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The state of Texas was all set to execute 51-year old Kimberly McCarthy today until a state district court stepped in to stay the execution.

McCarthy had exhausted all of her direct appeals, the Supreme Court had refused to review the case, and the state clemency board had denied her petition. More than a decade after her conviction for slaying an elderly neighbor, McCarthy was to be executed between 6PM and midnight tonight. The delay in this execution represents a small win for her death penalty counsel, who have managed to preserve her life until at least April. They have also earned an opportunity to argue against the sentence on the ground of racial discrimination stemming from faulty jury selection.

This is a discussion that needs to be had in Texas and other parts of the country, as jury selection remains one of the areas where racial animus is prominently projected. McCarthy's case is instructive on the issue, as she, a black woman, stood trial in front of a jury of her peers that included 11 white members.

How does this happen? Is it pure chance or are district attorneys specifically engineering juries to ensure these results? The answer to this question should be obvious to anyone who has been paying attention to the criminal justice system.

The Civil Rights Act of 1875 was the seminal Congressional attempt to prevent what seemed to be an obvious consequence of freeing the slaves. It guaranteed some protections in public accommodation for black Americans, including, among other things, the right to serve on juries. Like most laws passed during that period, though, creative practitioners have found means of accomplishing their goals that violate the spirit, though not the letter of the law.

The Equal Justice Initiative, a legal policy research arm headed by civil rights champion Bryan Stevenson, conducted research on the practice of jury selection in modern times. The purpose of his group's research was to determine whether the court's directives in Batson v. Kentucky had produced any positive impact. Batson was a Supreme Court decision that forced prosecutors to provide a non-racial reason for striking a juror when challenged by the defense attorney. As Stevenson and company found, Batson has done very little in many parts of the country, as the list of appropriate justifications for striking jurors is so large that it's rendered mostly useless as a barrier to racial discrimination.

“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 end this practice,” said Bryan Stevenson, EJI's Executive Director. “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."
Stevenson's research was exhaustive - it included more than 100 interviews with individual potential black jurors who went through the system, and it included empirical research of data and court records. The report's primary findings are startling, and they help to explain why people like Kimberly McCarthy can find themselves in front of juries that do not represent a fair racial breakdown of their respective communities. He found, among other things:
Racially biased use of peremptory strikes and illegal racial discrimination in jury selection remains widespread, particularly in serious criminal cases and capital cases. Hundreds of people of color called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal.
Prosecutors have struck African Americans from jury service because they appeared to have “low intelligence,” wore eyeglasses, walked in a certain way, dyed their hair, and countless other reasons that the courts have rubber-stamped as “race-neutral.”

In some communities, the exclusion of African Americans from juries is extreme. For example, in Houston County, Alabama, 8 out of 10 African Americans qualified for jury service have been struck by prosecutors from death penalty cases. In Jefferson Parish, Louisiana, there is no effective African American representation on the jury in 80 percent of criminal trials.
Many volumes can be written about the injustices in today's justice system. From the death penalty itself, to the treatment of children, to our broken system of reforming offenders, the American system fails to meet the high standards set by our first-world contemporaries. Many of our problems are linked, without reservation, to a disastrous racial climate that bleeds into today's prosecution and enforcement systems. Over the next few months, a few brave Texas attorneys will argue that a black woman's death sentence is invalid because the state unconstitutionally excluded black jurors. In doing so, they will open a dialogue that might be uncomfortable, but must be faced if the American justice system is going to evolve past 1875.

Originally posted to Coby DuBose on Criminal Injustice, Race, and Poverty on Tue Jan 29, 2013 at 01:37 PM PST.

Also republished by TexKos-Messing with Texas with Nothing but Love for Texans.

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