In a searing decision, a judge in Columbus has granted a new trial to a man convicted of rape and murder 43 years ago based on new DNA evidence, at the same time condemning “undeniable” race discrimination during jury selection by the prosecution.
The ruling by Senior Muscogee County Superior Court Judge John Allen overturns the convictions against Johnny Lee Gates, who was sent to death row for the 1976 rape and murder of Katrina Wright. Wright was a 19-year-old German immigrant who had moved to Columbus just 12 days earlier to be with her husband, a soldier at Fort Benning. . .
“The prosecutors clearly engaged in systematic exclusion of blacks during jury selection in this case,” Allen wrote in a Jan. 10 decision. “They identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.”
Points of note:
One, this man was on death row from 1976 until 2003.
Two, what if the DNA specimen hadn’t been preserved? How many convictions have occurred wherein there isn’t DNA?
Three, the systematic removal of blacks from juries remains a common practice. Here is another story of this practice:
When Eddie Hood came home from the first day of jury selection in a capital murder trial, he already knew he would not be there long. Hood told his wife, “They are not going to want too many of ‘us’ on the jury.” By “us” he meant African Americans. Hood was right. Before Hood was even questioned, the prosecutors had marked him as “B#1.” Like the other black jurors, his name was highlighted in green on a list with a key that said, “Green highlights = Black.” And Hood—along with the four other black jurors in the pool—was in the top five on the prosecution’s list of “Definite Nos.” In the end, the jury was all white. The prosecutors argued it should sentence the defendant, Timothy Foster, a black 19-year-old, to death to “send a message to other people out there in the projects.” And it did. Nearly three decades later, Foster’s conviction and death sentence were reversed by the U.S. Supreme Court in a 7–1 decision. Foster’s legal team (which includes these authors) had unearthed the prosecutors’ notes from the trial. The notes included race-based notations not only about juror Hood, but of all of the prospective black jurors. The investigator in the case had even written a memo suggesting which black juror to select “if it comes down to having to pick a black juror.”
The Court found that the State had violated Foster’s rights under Batson v. Kentucky, which prohibits the exercise of peremptory strikes on the basis of race. Foster’s case is a rare victory. Claims of discrimination in jury selection are notoriously hard to win. But just like
Hood, everyone seems to know that the discrimination is happening. No one doubted that the State would strike the black jurors at Foster’s trial. The only question was whether the State could get away with it. For nearly 30 years of appeals, it did. The Georgia courts repeatedly concluded that the State had not discrimination in Foster’s case, despite the smoking gun evidence in the prosecutors’ notes.
And appellate courts aren’t much help:
A recent study published in the North Carolina Law Review found that in the 30 years since Batson was decided, the North Carolina appellate courts have never found a substantive Batson violation where the prosecutor had given a reason for striking a minority juror in any of the 114 cases they considered on the merits. The North Carolina Supreme Court has reviewed 74 cases in that same time period. Never once has it found a substantive violation under Batson.
However, the DAs have it figured out how to beat the system:
At a meeting of the North Carolina Conference of District Attorneys, a handout was distributed at a trial advocacy course called Top Gun II that provided prosecutors a list of race-neutral reasons they could draw from to explain strikes of black jurors. The list, titled “Batson Justifications:
Articulating Juror Negatives,” included reasons such as “body language,” “lack of eye contact,” and “air of defiance.” One Cumberland County prosecutor was found to have used the list to justify striking black jurors in four different capital cases.
