A Texas prosecutor told a court that his supervisor had urged him to keep black people off juries, the Houston Chronicle reports.
Prosecutors and defense attorneys each have "peremptory strikes" which they can use to remove potential jurors from the jury pool without offering a justification. Wharton County District Attorney Ross Kurtz regularly pressured his staff to strike black potential jurors, according to Nathan Wood, a prosecutor in his office.
"I was not 'instructed' to strike black jurors so much as I was advised or encouraged to do so as a matter of trial strategy," Wood said at a March 11 court hearing, according to a transcript. "Whatever the true intentions behind the statements made in our office, they made me feel uncomfortable, and I shared that discomfort with a friend."
While it's rare for a prosecutor to admit the practice publicly, experts say race-based jury selection is actually quite common. Prosecutors generally find white juries more likely to convict defendants—especially if the defendant is black and the victim is white.
A 2010 report from the Equal Justice Initiative, an advocacy group, found that prosecutors in eight southern states regularly kept minorities off their juries. People of color were especially likely to be removed from juries that heard serious criminal cases and death penalty cases, the report said. In one Alabama county, 8 out of 10 African-Americans who qualified to serve on a jury in death penalty cases were struck by prosecutors.
Kurtz denied to the Chronicle that he ever used race to choose juries in Wharton County, which is southwest of Houston. "My instructions and guidance has always been and will always be that prosecutors should not take race into account in exercising the choices allowed by law on which potential jurors to strike," he said in an email.
This kind of jury discrimination has been unconstitutional since the 1880's, and the Supreme Court expressly forbade racial discrimination against jury selection in a 1986 case called Batson v. Kentucky. But even when defendants challenge the dismissal of black potential jurors, judges usually accept whatever arguments the prosecution makes—that a black juror was dismissed only because they appeared nervous, or because they had a child the same age as a defendant, for example.
The Supreme Court is currently considering a case that deals directly with the issue. In November, it heard arguments in Foster v. Chatham, a suit brought by Georgia death row inmate Timothy Foster, who is black. During Foster's 1987 trial, prosecutors struck all four black prospective jurors, leaving him with an all-white jury, who convicted him of murdering a white woman. What made this case especially egregious is that prosecutors wrote a "B" next to the name of each black juror in their notes—which defense attorneys obtained with a records request.
While the case may have some procedural issues, there's a chance the justices could decide to strengthen protections against race-based jury selection. If they do, it would go a long way to fighting back against racist juries in places like Wharton County.
Casey Tolan is a National News Reporter for Fusion based in New York City.