0812994523.pdf

When a serious felony case went to trial in a county like Monroe County, which was 40
percent black, it was not uncommon for prosecutors to exclude all African Americans from
jury service. In fact, twenty years after the civil rights revolution, the jury remained an
institution largely unchanged by the legal requirements of racial integration and diversity. As
far back as the 1880 s, the Supreme Court ruled in Strauder v. West Virginia that excluding
black people from jury service was unconstitutional, but juries remained all-white for decades
afterward. In 1945 , the Supreme Court upheld a Texas statute that limited the number of
black jurors to exactly one per case. In Deep South states, jury rolls were pulled from voting
rolls, which excluded African Americans. After the Voting Rights Act passed, court clerks and
judges still kept the jury rolls mostly white through various tactics designed to undermine the
law. Local jury commissions used statutory requirements that jurors be “intelligent and
upright” to exclude African Americans and women.
In the 1970 s, the Supreme Court ruled that underrepresentation of racial minorities and
women in jury pools was unconstitutional, which in some communities at least led to black
people being summoned to the courthouse for possible selection as jurors (if not selected).
The Court had repeatedly made clear, though, that the Constitution does not require that
racial minorities and women actually serve on juries—it only forbids excluding jurors on the
basis of race or gender.
For many African Americans, the use of wholly discretionary peremptory strikes to select a
jury of twelve remained a serious barrier to serving on a jury. In the mid- 1960 s, the Court
held that using peremptory strikes in a racially discriminatory manner was unconstitutional,
but the justices created an evidentiary standard for proving racial bias that was so high that
no one had successfully challenged peremptory strikes in twenty years. The practice of
striking all or almost all African American potential jurors continued virtually unchanged
after the Court’s ruling.
So defendants like Walter McMillian, even in counties that were 40 or 50 percent black,
frequently found themselves staring at all-white juries, especially in death penalty cases.
Then, in 1986 , the Supreme Court ruled in Batson v. Kentucky that prosecutors could be
challenged more directly about using peremptory strikes in a racially discriminatory manner,
giving hope to black defendants—and forcing prosecutors to find more creative ways to
exclude black jurors.
Walter was learning some of this history as the months passed. Everyone on death row
wanted to advise him, and everyone had a story to tell. The novelty of a pretrial capital
defendant on death row seemed to motivate other prisoners to get in Walter’s ear every day.
Walter tried to listen politely, but he’d already decided to leave the lawyering to his lawyers.
That didn’t mean that he wasn’t very concerned about what he was hearing from folks on the
row, especially about race and the kind of jury he would get.
Nearly everyone on death row had been tried by an all-white or nearly all-white jury.
Death row prisoner Jesse Morrison told Walter that his prosecutor in Barbour County had
used twenty-one out of twenty-two peremptory strikes to exclude all the black people in the
jury pool. Vernon Madison from Mobile said that the prosecutor struck all ten black people
qualified for jury service in his case. Willie Tabb from Lamar County, Willie Williams from
Houston County, Claude Raines from Jefferson County, Gregory Acres from Montgomery
County, and Neil Owens from Russell County were among the many black men on death row