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Although a long line of U.S. Supreme Court decisions forbids packing juries based on race or gender, lawyers admit they do it frequently. Asians are conservative. African-Americans distrust cops. Latins are emotional. Jews are sentimental. Women are hard on women — or so goes some of the lore that litigators have all heard. Clatsop County, Ore., District Attorney Joshua Marquis, who is the co-chairman of the National District Attorneys Association’s death penalty committee, said that he would not have let his own father sit on a jury in a capital case. “It would be a little disingenuous for me to say that I would have allowed my father — a refugee from Nazi Germany — to sit in a capital case,” he said. The issue of packing juries along racial and gender lines garnered national attention recently when former Alameda County, Calif., prosecutor John Quatman claimed that it was standard practice to exclude Jews and black women from juries in capital cases because they would never vote for death. Yet every litigator interviewed for this article considers race and gender when picking a jury. At the conclusion of a recent evidentiary hearing ordered by the California Supreme Court to determine the truth of some of the allegations that Quatman made in a declaration in a capital habeas case ( In re Freeman, No. S122590), a judge found Quatman not credible. But the lower court was not asked to determine whether Quatman’s alleged standard practices exist. Nor did the judge address Alameda County Senior Deputy District Attorney Colton Carmine’s testimony that Quatman, at a California District Attorney Association capital prosecution seminar, instructed between 200 and 300 of his peers about the practice of excluding Jews. No mention of that seminar is contained in Quatman’s May 2003 declaration. In an interview, Quatman, now of Quatman & Quatman in Whitefish, Mont., described the seminar: “‘Once you get all the mechanics down … then you have to know who to pick,’” Quatman said he instructed participants. “‘No Jews’ — dead silence — everybody was looking around — ‘unless you want to lose.’ Then we got into other ethnic groups,” he continued. “For those who moaned, I said, ‘If you don’t want to try it — when you lose a few you’ll remember what I told you.’” Neither Alameda County District Attorney Thomas Orloff nor Carmine returned calls for comment, but Orloff has publicly denied that his office practices discrimination. Carmine testified that although he was disturbed by Quatman’s remarks, he did not report Quatman to his superiors because most of them were present at the seminar. Orloff, who was chief assistant DA at the time, was not present. He testified that he had not received any complaints. Whether Quatman’s seminar remarks and personal practices will upset capital convictions won by his office and other offices around the state is yet to be determined. But the issue of race in choosing jurors surfaced again last week at the U.S. Supreme Court, which heard arguments in a case that will likely determine the constitutionality of the California test for establishing a prima facie case of racial discrimination in jury selection. Johnson v. California, No. 04-06964. The discovery of a training tape made by an assistant Philadelphia district attorney that advised against seating black women in a capital case was found not to have established an office policy by the Pennsylvania Supreme Court. Commonwealth v. Lark, 560 Pa. 487 (2000). The Lark court, though, noted that it had previously overturned a capital case that was tried by the prosecutor seen on the tape because of the inference of his invidious discrimination. Commonwealth v. Basemore, 560 Pa. 258 (2000). SELECTIVE STEREOTYPING Marquis, the district attorney from Oregon, concedes that he uses race and gender as factors in jury selection. But that doesn’t mean he always excludes people of a particular race or gender. On the contrary, his preferences change with the circumstances of each case. For example, if a middle-aged convenience store proprietor was robbed by a young African-American man, “[w]ould I want a 19-year-old African-American with a doo-rag on his head sitting on my jury? Probably not,” said Marquis. “But would I want a 50-year-old African-American man who’s worked hard all his life? Absolutely,” he said. For a former criminal defense lawyer whose clients were white and black men charged with capital murder in Alabama, there were no circumstances to balance. He wanted black women on his juries. “Of course, we used stereotypes based on race and gender and there were good reasons to,” said Bernard Harcourt, now a criminal law professor at the University of Chicago Law School. “I think it’s probably statistically true that people who come from a group that has been historically subordinated are more likely to be cautious in imposing severe punishment,” he said. “And they’re also more likely to be more apprehensive about government authority, such as whether to believe that police officers are truthful merely because they are police officers, as many white people in Mobile, Alabama, would.” Ironically, Harcourt successfully appealed a capital murder conviction where race was found to be a factor in the prosecutor’s selection of jurors. In Kynard v. State, 631 So. 2d 257 (1993), the Alabama Court of Criminal Appeals found that the prosecution had unfairly kicked African-Americans off the jury. THE EVOLVING LAW The U.S. Supreme Court first held that a black defendant’s right to equal protection was denied when members of his race were purposely excluded from his jury. Swain v. Alabama, 380 U.S. 202 (1965). But a defendant had to prove that the practice was systemic. In 1986, the Court eased the burden of proof for defendants to establish a prima facie case in Batson v. Kentucky,, 476 U.S. 709 (1986). But if a trial judge were persuaded by a prosecutor’s proffer that there was a case-specific neutral rationale for a peremptory challenge, that trumped a defendant’s claim. In 1991, there was a monumental shift in the Court’s thinking about whom these rights attached to, said Vanderbilt University Law School Professor Nancy King, a specialist in criminal procedure and jury research. The high court observed that the Batson Court had bought “into the stereotype that race affects outcome,” said King. It decided that it was the equal protection of a juror’s right to serve that was being violated, not a defendant’s right to have a member of any particular race on a jury. Powers v. Ohio, 499 U.S. 400 (1991). That same year, the Court extended jurors’ rights to civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). “The state action needed to trigger the equal protection clause came from a judge’s obligation to make sure that juries were selected in a race-neutral manner,” said King. In 1992, jurors’ rights were extended to peremptory challenges made by criminal defense attorneys in Georgia v. McCollum, 505 U.S. 42; and then to gender in J.E.B. v. Alabama, 511 U.S. 127 (1994). EVERYBODY DOES IT Jim Dobson, vice president of jury consulting for DOAR Litigation Consulting, said that lawyers need to determine the juror attitudes and life experiences that indicate a juror’s potential sympathy for one side or the other. “And it’s clear that that’s in part shaped by being of a particular race or gender,” he said. “But that’s only part of one’s life experiences, which is why focus groups are so important, because otherwise you’re relying on stereotypes. “There is a hint of truth in all stereotypes that are worth exploring, but there are certainly no hard-and-fast connections between racial and gender stereotypes and individual juror decision-making. I believe that 100 percent,” Dobson said. “[For example,] it is no longer safe to conclude that African-Americans are anti-corporate in a case involving a corporate defendant,” he said. Attorney Gerry Spence of the Spence Firm in Jackson, Wyo., warns lawyers not to pick jurors based on generalities, but he also suggests lawyers would be wise to keep certain ones in mind. “In an ordinary case, most white jurors will say that black people are more prone to crime than not. They go into the trial assuming someone’s guilty, not innocent,” said Spence. “White people do not understand the black culture, so they suspect it. So you try to deal with it in the voir dire. If I have a black defendant I want as many black jurors as I can get,” he said. “This is not true for a Mexican defendant. Mexican people want to be part of the mainstream. Mexican jurors are not as sympathetic in civil actions [either].” He said further: “Take a typical slip and fall-Mexicans will be more sympathetic with the store owner. He thinks that the plaintiff should have been looking out for himself … should be self-sufficient, doesn’t think someone should get something for nothing, doesn’t believe in high awards for pain and suffering. It’s also true for other people who are first generation … .I’m talking in generalities — it’s why voir dire is so important.” THE THOUGHT POLICE There is a fine line between using racial or gender generalities to guide jury selection and violating the law. According to Vanderbilt’s King, it’s not against the law to have unconstitutional thoughts, as long as they are not acted upon. “If the reason for the challenge is their race or gender, it’s unconstitutional — it’s violating the juror’s rights,” she said. “But if they would have challenged the juror anyway, regardless of race, that’s not a problem. It’s for the judge to determine, to read the lawyer’s mind.” In 1995, the Supreme Court removed the “case specific” requirement to a race-neutral rebuttal in Purkett v. Farmington Corrections Center, 514 U.S. 765. There the prosecutor disqualified a black juror because he didn’t like his hair and beard. The 8th U.S. Circuit Court of Appeals found the reasons a sham, but the Supreme Court reversed. “What it means by a legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection,” the high court said. It found that the wearing of a beard and having unkempt hair were race-neutral reasons for striking a juror. The per curiam majority faulted the lower court for focusing on reasonableness as opposed to genuineness. Harcourt says that more convictions aren’t challenged under Batson because it is a difficult standard to meet. Absent clear and convincing evidence that a trial judge was objectively unreasonable in deciding that a juror challenge was race-neutral — that it lacked discriminatory intent — higher courts are bound by the trial judge’s finding. The Supreme Court has said that an attorney’s demeanor is a key factor for a trial court to consider in making these evaluations. King has another theory as to why there are so few Batson challenges: “Both sides are doing it,” and they don’t want to call attention to each other.

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