Strike Out

By McGonigle, Steve | Investigative Reporters and Editors, Inc. The IRE Journal, January/February 2006 | Go to article overview

Strike Out

McGonigle, Steve, Investigative Reporters and Editors, Inc. The IRE Journal

Legal battle for state records proves jurors still excluded on basis of race

As a courthouse reporter in 1985,1 was fascinated by Dallas County District Attorney Henry Wade, a legendary prosecutor who once persuaded a Dallas jury to hand a pair of kidnappers 5,005-year prison sentences.

His team of lawyers also was the take-no-prisoner sort. They even wrote training papers on jury selection warning against taking fat people (no impulse control), anyone who had ever been to California (too liberal) and minorities (too empathetic).

During this time, I thought it seemed there were few blacks serving on juries, so I asked fellow reporter Ed Timms (now metro's city editor) to help me check it out. Our data analysis resulted in a series of stories concluding that prosecutors were systematically excluding, or "striking," almost all eligible blacks from jury service - an issue I would revisit 20 years later.

Shortly after our first stories ran, the U.S. Supreme Court decided in Batson v. Kentucky that racial exclusions remained prevalent enough around the country that it would impose a process by which racism could be exposed and eliminated before a jury was seated. The three-step process for challenging suspected race-based strikes became known as a Batson hearing.

Juror selection

Fast forward to February 2002. Attorneys for convicted Dallas County murderer Thomas Joe Miller-El persuaded the Supreme Court to review whether his 1986 trial was invalid because of jury discrimination. We decided to take another look, too, even though this time around we suspected it would be more difficult.

For one thing, the Texas Legislature had changed the law governing access to juror information records - the cards prospective jurors fill out giving such personal information as age, birth date, occupation, address, religion and race.

There was an exception for reporters who could show "good cause," but no one had tried it. So we asked - first of the presiding judge who controlled access to juror records, and then of the 14 other Dallas County felony court judges. They all said no.

The only remaining option was to file formal motions with each judge. Despite opposition by District Attorney Bill Hill, who felt juror privacy should trump the public's right to know, each judge ultimately agreed with us and released the records. The legal battle took almost a year.

By fall 2003, the News had hired Jennifer LaFleur as its computer-assisted reporting editor. With a wealth of experience in "precision journalism," she was a natural for the project. Tim Wyatt and Holly Becka, two reporters with extensive courthouse experience, rounded out our fourmember team.

We had more than 6,500 juror slips digitized, built an Access database and spent months reading court transcripts and case files to accumulate additional information for our analysis. One of the key things we were looking for was evidence that attorneys had formally complained about jury discrimination by requesting a Batson hearing.

We also needed to know how prospective jurors answered certain questions commonly asked, which lawyers on both sides insisted was the real key (instead of race) to determining juror selection.

With the help of two other colleagues, we entered into our database how each prospective juror in 59 appealed cases answered questions during voir dire. Appealed cases were the only ones for which juror transcripts were available. But to be sure we would not have problems with the smaller sample, we tested for any significant demographic differences between jurors in the 59 cases compared with the 108 total cases in our sample. There weren't any.

Next, we went looking for an expert on jury selection who could advise us on our methodology and found David Baldus. The University of Iowa law professor had done landmark statistical research on race and the death penalty in Georgia in the mid198Os and had published an exhaustive study of race discrimination injury selection in the Philadelphia district attorney's office in the late 1990s. …

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