DMN: "Striking Differences"

"ABOUT THIS SERIES
Racial discrimination in jury selection was a scourge on the Dallas County district attorney's office for decades and was cited recently by the U.S. Supreme Court as it overturned a 1986 death penalty case. The Dallas Morning News spent two years gathering and analyzing jury data from felony court trials to see what had changed.

Key Findings:
- Dallas County prosecutors excluded black jurors at more than twice the rate they rejected whites.
- Defense attorneys excluded whites at more than three times the rate they rejected blacks.
- Even when blacks and whites gave similar answers to key questions asked by prosecutors, blacks were excluded at higher rates.
- Blacks ultimately served on juries in numbers that mirror their population primarily because of the dueling prosecution and defense strategies."

[So, this "scourge" of racially-biased strikes by the DA's office ends up being practiced to an even greater extent by defense attorneys, and despite all the supposed "racism" in the system, the end result is proportionate representation ... whadya want to bet that isn't the conclusion made by the editorializing that is sure to come?]

What's even more fun is checking out the loons that they've got quoted throughout the article. Fair and balanced analysis from jury selection experts, indeed.

[This message was edited by Philip D Ray on 08-22-05 at .]

There was an in-depth series of articles and sidebars in the Dallas paper Sunday with several folks quoted from all sides of the issue, and today the primary article focused on the disproportionate use of peremptories by defense attorneys on caucasians.
Everybody with a dog in the fight can find something to criticize about the other side - that usually is an indicator of something approaching equal treatment.
I'd say the most alarming thing about the articles is the apparent agenda of reducing or eliminating peremptories and doing away with shuffles in Texas. To help you understand why those things are bad, you can even go online and perform your own interactive jury shuffle. LAWYER FUN FOR THE WHOLE FAMILY! I SMELL THEME PARK!

[Imagine that! It took less than 24 hours for the media to latch on to the only element of the "study" they care about ... ]

Report: Dallas Prosecutors Excluded Blacks

By THE ASSOCIATED PRESS (as appearing in the NY Times)
Published: August 21, 2005

DALLAS (AP) -- As recently as 2002, Dallas County prosecutors were excluding eligible blacks from juries at more than twice the rate they turned down whites, a newspaper reported Sunday.

The issue surfaced earlier this year when the U.S. Supreme Court overturned the 1986 murder conviction of a black man accused of killing a white motel clerk, saying the Dallas County jury that convicted Thomas Miller-El was unfairly stacked with whites.

The Supreme Court cited a manual, written in 1969 and used until at least 1980, that instructed prosecutors on how to exclude minorities from Texas juries. Justice David Souter wrote that racial discrimination in the Miller-El case was unquestionable.

Bill Hill, who took over as district attorney in 1999, said his prosecutors don't exclude jurors on the basis of race.

''The statistics may show we strike more blacks, but it's not because they're black,'' Hill said. ''It's because for one reason or another, they (prosecutors) don't think they are going to be fair and impartial.''

Blacks still served on Dallas juries in proportion to their population, the newspaper's study found, because defense attorneys excluded white jurors at three times the rate they rejected blacks.

The Dallas Morning News examined jury selection in cases from 2002, reviewing more than 6,500 juror information cards, studying transcripts of juror questioning, and analyzing lawyers' strike patterns.

It published the first part of a three-part series on jury selection Sunday.

The analysis found that prosecutors treated the responses of blacks and whites to key questions differently. A review of transcripts of juror questioning, available in 59 of the 108 cases studied, showed that:

--Juror views on rehabilitation were the most important factor in determining whom prosecutors rejected, but they excluded 79 percent of blacks who favored rehabilitation over punishment or deterrence, compared with 55 percent of whites who did.

--Prosecutors excluded 78 percent of blacks who said they or someone close to them had had contact with the criminal justice system, compared with 39 percent of whites.

--Prosecutors rejected all blacks who said they or someone close to them had had a bad experience with police or the courts, compared with 39 percent of whites who gave the same response. About 2 percent of all respondents gave that response.

The dueling tactics of defense attorneys and prosecutors during jury selection produce only an illusion of equal rights that flouts the intent of several U.S. Supreme Court rulings, said University of Iowa law professor David Baldus, a leading researcher on jury selection.

Racial discrimination in selecting jurors has long been federally prohibited. A 1986 Supreme Court ruling cited in the Miller-El case barred prosecutors from disqualifying potential jurors based on race.

''We're talking about the court of law, and there is blatant disregard and violation of the law going on,'' Baldus said.

That's just the NEW YORK media. Everybody else is gonna be fair, right? Right?

So I couldn't help but notice this quote very early in the article:

"The News' study showed that blacks served on Dallas juries in proportion to their population"

Correct me if I'm wrong, since I did go to that little ag school in College Station , but isn't that the very essence of a jury of one's peers?

I have yet to see an article that sets out what the complaint really is here.

Is it just that people are being denied the right to be on a jury because of their race? Then why do we have not a single quote from such a wronged juror grieving over his lost chance to be away from his/her home or job for a few weeks of jury service?

Is it due to the idea that only people of the same race can be fair to one another? If you assume that a defendant has a better chance of a more favorable outcome if other people of his same race are on the jury, then you are also saying that the other side in the case is completely justified in striking as many of those jurors as he can find. Isn't that the whole point of voir dire? On the other hand, if you are suggesting that people of a different race than the defendant cannot be fair, isn't that a racist position to take?

I've read the case on these issues, and I understand what the courts are saying the problem to be, but I have a hard time buying it. If the twelve people that actually end up on the jury are individually qualified and fair, and both sides have an equal number of strikes, then why should we care how the strikes are used?

Prosecutors who challenge otherwise good jurors based solely on racist assumptions are only hurting their own case by excluding those jurors. Why would the defense even care, unless they feel that like-race jurors will be more sympathetic to the defendant, in which case they have justified the prosecutor's challenge.

I have to admit that I did think that asking a juror to show his teeth was a little over the line. I understand how such a thing could come up (the prosecutor was confused about which juror he wanted to strike), but surely there was SOMETHING other than dental hygeine the prosecutor could have referred to to defeat the Batson challenge.

Wes, usually, any error in the selection of a jury is harmless, for the very reasons you suggest. Indeed, there haven't been many reversals involving jury selection (at least in cases involving an alleged wrongful exclusion of a juror) simply because a defendant must now also show he did not receive a fair trial from the jury that heard the case.

However, when it comes to a violation of equal protection, the Supreme Court simply made a policy decision that harm was not going to be tested. I suppose they concluded that the damage to society by ongoing racism was worse than the negative effects of reversing an otherwise fair trial.

I think that is a worthy policy choice. But, ferreting out actual, real racial bias is not so easy. Using the procedures set up by the SC, all a defendant has to do is cry "Wolf" and all sorts of technical requirements are triggered that may or may not have anything to do with reality.

Frankly, I think this could all be corrected by requiring something more substantive by a defendant than is currently required to trigger a Baston hearing. This numerical stuff, as seen by the statistics in the newspaper articles, is ultimately meaningless.

Should prosecutors be making more Batson objections on the grounds that defendants strike too many white jurors?

When the Supremes issue an opinion like Miller-El which leans so heavily upon the percentage of stikes used against a particular race (by the way do you have your racial ID card yet?) it is no wonder that Judges view the prima facie showing required of the Batson movant as meaning no more than a scintilla.

When Batson moved beyond pattern and practice proof and its original intent of vindicating the rights of the potential jurors to serve, the state of affairs we see today was sadly predictable. A citizen has a right to serve on a jury. To assert that a defendant has an interest in the racial makeup of his jury plays into the Balkanizing identity politics which divide this society.

The original Batson seemed to suggest that a defendant had the right to a jury that was uninfluenced by racially motivated strikes on the part of the state. We then move to this concept of the potential jurors' right not to be excluded from the jury on the basis of their race. OK.

My general belief is that a law-abiding minority member of the community is just as good a juror as any other law-abiding person. In fact, such a juror might be even more offended by the conduct of a defendant who may be viewed as buttressing offensive stereotypes. Take Bill Cosby, for instance.

But a lawyer usually has only a few minutes to try and get to know a person before determining whether or not to use a strike. Lawyers are required to generalize about people in order to do this. We strike people all the time based on their jobs, their addresses, their educational background, without knowing whether or not they actually fall into the assumptions that we make about them. For example, it might be safe to say that most college professors are more liberal than the general population, but they can't all be.

And while race is not a choice that a person makes in the same way as jobs and educational pursuits, the common experiences of persons of a particular race, the cultural backgrounds of people of certain ethnicities, certainly cannot be ignored in a society that continues to push for multiculturalism. How can we celebrate our diversity on the one hand and then ask that the very things which make us diverse be ignored on the other?

quote:

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For example, it might be safe to say that most college professors are more liberal than the general population, but they can't all be

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Actually, yes, they are all liberal. At least they were in Austin.

You know, Lino Graglia is a college professor at UT.

I took a class from Graglia and enjoyed it. And I can't say that of many law school classes.

ANyone who ever has a chance to hear Lino Graglia speak should take the opportunity. Despite the heat he has taken in the past for his views, I've yet to hear a persuasive rebuttal to his controversial positions.

This will make a nice ending to this thread -- the Dallas Observer sides w/ the local prosecutor vs. the local daily ...


Race, Race, Race
Man. Now everybody's calling everybody a racist.
By Jim Schutze

Published: Thursday, September 1, 2005, Dallas Observer

The Link

Dallas County District Attorney Bill Hill thinks The Dallas Morning News did two years of digging, only to find that he and his assistants are not using racist jury selection techniques.

Wait a minute. Before it slips beneath the waves forever, I would like to take a quick second look at the recent Dallas Morning News series, "Striking Differences," in which the newspaper accused the Dallas County prosecutor of racism.

Race is a tough issue in town. Everything in Dallas is about racism. Again. I don't know how it could be otherwise. The entire conservative wing of black leadership in the city is under FBI scrutiny in a massive corruption probe. No white elected official has been named yet. How can you have a deal like that going on and people not talk about race?

That's why I thought the Morning News series on jury selection in Dallas County criminal district courts was potentially volatile. In a racially charged atmosphere, the city's only daily newspaper publishes a huge two-years-long study accusing Dallas County District Attorney Bill Hill of running a racist department.

And nothing. No volatility. As far as I can tell, the whole series--26 copyrighted stories, by my count--sank beneath the surface without making a ripple. It was like watching the Titanic disappear into a goldfish pond.

No other media picked it up. There was no brouhaha. I've been calling lawyers and law professors about it all week: The most common reaction was that they'd have to go back and read it before they could comment.

How can that be, in a town where almost everybody black is shouting racism and almost everybody white is shouting not-racism? Here's a case of alleged racism in a very important public office. Everybody shrugs.

I think I know why. This is really a story about journalism more than racism. This story didn't get any traction because the Morning News failed to make its case. And that happened because of the way they went after it.

By the way, I don't normally earn my rent money defending prosecutors. I figure most prosecutors can damn well defend themselves. But under these circumstances in the city, this issue seems important to me for what it says about accusations of racism and how careful we all have to be about making them.

The main ammunition the newspaper offered against Hill was an arcane statistical study that they said found racism in the techniques used by assistant district attorneys to strike black people from juries. The Morning News has been drifting toward this sort of thing in the last couple years, using social science techniques rather than old-fashioned reporting and, in some instances ("Dallas at the Tipping Point"), even hiring commercial consultants to do their reporting for them.

In this case, the newspaper offered the results of a "logistic regression analysis model" to prove Hill and his staff are racists. The paper said the model showed that all of the explanations offered by prosecutors for their peremptory strikes keeping members of the jury pool off juries were smokescreens. The real aim, the paper said, is to get blacks off juries.

The model works like this: You take all the documented factors that could explain a strike--age, race, income, prior experience with law enforcement and so on--and pour them in. The model whirs and chunks along for a while like an electric martini mixer. You open the lid, and what do you find?

Racism.

In fact, logistic regression is probably only arcane to me. It's used commonly in all kinds of social research and has been around for a long time. It can be tweaked and tuned to do a pretty good job of analyzing social outcomes.

Or a pretty bad job. Depending. Kind of like a hunting rifle with a high-powered scope. You still have to know cows from deer.

Or, as the social scientists say, "Garbage in, garbage out." The accuracy of the model's predictions depends entirely on the design of the model, the variables fed into it and the values assigned to those variables. You could have a model that gets it wrong most of the time.

In 1986--the year the Supreme Court decided Batson v. Kentucky, ruling against purely racial striking of jurors--the Morning News published an important series of stories exposing flagrant racism in jury selection by Dallas County prosecutors. The point was that hardly any black members of a jury pool ever got picked for a jury.

The strangest thing about this recent series of Morning News stories is that when you read down, the facts presented by the News' reporters seem to contradict the sensational headlines. The first story starts out, "Key Findings--Dallas County prosecutors excluded black jurors at more than twice the rate they rejected whites."

But when you read on, you find that the racial makeup of juries today in Dallas County almost exactly matches the makeup of the jury pools. The percentage of the original pool that is black is the same as the black percentage of the picked juries.

So how does the Morning News figure blacks are being unfairly knocked off juries during the picking process?

Bill Hill told me: "I think what happened is that it took them two years to gather all this information and develop these models and crunch all these numbers. I think they were probably disappointed when they came to the conclusion that the number of minorities on the panel ended up that same percentage on the jury.

"That's what I told them. I said, listen, to me, that's the story. We get 20 percent African-Americans on our jury panel, and lo and behold, we have 20 percent African-Americans on that particular jury. I think once they reached that conclusion, then they had to start manipulating the thing a little bit to make a story out of it."

This is where we get into the statistical model and the really convoluted arguments. The News says in its stories that the juries come out the same ratios as the jury pools more or less by accident. The paper reports that prosecutors reject blacks at twice the rate they reject whites, but the ratios come out the same because defense attorneys reject whites at three times the rate they reject blacks.

See if you get this: One form of discrimination balances the other one out. But what's against the law is discriminating against black people, and the prosecutors are still wicked because they're still doing it, no matter where the ratios wind up.

So hold on here. I know this is turning into a head-buster already, which is part of the problem. But I'm afraid I have to toss in another wrinkle. Frederick C. Moss, an associate professor in the Dedman School of Law at SMU, explained to me that the Batson doctrine has evolved to apply to defense lawyers as well as prosecutors and to all jurors of all races.

"When the first Batson came out, everybody thought it was just going to apply in effect to prosecutors," Moss said. "But when subsequent cases came down, they made it clear that they weren't just protecting the 6th Amendment rights of criminal defendants. What they really were protecting was the right of jurors to sit as jurors and not be thrown off of juries because of their race or ethnicity.

"Transforming it to the rights of the individual juror expanded the Batson protections to all jurors in every case. So now it outlaws discriminatory strikes by defense attorneys in criminal cases as well as attorneys in civil cases."

So...bear with me here...according to the News' own findings, defense lawyers are striking whites at three times the rate they strike blacks. So the News could have stuck a headline on this sucker saying: "WHITE PEOPLE UNFAIRLY KNOCKED OFF JURIES BY RACIST DEFENSE LAWYERS."

Time for the martini mixer. The News argues in its stories that its logistic regression analysis measured all of the factors involved in jury strikes and found that a person's racial status as an African-American was the most important one.

Racism.

But before the stories were published, Hill hired his own experts and asked them to look at the News' findings. Eric Fritsch, an assistant professor of criminal justice at the University of North Texas, told me that in order to know anything about the News' findings, he needed to examine the inner workings of the statistical model.

The News refused. The newspaper told Fritsch that the model itself and all supporting data were confidential information on a par with the contents of a reporter's notebook. And they never turn over notebooks.

Fritsch says that's not even remotely kosher. He told me he is the editor of a journal. People submit articles to him all the time with findings based on this kind of model. He always asks for back-up information in order to know if their model is any good.

If the model's no good, the rest of the series of articles is garbage. The News presented a number of comparisons that seemed to show racism, especially where blacks were struck from juries more often than whites who answered the same question the same way. But you don't know if it's racism until you know what other factors were in play. Maybe they answered the question about punishment the same way, but more of the blacks who answered that question also had previous bad experiences with law enforcement.

The only thing that weaves all of that together properly is the model. And you can't tell if the model is any good if you can't see the typical measurements statisticians use to judge effectiveness. That's what Fritsch asked to see.

In particular, he asked for the "hit ratios"--a measurement of how often the model accurately predicts outcomes. The News wouldn't even tell him that.

"In my field, I say, 'I need to know what the hit ratio is,' and anybody could blurt that off the top of their head," Fritsch said.

"It's not something that should be hidden. If the model is hanging around 50 percent, it's not any better than flipping a coin."

I asked him what would happen if somebody submitted an article to his journal but declined to provide details about the model used.

"They'd get a rejection letter," he said. "Quickly. It would get the red rejection stamp."

I talked about all of this with people at the Morning News, on and off the record. At first they defended their refusal to provide Hill with details on the model, because they said they and Hill had an adversarial relationship on the story. They didn't see why they should provide Hill with ammo he would use to shoot them down or even sue them.

At the end of last week, George Rodrigue, vice president and managing editor of the News, called me to say the paper had decided to provide some of the details of the model but not to Hill. Rodrigue said the paper will publish information about its model at a later date in an article for an academic or trade journalism journal.

In the recent series of stories, the News talked about the 36-year term of former Dallas County prosecutor Henry Wade, "when prosecutors followed a stereotype-ridden manual in rejecting black jurors." The paper, describing 63-year-old Bill Hill as "a track star with a country twang," presented his side of the story by saying, "District Attorney Bill Hill, who was an assistant to hard-nosed former DA Henry Wade, called the analysis of his office's jury selection practices 'unfair and biased.'"

That's all code. It's clear enough. You know what it means. Wade, Hill. Old white guys. Same-same.

Racist.

But the News didn't have any bullets in its gun. Not really. And publishing the details of the model at a later date in an obscure journal--what the hell is that? If there's anything to say about the model, it needed to be said in the same story that said Hill and his prosecutors were racists.

I did a little reality check on this and asked a couple liberal defense lawyers what they thought of the series. One, whom I will not name, paused a beat and then said, "Oh, yeah, you mean that series the News did trying to make Bill Hill look good."

I said, "No. They said Hill and his staff are racists."

Pause.

He said, "Well, I didn't read it that carefully. I just got to the part where they said there are as many blacks on juries now as there are in the pool. That seemed like real progress to me. Maybe I've just been around too long."

These are strange times in Dallas. Racism is a brutal charge anytime, especially if it's not true. It's surprising, isn't it, who tosses it around. And how. And why.

You know, that's what makes this forum so great. We get to kick around these issues and collectively see where some of this stuff lands.

Shannon, thanks for the contribution.

Now _that_ was a good news article.

The superior quality of the Observer article demonstrates how a single mainstream newspaper, such as the DMN, can lose touch and even cross the line if it is not properly checked. Sadly it appears to be dipping periously close to the category of tabloids you can pick up at the supermarket checkout. The media is an awfully powerful educational organization and its ability to indoctrinate is virtually unmatched. It is encouraging to see someone, especially someone within the business, hold them accountable.

I can't believe you guys are buying into this stuff. Don't you realize that the 1st Amendment gives reporters the right to write whatever they want and not be asked to state the source of their information or subject that information to testing? It says right there in the Constitution that reporters shall be taken at their word and no questions may be asked of them...that's what it said in the newspaper, anyway.