November 18, 2015
Page 7
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O PINION
Rigged: Racial Bias in Jury Selection
We need
enforcement and
monitoring
m arC h. m orial
During the Recon-
struction Era, Congress
passed the Civil Rights
Act of 1875. The act
guaranteed all citizens,
particularly
African
Americans, equal treatment and
access to public accommodations,
public transportation and protect-
ed their right to serve on juries.
This month—140 years after
the passage of the Civil Rights
Act of 1875—the Supreme Court
heard oral arguments in a Georgia
death penalty case that serves as
an intolerable reminder that peo-
ple of color continue to be unlaw-
fully excluded from jury service
because of their race.
by
In 1987, Timothy Foster, an
African American, was convict-
ed and sentenced to death by an
all-white jury in the murder of an
elderly white woman. Fos-
ter, who was 18 years old
at the time of the crime, is
seeking a new trial on the
basis of racial discrimina-
tion by the prosecution,
who he claims deliberately
singled out and purged all
prospective black jurors.
Coincidentally, Foster’s death
sentence came only a year after
the Supreme Court had ruled in
Batson v. Kentucky that excluding
potential jurors based on race was
unconstitutional and violated the
equal protection clause of the 14th
Amendment.
The clear message of Batson
v. Kentucky to not exclude jurors
based on race failed to police the
behavior of prosecutors in Tim-
othy Foster’s case. And Foster’s
case is a textbook example of ra-
cial discrimination that is often so
hard to prove.
In this rare instance of well-doc-
umented misconduct, prosecutors
used a variety of methods to sin-
gle out and remove potential black
jurors. After getting access to the
prosecution’s jury selection notes
in 2006, Foster’s lawyer found
“an arsenal of smoking guns in
this case,” including prosecutors
highlighting the names of po-
tential black jurors, circling the
word “black” on questionnaires,
and taking note of black jurors as
“B#1” or “B#2.”
Despite the efforts of our fed-
eral government and the Supreme
Court to address and eliminate
racial discrimination in the jury
selection process, the practice
continues to run rampant, and un-
checked, throughout our criminal
justice system—a system where
more than half of the people on
death row are people of color.
African Americans make up 42
percent of that number, while they
make up only 12 percent of the
United States population.
Deliberately excluding people
of color from juries only serves to
undermine our confidence in the
credibility of our nation’s criminal
justice system. How can we be-
lieve justice is being served if the
system is so blatantly rigged? And
studies have shown that diversity
makes for a better jury. In compar-
ison to all-white juries, racially di-
verse juries are said to take longer
to deliberate, they consider a wid-
er variety of perspectives when
deciding and make fewer factual
errors. We cannot allow our con-
stitutional right to be judged by
a jury of our peers to be abused
based on a prosecutor’s implicit
or explicit racial bias—lives are
at stake.
If we are going to effectively
address prosecutorial misconduct,
there must be real enforcement of
rulings like Batson v. Kentucky
to prevent the exclusion of jurors
based on their race. Along with
enforcement, there must be pun-
ishment. Right now, prosecutors
are not taken to task when racial
bias rears its ugly head during jury
selection. With enforcement and
monitoring, we can discover the
patterns and punish the offenders.
Foster’s case has pulled back the
curtain on an ugly and unlawful
practice that we must remedy if
we want a criminal justice system
we can believe in.
Fortunately, we are decades
past the all-white juries of the Jim
Crow era, but we have a long way
to go if we are committed to bring
justice into our jury pools for all
our nation’s citizens.
Marc H. Morial is president
and chief executive officer of the
National Urban League.
Entitled to Public Discourse Without Interference
Demanding
answers and
accountability
Editor’s note: The following
statement from Urban League
of Portland President Nkenge
Harmon Johnson is in response
to the Oregon Department
of Justice’s surveillance of
Oregonians who have used the
social media hashtag ‘Black
Lives Matter,’ a probe that’s now
under investigation.
by n kenge h armon J ohnson
Together with other communi-
ty leaders and concerned citizens,
I sent a letter to Attorney General
Ellen Rosenblum, and other state-
wide- and locally elected officials
on Tuesday, Nov. 10 calling for
an immediate response to the De-
partment of Justice’s investigation
of Oregonians who have used the
social media hashtag “Black Lives
Matter.”
The letter calls for an audit of
the Criminal Justice Division of
the Oregon Department of Justice
with regard to its surveillance of
Oregonians using the Black Lives
Matter hashtag, and others means
of political and social justice en-
gagement.
As President of the Urban
League, working with my staff,
part of my job is to work with gov-
ernment appointees and elected
officials to better serve all Ore-
gonians and southwest Washing-
tonians. For 70 years, this Urban
League has helped those who wish
to help themselves. We register cit-
izens to vote, and encourage them
to use that right. We educate and
challenge young people to exercise
their leadership skills. We provide
services and deliver results through
advocating on the toughest sub-
jects. At times, we also lead the
way to hold government account-
able for its treatment of Orego-
nians. This is one such time.
When a constitu-
ent contacts the Urban
League about a concern,
our first step is to gath-
er the facts. If there is a
charge of discriminatory
treatment, we may con-
tact the other parties in-
volved to ask for more
information. Then, if appropriate,
the Urban League may conduct
mediation between the parties, or
refer the constituent to an attor-
ney, the Oregon Bureau of Labor
and Industry or other avenue to
address the issue. My role is to use
my voice to bring disparities to
light, and to fight for fairness. In
the present instance, however, I am
unable to dispassionately engage
those options because my family
has become a target.
Unlike other issues that my of-
fice confronts, because the Crimi-
nal Justice Division of the Oregon
Department of Justice has targeted
my husband, I am personally in-
volved in this absurdity. I propose
to speak for myself and for my
family, while two senior members
of the Urban League staff will push
for a response and engagement
from our elected leadership going
forward. The Urban League aims
for answers and accountability on
behalf of you, our members, and all
Oregonians.
Days ago, I learned that my hus-
band Erious Johnson, the Director
of Civil Rights for the Oregon De-
partment of Justice and the Office
of the Attorney General,
has been profiled and tar-
geted by his own agency.
The Criminal Justice Di-
vision of the Department
of Justice has printed and
reviewed all of his pho-
tos and posts on Twitter.
While finding nothing
ominous or inappropriate, because
he has used the hashtag “Black
Lives Matter” the Department of
Justice labeled Erious, created a
file in the Criminal Justice Divi-
sion, and reported his social me-
dia activity to Attorney General
Rosenblum.
Upon hearing the allegations
from Criminal Justice Divisions
threat assessment of my husband,
Attorney General Rosenblum and
other members of her staff re-
viewed the file to determine wheth-
er additional action was warranted.
Is he indeed a threat? The only
troubling information they found
relates to my husband’s devotion to
the New York Jets football team but
there’s no accounting for fandom.
A week later, the Attorney General
called Erious to her office and no-
tified him that he had been profiled
in this way. We were stunned.
Regardless of one’s civic or po-
litical affiliation, we are each enti-
tled to engage in public discourse
without the interference of Big
Brother. We are allowed to post
online family photos, recipes, car-
toons, movie reviews, articles, and
other items that interest us without
the threat of intrusion from law en-
forcement. Yes, Black Lives Matter
online, at work and at home. Priva-
cy, the Constitution, and our right
to freedom of speech matter, too.
When there is probable cause to
suspect that a crime has been com-
mitted, law enforcement can and
should investigate. But what mo-
tivation could the Oregon Depart-
ment of Justice Criminal Justice
Division have had for conducting
a threat assessment of my husband
in the first place, let alone creating
a file, and delivering it to the At-
torney General, for further action?
Yet, when nothing threating was
found, the department continued
its investigation and escalation. If
they labeled him a threat, who else
is being wrongly targeted in this
way?
Based upon the initial details
provided by the attorney general,
I have other questions, too. Have
other Oregonians been intruded
upon in this manner? Which other
hash tags did the Department of
Justice analyze? Have they moved
beyond digital surveillance? If
someone with a mere seventy
Twitter followers was assessed as a
threat, is the Department of Justice
also categorizing community ac-
tivists this way? Law enforcement
officials have used political and
social justice commentary to target
citizens for investigation and/or to
label them as a threat.
I will close by saying; the posts
we share via social media are in the
public domain. Anyone may read
them. That is not the issue. Here,
however- even after no threat was
found- criminal investigators at an
Oregon state law-enforcing agen-
cy, used online posts to create an
unwarranted threat assessment file
of a citizen. That fails the smell test
for equal treatment under law. If the
Department of Justice treats one of
its own directors in that manner,
how does it approach you or me? If
you read the letter below, you will
learn that your Urban League, and
our partner organizations, intend to
find out.
If you have concerns about
being targeted by the Oregon De-
partment of Justice Criminal Jus-
tice Division threat assessment
practice, or want to share your sto-
ry, questions, concerns or support,
please email us at WeMatter@
ULPDX.org.
Nkenge Harmon Johnson is pres-
ident and chief executive officer of
the Urban League of Portland.