit on juries because of their race.
14

Holman Prison, Atmore, Alabama, 2010. The United States has the highest rate of incarceration in the world.

WHY THE PROBLEM CONTINUES
To understand why racial bias in jury selection persists, it is important to understand the
framework courts use to analyze claims of discrimination. In Batson v. Kentucky,55 the Supreme
Court outlined a three-step process for a defendant to establish that the prosecutor removed
jurors based solely on their race. If the
defense suspects that the prosecutor’s peremptory strikes are racially biased, it must first establish that the prosecutor’s actions during jury selection, along with any
other relevant circumstances, raise an inference or “prima facie” case of discrimination.56 The
defense may rely on evidence such as the prosecutor’s
pattern of strikes against veniremembers of color and
suspicious questions or statements made by the prosecutor during voir dire.57 To rebut the inference of discrimination, the prosecutor must then offer nonracial or “race-neutral” explanations for its
challenged strikes.58 This burden is exceedingly low. The
Supreme Court has emphasized
that the prosecutor’s race-neutral reason need not be plausible, let alone persuasive.59 At the final stage, the trial court must
assess all relevant circumstances and determine if the defense has proven that the prosecutor intentionally discriminated against veniremembers of color.60

1. Inference of discrimination

2. Reason for strike

3. Find intentional discrimination

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Though Batson recognized it is unconstitutional for a prosecutor to exclude
even a single juror on the basis of race,
the decision fell short of providing the
tools to adequately combat racial discrimination during jury selection. Justice
Thurgood Marshall, the first of only two
African Americans appointed to the
Supreme Court, noted in his concurring
opinion in Batson, “Any prosecutor can
easily assert facially neutral reasons for
striking a juror, and trial courts are ill
equipped to second-guess those reasons.”61
Experience has borne out Justice
Marshall’s concerns.62 In a number of jurisdictions across the country, district atJohn Spencer of Eufaula, Alabama, above with his
torney’s offices have trained prosecutors
wife Ruby, was one of 20 African-American potential
how to mask their efforts to exclude
jurors illegally struck from the capital murder trial of
racial minorities from jury service. Almost
Jesse Lee Morrison in Barbour County. Mr. Morrison
immediately after the 1986 Batson deciis black; the victim in the case was white. In 1996, a
sion, Philadelphia assistant district attorfederal appeals court reversed his conviction, finding
that the South Alabama prosecutor failed even to
ney Jack McMahon recorded a training
question the black veniremembers before systematsession for Pennsylvania prosecutors on
ically
using his first 20 peremptory strikes to remove
how to question African Americans durall
but
one African American qualified to sit on Mr.
ing voir dire in order to later provide raceMorrison’s jury.
neutral reasons for their strikes.63
Similarly, prosecutors in Dallas County,
Texas, maintained a decades-long policy of systematically excluding African Americans from
jury service in criminal cases, which was codified in a training manual.64 For the district attorney’s office in Tuscaloosa County, Alabama, relying on peremptory strikes and other tactics to
exclude black potential jurors was “standard operating procedure” and led to African Americans being underrepresented in 70% of
District attorney’s offices specifi- the county’s criminal trials.65 Thus, decally train prosecutors how to spite Batson’s mandate, prosecutors
continue to succeed in excluding large
mask their efforts to exclude numbers
racial minorities from jury service. service. of African Americans from jury

PROSECUTORS OFTEN ASSERT PRETEXTUAL “RACE-NEUTRAL” REASONS
In cases where the exclusion of African Americans from juries has been challenged,
many of the reasons given by prosecutors for striking African-American potential jurors obviously are a guise for race-based exclusion of potential jurors.
16

Sometimes these “race-neutral” reasons
explicitly incorporate race. In a recent Louisiana
case, the prosecutor said he removed a juror because he was a “single black male with no children.”66 An Alabama prosecutor said he struck
African Americans because he wanted to avoid an
all-black jury67 and asserted in other cases that he struck African Americans because he wanted
to ensure other jurors, who happened to be white, served on the jury.68 In a Georgia case, the
prosecutor stated he struck a juror because he was black and had a son in an interracial marriage.69 Faced with such blatantly race-based reasoning, appellate courts in these cases were
forced to conclude that these peremptory strikes were the result of illegal racial discrimination.
Where the prosecutor’s reason does not explicitly mention race, however, enforcement of
anti-discrimination law has been much more difficult.

A Georgia prosecutor
struck a juror because he
was black and had a son in
an interracial marriage.

A startlingly common reason given by prosecutors for striking black prospective jurors is the
juror’s alleged “low intelligence” or “lack of education.”70 Courts have recognized this “is a particularly
suspicious explanation given the role that the claim
of ‘low intelligence’ has played in the history of racial
discrimination from juries.”71 In several cases, appellate courts have struck down this type of reason because there is no evidence of low intelligence. A
federal court reversed an Arkansas conviction where
the prosecutor claimed a black juror was illiterate
based solely on his statement that he had not read
about the case in the newspaper, without ever asking about his reading ability.72 In other cases, however, strikes based on “low intelligence” have been
upheld, including a Louisiana case in which the prosecutor said the excluded black prospective juror was
“too stupid to live much less be on a jury.”73
Prosecutors’ other reasons for striking
African Americans often correlate strongly with racial
stereotypes. Prosecutors frequently claim to strike
African Americans because they live in a “high crime
area”74 (meaning a predominantly black neighborhood); are unemployed or receive food stamps;75 or
had a child out of wedlock.76 These types of reasons
are not always recognized as pretexts for discrimination. An Alabama court upheld as race-neutral a
prosecutor’s strike based on the juror’s affiliation
with an historically black university.77 But other
courts have struck down as illegal racial discrimina17

Prosecutors claimed they struck potential
juror Isralean Chambers for wearing her
glasses, which are tinted, in a Montgomery, Alabama courtroom. An appeals
court later found that Mrs. Chambers was
one of four African Americans illegally
struck from the jury of a black defendant
on trial for a drug charge. Prosecutors offered reasons such as gum-chewing and
traffic tickets for other illegal strikes. In
reversing the conviction, the appeals
court noted that Montgomery County
prosecutors have a history of illegally excluding black prospective jurors.

An Alabama court upheld as raceneutral a prosecutor’s strike based
on the juror’s affiliation with an
historically black university.

tion prosecutors’ assertions that they
struck jurors who believed police sometimes engage in racial profiling78 and a
juror who had filed a civil suit alleging
racial discrimination at his job.79

Another stereotype-based reason given by prosecutors to justify excluding black jurors
is the assumption that the potential jurors are related to other African Americans with similar,
but very common, last names who have been prosecuted by the district attorney’s office. Prosecutors chose not to simply ask prospective jurors if they knew individuals involved in other
cases before striking them. This behavior has been upheld in some courts and struck down in
others as a pretext for discrimination.80
Prosecutors frequently justify strikes by making unverifiable assertions about AfricanAmerican potential jurors’ appearance and demeanor. In one South Carolina case, the prosecutor stated he struck a black veniremember because he “shucked and jived” as he walked.81
A Georgia prosecutor explained his removal of a black prospective juror only by vaguely asserting he was unable to “establish a rapport”82 with the juror.

In a South Carolina case, the
prosecutor struck a black potential juror because he “shucked
and jived” as he walked.

Prosecutor’s stereotypes about African Americans and fears about allowing them on juries
are exacerbated in capital trials because, in
most states, juries decide not only whether the
accused is guilty or innocent but, if convicted,
also decide the sentence. This has meant that
racially discriminatory jury selection is especially prevalent – and often extreme – in capital
cases. For example, in Albert Jefferson’s capital
trial in Chambers County, Alabama, prosecutors
segregated potential jurors into lists titled
“strong,” “medium,” “weak,” and “black,”
and then struck all 26 African Americans on the
black list. The trial judge found insufficient evidence of racial bias. Mr. Jefferson was tried by
an all-white jury and sentenced to death.87

A Louisiana court allowed the prosecutor to strike
a black prospective juror because the prosecutor
thought he “looked like a drug dealer.”83 An
Arkansas prosecutor was permitted to rely on a
“hunch” that an African American would be unfavorable to the State, without asking the juror
about her actual views.84 Courts have upheld the
exclusion of black jurors for “race-neutral” reasons
such as having dyed red hair85 and wearing a large
white hat and sunglasses.86

A Louisiana court allowed the
prosecutor to strike a black
juror whom he thought “looked
like a drug dealer.”
These thinly-veiled excuses for removing
qualified African Americans from juries show that
many prosecutors have failed to take seriously the
Constitution’s requirement that every citizen has
an equal right to sit on a jury.
18

African Americans who appear for jury service must walk past Confederate symbols and markers that adorn courthouses in some Southern counties, many of which were erected in the 1950’s and 60’s in opposition to civil rights
and anti-discimination laws. Caddo Parish Courthouse, Shreveport, Louisiana, 2010.

APPELLATE COURTS HAVE NOT REVIEWED CLAIMS OF RACIAL BIAS CONSISTENTLY
Appellate court cases from the Deep South states investigated for this report attest to
the undeniable existence of racial discrimination in jury selection. Alabama provides the most
disturbing example, as racially-tainted jury selection required reversal of over 80 trials, nearly
98% of which were criminal cases.88 Alabama’s “struck-jury system”89 makes racially discriminatory use of peremptory strikes much more common. In Alabama, there is no prescribed
limit on peremptory strikes in criminal cases. The parties strike down to a jury from the veniremembers that remain after for-cause challenges. This process requires the parties to alternate their strikes of veniremembers until only 12 individuals remain.90 Alabama’s process
maximizes the potential exposure of its citizens to discriminatory strikes.
But other states are not far behind.
In Florida, 33 criminal convictions have
sippi and Arkansas have openly been invalidated because the prosecutor
acknowledged that racial discrim- struck jurors based on race. The highest
ination in jury selection remains state courts in Mississippi and Arkansas,
with ten reversals each, have openly acwidespread since Batson.
knowledged that racial discrimination in
jury selection has remained widespread since Batson.91 Louisiana has seen 12 criminal verdicts
reversed because prosecutors violated Batson, including in a recent decision from the United
States Supreme Court.92 Georgia, with eight Batson reversals in criminal cases, similarly has
struggled to eliminate race-biased jury selection by prosecutors. The clear outlier in this analysis is Tennessee, whose appellate courts have never granted Batson relief in a criminal case.93

The highest state courts in Missis-

19

Tennessee courts have never
reversed a conviction on a
claim of racially biased jury selection under Batson.
This anomaly can be traced to defense attorneys’ failure to object properly to prosecutors’ racially biased strikes – making it harder
for reviewing courts to review prosecutors’
behavior – and a reluctance by appellate
judges to find racial bias when claims are presented.94
Most Batson-related reversals came
immediately following the decision. During
this period, prosecutors frequently offered
blatantly race-based reasons for their strikes.
In Goggins v. State,95 a Mississippi case decided
two years after Batson, the prosecutor admitted he struck two African-American potential
jurors from serving in an armed robbery trial
because he had been instructed to do so at a
training course on jury selection.

Cherry Finley was born in Selma, Alabama. Her greatgrandparents were enslaved. Her grandparents and
parents were sharecroppers in the Black Belt region.
Ms. Finley began picking cotton when she was six
years old. She endured the brutal realities of Jim
Crow and racial segregation: white and colored
drinking fountains; having to step off the sidewalk
when white people passed; the constant threat of
racial violence. Her family was threatened with eviction and joblessness by white landowners in the
1950’s if they associated with civil rights workers.
Ms. Finley registered to vote after the Voting Rights
Act passed in 1965. She has lived in Dallas County her
whole life but never served on a jury. She was called
for jury service and illegally excluded on the basis of
race by the prosecutor, who said she should not
serve because she was “separated from her husCongdon v. State96 dealt with a prose- band” even though whites who were divorced or
cutor in a murder case who struck all four separated were permitted to serve.

A Mississippi prosecutor admitted he struck two AfricanAmerican jurors because he
had been trained to do so at a
course on jury selection.

African Americans in the venire because they
lived in Ringgold, Georgia. The prosecutor based his strikes on the advice of Ringgold’s sheriff, who testified he had a troubled relationship with some members of the town’s African
American community and was uncomfortable with any of his town’s black residents serving on
the jury. In the Louisiana case of State v. Lewis,97 the appellate court reversed a conviction for
cocaine distribution after the prosecutor acknowledged he struck an African-American juror in
order to seat a white juror.
Several Alabama cases display similarly unnerving expressions of racial bias. At a federal court hearing to review a capital murder conviction, a Birmingham prosecutor admitted his
office followed a policy of striking African Americans because of their race.98 A Montgomery
20

County prosecutor confessed in response In an Alabama capital murder
to a Batson motion that he struck a 23-yearcase, the prosecutor removed
old black male veniremember for fear that
“he might assimilate [sic] with the [African- African Americans because he
American] defendant . . . [and] there were did not want too many black
no other young black males that I could see people to serve on the jury.
on the jury venire.”99 In McCray v. State, a
capital case in Houston County, the prosecutor used seven strikes to remove African Americans
because “if I hadn’t have [sic], we would have had an all black jury.”100
Such unvarnished racial bias drove the higher rate of reversals in the few years following Batson, though comparably extreme cases have arisen in recent years.101 Unfortunately,
these glaring violations may have distracted courts from the necessity of policing more embedded forms of racial bias, while simultaneously suggesting to Batson-weary prosecutors the
level of savvy necessary to avoid detection. The lower rate of reversals following this initial period can be attributed to prosecutors carefully disguising their racial bias, a practice regrettably abetted by trial and appellate courts’ abdication of their duty to combat racial
discrimination in the justice system.
Exacerbating this problem is that, when appellate courts find that the State has illegally excluded people of color from jury service, prosecutors face few, if any, personal consequences for their malfeasance. Prosecutors who engage in illegal racial discrimination rarely
receive public scrutiny, which leaves the general public ignorant that their district attorney’s office has intentionally excluded African Americans from jury
service. Perhaps because of this silence, repeat violators of Batson remain in office – like the district attorney for Montgomery County, Alabama. The Alabama
Supreme Court has criticized her office’s history of
racial discrimination and state and federal appellate
courts have reversed her cases 13 times for Batson violations, but she remains in office.102 In Houston
County, Alabama, the district attorney’s office continues to secure all-white or nearly all- white juries in capital cases despite five Batson reversals by the Alabama
courts in just a seven-year period from 1991 to 1998.103
Similarly, the district attorney in Jefferson Parish,
Louisiana, has retained his position despite five Batson
reversals since his initial election in 1996.104

Prosecutors who illegally exclude
people of color from juries face
few, if any, consequences for their
racially discriminatory conduct.
21

Many black residents of Southern counties
have never been called for jury service or permitted to serve.

Continued tenure by prosecutors
who have demonstrated racial bias reveals
an indifference to racial discrimination in
jury selection that allows it to persist. Absent vigilant enforcement of Batson by the
courts, citizens of color are left powerless
to combat their deliberate exclusion from
the justice system.

Absent vigilant enforcement of
anti-discrimination law by the
courts, citizens of color are left
powerless to combat their deliberate exclusion from the justice
system.

VARIATION AMONG STATE COURTS
The states analyzed for this report
are addressing claims of racially biased
jury selection in a variety of ways. Although in every state there is evidence of
general indifference to the seriousness of
excluding people from jury service on the
basis of race and of impunity for discriminatory actors who rarely are held accountable for bias, some states seem
particularly resistant to enforcing every
citizen’s right to serve on a jury. Moreover, courts are inconsistent and can be
skeptical about the presence of racial bias
even when the history and evidence
strongly suggest that relief should be
granted. As techniques to avoid detection
of discriminatory practices have grown
more sophisticated, so has the need
grown for greater accountability from
prosecutors, trial judges, and appellate
courts that review claims of racially discriminatory jury selection and too often Marshall County Courthouse, Alabama, 2008
tolerate racial bias.

NEAR-TOTAL DEFERENCE TO PROSECUTORS IN TENNESSEE
More than 100 criminal defendants have raised Batson claims on appeal in Tennessee,
but this state’s courts have never reversed a criminal conviction because of racial discrimination during jury selection. While this might seem to indicate that Tennessee is free from race
discrimination, the reality is that proving discrimination in Tennessee is extraordinarily difficult
because state courts tend to accept at face value prosecutors’ explanations for striking jurors
of color – even reasons that are implausible or not supported by the record. In the 2007 case
of State v. Hill, the prosecutor struck all but one African American, leaving a black man to be
22

tried by a nearly all-white jury.105 The prosecutor claimed he struck one African-American
man because he was “not very bright” and
“went on some diatribe” during voir dire. The
appellate court found no such “diatribe” in the
record, but still upheld the case.106 In a similarly
disturbing case from 2006, State v. Tyler, the
prosecutor struck only African Americans, and
both the trial and appellate courts accepted his
explanation that he struck one black juror for
being “tentative and timid” and another for
wearing a large hat and sunglasses.107 These
cases demonstrate a failure by Tennessee
courts to critically evaluate whether a prosecutor’s explanations are mere pretexts for discrimination and a tendency, instead, to accept
almost any reason that is not openly or concededly discriminatory.

Lee Bowdry was illegally excluded from jury service
on the basis of race in Lee County, Mississippi. The
prosecutor attempted to mask the racial basis for
Mr. Bowdry’s exclusion by telling the court that he
was excluded because he “looked hostile.”

BUILDING BLOCkS FOR MEANINGFUL REVIEW IN FLORIDA
Florida has crafted unique provisions under its own state laws to protect jurors from
racial discrimination. Indeed, Florida law is more protective than federal anti-discrimination
laws in several respects. Once a prosecutor has given a race-neutral reason for striking a particular juror, Florida judges must assess whether the reason is “genuine” by considering factors such as whether (1) the prosecutor actually questioned the excluded juror; (2) the juror
was singled out during voir dire or manipulated into providing answers that would tend to disqualify him from jury service; (3) the prosecutor’s reason for the strike was related to the facts
of the case, and (4) other jurors gave similar answers but were not struck. Under Florida law,
the prosecutor’s reason for the strike must be supported by the record, which makes it much
harder for the prosecutor to manufacture explanations after the fact.108 Florida’s rule stands
in stark contrast with states like Tennessee where prosecutors are allowed to rely on reasons
that are not supported by the record.
Florida’s protections effectively discourage overt discrimination in jury selection, but
the state is far from perfect. In recent years, Florida courts in a fair number of cases have failed
to recognize shocking examples of racial discrimination in jury selection.109 Relative to its
Southern neighbors, though, Florida’s state law framework creates a much better environment for remedying racial discrimination in jury selection.

ONGOING PROBLEMS IN LOUISIANA
Historically, Louisiana has not been particularly receptive to jury discrimination claims.
A recent United States Supreme Court decision criticizing the state courts’ failure to carefully
23

scrutinize a prosecutor’s exclusion of African-American jurors highlighted the problems of
racially biased jury selection there. In 2008, the Court decided Snyder v. Louisiana, in which a
black college student was excluded from jury service along with all other African Americans in
the venire.110 The Court found the prosecutor’s asserted reason for striking the student – he
“looked nervous” and was concerned the trial might interfere with his student teaching obligations – was a pretext for discrimination, and it implicitly recognized that Louisiana courts
failed to appropriately scrutinize the prosecutor’s explanation.111 Since Snyder, the Louisiana
Supreme Court has reversed a case after finding racial bias in jury selection.112 However, that
court also reinstated a conviction after an intermediate court had found illegal discrimination
in jury selection.113 While there are signs that courts in Louisiana have become slightly more attentive to discrimination claims since Snyder, a great deal of work clearly is needed to effectively deter and eliminate racially biased jury selection in this state.

CONTINUED RACIAL DISCRIMINATION IN MISSISSIPPI, GEORGIA, AND ARkANSAS
The Mississippi Supreme Court has rec- In
2007, the Mississippi
ognized that racial discrimination in jury selecSupreme Court expressed
tion continues to be a serious problem in
Mississippi. In 2007, the Mississippi Supreme frustration that “racially-motiCourt expressed frustration that “attorneys of vated jury selection is still
this State persist in violating the principles of prevalent twenty years after
Batson by racially profiling jurors” and found Batson was handed down.”
that “racially-motivated jury selection is still
prevalent twenty years after Batson was handed down.”114 The court threatened to change its
system of peremptory challenges if things did not improve.115 Among other remedies, it would
consider limiting the number of peremptory strikes or enhancing voir dire.116
It is encouraging that the Mississippi Supreme Court has acknowledged the problem,
admitted that Batson has not ended juror discrimination, and proposed other remedies. But
Mississippi courts continue to credit highly dubious explanations for prosecutor’s exclusion of
jurors of color. In a 2008 case where the prosecutor used his first eight peremptory challenges
against African Americans, Mississippi courts credited the prosecutor’s claim that he struck two black
jurors because they had “only” a
twelfth-grade education and struck
an African-American engineer because she was “inattentive” and
dyed her hair.117 In another 2008
case, state courts accepted a prosecutor’s explanation that he excluded
an
African-American
woman because she had lived in
the county for “only” 22 months
EJI studied jury selection practices in Alabama, Arkansas, Florida, Georand did not make eye contact with
gia, Louisiana, Mississippi, South Carolina, and Tennessee.
24

him and that he struck a black information technology specialist because he might blame the
state for the lack of audio and video evidence in the case.118 The deference given to these prosecutors reveals that, despite the Mississippi Supreme Court’s strong language regarding the
need to end juror discrimination, the state’s trial and appellate courts are failing to exercise
meaningful oversight.
Individuals seeking to raise
Batson claims in Georgia face even Georgia courts’ willingness to uphigher barriers to relief. It is particu- hold strikes based on residence in a
larly difficult to show that a poor per- particular neighborhood, a person has been the victim of racial ceived lack of education, or a perdiscrimination in Georgia because
ceived lack of employment history
state courts have upheld strikes
based on income-related characteris- provides a shield for prosecutors to
tics, such as a juror’s place of resi- strike poor people.
dence, perceived lack of education,
and perceived lack of employment history. In Smith v. State, Georgia courts accepted the prosecutor’s explanation that he struck two African-American jurors because they lived in public
housing projects with prevalent gang activity and might be prejudiced against state witnesses
who were gang members.119 In the 2005 case of Taylor v. State, the prosecutor used all five
peremptory strikes to remove African Americans from the jury, explaining that he struck people who lacked education or work experience, and that one juror also “seemed odd.”120 Georgia courts upheld this explanation as race-neutral, noting that the one African American who
served on the jury was a college student, consistent with the prosecutor’s stated desire for a
well-educated jury. The court did not explain why jurors needed such a high level of education
to sit on a straightforward case in which the defendant was accused of robbing and shooting
a man he believed had raped his girlfriend.121 Georgia courts’ willingness to uphold strikes
based on residence in a particular neighborhood, a perceived lack of education, or a perceived
lack of employment history provides a shield for prosecutors to strike poor people and may
lead to the disproportionate exclusion of people of color from juries.

Arkansas courts have upheld
strikes of African Americans
based on a prosecutor’s descriptions of the jurors’ demeanor, body language,
tone, or other amorphous
characteristic which cannot
be disproved by the record.

Arkansas similarly is resistant to successful
Batson claims, and Arkansas law has several features which make it particularly difficult to
prove racial discrimination in jury selection.
First, an Arkansas court typically will credit a
prosecutor’s explanation for a peremptory
strike even when the strike is based on information known only to the prosecutor’s office
which cannot be verified by the record.122 In
Thornton v. State, the prosecutor claimed to
have struck a juror because of a “hunch” that the juror was related to a criminal defendant in
another case, and this strike was upheld as race-neutral.123 In several other cases, Arkansas
courts have accepted strikes of African-American jurors based in part on a prosecutor’s descriptions of the jurors’ demeanor, body language, tone, or other amorphous characteristic
25

which cannot be disproved by the record.124
Finally, Arkansas courts repeatedly have
found that the presence of any African
American on a jury is strong evidence that
the prosecution has not engaged in racial
discrimination.125 This overly simplistic approach ignores Supreme Court precedent
holding that the presence of a single
African-American juror does not disprove
discriminatory intent on the part of the
prosecutor,126 and that removing even a single juror on the basis of race violates the
Equal Protection Clause.127 Moreover, when
coupled with the Arkansas courts’ deference to prosecutors and acceptance of
peremptory strikes not supported by the
record, it effectively exempts prosecutors
from any meaningful review of peremptory
strikes.

THE ROLE OF DISPARATE TREATMENT IN
ALABAMA AND SOUTH CAROLINA

Lamar County Courthouse, Alabama, 2008

Throughout the South, a common method of demonstrating racial discrimination in
jury selection is to show that the prosecutor treated jurors of color differently from similarly
situated white jurors.128 When the prosecution claims it struck an African-American juror for a
race-neutral reason – such as the juror’s industry or profession – but does not strike white jurors who share the same characteristic, this “disparate treatment” provides strong evidence
of discrimination.129 Disparate treatment may be the only sign as to whether a prosecutor’s explanation for a peremptory strike is genuine.
Alabama and South Carolina take opposite approaches to Batson challenges based on
disparate treatment. South Carolina initially refused to uphold reasons for striking black jurors that applied equally to whites,130 but in the early 1990’s the South Carolina Supreme Court
retreated from enforcement of anti-discrimination laws. In Sumpter v. State, that court considered the prosecutor’s strike of a black veniremember who had a “prior DUI involvement”
in light of evidence that the prosecutor did not strike a white juror with a DUI conviction.131
The court upheld the strike as race-neutral, noting the African-American juror’s case, but not
the white juror’s case, was handled by the same prosecutor’s office.132 In State v. Dyar, the
prosecutor claimed he struck an African American because he had prosecuted the potential
juror, but did not strike two white jurors who also had criminal charges.133 The South Carolina
Supreme Court again upheld the strike, accepting the prosecutor’s explanation that, unlike
the white jurors, he personally prosecuted the black juror.134 In dissent, two justices wrote,
“It does not require a deep analysis to realize that today’s rule is fraught with enough practical problems to render a defendant powerless to counter invidious discrimination.”135 The dis26

sent called this departure from South Carolina precedent “alarming.”136 Indeed, no
criminal defendant has won a Batson challenge in the state since 1992.

Even when a prosecutor uses all
or almost all of his peremptory
strikes to exclude people of
color, Alabama courts often refuse to find a Batson violation.

Alabama courts, in contrast, have
been reluctant to grant Batson relief in recent years without evidence of disparate treatment.137 This has meant that even when a prosecutor uses all or almost all of his peremptory strikes to exclude people of color, Alabama
courts often refuse to find a Batson violation unless a clear case can be made that an excluded
African-American veniremember was similarly situated to a white juror. In the 2008 case of
Floyd v. State,138 the prosecutor peremptorily struck 10 of 11 African Americans in the venire; the
black defendant was tried by an all-white jury with one African-American alternate juror. When
asked to explain his peremptory strikes, the prosecutor asserted he struck one juror because
of her body language and demeanor, struck another juror because she was quiet during voir
dire, and could not fully recall the reason for a third strike.139 Finding no disparate treatment,
the Alabama courts accepted these reasons as race-neutral even though the prosecutor had
excluded a shocking number of African Americans from Mr. Floyd’s jury.140
It is clear that, without greater consistency and commitment to enforcing anti-discrimination laws, racially discriminatory use of peremptory strikes will continue. Lack of enforcement is a primary reason why exclusion of people of color from juries remains widespread
in nearly all of the states studied for this report.

27

RACE DISCRIMINATION’S OTHER VICTIMS:
JURORS WRONGLY EXCLUDED
acial discrimination in jury selection
violates the constitutional rights of
the jurors themselves. In Powers v.
Ohio,141 the United States Supreme Court
held that jurors have a right not to be excluded based on their race, yet race-based
exclusion continues to stigmatize growing
numbers of Americans. EJI staff interviewed scores of people of color who had
been excluded from jury service across the
Southeast to document the impact of discrimination on citizens denied the right to
serve. These African-American citizens dutifully reported for jury service only to be
turned away because their race created a
false presumption that they could not be
fair, could not follow the law, or are somehow unworthy for full civic life. Many had
overcome the legacy of the Jim Crow South
to serve in the military, own businesses, and
send their children to college only to find
discrimination still as close as their county
courthouse.

R

African Americans dutifully reported for jury
service only to be turned
away because their race
created a false presumption that they could not be
fair or were unworthy for
full civic life.
The sting of mistreatment can linger
for years. Byron Minnieweather was
wrongly struck in 2004 and has since moved
away from his hometown of Columbia, Mississippi. Memories of the racially-charged
trial still trouble him. He told EJI, “It was my
civil right to participate as a juror.”

Melodie Harris had lived in
Lee County, Mississippi,
for a decade and worked
for the same local company six years when a
prosecutor claimed she
had “no ties to the community” and struck her
from a jury. Ms. Harris
knew she and most of the
other black jurors had
been treated unfairly. “It was just so blatant,”
she said. Instead of turning away, Ms. Harris
chose to bear witness and take action. She returned to the courthouse every day for the trial
of Alvin Robinson, a black man who had been
chased and assaulted by a white man following
a traffic altercation, then charged with murder
for retaliating in fear.142 Ms. Harris was aghast
as she watched three jurors sleep through portions of the trial, then vote guilty. A former
bank teller in her forties who has worked two
jobs most of her life, Ms. Harris considered herself a supporter of law enforcement. “I like the
police, I’ll dial 911 in a second,” she said. But
watching the discriminatory tactics used to ensure Mr. Robinson would go to prison has
shaken her faith in a system she wanted to
trust. “I thought justice was supposed to be
blind, and just sitting there, how could anybody
vote guilty listening to the evidence with those
jury instructions?” After the trial, Ms. Harris visited Mr. Robinson in prison and helped him with
his appeal. Eventually, the Mississippi Court of
Appeals confirmed her suspicions. The Court reversed Mr. Robinson’s manslaughter conviction
because of race-based strikes in selecting the
jury. The reasons offered by the State were “so
contrived, so strained, and so improbable,” the
court found, that they were unquestionably
pretexts for purposeful discrimination.143
28

Excluded jurors and their families
spoke about suffering shame and humiliation as a result of false inferences that
criminal activity made them unfit to serve.
In Montgomery County, Mississippi, Vickie
Curry was illegally struck by a prosecutor
who claimed her husband had a felony
record.144 The prosecutor mistook her
husband for someone else, and the falsehood resurfaces each time the case appears in media reports. Charles Curry,
retired from the National Guard after 23
years of service, is deeply disturbed that
the district attorney suggested he does
not respect the law. This common tactic
thoughtlessly tarnishes the reputations of
African Americans living lives of quiet decency. A prosecutor in Talladega County,
Alabama, sought to characterize Ruth Garrett, a deeply religious woman who works
as a school bus driver, as unfit for jury
service because she was related to criminals.145 In fact, Mrs. Garrett had never met
the family who shared her last name, but
the prosecutor never bothered to ask her.
Another common theme among illegally struck jurors is the sad recognition
that their individual experiences were
small pieces in the structure of racism that
envelops their communities. “I’m not surprised because that’s how the system is
around here,” said Gerald Mercer, who
was struck from a Russell County, Alabama, jury because he had traffic tickets
and expressed hesitation about the death
penalty, while white jurors with similar circumstances remained on the jury.146
“They do a lot of stuff around here that is
unequal justice.” Vickey Brown was illegally struck from a jury in Houston County,
Alabama, by a prosecutor who admitted
he wanted to avoid “an all-black jury.”147
Although Mrs. Brown had encountered
racist treatment in job interviews, she was
29

Brenda Greene and her
husband Homer worked
hard their whole lives at a
small-town textile mill in
Talladega County, Alabama
– humble, honest work that
was not easy. In his fifties,
Mr. Greene took on a second job at McDonald’s. The
Greenes tried to instill
color-blind attitudes in their children and grandchildren – not a small task in Sylacauga, where
racial divisions limit opportunities in business,
schools, and local government, which are dominated by whites. For their efforts, the Greenes
were falsely portrayed as active members of the
drug culture by a prosecutor grasping for reasons
to keep blacks off a capital jury. The prosecutor
said he struck Mrs. Greene because her husband
sold drugs and was involved with stolen property
and she was friends with drug dealers prosecuted
by his office.148 Before being contacted by EJI,
Mrs. Greene was unaware of these false accusations. She was shocked by the information.
“You’re kidding me! That’s a lie! At our house?”
she said after reading the court record. Mrs.
Greene desperately wanted to clear her family’s
name, even though the statements were made in
1992. Her family’s shared history with the prosecutor reaches back even further. Her mother was
employed by his family and cleaned his boyhood
home. Still, the truth did not get in the way of the
prosecutor’s efforts to secure a mostly white jury.
Mrs. Greene recalled the only contact she actually
had with a drug investigation: when police were
chasing a suspect through the neighborhood, she
pointed in the direction he fled.

Excluded jurors and their families spoke about suffering
shame and humiliation from
false inferences that criminal
activity made them unfit to
serve.

particularly offended at the district attor- Alice Branham, a 31-year veteran
ney’s suggestion that she would be leof the Florida Department of Cornient on a black defendant because she is
black. “I was shocked when I found out,” rections, was illegally struck from
she said. Alice Branham, a 31-year veteran a jury in Jefferson County,
of the Florida Department of Corrections, Florida. When forced to provide
was illegally struck from a jury in Jeffer- a race-neutral reason for excludson County, Florida. When forced to pro- ing her, the prosecutor noted
vide a race-neutral reason for excluding
only her work for the State.
her, the prosecutor noted only her work
for the State.149 Ms. Branham was so accustomed to institutional racism that she had no idea this was a violation of her rights. After
all, when she started working for the prison system, her supervisor informed her he did not like
black people, and only grew to accept her after she started bringing homemade cookies and
collard greens to the office.

Ruth Scurry, along with all eight
other qualified African-American potential jurors, was excluded from
serving on a felony trial jury in Jefferson County, Florida. A 20-year veteran of the Department of
Corrections, Ms. Scurry expressed
surprise about the prosecutor’s accusations but noted the continuing
challenges of racial bias in her community.

For many excluded black jurors, the pretexts provided to
refute claims of discrimination add another layer of injury. A
Baldwin County, Alabama, prosecutor characterized potential
juror Allen Mason as “not very well educated” and having “difficulty understanding the concepts that the state asked him”
even though Mr. Mason answered every question, “Yes, sir”
or “No, sir,” and clearly explained his beliefs.150 Nearly 20 years
later, Mr. Mason grew emotional as he recalled how the prosecutor’s racist actions made him feel unworthy. Elsewhere,
prosecutors have countered Batson claims by describing
African Americans in the jury pool as inattentive, unresponsive,
or hostile.151 Black men have been struck for wearing jeans or
an earring.152 A Mobile, Alabama, prosecutor claimed he struck
Carolyn Hall because “she works at a retarded place” and he
did not want jurors who were sympathetic to the disadvantaged.153 While Mrs. Hall remains
committed to the mentally disabled
people she cares for, she told EJI
staff that her work would not have
affected her ability to be fair.

Hester Webb (right) owns a
successful child care center. She was struck from a jury in Montgomery, Alabama. When asked for a race-neutral reason, the prosecutor said Ms. Webb was chewing gum and was hesitant to
answer questions, which led him to suspect she had prior knowledge of the case.154 Ms. Webb was stunned at the suggestion she
did something so wrong: “It needs to stop. It’s not right. It’s not “It needs to stop.”
fair.”
– Hester Webb
30

EARL MCGAHEE
In 1986, Earl Jerome McGahee, who
is black, was charged with two counts of
capital murder in the deaths of his ex-wife
and her classmate in Selma, Alabama. Mr.
McGahee was tried by an all-white jury in a
county that was more than 55% AfricanAmerican after Dallas County District Attorney Ed Greene removed every one of the 24
African Americans who qualified for jury
service.155

When asked to explain why he
removed so many African
Americans from Mr. McGahee’s
jury, the district attorney said
he believed many of these people were of “generally low intelligence,” despite the lack of
any evidence suggesting this
was the case.

When asked to explain why he removed so many African Americans from Mr. McGahee’s jury, the district attorney stated that he believed many of these individuals were of “low
intelligence,” despite the lack of any evidence suggesting this was the case.156 Indeed, the
prosecutor did not ask these veniremembers any questions about their educations and most
of the questions he asked were answered by a show of hands.157 His baseless assertion of “low
intelligence” as a reason to exclude African Americans from Mr. McGahee’s jury was particularly insulting because similar claims historically have been used to prevent African Americans
from serving on juries.158 Remarkably, the prosecution asserted that more than one-third of
the African Americans called for jury service in
Mr. McGahee’s case were of “low intelligence.”159 The struck jurors included mechanics, ministers, and community leaders, many of
whom participated in the Selma Civil Rights
Movement.
Edith Ferguson was barred from jury service in Dallas County, Alabama, along with all 23 other
African Americans who were called for Earl McGahee’s trial. Ms. Ferguson was one of six black
prospective jurors struck by the prosecutor because, he asserted, they were of “low intelligence.”163 Ms. Ferguson had worked for the Selma
Police Department for many years as a crossing
guard. Her son, Charles Morton, (above) served
27 years in the United States Army before retiring.
Both expressed great anguish over the prosecutor’s exclusion of African Americans and insulting
comments, as well as the continuing problem of
racial bias in their community. In 2009, a federal
appeals court found the racially biased exclusion
of jurors in this case to be “astonishing.”164
31

In 2009, Mr. McGahee was granted a new
trial after a federal court relied on the district attorney’s “astonishing pattern” of removing
qualified African-American jurors as evidence of
racially discriminatory jury selection.160 This was
not the first time the Dallas County District Attorney had been caught engaging in racial discrimination during jury selection: in 12 reported
cases from 1988 to 2001, he used 79% of his
peremptory strikes to exclude African Americans from jury service, resulting in many allwhite or nearly all-white juries in a majority black
county.161 Since 1990, five individuals have won
new trials because African Americans were illegally excluded from jury service.162

32

ROBERT TARVER
In 1984, Robert Tarver (right), a 36-yearold black man, was charged with the robberymurder of a 63-year-old white male convenience
store owner in Cottonwood, Alabama. Mr.
Tarver consistently maintained his innocence,
even passing a polygraph test when denying he
killed the victim.165 Only one witness placed Mr.
Tarver at the scene of the crime: his co-defendant, Andrew Lee Richardson.166 As the United
States Court of Appeals for the Eleventh Circuit
acknowledged, “very little evidence made
Robert Tarver a better candidate than Richardson to be found the actual killer.”167 At trial, the
State’s main evidence against Mr. Tarver was
Richardson’s testimony. Though the district attorney denied that a deal had been struck with
Mr. Richardson, shortly after Mr. Tarver’s trial
ended, Mr. Richardson pleaded guilty to a single count of robbery and received a 25-year sentence.168
Russell County is nearly 40% AfricanAmerican, but Mr. Tarver was tried and
convicted of capital murder by a jury comprised of 11 white jurors and only one
black juror.169 During jury selection, the
prosecutor used peremptory strikes to
exclude 13 of 14 black people who were
qualified for jury service.170 The assistant
district attorney later admitted that the
prosecutor intended to exclude black
people from Mr. Tarver’s jury because of
171
their race. After Mr. Tarver challenged the prosecutor’s race-based discrimination, the trial
judge found the prosecutor had discriminated against black jurors but refused to grant a new
trial because Mr. Tarver’s lawyer had failed to properly object at trial.172 Despite the recognized merits of the claim, the lawyer’s failure to object meant that subsequent courts similarly
refused to grant relief.173

Russell County is nearly 40%
African-American, but Mr. Tarver
was tried and convicted of capital
murder by a jury comprised of 11
white jurors and only one black
juror. The prosecutor later admitted that black people had
been excluded on the basis of
race.

After convicting Mr. Tarver of capital murder, the jury sentenced him to life in prison
without parole by a vote of seven to five. Alabama’s override provision nonetheless allowed
the trial judge to sentence Mr. Tarver to death.174 On April 14, 2000, Mr. Tarver was executed
by the State of Alabama in the electric chair.175
33

FRANCES WATSON

Ciudadanos de los EE.UU. que son
bilingües no deben ser excluidos
de los jurados porque tienen capacidades lingüísticas adicionales.

Prosecutors are not alone in
disregarding the law prohibiting racebased jury selection. Judges have displayed similar reluctance to address U.S. citizens who are bilingual should not be exrace bias in the courtroom. In 1991, cluded from jury service because they have addiLittle Rock, Arkansas, resident tional language skills.
Frances Watson was tried for batBilingual citizens have the right to serve on juries. Latinos
tery.176 When the prosecution used a
and foreign-born citizens often are excluded from juries
peremptory strike to remove a black
because of their race or ethnicity, but prosecutors sucwoman from the jury, Ms. Watson’s
cessfully have used language as a “race-neutral” reason
African-American attorney objected
to justify their exclusion. In 1991, the United States
that the juror was removed excluSupreme Court upheld the exclusion of Latinos based on
sively because of her race, citing Batthe prosecutor’s assertion that Spanish speakers would
son.177
Over defense counsel’s
refuse to defer to the official translation of trial testiprotests, the trial judge encouraged
mony.187 Noting the “harsh paradox that one may bethe prosecutors to explain, in front of
come proficient enough in English to participate in trial,
the jury, that they were not discrimionly
to encounter disqualification because he knows a
nating.178 The judge silenced defense
second language as well,”188 the Court nonetheless alcounsel, who moved for a mistrial, arlowed the prosecutor to exclude Latino prospective juguing that the determination of racial
rors.
The Court tolerated this bias because the
bias should “be made by the Court
prosecutor carefully avoided saying he did not want
and solely by the Court outside the
Spanish-speaking jurors.189 The Court’s indifference to
hearing of the jury.”179 The judge
the State’s discriminatory behavior allowed its excluoverruled the motion and Ms. Watsionary conduct to go uncorrected.
son was convicted and sentenced to
14 years in prison. On appeal, the Arkansas Supreme Court found the trial judge’s behavior
“unacceptable,” noted that race is a “combustible and volatile issue,” and held that an accusation of racism by one attorney against another could easily prejudice the jurors for or against
the defendant.180 Ms. Watson was granted a new trial.181

ADA TOMLIN
Some trial judges not only fail to prevent race discrimination but become collaborators
with state prosecutors, as in the trial of Ada Tomlin, a black woman charged with driving under
the influence.182 When Ms. Tomlin’s attorney argued that the prosecutor’s removal of four
qualified black jurors was racially biased, the prosecutor explained he struck one black female
juror because she was “slow, talked low, and was somewhat aged” and he doubted she could
endure or understand deliberations.183 Although the juror was only 43 years old, the judge
agreed that the woman was “sluggish” and would be mere “filler” on the jury.184 Neither did
the judge question the prosecutor’s assertion that he struck a black man because he “shucked
and jived” when he walked to the witness box.185 The prosecutor and trial judge’s reliance on
racial stereotypes to justify the dismissal of otherwise qualified African-American jurors later
was declared illegal by the South Carolina Supreme Court.186
34

ADDITIONAL BARRIERS TO REPRESENTATIVE JURIES
n addition to peremptory strikes, other mechanisms work to keep juries unlawfully homogenous. The jury in a particular case is
drawn from a larger pool of potential jurors, and
frequently this pool (or “jury box”) does not adequately reflect the entire community. Underrepresentation in the jury pool creates yet
another barrier to jury service among people of
color, women, and other minorities.

I

UNDERREPRESENTATION OF RACIAL MINORITIES
IN JURY POOLS
The Constitution requires that the jury
pool be fairly representative of the community.190 The process for selecting the jury pool
must not systematically exclude any cognizable
group.191 A group is cognizable when it is sufficiently distinctive from the rest of society.192
Women and African Americans are cognizable
groups.193 Such groups also include other racial
or ethnic minorities, daily wage earners, and unregistered voters.194 Despite the Supreme
Court’s long-established rule requiring the jury
pool to fairly reflect the community, disparities
between the racial make-up of the jury pool and
the community persist.
The problem stems in part from the way
courts evaluate whether a particular group is underrepresented in the jury pool. Courts generally look at the difference between the
percentage of a particular group in the community and the percentage of that group in the
pool, often called the “absolute disparity.”195
Historically, courts have required an absolute disparity of greater than 10% to find a group is unThe absolute disparity
derrepresented.196
actually reveals little about the degree of underrepresentation because it does not show how
large a portion of the cognizable group is being
excluded.
35

At 61, Rev. Bernard Martin had never been
called for jury duty in Elmore County, Alabama, where he had lived nearly all his life. In
1999, with seven other life-long residents, he
filed a federal lawsuit challenging the
county’s unlawful exclusion of African Americans from the jury pool.197
Henrietta Hunt, a 64-year-old AfricanAmerican woman, joined the suit. In the
1950’s, she was one of the first black citizens
in Elmore County to register to vote, but not
before she was forced to pass a “poll test”
designed to prevent African Americans from
voting.198 Over 40 years later, Ms. Hunt had
never been called for jury service.199
Though African Americans comprised
about 22% of the county’s population, they
were only 15% of the jury pool.200 About 30%
of black residents were not represented in
the jury pool.201 Confronted with this compelling evidence of discrimination, state officials agreed to expand the jury lists and the
Alabama Supreme Court changed its rules to
allow counties like Elmore to supplement
their jury selection procedures to create representative jury pools.202

Given that it fails to take into account
It is impossible for African
the size of the excluded group, use of the
absolute disparity test may permit almost Americans to challenge undercomplete exclusion of small groups, while in- representation in 75% of counvalidating moderate underrepresentation of ties in the United States. For
large groups. Indeed, if a group constitutes Latinos and Asian Americans,
less than 10% of the population, the 10% ab- challenges are impossible in
solute disparity requirement allows even the
most blatant and intentional exclusion of more than 90% of counties.
every member of that group to go unremedied.203 This means it is impossible for African Americans to challenge underrepresentation in
75% of counties in the United States.204 For Latinos and Asian Americans, such challenges are
impossible in more than 90% of counties, and for other people of color this constitutional protection is practically non-existent.205
A better method for measuring underrepresentation is to divide the absolute disparity
by the percentage of the group in the broader community. This ratio is referred to as the “comparative disparity” and reveals the percentage of the cognizable group that is excluded, ranging from 0% (perfect representation) to 100% (total exclusion).206 The comparative disparity

36

test may overstate the significance of disparities where the total population of a cognizable
group is very small, such that a difference of only few individuals can create a large disparity.207
But such situations are not difficult to identify, and comparative disparity remains the only
method to accurately measure the degree of underrepresentation. Although the comparative disparity reveals much more than the absolute disparity about whether a jury pool fairly
represents the community, few courts have embraced it and some have explicitly mandated
exclusive use of the absolute disparity test.208
Unfortunately, the Supreme Court recently declined an opportunity to make clear that
the comparative disparity should be considered in determining whether a group is underrepresented in the jury pool.209 In Berghuis v. Smith, the Court rejected a challenge to a jury pool
with an 18% comparative disparity in the representation of African Americans because it found
the African American defendant (who had been convicted by an all-white jury) had not presented sufficient evidence that a particular practice used by the county had caused the underrepresentation.210 In the wake of Berghuis, even where significant underrepresentation
persists, it remains difficult to remedy.

EXCUSING JURORS “FOR CAUSE”
The composition of the jury pool also may be affected greatly by the way each jurisdiction decides who to excuse from jury service. States set statutory qualifications for jury service and judges also excuse jurors from serving if it would be a hardship for the juror. The
youngest and oldest members of the community are often excluded. In some states, the minimum age for jury service is 21, even as increasingly younger children are facing criminal jury trials.211 Many states also exempt individuals over age 70 from jury service, even if they are able
to serve.212
Other exemptions tend to deny peoMany local court practices tend
ple with low incomes the opportunity to
serve on a jury.213 Individuals who work for to deny people with low inan hourly wage cannot afford to miss work comes and people of color the
because they will not get paid. Women who opportunity to serve on a jury.
are the sole caregivers for their children cannot serve unless they have access to affordable child care. People living in poverty often are
unable to obtain transportation, or their addresses are not current in court files, so they do
not receive a summons or appear in court unless additional efforts are made to serve them.
Only rarely do lawyers seek an order to provide accommodations to low-income
prospective jurors, such as providing child care or other assistance. As a result, many poor and
low-income people and parents without child care options never serve on a jury and an important perspective is excluded from civil and criminal proceedings.

37

THE PERCEIVED AND ACTUAL INTEGRITY OF THE
CRIMINAL JUSTICE SYSTEM
xcluding racial minorities from juries causes serious collateral consequences: the credibility, reliability, and integrity of the criminal justice system is compromised when there
is even an appearance of bias and discrimination. Communities of color across the country have rejected and continue to reject criminal verdicts handed down by all- or predominantly-white juries. During the 1980’s, race riots twice erupted in Miami after all-white juries
acquitted police officers charged with shooting African American men. In 1980, an all-white jury
acquitted four white Dade County policemen in the beating death of Arthur McDuffie, a black
insurance salesman.214 The trial had been moved to Tampa in order to give the defendants “a
fair trial.”215 The all-white jury’s acquittal of the officers outraged people of color in Miami and
triggered violent unrest. Riots lasted for three
days and left 18 people dead and $200 million in Riots in Miami lasted for three
property damage.216 A biracial committee ap- days and left 18 people dead
pointed by the Governor of Florida later con- and about $200 million in
cluded the riots resulted from “racism and the
property damage.
blacks’ perception of racism.”217

E

38

In 1984, another all-white jury acquitted police officer Luis Alvarez in the shooting death
of Nevell Johnson, Jr., in Miami.218 Protests began after the police shooting, and though there
was less violence, unrest after the verdict led to hundreds of arrests.219 One community leader
reported, “[t]he community has gotten to the point where it expects an all-white jury when we
have this kind of killing.”220
Perhaps the best known example of The Rodney king verdict led
racial conflict and violence after a verdict by a
to three days of protests, 60
non-diverse jury is the 1992 Los Angeles Riots.
The trial of one of the white police officers ac- deaths, 16,000 arrests, and alcused of beating Rodney King, a black man, was most $1 billion in property
moved from Los Angeles to majority-white, rural damage.
Simi Valley.221 No African Americans served on
the jury, comprised of ten whites, one Asian American, and one Latino.222 The jury’s verdict
finding police not guilty of excessive force in a beating that lasted 81 seconds and included 56
blows223 led to three days of violent protests, 60 deaths, more than 16,000 arrests, and almost
$1 billion in property damage.224
More recently, an all-white jury acquitted a white former Hartford, Connecticut, police
detective who shot and killed Jashon Bryant, 18, and injured Brandon Henry, 21, African American youths from Hartford’s predominantly black
A Hartford police shooting North End.225 A police investigation revealed that
were unarmed at the time of
case “stirred lingering frus- Bryant and Henry
the shooting.226 The acquittal brought shock and
tration and mistrust of po- outrage from the victims’ families and demonlice and the criminal justice strations by community members questioning
system among residents of the legitimacy of the verdict and the judicial
the city’s North End, includ- process.227 The Hartford Courant reported that
ing questions about why no “[t]he case stirred lingering frustration and misof police and the criminal justice system
minorities were selected for trust
among residents of the city’s North End, includthe jury.”
ing questions about why no minorities were selected for the jury.”228
While acquittals might have been produced by juries that fairly represented African
Americans and other racial minorities, the absence of diversity makes a questionable jury verdict unacceptable. In Long Island, New York;229 Jena, Louisiana;230 Powhatan, Virginia;231
Panama City, Florida;232 and Milwaukee, Wisconsin,233 recent verdicts by all-white juries or by juries perceived as unrepresentative have triggered widespread unrest and outrage in poor and
minority communities where serious concerns about the fairness and reliability of the justice
system have emerged.
Social science research helps to explain these and other examples from around the
country of community rejection of criminal verdicts handed down by unrepresentative juries.
As a general matter, people are willing to accept the legitimacy of an authority and defer to the
39

decisions made by that
authority when they perceive the decision-making procedures as fair.234
Conversely, decisions
seen as the result of an
unfair – biased, dishonest, or inconsistent –
process are more likely
to be rejected.235 This is
true of people’s perceptions of jury verdicts in
criminal cases.
Research
has
shown that observers
are more likely to conclude that a trial is unfair
when an all-white jury
finds
a
defendant
236
guilty. Token represen- Thousands of people traveled to Jena, Louisiana, in September 2007 to protest the
tation by minorities is appearance of racial bias in the outcomes of criminal trials involving six black teens
who became known as the “Jena Six.” (AP Photo/Frank Franklin II)
similarly inadequate to
address the problem. African Americans serving on white-dominated juries – especially when
they are in a “minority of one” are more likely to remain quiet and give in to the pressures of
the majority.237 The few African Americans who actually manage to serve on capital juries may
be “especially discontented with their own experiences” and critical of the jury’s deliberative
process.238
Beyond perceptions about the criminal trial process and the negative experience of
lone minority jurors, the racial composition of juries also influences the reliability of outcomes.
In death penalty cases, the absence of diversity appears to shape sentencing outcomes, making them less reliable and credible.239 The effect is greater for non-white defendants, especially
when the defendant is black and the victim is white.240
Research suggests that, compared Research suggests that, comto diverse juries, all-white juries tend to
pared to diverse juries, all-white
spend less time deliberating, make more
errors, and consider fewer perspectives.241 juries tend to spend less time deMoreover, even though bifurcated capital liberating, make more errors,
trials require separate deliberations re- and consider fewer perspectives.
garding guilt/innocence and sentencing, it
is not uncommon for all-white juries to decide on punishment during guilt/innocence deliberations, before they have heard any mitigation evidence.242
40

The nature and quality of jury deliberations is better when jury diversity is greater:243
By every deliberation measure . . . heterogeneous groups outperformed homogeneous groups. First, diverse groups spent more time deliberating than did allWhite groups. . . . us[ing] their extra time productively, discussing a wider range
of case facts and personal perspectives. . . . Even though they deliberated longer
and discussed more information, diverse groups made fewer factual errors than
all-White groups. Moreover inaccuracies were more likely to be corrected in diverse groups. . . . [D]iverse groups were also more open-minded in that they
were less resistant to discussions of controversial race-related topics.244
Racial diversity significantly improves a jury’s ability to assess the reliability
and credibility of witness testimony, evaluate the accuracy of cross-racial identifications, avoid presumptions of guilt, and fairly
judge a criminally accused.245 Accordingly,
the reliability and accuracy of the criminal
justice system is greatly enhanced when juries represent a fair cross-section of the
community as the Constitution requires.246

Racial diversity improves a
jury’s ability to assess witness
testimony, evaluate cross-racial
identifications, avoid presumptions of guilt, and fairly judge a
criminally accused.

THE ABSENCE OF RACIAL DIVERSITY IN
OTHER DECISION-MAkING ROLES
acial diversity on juries is especially critical because the other decision-making roles in the
criminal justice system are
held mostly by people
who are white, from police officers who decide whom to stop
and arrest, to prosecutors who
decide what charges are
brought against which defendants, to trial and appellate
judges whose decisions impact
powerfully on outcomes at each
stage of the criminal justice
process. As a National District
Attorney’s Association publication put it:

R

“In criminal courtrooms across
the nation the outlook can be
daunting for people of color.
41

The accused is typically a person of color, who is often arrested,
prosecuted
and
sentenced by a courtroom of
white men and women.”247
While black employment in law enforcement has
increased during the last three
decades in major metropolitan
departments, racial diversity
remains virtually nonexistent in
some smaller Southern jurisdictions. In Houston County,
Alabama, where the population is 27% African American,
the local police department is
nearly 94% white.248

A gathering of innocent people formerly sentenced to death, 1998.

“I looked around the courtroom. The
judge was white. The prosecutor was
white. My lawyer was white. The jury
was white. Even though I was innocent,
I knew I had no chance.”
- Exonerated Death Row Prisoner

State and federal prosecutors also are mostly white. Approximately 98% of district attorneys in states that apply the death penalty are white.249 As the chart opposite shows,
African Americans are vastly underrepresented among district attorneys in each of the eight
Southern states analyzed in this report.250 The latest data show no black district attorneys in
Arkansas, Florida, or Tennessee.251

Nationwide, of over 12,000 state
and federal judges, 90% are
white, even though the population is more than 25% minorities.
None of Alabama’s 19 appellate
judges is black.

Data on the racial diversity of the
American judiciary reveal that it continues
to be overrepresented by whites in both
the federal and state courts. Nationwide,
of a total of over 12,000 state and federal
judges, approximately 90% are white, even
though racial minorities make up more
than 25% of the population nationwide.252

People of color are most underrepresented in the state courts. African Americans constitute 12% of the United States population but fewer than 6% of the bench at all state court levels.253 Underrepresentation among appellate judges in the states EJI studied is significant.
African Americans comprise 26% of Alabama’s population but none of the state’s 19 appellate
judges is black.254 According to the American Bar Association’s National Database on Judicial
Diversity in State Courts, Alabama has the smallest percentage of black judges statewide of the
studied states, followed by Tennessee.255
Just 4.2% of lawyers and judges in the United States are African American,256 which
means that, in addition to being arrested, prosecuted, and judged by whites, defendants typically are represented by white lawyers.
42

Too often, the only opportunity for racial minorities to influence decision-making in
America’s criminal justice system is to serve on a jury. Exclusion of qualified citizens of color
from jury service amounts, then, to the near-complete absence of minority perspective, influence, and power in the criminal justice system.

THE ROLE OF DEFENSE COUNSEL
While the criminal defense bar also is not as racially diverse as the communities in which
many public defenders and appointed counsel work, the defense attorney has an uniquely important responsibility to protect the rights of the criminally accused and people of color whose
trials may be subject to illegal racial discrimination in jury selection. Whether the accused is
white, black, or a member of some other racial or ethnic group, counsel must be attentive to
challenging racially biased jury selection.257 The United States Supreme Court has empowered
defense counsel to represent the interests of excluded jurors as well as the accused when facing discriminatory conduct by prosecutors and non-responsive trial judges.258 However, in too
many cases the defense lawyer does not object to racially biased jury selection, or fails to challenge adequately the discriminatory use of peremptory strikes or underrepresentation of cognizable groups in the jury pool.
Illegally excluding racial groups from The criminal defense bar can
jury service not only violates the rights of exand should do much more to
cluded jurors but also diminishes the opportunity for a criminally accused person to receive eliminate racially biased jury
a fair trial. The criminal defense bar can and selection practices by proseshould do much more to eliminate racially bi- cutors and court officials.
ased jury selection practices by prosecutors
and court officials. In some jurisdictions, the low number of court decisions reversing discriminatory conduct reflects a lack of diligence by the criminal defense bar and reluctance by
some lawyers to challenge conduct that involves the sensitive issues of race and discrimination.
The entire community – including prosecutors, judges, court administrators, civil rights
and community groups, and elected officials – has a role to play in addressing this issue, but
racial bias in the courtroom cannot be confronted effectively without vigilance and advocacy
by defense lawyers. Criminal defense attorneys who need support and assistance in confronting racially discriminatory jury selection should contact the Equal Justice Initiative.

43

RECOMMENDATIONS
here is much work to be done to eliminate illegal racial discrimination in jury selection. The
following recommendations outline some concrete steps that can be taken by court officials, administrators, legislators, judges, prosecutors, defense attorneys, civil and human
rights groups, community groups, and ordinary citizens to end racially biased jury discrimination. This is not a complete or comprehensive list; many other tasks and initiatives must be considered and undertaken to fully address this problem. For additional information about
implementing the recommendations below and for other ideas about ending jury discrimination, please contact the Equal Justice Initiative. It is critical to increase coordinated efforts to
eliminate illegal exclusion and discrimination in jury selection.

T
1.

Dedicated and thorough enforcement of anti-discrimination laws designed to prevent
racially biased jury selection must be undertaken by courts, judges, and lawyers involved in criminal and civil trials, especially in serious criminal cases and capital cases.

The principle of anti-discrimination in jury selection has been well-established for some
time, but realizing that principle on the ground has been too slow in coming. And while macrolevel decision-makers, such as legislatures and appellate courts, must continue to establish
and enforce anti-discrimination norms, the responsibility to end discrimination in our courtrooms necessarily rests in large part with the professionals who spend their daily lives in those
courtrooms. The documented and continued exclusion of people of color from juries in many
places in this country – more than 20 years after Batson v. Kentucky – is evidence of the indifference with which too many actors in the criminal justice system regard the exclusion playing
out in courts across America today. Discrimination in jury selection will end when every decision-maker with a role in the process values diversity, commits to enforcing the right of all
community members to participate equally in civic life, and prioritizes the enforcement of antidiscrimination rules.
2.

The rule banning racially discriminatory use of peremptory strikes announced in Batson v. Kentucky should be applied retroactively to death row prisoners and others with
lengthy sentences whose convictions or death sentences are the product of illegal,
racially biased jury selection but whose claims have not been reviewed because they
were tried before 1986.

Two months after its historic 1986 decision in Batson v. Kentucky, the United States
Supreme Court decided a lesser-known case, Allen v. Hardy, ruling summarily (without the ordinary process of briefing and argument) that Batson would not apply retroactively. As a result, Batson does not apply to defendants whose trials were final before 1986. Many of these
defendants still sit in prisons and on death rows across the country, even though indisputable
evidence of racially biased jury selection exists. The Court in Allen stated that prosecutors in
pre-1986 trials had relied justifiably on pre-Batson law when conducting jury selection. But
using peremptory strikes to discriminate based on race had been illegal since Swain v. Alabama
was decided in 1965. The Court should not sanction illegal discrimination simply because a
44

prosecutor selecting a jury during the period of time between Swain and Batson reasonably
may have expected to get away with illegal discrimination.
The Allen Court also worried that allowing pre-1986 claims to be brought would unduly
burden the justice system. Even if this concern – aptly described in a similar case as “a fear of
too much justice” – was reasonable at the time, there remains only a small cohort of egregious
cases in which prisoners are incarcerated (and in some cases facing execution) based on
decades-old, illegal convictions. Correcting these injustices would not unduly burden the system. Moreover, Allen was decided under federal law and provides no obstacle to state legislatures’ or state courts’ actions under state law. States should remedy the lingering injustice
of racially discriminatory convictions by retroactively applying Batson under state law and providing procedures to hear claims of illegal conviction.
3.

To protect the credibility and integrity of criminal trials, claims of illegal racial discrimination in the selection of juries should be reviewed by courts on the merits and
exempted from procedural bars or technical defaults that shield and insulate from
remedy racially biased conduct.

Across the country, hundreds of well-documented claims of racial discrimination in jury
selection are unremedied because of procedural defaults (or “procedural bars”). Procedural
defaults are rules that prevent a party from raising a claim in a legal case if a court determines
that the party had a prior opportunity to raise the claim but failed to do so. These rules apply
to claims of racially discriminatory jury selection as they would any other claim. But jury- selection claims are fundamentally different. Procedural bars are used to weigh the State’s interest in finality against the defendant’s individual rights. Yet the Supreme Court has
recognized that the injury caused by racially discriminatory jury selection extends beyond the
individual criminal defendant because it harms the excluded minority jurors and their communities. Accordingly, the rationale of procedural bar does not apply to racial bias claims as it
does to ordinary claims, such as those involving erroneous jury instructions, denials of due
process, or illegal searches. When documented acts of illegal discrimination against minority
citizens go unremedied, the integrity and credibility of the criminal justice system itself suffers,
and excluded jurors and communities lose faith in the system. Because these long-term, systemic issues are at play, procedural default rules should be modified to allow courts to review
illegal discrimination claims on the merits at any time. Such changes should be implemented
by courts and/or legislatures as required by the law of each jurisdiction.
4.

Prosecutors who are found to have engaged in racially biased jury selection should
be held accountable and should be disqualified from participation in the retrial of any
person wrongly convicted as a result of discriminatory jury selection. Prosecutors
who repeatedly exclude people of color from jury service should be subject to fines,
penalties, suspension, and other consequences to deter this practice.

One of the most vexing aspects of the continuing problem of racial discrimination in
jury selection is impunity. In most cases where a court finds that a prosecutor intentionally
has engaged in racial discrimination while selecting a jury, the prosecutor suffers no adverse
45

consequences. Indeed, the same attorney often represents the State at a retrial. Once an attorney is found to have intentionally discriminated in the jury selection process, barring her
participation in any subsequent proceedings should be the minimum consequence, yet no jurisdiction is known to have even this basic rule. Beyond this bare minimum, prosecutors who
repeatedly misuse their public authority to stigmatize and humiliate citizens because of their
race by excluding them from jury service should be subject to more serious consequences, including fines, penalties, suspension from practice, public shaming, and in extreme cases, criminal prosecution.
Courts, bar associations, and legislatures should play a role in enforcing anti-discrimination norms and deterring misconduct. But discipline should be focused on the district attorney’s office itself. No district attorney committed to upholding the law should tolerate
violations of the law by her prosecutors. In no other circumstances could a state agent be
caught intentionally discriminating on the basis of race and keep her job without adverse consequences, and the district attorney’s office should be no exception. Under current practices,
young prosecutors too often absorb the lessons that racial discrimination is a regular part of
the business of obtaining convictions and that findings of discrimination are an incidental cost
of doing business. Applying proper discipline to prosecutors who violate the law would send
the opposite message: racial discrimination in jury selection constitutes shameful professional
misconduct that could cost a prosecutor her reputation and career.
5.

The Justice Department and federal prosecutors should enforce 18 U.S.C. § 243, which
prohibits racial discrimination in jury selection, by pursuing actions against district attorney’s offices with a history of racially biased selection practices.

The provisions codified at 18 U.S.C. § 243 have existed in substantially the same form
since they were enacted in 1875, but there have been few documented prosecutions under
the statute.259 The statute forbids the racially discriminatory exclusion of any person from a
grand jury or a trial jury in any state or federal court by any “officer or other person charged
with any duty in the selection or summoning of jurors.”260 The United States Department of
Justice and United States Attorneys should prioritize enforcement of this statute against district attorney’s offices that engage in systematic denial of citizens’ civil rights. Congress should
increase the current penalty of $5000 per violation – which has not been adjusted since 1875261
– but even this modest amount may allow for fines sufficient to deter future misconduct when
multiplied by each juror excluded on the basis of race. More importantly, such prosecutions
possess immense symbolic value and would send a message to excluded communities that no
one is above the law and that recourse is available when the law is broken by those responsible for enforcing it.

46

6.

States should provide remedies to people called for jury service who are illegally excluded on the basis of race, particularly jurors who are wrongly denigrated by state officials. States should implement strategies to disincentivize discriminatory conduct by
state prosecutors and judges, who should enforce rather than violate anti-discrimination laws.

The personal profiles in this report demonstrate that citizens excluded from participation in civic life on account of their race suffer humiliation and denigration, which often causes
lasting psychological harm. Excluded jurors, who suffer measurable, real victimization at the
hands of government prosecutors, should have access to civil remedies. The availability of
such remedies would engender respect for the system as a whole by providing relief when the
system is misused. At a minimum, potential jurors subject to discrimination are owed a public
apology from the discriminating prosecutor.
7.

Community groups, civil and human rights organizations, and concerned citizens
should attend court proceedings and monitor the conduct of local officials with regard to jury selection practices in an effort to eliminate racially biased jury selection.

Top-level commitment to diversity from legislatures, appellate courts, and high executive officials is needed, but discrimination in individual courtrooms also is a local problem for
which local solutions can be highly effective. One factor enabling the continued cycle of exclusion in jury service, particularly in criminal trials, is the insularity of the setting: criminal
courtrooms often are populated by the same small group of participants day after day, and
these participants may become immune to “business as usual,” even when it involves illegal
discrimination. Committed organizations and groups of citizens can shine a light on what transpires in local courtrooms by exercising their constitutional right to attend public criminal trial
proceedings. Local groups should attend court proceedings and document the exclusion of minorities from jury service. Because court proceedings can be opaque, uninitiated monitors
should undergo basic training in local court procedures in order to provide accurate and complete reports. Especially in jurisdictions with a history of systematic exclusion, documenting
and bearing witness to the conduct of local officials is a powerful and necessary step in holding those officials accountable and ultimately changing their behavior.
8.

Community groups, civil and human rights organizations, and concerned citizens
should question their local district attorneys about policies and practices relating to
jury selection in criminal trials, secure officials’ commitment to enforcing anti-discrimination laws, and request regular reporting by prosecutors on the use of peremptory strikes.

District attorneys committed to upholding the law should not tolerate discrimination in
jury selection by any of their prosecutors. Local organizations and citizens should ask their
district attorneys about what steps are taken to ensure non-discrimination and to guarantee
citizens full and equal access to jury service. Citizens have a right to expect from all public officials a commitment to enforce anti-discrimination laws and to transparency, and should demand from their officials regular data documenting prosecutorial use of peremptory strikes.
47

9.

States should strengthen policies and procedures to ensure that racial minorities,
women, and other cognizable groups are fully represented in the jury pools from
which jurors are selected. States and local administrators should supplement source
lists for jury pools or utilize computer models that weight groups appropriately. Full
representation of all cognizable groups throughout the United States easily can be
achieved in the next five years.

The Constitution mandates that a jury pool be fairly representative of the broader community. Racial minorities, women, and other cognizable groups nonetheless continue to be underrepresented at the initial stage of the jury selection process. This is particularly problematic
because minority groups, particularly people of color, are more vulnerable to removal at a later
stage of the process through the use of peremptory strikes. Effective administrative procedures to ensure that all citizens are fairly represented in jury pools are now well-known and are
not burdensome to implement. States should commit to ending underrepresentation in every
county within five years.
By drawing juries from a diverse pool, states and local communities will increase the
probability that trial juries will represent a fair cross-section of the community. State and local
communities therefore should commit to achieving diversity at the initial stage of the jury selection process. Representative jury pools are achievable in the short term in every state with
the use of simple, non-burdensome reforms. For example, rather than relying solely on voter
registration rolls as the source for the jury pool, juries in Minnesota are randomly drawn from
a source list generated by compiling voter registration, driver’s license, and state identification lists, which more accurately reflects a fair cross-section of the community.262 In Dallas
County, Texas, officials implemented new computer programs to address the “skewed” jury
pool after recognizing in 2005 that Latino prospective jurors comprised only 11% of those reporting for jury duty in felony court but made up 26% of adults in the county.263 The new reforms include updating addresses annually, removing repeat addresses, using computer-based
jury forms and questionnaires, and raising jurors’ daily pay from $6 to $40.264
10.

Reviewing courts should abandon absolute disparity as a measure of underrepresentation of minority groups and utilize more accurate measures, such as comparative
disparity, to prevent the insulation from remedy of unfair underrepresentation.

Courts evaluating underrepresentation challenges have applied the “absolute disparity”
measure, which compares the percentage of a minority group in the community to the percentage of that group in the jury venire, and have required an absolute difference of 10% to
conclude the minority group is underrepresented in the jury pool. This approach leaves minorities in most communities with no remedy for discrimination because no absolute disparity of 10% is possible when the group comprises less than 10% of the county’s population. Courts
should abandon this method and adopt measures that more accurately assess underrepresentation in the jury pool, such as comparative disparity (obtained by dividing the absolute disparity by the minority group’s percentage of the population).

48

11.

State and local justice systems should provide support and assistance to ensure that
low-income residents, sole caregivers for children or other dependents, and others
who are frequently excluded from jury service because of their economic, employment, or family status have an opportunity to serve.

In Thiel v. Southern Pacific Co.,265 the United States Supreme Court struck down the systematic exclusion of low-income wage earners from jury service, holding that sanctioning such
intentional exclusion would “encourage whatever desires those responsible for the selection
of jury panels may have to discriminate against persons of low economic and social status
[and] breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged.”266 Today, many potential jurors who earn low incomes continue to be excluded from jury service because of their child care responsibilities, lack of
transportation, and inability to obtain reimbursement from work. Exclusion of individuals in
this category has a heightened adverse impact on communities of color, whose members disproportionately are low-income wage earners.
State and local justice systems should provide the assistance necessary to allow all citizens, including those earning a low wage, the opportunity to serve. By paying jurors an adequate daily wage, courts will increase the likelihood that low-income wage earners can serve
on juries. This reform currently is in place in several states267 and recently was implemented in
Dallas County, Texas.268 The federal judicial system pays jurors $40 per day (which increases to
$50 per day after more than 30 days of service).269 Some states, like Connecticut, offer to reimburse eligible jurors for out-of-pocket expenses associated with jury service, such as child
care, parking, and transportation costs.270 Eliminating economic barriers to jury service is absolutely critical to ensure that juries are representative and fair.
12.

Court administrators, state and national bar organizations, and other state policymakers should require reports on the representativeness of juries in serious felony
and capital cases to ensure compliance with state and federal laws barring racial discrimination in jury selection.

The legal community must monitor court processes to ensure that juries, particularly
those in felony and capital cases, are representative of the community, as required by state and
federal anti-discrimination laws. National and state bar associations, community leaders, nonprofit organizations, and other interested parties should request that court officers in their jurisdictions monitor and report demographic information to facilitate tracking of
underrepresentation of minority groups on juries. Data on the number of juries selected in
felony and capital cases and the racial, ethnic, and gender composition of each jury will permit
policymakers to measure and document diversity ratings for individual cases and for each
county.

49

13.

The criminal defense bar should receive greater support, training, and assistance in ensuring that state officials do not exclude people of color from serving on juries on the
basis of race, given the unique and critically important role defense attorneys play in
protecting against racially biased jury selection.

Anti-discrimination law that protects against racially biased jury selection likely will not
be enforced without criminal defense attorneys aggressively challenging discriminatory jury selection. Many attorneys have not received adequate training and preparation to confront biased jury selection and need additional support and education. State defender organizations
should make challenging racially biased jury selection a priority. State and federal governments should encourage criminal defense attorneys and reinforce the critical role they play in
protecting the integrity of the criminal justice system by providing the defense bar with funding for training and assistance on this issue. State bar organizations also should lend support
to indigent defense providers and defender organizations who report continuing problems
with racially discriminatory jury selection in particular communities. Since defense lawyers frequently are the only witnesses to discriminatory jury selection, defender organizations should
consider reporting and documenting bias in jurisdictions where the problem persists.
14.

Greater racial diversity must be achieved within the judiciary, district attorney’s offices, the defense bar, and law enforcement to promote and strengthen the commitment to ensuring that all citizens have equal opportunities for jury service.

In many counties across the country, no people of color serve as prosecutors and few
sit as trial judges, which leaves the jury as the singular decision-making role in which people of
color can participate and shape the judicial process. It is essential that the judiciary, prosecutor’s offices, the criminal defense bar, and law enforcement become more diverse. Greater
minority participation in these roles will reduce pressure on minority jurors, who should not be
burdened with the impossible task of equalizing a system so unbalanced by the absence of
people of color in decision-making roles.

50

NOTES
1.
2.
3.
4.

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.

21.
22.
23.
24.
25.
26.

27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
51

See, e.g., Strauder v. West Virginia, 100 U.S. 303, 308 (1880) (quoting William Blackstone’s Commentaries describing right to trial by jury as “bulwark of [citizens’] liberties”).
See Duncan v. Louisiana, 391 U.S. 145, 151-53 (1968).
See Neil Vidmar & Valerie P. Hans, American Juries 71-72 (2007); Albert W. Alschuler & Andrew G. Deiss, A
Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 884, 894 (1994).
See generally, e.g., James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. 895, 910, 91420 (2004); Michael J. Klarman, From Jim Crow to Civil Rights 39-40 (2004); Mary Ellen Curtin, Black Prisoners and Their World, Alabama, 1865-1900 59-60 (2000).
See, e.g., Klarman, supra note 4, at 10, 39; Eric Foner, Reconstruction 362-63 (1988).
See Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 336 (codified as amended at 18 U.S.C. § 243).
100 U.S. 303, 306-10 (1880).
See, e.g., Randall Kennedy, Race, Crime, and the Law 39-47 (1997); Benno C. Schmidt, Jr., Juries, Jurisdiction,
and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 Tex. L. Rev. 1401, 1407-12 (1983).
See Kennedy, supra note 8, at 172.
See, e.g., Schmidt, supra note 8, at 1419-20.
See, e.g., Klarman, supra note 4, at 41-42; Vidmar & Hans, supra note 3, at 71-72.
See Vidmar & Hans, supra note 3, at 72.
See Kennedy, supra note 8, at 182; Klarman, supra note 4, at 41-42, 55.
See Kennedy, supra note 8, at 182-84.
See, e.g., Kennedy, supra note 8, at 175-76; Klarman, supra note 4, at 55-56; Schmidt, supra note 8, at 1419,
1482-83.
See Kennedy, supra note 8, at 175; Klarman, supra note 4, at 42.
See Klarman, supra note 4, at 119-20.
See Mark Curriden & Leroy Phillips, Jr., Contempt of Court: The Turn-of-the-Century Lynching That Launched
a Hundred Years of Federalism xiv, 12-15 (Anchor Books 2001) (1999).
Id. at 195-96, 213-14.
Id. at 214. The note read in full: “To Justice Harlan. Come get your nigger now.” Johnson’s case was also
notable because he was represented after trial by two African-American lawyers who were willing to challenge the racial makeup of the jury.
294 U.S. 587 (1935).
See generally Dan T. Carter, Scottsboro: A Tragedy of the American South (rev. ed. 1979); Scottsboro: An
American Tragedy (Social Media Productions 2000).
Norris, 294 U.S. at 596.
Id. at 598.
Id. at 599.
Id. at 599; see also Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas,
311 U.S. 128 (1940); Pierre v. Louisiana, 306 U.S. 354 (1939); Hale v. Kentucky, 303 U.S. 613 (1938); Hollins v.
Oklahoma, 295 U.S. 394 (1935).
See Kennedy, supra note 8, at 177-80; Klarman, supra note 4, at 154-55.
Akins v. Texas, 325 U.S. 398 (1945).
See Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975).
See Amadeo v. Zant, 486 U.S. 214 (1988).
See Kennedy, supra note 8, at 274-75.
380 U.S. 202 (1965).
Id. at 205.
Id. at 210.
Id. at 224-26.
See Jeffrey Abramson, We, The Jury 134 (1994).
476 U.S. 79 (1986).
Id. at 100 & n.25.
Id. at 100.

40.
41.
42.
43.
44.

45.
46.
47.
48.

49.

50.
51.
52.
53.

54.
55.
56.
57.
58.
59.
60.
61.
62.

63.
64.
65.
66.
67.
68.
69.

See Allen v. Hardy, 478 U.S. 255, 257-58 (1986).
See Horsley v. State, 527 So. 2d 1355, 1356 (1988).
See id. at 1356-57 (holding that Batson v. Kentucky did not apply to Horsley’s case because Horsley’s appeal
was final two months before Batson was decided).
Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America’s Future, 71 Notre
Dame L. Rev. 845, 854-55 (1996) (describing Horsley’s execution).
See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari). Because the
court refused to hold a hearing, it was never determined if the drawing was by one of the jurors, or delivered to them in an attempt to influence their verdict. Bright, supra note 43, at 855.
See Abramson, supra note 36, at 235-37; Kennedy, supra note 8, at 125-27.
See Stephen B. Bright, Can Judicial Independence Be Attained in the South? Overcoming History, Elections, and
Misperceptions About the Role of the Judiciary, 14 Ga. St. U.L. Rev. 817, 827-28 (1998).
See Bryan A. Stevenson & Ruth E. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. & Lee L. Rev. 509, 518 n.36 (1994).
State v. McKinnis, CC-06-1431 (Houston County Cir. Ct.); State v. Sale, No. CC-06-112 (Houston County Cir. Ct.);
State v. Gobble, No. CC-05-299 (Houston County Cir. Ct.); State v. McCray, No. CC-05-1532 (Houston County
Cir. Ct.); State v. Floyd, No. CC-04-167 (Houston County Cir. Ct.); State v. Wilson, CC-04-112 (Houston County
Cir. Ct.).
Richard Bourke, Joe Hingston, & Joel Devine, Louisiana Crisis Assistance Center, Black Strikes: A Study of the
Racially Disparate Use of Peremptory Challenges By the Jefferson Parish District Attorney’s Office 2 (2003),
available at http://www.blackstrikes.com.
Id.
Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of Racial Discrimination in Infliction of the
Death Penalty, 35 Santa Clara L. Rev. 433, 455-56 (1995).
Id.
See McGahee v. Allen, 560 F.3d 1252, 1257 & nn.4, 5 (11th Cir. 2009); Lee v. State, 898 So. 2d 790, 812-13 (Ala.
Crim. App. 2001); Drake v. State, 668 So. 2d 877, 878 (Ala. Crim. App. 1995); Stokes v. State, 648 So. 2d 1179,
1181 (Ala. Crim. App. 1994); Ex parte Thomas, 601 So. 2d 56, 57 (Ala. 1992); Thomas v. State, 611 So. 2d 416,
417 (Ala. Crim. App. 1992); Duncan v. State, 612 So. 2d 1304, 1307 (Ala. Crim. App. 1992); Johnson v. State, 601
So. 2d 1147, 1148 (Ala. Crim. App. 1992); Clark v. State, 621 So. 2d 309, 311 (Ala. Crim. App. 1992); Huff v. State,
596 So. 2d 16, 23 (Ala. Crim. App. 1991); Marks v. State, 581 So. 2d 1182, 1186-87 (Ala. Crim. App. 1990); Pollard v. State, 549 So. 2d 593, 595 (Ala. Crim. App. 1989).
McGahee, 560 F.3d at 1257 & n.5; State v. Lee, No. CC-99-21 (Dallas County Cir. Ct.); State v. Reeves, CC-97-31
(Dallas County Cir. Ct.).
476 U.S. 79, 96-98 (1986).
Id. at 96.
Id. at 97.
Id. at 97.
Purkett v. Elem, 514 U.S. 765, 768 (1995).
Miller-El v. Dretke, 545 U.S. 231, 240 (2005).
Batson, 476 U.S. at 106 (Marshall, J, concurring).
Miller-El, 545 U.S. at 268-69 (Breyer, J, concurring); see also, e.g., Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001, 2015, 2021 (1998) (noting that courts have declined to
find racial discrimination under Batson by accepting “a sweeping scope of permissible neutral explanations
for prosecutorial strikes” even though such explanations “often [were] correlated to some degree with
race”).
Nancy S. Mander, The Jurisprudence of Justice Stevens: Justice Stevens, the Peremptory Challenge, and the
Jury, 74 Fordham L. Rev. 1683, 1726 (2006).
Miller-El, 545 U.S. at 264.
Jackson v. Thigpen, 752 F. Supp. 1551, 1554-55 (N.D. Ala. 1990).
State v. Harris, 2001-0408 (La. 6/21/02); 820 So. 2d 471, 477.
McCray v. State, 738 So. 2d 911, 912-13 (Ala. Crim. App. 1998).
Id.
McCastle v. State, 622 S.E.2d 896, 897-98 (Ga. Ct. App. 2005).
52

70.

McGahee v. Allen, 560 F.3d 1252, 1265 (11th Cir. 2009); Jackson v. State, 5 So. 3d 1144, 1147 (Miss. Ct. App.
2008); State v. Hill, No. M2005-02347-CCA-R3-CD, 2007 WL 1774275, at *6 (Tenn. Crim. App. June 20, 2007);
Taylor v. State, 620 S.E.2d 363, 366-67 (Ga. 2005); State v. Crawford, 03-1494 (La. App. 5 Cir. 4/27/04); 873 So.
2d 768, 784; Ford v. Norris, 67 F.3d 162, 168 (8th Cir. 1995); Givens v. State, 619 So. 2d 500, 501-02 (Fla. Dist.
Ct. App. 1993); Conerly v. State, 544 So. 2d 1370, 1371-72 (Miss. 1989); State v. Tomlin, 384 S.E.2d 707, 708 (S.C.
1989).
71.
McGahee v. Allen, 560 F.3d 1252, 1265 (11th Cir. 2009).
72.
Ford v. Norris, 67 F.3d 162, 168 (8th Cir. 1995).
73. State v. Crawford, 03-1494 (La. App. 5 Cir. 4/27/04); 873 So. 2d 768, 784.
74. Bogan v. State, 811 So. 2d 286, 288 (Miss. Ct. App. 2001); Robinson v. State, 773 So. 2d 943, 948 (Miss. Ct. App.
2000); Jessie v. State, 659 So. 2d 167, 168 (Ala. Crim. App. 1994); Cox v. State, 629 So. 2d 664, 666 (Ala. Crim.
App. 1992); Bui v. State, 627 So. 2d 849, 851 (Ala. Crim. App. 1992); Sims v. State, 587 So. 2d 1271, 1276-77
(Ala. Crim. App. 1991); Ex parte State (Harrell v. State), 555 So. 2d 263, 265 (Ala. 1989); Williams v. State, 548
So. 2d 501, 505 (Ala. Crim. App. 1988).
75. Robinson v. State, 858 So. 2d 887, 895 (Miss. Ct. App. 2003); Berry v. State, 728 So. 2d 568, 572 (Miss. 1999);
Files v. State, 613 So. 2d 1301, 1304 (Fla. 1992); State v. Tomlin, 384 S.E.2d 707, 708-09 (S.C. 1989).
76. Bogan v. State, 811 So. 2d 286, 288 (Miss. Ct. App. 2001); Robinson v. State, 773 So. 2d 943, 947-48 (Miss. Ct.
App. 2000).
77.
Scott v. State, 599 So. 2d 1222, 1227 (Ala. Crim. App. 1992).
78. Turnbull v. State, 959 So. 2d 275, 276-78 (Fla. Dist. Ct. App. 2006).
79. State v. Coleman, 2006-0518 (La. 11/2/07); 970 So. 2d 511, 514-15.
80. State v. Smith, No. E2004-02272-CCA-R3-CD, 2005 WL 1827848, at *3 (Tenn. Crim. App. Aug. 3, 2005) (upheld);
Griffin v. State, No. CACR 97-843, 1998 WL 744261, at *2 (Ark. Ct. App. Sept. 30, 1998) (upheld); Ridely v.
State, 510 S.E.2d 113, 116 (Ga. Ct. App. 1998) (struck down).
81.
Tomlin, 384 S.E.2d at 708-09.
82. George v. State, 588 S.E.2d 312, 316 (Ga. Ct. App. 2003).
83. State v. Crawford, 03-1494 (La. App. 5 Cir. 4/27/04); 873 So. 2d 768, 783.
84. Thornton v. State, CACR 93-452, 1994 WL 114350, at *3-4 (Ark. Ct. App. Mar. 30, 1994).
85. Jackson v. State, 5 So. 3d 1144, 1149-50 (Miss. Ct. App. 2008).
86. State v. Tyler, No. M2005-00500-CCA-R3-CD, 2006 WL 264631, at *8 (Tenn. Crim. App. Feb. 1, 2006).
87. Bryan A. Stevenson & Ruth E. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal
Justice, 51 Wash. & Lee L. Rev. 509, 520, 523 (1994).
88. See, e.g., Bryan A. Stevenson, Pro Se Litigation Ten Years After AEDPA: Confronting Mass Imprisonment and
Restoring Fairness to Collateral Review of Criminal Cases, 41 Harv. C.R.-C.L.L. Rev. 339, 347-48 (2006) (detailing 23 Alabama death penalty cases reversed because of racially discriminatory jury selection at trial).
89. Swain v. Alabama, 380 U.S. 202, 210 (1965).
90. Ex parte Branch, 526 So. 2d 609, 617-18 (1987).
91.
Flowers v. State, 947 So. 2d 910, 937-39 (Miss. 2007); Ward v. State, 733 S.W.2d 728, 731 (Ark. 1987).
92. Snyder v. Louisiana, 552 U.S. 472 (2008).
93. Data on the reversed cases in each state is on file with the Equal Justice Initiative.
94. See, e.g., State v. Logan, No. W2008-00736-CCA-R3-CD, 2009 WL 782757, at *3 (Tenn. Crim. App. Mar. 25,
2009) (defendant failed to make prima facie showing of racial discrimination and did not elaborate on reasons for objections to prosecutor’s strikes); Williams v. State, No. M2007-02070-CCA-R3-PC, 2008 WL
5272556, at *7 (Tenn. Crim. App. Dec. 19, 2008) (defendant failed to raise Batson objection at trial or on direct appeal, forfeiting the claim); State v. Howard, No. E2007-00178-CCA-R3-PC, 2008 WL 1805758, at *16
(Tenn. Crim. App. Apr. 22, 2008) (defendant failed to raise Batson objection at trial and only did so on motion for new trial, forfeiting issue on appeal).
95. 529 So. 2d 649 (Miss. 1988).
96. 424 S.E.2d 630 (Ga. 1993).
97. 01-155 (La. App. 5 Cir. 8/28/01); 795 So. 2d 468.
98. Cochran v. Herring, 43 F.3d 1404, 1410-11 (11th Cir. 1995).
99. Carrick v. State, 580 So. 2d 31, 31-32 (Ala. Crim. App. 1990).
100. 738 So. 2d 911, 912 (Ala. Crim. App. 1998).

53

101.

See, e.g., Flowers v. State, 947 So. 2d 910 (Miss. 2007); McCastle v. State, 622 S.E.2d 896 (Ga. Ct. App. 2005);
Lucy v. State, 785 So. 2d 1174 (Ala. Crim. App. 2000).
102. Bui v. Haley, 321 F.3d 1304 (11th Cir. 2003); Ex parte Yelder, 630 So. 2d 107 (Ala. 1992); Ex parte Bird, 594 So.
2d 674 (Ala. 1991); Pruitt v. State, 871 So. 2d 101 (Ala. Crim. App. 2004); Freeman v. State, 651 So. 2d 576 (Ala.
Crim. App. 1994); Moss v. City of Montgomery, 588 So. 2d 520 (Ala. Crim. App. 1991); Sims v. State, 587 So.
2d 1271 (Ala. Crim. App. 1991); Carrick v. State, 580 So. 2d 31 (Ala. Crim. App. 1990); Parker v. State, 568 So.
2d 335 (Ala. Crim. App. 1990); Powell v. State, 548 So. 2d 590 (Ala. Crim. App. 1988); Williams v. State, 548
So. 2d 501 (Ala. Crim. App. 1988); Williams v. County of Montgomery, 525 So. 2d 831 (Ala. Crim. App. 1987).
103. McCrary v. State, 738 So. 2d 911 (Ala. Crim. App. 1998); Ashley v. State, 651 So. 2d 1096 (Ala. Crim. App. 1994);
Andrews v. State, 624 So. 2d 1095 (Ala. Crim. App. 1993); Williams v. State, 620 So. 2d 82 (Ala. Crim. App.
1992); Bush v. State, 615 So. 2d 137 (Ala. Crim. App. 1992); Roger v. State, 593 So. 2d 141 (Ala. Crim. App. 1991).
104. Snyder v. Louisiana, 552 U.S. 472 (2008); State v. Harris, 2001-0408 (La. 6/12/02); 820 So. 2d 471; State v. Myers,
1999-1803 (La. 4/11/00); 761 So. 2d 498; State v. Cheatteam, 07-272 (La. App. 5 Cir. 5/27/08); 986 So. 2d 738;
State v. Lewis, 01-155 (La. App. 5 Cir. 08/28/01); 795 So. 2d 468.
105. State v. Hill, No. M2005-02437-CCA-R3-CD, 2007 WL 1774275, at *5-7 (Tenn. Ct. Crim. App. June 20, 2007).
106. Id. at *6.
107. No. M2005-00500-CCA-R3-CD, 2006 WL 264631, at *8 (Tenn. Crim. App. Feb. 1, 2006).
108. See, e.g., Cobb v. State, 825 So. 2d 1080 (Fla. Dist. Ct. App. 2002).
109. See, e.g., Files v. State, 613 So. 2d 1301, 1304 (Fla. 1992); Cobb v. State, 825 So. 2d 1080, 1085-86 (Fla. Dist. Ct.
App. 2002).
110. 552 U.S. 472 (2008).
111. Id. at 482-85.
112. State v. Cheatteam, 07-272 (La. App. 5 Cir. 5/27/08); 986 So. 2d 738.
113. State v. Jacobs, No. 2009-K-1304, 2010 WL 1286899 (La. Apr. 5, 2010).
114. Flowers v. State, 947 So. 2d 910, 939 (Miss. 2007).
115. Id.
116. Id.
117. Jackson v. State, 5 So. 3d 1144, 1147-49 (Miss. Ct. App. 2008).
118. Newberry v. State, 19 So. 3d 752, 754-55 (Miss. Ct. App. 2008).
119. 448 S.E.2d 179, 181-82 (Ga. 1992).
120. 620 S.E.2d 363, 366 (Ga. 2005).
121. Id.
122. See, e.g., Cleveland v. State, 930 S.W.2d 316, 319 (Ark. 1996); Jackson, 954 S.W.2d 894, 895-96 (Ark. 1997);
Griffin v. State, No. CACR 97-843, 1998 WL 744261, at *2 (Ark. Ct. App. Sept. 30, 1998).
123. No. CACR 93-452, 1994 WL 1143350, at *3 (Ark. Ct. App. Mar. 30, 1994).
124. See, e.g., Stokes v. State, 194 S.W.3d 762, 765 (Ark. 2004) ; London v. State, 125 S.W.3d 813, 817 (Ark. 2003);
MacKintrush v. State, 978 S.W.2d 293, 297-98 (Ark. 1998).
125. See, e.g., Ratliff v. State, 199 S.W.3d 79, 83 (Ark. 2004); Jackson v. State, 954 S.W.2d 894, 895 (Ark. 1997);
Mitchell v. State, 913 S.W.2d 264, 268 (Ark. 1996).
126. See Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005).
127. Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
128. See, e.g., Preachers v. State, 963 So. 2d 161, 167-70 (Ala. Crim. App. 2006); Burnett v. State, 27 S.W.3d 454, 45859 (Ark. Ct. App. 2000); Randall v. State, 718 So. 2d 230, 232-33 (Fla. Dist. Ct. App. 1998); Ford v. State, 423
S.E.2d 245, 247 (Ga. 1992).
129. See, e.g., Mayes v. State, 550 So. 2d 496, 498-99 (Fla. Dist. Ct. App. 1989).
130. State v. Oglesby, 379 S.E.2d 891, 892 (S.C. 1989).
131. 439 S.E.2d 842, 844 (1994).
132. Id.
133. 452 S.E.2d 603, 603-04 (S.C. 1994).
134. Id. at 604.
135. Id. at 605 (Toal, J., dissenting).
136. Id.
137. See, e.g., Preachers v. State, 963 So. 2d 161, 167-70 (Ala. Crim. App. 2006); Yancey v. State, 813 So. 2d 1, 5 (Ala.
Crim. App. 2001); McElemore v. State, 798 So. 2d 693, 700-01 (Ala. Crim. App. 2000).
54

138.
139.
140.
141.
142.
143.
144.
145.

146.
147.
148.

149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.

163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
175.
176.
177.
178.
55

No. CR-05-0935, 2007 WL 2811968 (Ala. Crim. App. Aug. 29, 2008) (opinion on return to remand).
Id.
Id.
499 U.S. 400 (1991).
Robinson v. State, 773 So. 2d 943, 944-45 (Miss. Ct. App. 2000).
Id. at 949-50.
Flowers v. State, 947 So. 2d 910, 923-26 (Miss. 2007).
Walker v. State, 611 So. 2d 1133, 1136 (Ala. Crim. App. 1992). The appeals court found that the prosecutor illegally struck Mrs. Garrett and other potential jurors after presuming they were related to people involved
in illegal activity because of their last names, and never asking follow-up questions to confirm or refute
the presumptions.
Yancey v. State, 813 So. 2d 1, 5-7 (Ala. Crim. App. 2001).
McCray v. State, 738 So. 2d 911, 914 (Ala. Crim. App. 1998).
Walker v. State, 611 So. 2d 1133, 1135. (Ala. Crim. App. 1992). The prosecutor’s explanations for striking Mrs.
Greene were based on information he told the court he had received from a police investigator. The appeals court found that none of this information matched the prosecutor’s own notes taken during voir
dire. Because the prosecutor failed to provide race-neutral reasons for striking Mrs. Greene and nine other
black jurors, the conviction was reversed.
Bellamy v. Crosby, No. 4:05-cv-00182-MP-EMT, 2008 U.S. Dist. LEXIS 68208, at *4 (N.D. Fla. Sept. 8, 2008).
Neal v. State, 612 So. 2d 1347, 1349-50 (Ala. Crim. App. 1992).
See, e.g., State v. Williams, 89-KA-31 (La. App. 5 Cir. 6/7/89); 545 So. 2d 651, 655.
See Shelley v. State, No. 2008-KA-01284-COA, 2010 WL 702606, at *3 (Miss. Ct. App. Mar. 2, 2010); State v.
Johnson, 00-KA-1552 (La. App. 5 Cir. 3/28/01); 783 So. 2d 520, 526.
See Transcript of Record at 81, Jessie v. State, 659 So. 2d 167 (Ala. Crim. App. 1994).
Sims v. State, 587 So. 2d 1271, 1276 (Ala. Crim. App. 1991).
McGahee v. Allen, 560 F.3d 1252, 1265 (11th Cir. 2009).
Id. at 1267.
Id.
Id.
Id. at 1265; see also Transcript of Record at 1277-80, McGahee v. State, 554 So. 2d 454 (Ala. Crim. App. 1989).
McGahee, 560 F.3d at 1270.
See supra note 53.
McGahee, 560 F.3d at 1270; Ex parte Thomas, 601 So. 2d 56, 59 (Ala. 1992); Lucy v. State, 785 So. 2d 1174, 1178
(Ala. Crim. App. 2000); Kynard v. State, 631 So. 2d 257, 270 (Ala. Crim. App. 1993); Duncan v. State, 612 So.
2d 1304, 1311 (Ala. Crim. App. 1992).
McGahee, 560 F.3d at 1265.
Id. at 1270.
Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999).
State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1994).
Tarver, 169 F.3d at 716.
Tarver, 629 So. 2d at 19.
Robin DeMonia, Tarver Executed for 1984 Slaying, Birmingham News, Apr. 14, 2000.
Petition for Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, Tarver
v. State, No. CC84-450.62 (Russell County Cir. Ct. Apr. 5, 2000).
Id., Attached Affidavit at 2.
Tarver v. State, No. CC84-450.01 (Russell County Cir. Ct. May 19, 1999); Tarver, 169 F.3d at 712.
Tarver, 169 F.3d at 714; Tarver, 629 So. 2d at 17-18.
Tarver v. State, 500 So. 2d 1232, 1241 (Ala. Crim. App. 1986).
DeMonia, supra note 169. For more information about the Robert Tarver case, see Race to Execution (Lioness Media Arts, Inc. 2007) and Black Death in Dixie (RTE 2006).
Watson v. State, 825 S.W.2d 569, 570 (Ark. 1992).
Id.
Id. at 570-71.

179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.

195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
205.
206.
207.

208.

209.
210.
211.

Id. at 571.
Id.
Id. at 573.
State v. Tomlin, 384 S.E.2d 707, 708 (S.C. 1989).
Id.
Id.
Id. at 708-09.
Id. at 710.
Hernandez v. New York, 500 U.S. 352, 361, 371 (1991).
Id. at 371 (internal citation omitted).
Id. at 371-72.
Duren v. Missouri, 439 U.S. 357, 363-64 (1979).
Id.
Id. at 364; Casteneda v. Partida, 430 U.S. 482, 494 (1977).
See Strauder v. West Virginia, 100 U.S. 303 (1880) (African Americans); Taylor v. Louisiana, 419 U.S. 522 (1975)
(women).
Hernandez v. Texas, 347 U.S. 475, 479-80 (1954) (Mexican Americans); United States v. Cabrera-Sarmiento,
533 F. Supp. 799, 804 (S.D. Fla. 1982) (Latinos in Miami area); Thiel v. Southern Pacific Co., 328 U.S. 217, 222
(1946) (daily wage earners); State ex rel. Gregg v. Maples, 239 So. 2d 198, 203 (Ala. 1970) (unregistered voters).
See, e.g., Swain v. Alabama, 380 U.S. 202, 208-09 (1965); Floyd v. Garrison, 996 F.2d 947, 950 (8th Cir. 1993);
United States v. Grisham, 63 F.3d 1074, 1078-79 (11th Cir. 1995).
See supra note 195 and cases cited therein.
Joan Biskupic, The Push Is On for More Diverse Juries, USA Today, Aug. 28, 2001, at 14; see also Complaint at
3, Hunt v. Reynolds, No. 98-A-1305-N (M.D. Ala. May 10, 1999).
Biskupic, supra note 197, at 8A.
Complaint, supra note 197, at 3.
Biskupic, supra note 197, at 1A.
Complaint, supra note 197, at 6-7.
Biskupic, supra note 197, at 8A.
See Cynthia A. Williams, Note: Jury Source Representativeness and the Use of Voter Registration Lists, 65
N.Y.U. L. Rev. 590, 612 (1990).
See Brief for Social Scientists, Statisticians, and Law Professors, Jeffrey Fagan, et al., as Amici Curiae Supporting Respondent, at 22, Berghuis v. Smith, No. 08-1402, 2010 WL 1189555 (Mar. 30, 2010).
Id.
See Williams, supra note 203, at 610.
See, e.g., United States v. Hafen, 726 F.2d 21, 24 (1st Cir. 1984); United States v. Whitley, 491 F.2d 1248, 1249
(8th Cir. 1974). Another possible measure could be to consider whether a given level of underrepresentation is statistically significant. See, e.g., United States v. Rioux, 97 F.3d 648, 655 (2d Cir. 1996); Ford v. Seabold,
841 F.2d 677, 684 n.5 (6th Cir. 1988); see also Michael O. Finkelstein, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 338 (1996). However, as most courts to consider
the issue have recognized, statistical significance does not measure the degree of underrepresentation
but looks only at the probability that a given degree of underrepresentation occurred by chance. It is heavily dependant on the sample size, with even small disparities being statistically significant given a large
enough sample size. See Brief for Social Scientists, supra note 204, at 27-29.
See, e.g., United States v. Carmichael, 560 F.3d 1270, 1280 (11th Cir. 2009) (requiring use of absolute disparity); United States v. Yanez, 136 F.3d 1329, *2 (5th Cir. 1998) (using absolute rather than comparative disparity); Floyd, 996 F.2d at 950 (declining to adopt comparative disparity); United States v. Sanchez-Lopez,
879 F.2d 541, 547-48 (9th Cir. 1989) (rejecting comparative disparity analysis).
See Berghuis v. Smith, No. 08-1402, 2010 WL 1189555, at *10 & n.4 (Mar. 30, 2010).
Id. at *5-6, 11-12.
See Miss. Code Ann. § 13-5-1 (West 2010); Mo. Rev. Stat. § 494.425(1) (West 2010).

56

212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
222.
223.
224.

225.
226.
227.
228.
229.

230.

231.

57

See, e.g., Fla. Stat. Ann. § 40.013(8) (West 2010); Md. Code Ann., Cts. & Jud. Proc. § 8-306(1) (West 2010);
Okla. Stat. Ann. tit. 38, § 28(B) (West 2010).
See Mitchell S. Zuklie, Comment: Rethinking the Fair Cross-Section Requirement, 84 Calif. L. Rev. 101, 146-47
(1996).
George Volsky, Miami Riot Report Gets Mixed Reaction, N.Y. Times, Dec. 7, 1980, § 1, at 28.
Patrice Gaines-Carter, McDuffie: The Case Behind Miami’s Riots, Southern Changes, Vol. 2, No. 7, at 21 (1980),
available at http://beck.library.emory.edu/southernchanges/article.php?id=sc02-7_009&mdid=sc02-7_001.
Volsky, supra note 214.
Id.
Rick Atkinson, Miami Jury Acquits Policeman in Fatal Shooting of Black, Wash. Post, Mar. 15, 1984, at A2.
Reginald Stuart, Police Occupy Tense Areas in Miami After 300 Arrests, N.Y. Times, Mar. 17, 1984, § 1, at 6.
Atkinson, supra note 218.
John Riley, Race, Defense Lapses Seen as Keys to Verdict, Newsday, Apr. 30, 1992, at 4.
Id.
Id.
Mark Hansen, Different Jury Different Verdict?, 78 A.B.A. J. 54 (1992). A second, federal trial resulted in
guilty verdicts for two of the police officers involved in the beating. Michael Rezendes, LA Relaxes in Wake
of a Riot That Wasn’t, Boston Globe, Apr. 19, 1993, at 1. The jury in this case consisted of “nine whites, two
blacks and one Hispanic” from Los Angeles. Id. The city did not riot after these verdicts were handed
down. Id.
Alaine Griffin & Vanessa De La Torre, Anger Files; After Former Cop’s Acquittal, Dead Man’s Family Lets Loose,
Hartford Courant, Dec. 9, 2009, at A1.
Id.
Id.
Id.
In New York, John White, an African-American man was found guilty of second-degree manslaughter in an
incident where he and his son were threatened by a “lynch mob” outside their home in Long Island. The
jury included only one black juror, who was asked by the other members to share his views on race and the
use of the “N-word.” The guilty verdict led Rev. Al Sharpton to plan a protest at the courthouse. Corey Kilgannon, Jury’s Deliberations May Be a Focal Point of Appeal, N.Y. Times, Jan. 1, 2008, available at
http://www.nytimes.com/ 2008/01/01/nyregion/01white.html.
In the highly-publicized Jena 6 case, Mychal Bell was convicted by an all-white jury of assault in a climate
of rising racial tension triggered when three white students hung nooses from a tree on the high school
campus. Howard Witt, Louisiana Teen Guilty in School Beating Case, Chicago Tribune, June 29, 2007, available
at http://www.chicagotribune.com/services/chi-jena_witt.1jun29,0,4233447.story. No African Americans
were on the voir dire panel. Todd Lewan, Black and White Becomes Gray in La. Town, FOXNEWS.com, Sept.
22, 2007, available at http://www.foxnews.com/printer_friendly_wires/2007Sep22/0,4675,APlaceCalledJena,00.html. The verdict was later thrown out. Court Overturns Conviction in Jena 6 Beating, MSNBC,
Sept. 15, 2007, available at http://www.msnbc.msn.com/id/20779755/.
Two white men were acquitted of murder in Powhatan, Virginia, outside of Richmond, in the shooting
death of Tahliek Taliaferro. The jury of eleven whites and one black member found the defendants guilty
of involuntary manslaughter, after they testified that they had lost control of an assault rifle. About 300
protestors marched around the Powhatan County courthouse to protest the verdict. A later news story
stated that the jurors were dismayed to be accused of being racists. Bill McKelway, About 300 Marchers in
Powhatan Protest Taliaferro Verdict, Richmond Times-Dispatch, Mar. 30, 2009, at B1, available at
http://www2.timesdispatch.com/rtd/news/local/article/POWH30_20090329-222921/243957/; Bill McKelway,
A Look Inside the Taliaferro Jury, Richmond Times-Dispatch, June 28, 2009, available at http://www2.timesdispatch.com/rtd/news/local/crime/article/POWW28_20090627-221404/276839/pa.immigrant
.beating/index.html.

232.

233.

234.
235.
236.
237.

238.

239.

240.

241.

242.

In Panama City, Florida, eight boot camp officers , including one who was African American and one Asian
were acquitted in a videotaped beating death of Martin Lee Anderson. The all-white jury decided in just 90
minutes that Anderson died of a previously undiagnosed blood disorder. About 150 protestors marched to
the state capitol in protest. Boot Camp Death Verdict Sparks Outrage, ABCNews.com, Oct. 13, 2007, available at http://abcnews.go.com/GMA/story?id=3726041&page=1 ; Melissa Nelson, Guards Acquitted in Boot
Camp Case, USA Today, Oct. 12, 2007, available at http://www.usatoday.com/news/nation/2007-10-113868327840_x.htm?csp=34.
In Milwaukee, Wisconsin three white police officers were acquitted by an all-white jury in the beating of
Frank Jude, an African-American man. The verdict led to a march by several thousand people. Georgia
Pabst, Jesse Garza & Bob Purvis, Thousands March to Protest Verdict, Milwaukee Journal-Sentinel, Apr. 19,
2006, available at http://www3.jsonline.com/story/index.aspx?id=417026. Later federal proceedings resulted in seven officers receiving prison time. John Diedrich, New Sentencing Ordered for Ex-Officer in Jude
Beating Case, Milwaukee Journal-Sentinel, June 8, 2009, available at http://www.jsonline.com/news/milwaukee/47232467.html.
Tom R. Tyler, Social Justice: Outcome and Procedure, 35 Int’l J. Psychol. 117, 119-20 (2000).
Id.
Leslie Ellia & Shari Seidman Diamond, Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 Chi.-Kent L. Rev. 1033, 1048 (2003).
See Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial
Composition in Jury Deliberation, 90 J. Personality and Soc. Psychol. 597, 600 (2006); see also id. at 608
(“[S]urveys have found that people often feel marginalized or threatened by minority status in a group
and are therefore skeptical that their arguments will be taken seriously.”); Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 Mich. L. Rev. 63, 98-99
(1993) (concluding that a minority of one rarely influences a jury’s verdict and that “[a]dditional studies
have shown that black jurors themselves believe that they have significantly less impact on deliberations
than white jurors”).
See William J. Bowers et al., Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors
Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 171, 240 (2001) (concluding that blacks on white male
dominated capital juries “were critical of the jury’s decision-making process and especially discontented
with their own experiences as capital jurors”).
See David C. Baldus, et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical
Analysis, 3 U. Pa. J. Const. L. 3, 124 (2001) (studying capital trials in Philadelphia between 1981-1997 and concluding predominantly African-American juries were less likely to impose death sentences than juries with
fewer African Americans and explaining disparity due to “substantially higher death-sentencing rate in
black defendant cases . . . when jury was predominantly non-black”).
See id.; Bowers, supra note 238, at 188 (interpreting Baldus study and concluding that “tendency for Black
defendants to be treated more harshly than whites ones as the number of whites on the jury increases
holds especially for black-defendant/white-victim cases” (citing Baldus, supra note 239 at tbl. 8); see also
Bowers, id. at 195 (finding that the likelihood of a death sentence in black-defendant white-victim case was
“dramatically increased” with the presence of five or more white males on the jury as compared to intra
racial defendant-victim cases). Like African-American defendants, Latino defendants were more likely to
receive harsher judgments from majority-white juries. See Samuel R. Sommers, Determinants and Consequences of Jury Racial Diversity: Empirical Findings, Implications and Directions for Future Research, 2 Soc. Issues & Policy Rev. 65, 83, 84 (2008) (citing studies of actual and mock juries with white and Latino
defendants).
Sommers, supra note 237, at 609. The study consisted of mock jurors recruited from an actual jury pool
while on jury duty shown trial of black defendant. Id. at 600. Cf. William J. Bowers et. al, Crossing Racial
Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the Defendant is Black and
the Victim is White, 53 DePaul L. Rev. 1497, 1531 (2004) (finding tendency of jurors on diverse juries to acknowledge how race affects their perspective and that of other jurors).
See Bowers, supra note 241, at 1520; see also id. at 1532 (finding that mitigation is voiced and considered
when there are African Americans or at least one African-American male on a jury as opposed to on white
male dominated juries where there is a lack of serious discussion of mitigation).

58

243. Sommers, supra note 237, at 608 (“Jury representativeness can be more than a moral or Constitutional
ideal; it is sometimes an ingredient for superior performance.”); Neil Vidmar & Valerie P. Hans, American Juries: The Verdict 74 (2007) (concluding that claim that diverse juries are better fact-finders is supported by
research on heterogeneous decision-making groups) quoted in Jury Pool Diversity in New York State, Statement of Prof. Valerie Hans to Assembly Standing Comm. on Judiciary and Codes, New York State Assembly(Apr. 30, 2009), available at http://juries.typepad.com/files/assembly_statement_draft_4-29-09-1.pdf.
244. Sommers, supra note 237, at 608.
245. See, e.g., Sommers, supra note 240, at 86-87 (discussing studies finding that diverse juries consider more
factual information, were more likely to talk about missing evidence that they wished had been presented
at trial, more willing to discuss controversial issues such as racial profiling, include more accurate information in deliberations); Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 414-15 (2007) (discussing studies indicating that racially diverse juries may
make fewer cognitive errors than homogeneous jurors); Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1261, 1285-95, 1298-1300 (2000) (discussing effects of gender and race in jury deliberation); King, supra note 237, at 75-100 (discussing social science studies examining influence of jury
discrimination on jury decisions). Studies also suggest that cross-racial facial identification is subject to
error. See Cross-Racial Facial Identification: A Social Cognitive Integration, 18 Personality & Soc. Psych. Bulletin 296, 296 (1992); R. Richard Banks, Race-based Suspect Selection and Colorblind Equal Protection Doctrine
and Discourse, 48 U.C.L.A. L. Rev. 1075, 1103-04 (2001).
246. See generally Taylor v. Louisiana, 419 U.S. 522, 527-29 (1975).
247. Patricia L. Gatling & Majorie Heidseick, The Effects of Diversity in the Office, The Prosecutor, National District
Attorneys Ass’n (2001), available at http://www.ndaa.org/publications/ndaa/effects_diversity_in_office_
may_june_2001.html.
248. U.S. Dep’t of Justice, Bureau of Justice Statistics, Local Police Departments, 2003 at 7 (2003), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/lpd03.pdf. Studies have found that, while police departments
have grown much more diverse since the 1950’s and 60’s (especially in major cities), there is no clear evidence that black officers differ appreciably from white officers in their on-the-job behavior, including the
frequency of shootings, arrests, citizen complaints, and instances of prejudice against black citizens. See
David Alan Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224-25 (2006); see also U.S. Dep’t of Justice, Bureau of Justice Statistics, Law Enforcement Management and Admin. Statistics, 1993, at Table 4a (1993), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/tab4.pdf.
249. Rachel Lyon, Media, Race, Crime, and Punishment: Re-Framing Stereotypes in Crime and Human Rights Issues,
58 DePaul L. Rev. 741, 752 (2009) (“as of 1994, 97.5% of district attorneys in states that apply the death
penalty were white and male, while African Americans made up only 3.9% of all lawyers in death penalty
cases”); see also Jeffrey J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race of the Discretionary
Actors, 83 Cornell L. Rev. 1811, 1817-18 (1998) (indicating that approximately 98% of all death penalty prosecutors are white, 1% is black, 1% is Latino and in the 38 death penalty states, prosecutors are exclusively
white).
250. Pokorak, supra.
251. Id. In Florida, 5% of the prosecutors are Latino. Id. at 1817.
252. Pat K. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment
Cases, 86 Wash. U. L. Rev. 1117, 1125 (2009); see also A.B.A. Comm’n on Racial and Ethnic Diversity in the
Profession, Statistics about Minorities in the Profession from the Census (2000), at http://www.abanet.org/minorities/links/2000census.html (last visited Apr. 22, 2010) (nationwide, more than 83% of judges, magistrates, and other judicial workers are white, and 62% are male). National demographic data from U.S.
Census Bureau, Fact Sheet: United States, 2006-2008 American Community Survey 3-Year Estimates, at
http://factfinder.census.gov/ servlet/ACSSAFFFacts?_submenuId=factsheet_1&_sse=on (last visited Apr.
19, 2010).
253. Chew & Kelley, supra note 252, at 1122.
254. Id.
255. A.B.A. National Database on Judicial Diversity in State Courts, at http://www.abanet.org/judind/diversity/
states.html (last visited Apr. 23, 2010).

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256. A.B.A. Comm’n on Racial and Ethnic Diversity in the Profession, Goal IX Report 2005-2006, at 8 (compared
to 12.9% of the general population, African Americans account for 4.2% of lawyers and judges), available at
http://www.abanet.org/minorities/publications/g9/GoalIX_0506.pdf.
257. Powers v. Ohio, 499 U.S. 400, 410 (1991) (criminal defendant may object to race-based exclusion of jury
members, whether or not defendant and jurors share the same race, “An individual juror does not have a
right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one
on account of race.”).
258. Powers, 499 U.S. at 413 (reaffirming that defendant has standing to challenge discriminatory jury selection,
noting that “[b]oth the excluded juror and the criminal defendant have a common interest in eliminating
racial discrimination from the courtroom.”); see also Georgia v. McCollum, 505 U.S. 42, 59 (1992) (defense
attorneys prohibited from engaging in discriminatory jury selection).
259. Rose v. Mitchell, 443 U.S. 545, 558 (1979) (describing such prosecutions as “rare”); see also, e.g., Vasquez v.
Hillery, 474 U.S. 254, 262 (1986) (citing statistics showing no prosecutions under statute in preceding nine
years).
260. 18 U.S.C. § 243.
261. See Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 336.
262. See, e.g., Minnesota Judicial Branch Website, http://www.mncourts.gov/?page=1341#HowWasISelected
(last visited Apr. 26, 2010).
263. Jennifer Emily, Jury Pool System Gets an Upgrade, More Notices, Improved Tracking Designed to Boost Participation, Dallas Morning News, Sept. 14, 2009, at 1B.
264. Id.
265. 328 U.S. 217 (1946).
266. Id. at 223-24.
267. See, e.g., Colorado State Judiciary Website, http://www.courts.state.co.us/Jury/FAQs.cfm (last visited Apr.
26, 2010) ($50 per day); New York State Uniform Court System Website,
http://www.nyjuror.gov/users/wwwucs/juryQandA.shtml (last visited Apr. 26, 2010) (explaining that jurors
are paid $40 per day, and that for jurors whose wage for time missed from work is lower than this jury fee,
the State pays the difference between the wage and the jury fee); Clark County, Nevada Court Website,
http://www.clarkcountycourts.us/ejdc/juror-information/ (last visited Apr. 26, 2010) ($40 per day).
268. Jennifer Emily, supra note 263 (documenting Dallas County raising juror pay from $6 to $40 per day).
269. Federal Judiciary Website, http://www.uscourts.gov/jury/jurypay.html (last visited Apr. 26, 2010).
270. State of Connecticut Judicial Branch Website, http://www.jud.ct.gov/jury/faq.htm (last visited Apr. 26, 2010)
(explaining that State will pay all jurors $50 per day starting with sixth day of jury service, and will reimburse
jurors up to $50 per day for out of pocket expenses for the first five days of jury service); see also, e.g., Iowa
Judicial Branch Website, http://www.iowacourts.gov/Jury_Service/Frequently_Asked_Questions/ (last visited Apr. 26, 2010) (allowing reimbursement for travel expenses).

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CREDITS
his report was prepared by the staff of the Equal Justice Initiative in Montgomery, Alabama. We are very grateful to the Ford Foundation for its support of our work on jury discrimination and for support from the Public Welfare Foundation, the Tides Foundation,
and the Open Society Institute, which made this project possible. A special thanks is owed to
Angie Setzer, Aaryn Urell, Jackie Jones-Peace, Charlotte Morrison, Alicia D’Addario, Brandon
Buskey, Ben Maxymuk, Cathleen Price, Carla Crowder, Randy Susskind, Sia Sanneh, Evan Milligan, Anthony Collins, Luanne Muller, Samson Asiyanbi, Meagan Sway, Tricia Bushnell, Sophia
Bernhardt, Heather Barrow, Alex Goldenberg, Stephen Chu, Alesha Judkins, Sophie Walker,
Bonnie Ernst, Eddie Koen, Jill Petty, and Catherine Williams for their work and assistance in the
investigation, documentation, and preparation of this report. Please visit our website at
www.eji.org for additional information and materials on illegal racial discrimination in jury selection.

T

PHOTO CREDITS
Page 12, Electric Chair at Sing-Sing (New York), by William M. Vander Weyde in
1901, from the Library of Congress photo collection;
Pages 13, 15, and 38, photos by Bernard Troncale;
Pages 16, 17, 21 and 36, photos by Deondra Scott;
Pages 22 and 26, photos © Capitolshots Photography;
Page 27, Spencer’s Prayer, photo © Chester Higgins, Jr./www.chesterhiggins.
com; and,
Page 32, original artwork by Evan Milligan.

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