America Has a Jury Selection Problem—and It’s Killing Black People

Prosecutors routinely exclude black jurors from trials involving African Americans.
(Photo: Reuters)
Apr 2, 2015· 4 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

In 1998, Andre Cole was sent to jail in Missouri after stabbing and killing his ex-wife’s boyfriend and injuring her in the midst of a child custody dispute at her home. After the county’s prosecutor removed three black jurors from the jury pool, an all-white jury found him guilty of first-degree murder, and Cole, a black man, was sentenced to death in 2001. His execution date is set for April 14, but a group of nearly 60 advocates will call on the state’s governor Thursday in hopes that they can stop, or at least delay, his looming execution.

Cole’s case is representative of a broader problem in the courtrooms of St. Louis County, and across the country: Black people are routinely dismissed from juries that decide cases involving black defendants. Last month, the U.S. Department of Justice documented the racism that pervades the police department in Ferguson, Missouri—which is in St. Louis County—and its impact on the black community. In the case of Cole, the dramatic end result of a county and criminal justice system that habitually targets black people is plain to see.

“The exclusion of African Americans from juries remains—across the nation—one of the starkest examples of continued racism,” said Elisabeth Semel, director of the University of California at Berkeley Law School’s death penalty clinic. “It’s not a debatable issue; it’s pervasive. And cases like Cole’s are evidence of the fact that courts give short shrift to this issue. They give prosecutors a pass.”

In 2013, Washington state’s supreme court ruled that “racial discrimination remains rampant in jury selection” after attorneys defending Kirk Saintcalle accused prosecutors of interrogating and dismissing the only black juror on the case on discriminatory grounds. In the case of Thomas Miller-El, who was convicted of capital murder in Texas, the U.S. Supreme Court found in 2005 that prosecutors in the case had misused the pretrial dismissal process to exclude 10 of 11 eligible black jurors.

Cole has an extensive background of mental health problems that stem from a family history of mental illness, drug use, and emotional and physical abuse, according to expert testimony from his trial. One evaluation recounts Cole’s alcoholic father punishing him for his hyperactive behavior by whipping him in front of his peers at school in St. Louis. Experts introduced by Cole’s attorneys said trouble with his father fed into his adult life, when he ultimately turned to alcohol to escape financial trouble and strife in his relationship with his ex-wife, Terri. At the time of the murder, Cole was reportedly isolated, depressed, and failing to pay child support. Today, he has a diagnosis of depression, according to Joseph Luby, an attorney who has represented Cole for more than 10 years through Kansas City’s Death Penalty Litigation Clinic.

Delphine Cobb was an alternate juror in Cole’s case, the only person of color affiliated with the jury. During the trial’s recess, Cobb described extensive chatter about the case between white jurors in spite of the judge’s directions not to talk about the case, including numerous racially biased comments about Cole, according to an affidavit she gave during an appeal earlier this year.

To understand the dynamics at play here, it helps to know a few key things about St. Louis County. Nearly 25 percent of the county’s residents are black, so the all-white juries fail to reflect the demographics of the county. The method of exclusion used by prosecutors in St. Louis County is colloquially called the “postman gambit,” a reference to the dismissal of a black woman from an all-white jury in the case of Herbert Smulls, a black man executed in 2013. In Smulls’ case, the assistant prosecuting attorney successfully had the woman dismissed by the judge on the grounds that she was a postal worker, and the prosecutor didn’t trust mail workers. In Cole’s case, a black prospective juror was dismissed for being divorced; the prosecutor argued that fact might influence the prospective jurors’ decision making in the case, given Cole’s attack on his ex-wife. But a divorced white juror remained on the case.

Remarkably, trial courts across the country have rarely questioned this and similar methods used by prosecutors who seek to exclude black jurors. As long as the prosecutor convinces the judge that the reasoning was not race-based, it can stand. Challenges to these exclusions rarely succeed, according to Semel. Every claim brought to challenge the exclusion of black jurors in Cole’s case has been denied.

“It’s really difficult to watch the court apply the law so unreasonably, so improperly,” Semel said. “It’s dismissive to the point of being glib; it’s not a serious examination of such a serious civil rights violation.”

In the course of Cole’s posttrial defense, a former prosecutor in St. Louis County admitted on the record to Luby and others working on Cole’s case that the postman gambit was informally recommended to incoming prosecutors as a way of systematically excluding people of color from juries without mentioning their race. The conversation is referenced in sworn affidavits filed in one of Cole’s appeals.

In 2013, Missouri began scheduling one execution per month—a rate that pales in comparison to other death penalty states. “It’s been a tremendous strain on the relatively small community of lawyers who represent these folks,” said Luby. Of the 11 people on Missouri’s death row from St. Louis County, seven are black. Last week, the state set a date for the execution of Kimber Edwards, another black man sentenced by an all-white jury in St. Louis County.

The impact of racial bias on Missouri’s death row is echoed in the spotlight on Ferguson since the shooting of black teenager Michael Brown last year by a white police officer. The Department of Justice found that 93 percent of arrests in Ferguson were of black people, despite the fact that only 67 percent of the city’s population is black.

“What we’re seeing in this case is frankly a mirror image of the events of Ferguson as we’ve seen on television and as described by the Department of Justice’s report,” said Luby. “The underlying cause of so much of the strife there, and frankly abuses by city-level court systems bringing city-level prosecutions in a way that runs roughshod over the rights of citizens, also has a very nasty and documented slant of racial bias.”

On Thursday, clergy members, elected officials, representatives from the National Association for the Advancement of Colored People, and the American Civil Liberties Union sent a letter to Missouri Gov. Jay Nixon, asking him to open investigations into the exclusion of black jurors from cases like Cole’s and Edwards’. Their hope is that such an investigation will postpone Cole’s execution and require the state to take seriously the racial bias that pervades juries. Ideally, Luby said, that investigation—called a board of inquiry—might inspire similar action by the Department of Justice and incite a deeper investigation.

“White people are always thinking about getting out of [jury duty] as opposed to being excluded from it,” Semel said. “That’s a luxury. There’s a focus on the killing of African American young men by police officers, but there’s another kind of violence here, in stripping away the civil rights of people when they’re eliminated from juries based on race.”