How to Eliminate Black Jurors 101 (Part 1) Via NY Transfer News Collective * All the News that Doesn't Fit source: dzooky@aol.com NEW REVELATIONS FROM PHILADELPHIA, THE CAPITAL OF CAPITAL PUNISHMENT From the city already notorious for Lynn Abraham (dubbed America's "Deadliest DA" by the New York Times), Judge Albert Sabo (32 death sentences alone), Mumia Abu Jamal (internationally known journalist and author, currently on death row), and the Jack McMahon training tapes (instructing new prosecutors on how to effectively use race as a criteria for jury selection) come new revelations: Jack McMahon practiced what he preached. According to supplemental motions filed Thursday, October 30, 1997 in Commonwealth v. Harold Wilson, attorneys for Mr. Wilson have tracked the peremptory strike rates for sixteen cases prosecuted by former Philadelphia prosecutor Jack McMahon. It also tracked eighty-eight capital cases prosecuted under the administration of former Philadelphia District Attorney Ronald D. Castille. The findings reveal not only that McMahon systematically throughout his career sought to disenfranchise prospective black jurors, the practice pervaded the Philadelphia District Attorney's Office through the years 1986 to 1991. Some highlights from the pleadings follow: * Under the Castille administration, prosecutors were 2.6 times as likely to strike a prospective juror if they were black (58% v. 22%). * McMahon was over four times as likely to strike prospective jurors if they were black (72% v. 16%). * McMahon struck African-American women more than six times as often as non-African-American males (75% v. 12%). McMahon's own words from the training tape betray his discriminatory intent. * "[P]eople from Mayfair [commonly known as a white neighborhood] are good and people from 33rd and Diamond [commonly known as a black neighborhood] stink. . .. . . [Y]ou don't want any jurors from 33rd and Diamond ." * "[W]hen they call the names out, okay, Juror No. 1, No. 20, Reynard Boykin ["Reynard" being a first name most popular with African-Americans], I know I'm not taking Reynard; I can tell you that already." McMahon went so far as to threaten young lawyers with their jobs if they dared to pick an even handed jury. * "And if you go in there and any one of you think you're going to be some noble civil libertarian and try to get jurors, "Well, he says he can be fair; I'll go with him," that's ridiculous. You'll lose and you'll be out of the office; you'll be doing corporate law. Because that's what will happen. You're there to win . . . . And the only way you're going to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room." The full text of the pleading is attached. David Zuckerman Defender Association of Philadelphia 70 N. 17th Street Philadelphia, PA USA (215)568-3190 DZOOKY@aol.com IN THE COURT OF COMMON PLEAS PHILADELPHIA, PENNSYLVANIA : COMMONWEALTH OF PENNSYLVANIA, : : Respondent, : CRIMINAL DIVISION : v. : Nos. 3267, 3270 & 3271 : HAROLD CHRISTOPHER WILSON, : July Term, 1988 : Petitioner. : : SUPPLEMENT TO PETITION FOR POST-CONVICTION RELIEF UNDER ARTICLE I, SECTION 14 AND POST CONVICTION RELIEF ACT Petitioner submits the following supplement to his petition for post-conviction relief under Article I, Section 14 of the Constitution of the Com monwealth of Pennsylvania and 42 Pa. C.S. 15 9542 et seq., the Post Conv iction Relief Act, which is currently under consideration by this Court. The claims presented in his prior pleadings are hereby incorporated by r eference. I. THE COMMONWEALTH'S DISCRIMINATORY EXERCISE OF PEREMPTORY CHALLENGES TO EXCLUDE AFRICAN AMERICANS FROM THE JURY IN THIS CASE ON THE BASIS OF RAC E VIOLATED PETITIONER'S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 9, AND 26 OF THE PENNSYLVANIA CONSTITUTION. 1. Petitioner is an African-American man. The Commonwealth, through the acts of prosecutor Jack McMahon, exercised its peremptory strikes in a r acially discriminatory manner to exclude African Americans from participa tion on the jury. The Commonwealth had no race-neutral reason for striki ng these African-American prospective jurors or, alternatively, in light of the recently released voir dire training videotape featuring Mr. McMah on, any supposedly race neutral reasons proffered for Mr. McMahon's exclu sion of black jurors in this case are pretextual. Accordingly, Petitione r is entitled to a new trial under Batson v. Kentucky, 476 U.S. 79 (1986) 2E 2. Petitioner has compiled the jury strike rates in sixteen of Prosecutor McMahon's trials. These cases were identified from the database of fir st-degree murder cases maintained by the Administrative Office of the Pen nsylvania Courts, as well as a computer database search of newspaper arti cles. Race and sex of juror was determined by cross-referencing the name of the juror, and other identifying information in the Notes of Testimon y, against voter registration data. The evidence demonstrates that Mr. M cMahon systematically excluded prospective African American venirepersons from jury service, striking them with more than four times the frequency as prospective jurors who were not black. Accordingly, Petitioner also is entitled to a new trial under Swain v. Alabama, 380 U.S. 202 (1965). 3. Petitioner has determined that Prosecutor McMahon peremptorily struck African-American venirepersons 72.39% (97/134) of the time he had an opp ortunity to do so (and 72.87% of the time -- 94/129 -- in homicide cases) 2E By contrast, Prosecutor McMahon exercised peremptory strikes against venirepersons who were not African American in only 16.36% (27/165) of h is opportunities to do so (17.22% of the time -- 26/154 -- in homicide ca ses). Consequently, an African-American venireperson called for jury dut y in a homicide prosecution by Mr. McMahon was nearly four-and one-quarte r times more likely (4.23) to be peremptorily struck than a venireperson who was not black. 4. This disparity is even more pronounced in the case of African-America n women. Prosecutor McMahon peremptorily struck African-American women o n 75.29% (64/85) of his opportunities to do so. He struck African-Americ an males 67.35% (33/49) of the time. In contrast, he struck women who we re not African American only 20.23% (17/84) of the time and non-African-A merican males only 12.35% (10/81). African-American women were struck mo re than six times as often (6.10) as non-African-American males. 5. In Petitioner's case, Prosecutor McMahon intentionally exercised pere mptory challenges to exclude venirepersons on the basis of race. The Pen nsylvania Supreme Court in its opinion on direct review indicates that th e prosecution used its peremptory challenges to strike nine African-Ameri can venirepersons and one Hispanic venireperson. While counsel has not been able to identify the race of all of the jurors in the general venire, Petitioner has been able to identify at least twelve (12) venirepersons as African-Americans and at least twenty (20) as whites. The prosecution peremptorily struck seven (7) of these twelve black venirepersons (or 58 2E33%) and only four (4) of these white venirepersons (or 20.00%). Thus , with respect to the jurors whose race Petitioner has been able to ident ify, Prosecutor McMahon was nearly three times more likely (2.92) to pere mptorily strike a prospective black juror than a white juror. 6. The inference that Prosecutor McMahon's peremptory strikes in this case were racially and gender-based is independently supported not only by statistical evidence of his strikes in other cases but by Mr. McMahon's o wn remarks. In a 1987 training videotape prepared by the District Attorn ey's office and released for the first time in April of 1997, Mr. McMahon explicitly advocates peremptorily striking African-American venireperson s. See DATV Productions, Jury Selection with Jack McMahon ("McMahon Tape ") (transcription attached as Appendix A). The data now demonstrate that Prosecutor McMahon practiced what he preached -- that he consistently st ruck African-American jurors on the basis of race. 7. In the training videotape, McMahon expressly advocates striking Afric an Americans and women from jury venires. His remarks make clear that ra ce features prominently in his decisions as to whom to permit on the jury : [P]eople from Mayfair are good and people from 33rd and Diamond stink. 2E . . [Y]ou don't want any jurors from 33rd and Diamond." McMahon Tape at 21. [W]hen they call the names out, okay, Juror No. 1, No. 20, Reynard Boyk in. I know I'm not taking Reynard; I can tell you that already. McMahon Tape at 25. [L]et's face it, again, there's the blacks from the low-income areas . 2E . , you don't want those people on your jury. McMahon Tape at 47-48. [Y]ou know, in selecting blacks, you don't want the real educated ones 2E . . . McMahon Tape at 55. [I]n my experience, black women, young black women, are very bad. McMahon Tape at 57. You're not going to have some brain surgeon from Chestnut Hill with som e nitwit from 33rd and Diamond. McMahon Tape at 58. 8. Indeed, Mr. McMahon's presumption against empaneling black jurors was plain even from the manner in which he indicated that some African Ameri cans would be acceptable to him. In indicating that he would select olde r black jurors, and blacks from the South, Prosecutor McMahon prefaced th at statement by saying "if you're sitting down and you're going to take b lacks . . . ." McMahon Tape at 55. 9. Moreover race also plays a role in Mr. McMahon's decisions on whether to empanel certain white jurors, whom he might otherwise strike on race- neutral grounds: Teachers you don't like. Teachers are bad, especially young teachers, like teachers that teach in like the grade school levels. . . . [But i]f you get like a white teacher teaching in a black school that's sick of these guys maybe, that may be one that you accept. McMahon Tape at 63. 10. Finally, the fact that Prosecutor McMahon keeps a running tally of the racial composition of the venire illustrates the centrality of race in his exercise of peremptory challenges. In the training tape, Mr. McMaho n clearly explained that a district attorney must always keep track of th e race of potential venirepersons. Another thing to do, little tips, too, when a jury comes in the room, t he 40 people come in the room, count them. Count the blacks and whites. You want to know at every point in that case where you are. In other wo rds, the 40 come in -- you'll never get it just right. You don't want to look there or go, "Is there a black back there? Wait a minute. Are you a black guy?" McMahon Tape at 66-67. This was so important that he advised young distr ict attorneys to invent reasons to leave the courtroom to ascertain the r acial composition of upcoming venirepersons: And if you lose track or you're not sure of what's going on or you want to -- you can always take a recess. Because a lot of times what they do is they'll like have the next group -- the court officers want to set them up. Like remember in that metho d I told you earlier where they have -- now we've picked five, so they're going to bring seven more in. Usually they'll have the next seven sitti ng right out there in order. So you can see -- you can say, "Judge, I ha ve to go to the bathroom." You can go out and see what's left and check out what's left, see what's you know -- because you know you got two stri kes left. You want to know, look, you know, if the first two are going t o be bad, I'm going to have to use strikes and the next ones will be good 2E But if they're two, you know, good ones coming up, then you know you 're not going to strike them. And it changes your philosophy and your ab ility to make a decisions knowing what's coming up. McMahon Tape at 67. 11. Prosecutor Mr. McMahon's consciousness of the race-based nature of his prosecutorial strikes, and the legal impropriety of such strikes, is e videnced by his advice to the young prosecutors in how to create a pretex tual race-neutral explanation for the strikes to satisfy Batson v. Kentucky: [I]n the future, we're going to have to be aware of [Batson], and the b est way to avoid any problems with it is to protect yourself. And my adv ice would be in that situation is when you do have a black jury [sic], yo u question them at length. And on this little sheet that you have, mark something down that you can articulate later if something happens . . . . So if -- let's say you strike three blacks to start with, the first three people. And then it's like the defense attorney makes an objection s aying that you're striking blacks. Well, you're not going to be able to go back and say, oh -- and make up something about why you did it. Write it down right then and there. . . . And question them [the black jurors ], say, "Well, he had a -- had a" -- Well the woman had a kid about the s ame age as the defendant and I thought she'd be sympathetic to him" or "S he's unemployed and I just don't like unemployed people . . . . . . . So sometimes under that line you may want to ask more questions of those people so it gives you more ammunition to make an articulable re ason as to why you are striking them, not for race. McMahon Tape at 69-71. 12. McMahon also urged the prosecutors to adhere firmly to a set of practical rules in selecting jurors. As he explained: But the key is, just as in playing blackjack, is to stay by the rules . . . . And that's all I can tell you when you [sic] talk to you about this, is to play by certain rules and don't bend them and don't change them. McMahon Tape at 3-4; id. at 60-62 ("I'm of the opinion you don't design a jury for a particular case. . . . I think your goal is the same regardless of what kind of case you have. . . . You pick the same jury. I don't care if it's a black, white, Puerto Rican, Chinese or what. You pick the same jury. "). 13. In the sixteen cases analyzed by Petitioner, McMahon consistently and disproportionately employed the same set of rules and struck African-Am erican jurors at a rate far higher than he struck other jurors: [section omitted] 14. These exclusions amount to a pattern and practice of peremptorily denying African Americans the right to participate as jurors, in violation of the Sixth Amendment and the Equal Protection Clause of the United Stat es Constitution. See Swain v. Alabama, 380 U.S. 202, 203-04 (1965) (the "purposeful denial to Negroes on account of race of participation as juro rs in the administration of justice" violates the equal protection clause ); Batson v. Kentucky, 476 U.S. 79 (1986). 15. The harm caused by the prosecutor's racially biased use of peremptory strikes "is not limited to the denial of a fair trial to the defendant. The excluded juror also is harmed and the integrity of the judicial pro cess is tainted." Jones v. Ryan, 987 F.2d 960, 967 (3d Cir. 1993) (citin g Batson, 476 U.S. at 87). The very fact that [members of a particular race] are singled out and e xpressly denied . . . all right to participate in the administration of t he law, as jurors, because of their color, though they are citizens, and continued... ================================================================= NY Transfer News Collective * A Service of Blythe Systems Since 1985 - Information for the Rest of Us 339 Lafayette St., New York, NY 10012 http://www.blythe.org e-mail: nyt@blythe.org ================================================================= nytrc-11.07.97-04:06:46-18652