Alito Sees No Wrong in All-White Juries

By Earl Ofari Hutchinson, AlterNet. Posted November 4, 2005.

One of the most persistent and contentious issues that the U.S. Supreme Court repeatedly has had to deal with is the issue of blacks being tried by all-white juries in death penalty cases. In every case that has wound its way up to the high court, the black defendant has been convicted and sentenced to death, and has appealed that conviction. In the past two years, the high court ruled twice that Dallas, Texas prosecutors deliberately bumped blacks from a jury panel in the trial of Texas death row inmate Thomas Miller-El.

But if President Bush's Supreme Court pick Samuel Alito is confirmed, the next black defendant tried and convicted by an all-white jury and seeks to have their conviction tossed may not be as fortunate as Miller-El. Alito apparently sees nothing wrong with all-white juries. He made that emphatically clear in his opinion in the case of James William Riley. Riley, a young African-American, shot and killed a liquor storeowner during a stick-up in Dover, Delaware in 1982. Kent County prosecutors blatantly played the race card in bumping prospective black jurors from Riley's jury. They used all of their peremptory challenges to do it.

Riley was tried, convicted and sentenced to death by an all-white jury. But Riley did his homework. He produced ironclad statistical data that showed that prosecutors deliberately removed black jurors in his trial as well as in three other first-degree murder trials within a year of his trial.

Prosecutors didn't even bother to challenge Riley's contention that they dumped the blacks, and that they did the same in other capitol cases that involved both black and white defendants. Prosecutors ignored the appellate court's request to submit evidence to counter Riley's claim of intentional racial bias. The judges that heard Riley's appeal had a near smoking gun admission to justify setting aside his conviction, or so it seemed.

Enter Alito. He ignored Riley's meticulously gathered data that showed a pattern and practice of racial bias by prosecutors, and ignored the 1986 Batson ruling that forbade the use of peremptory challenges exclusively to bump blacks from a jury, and that it violated the Fourteenth Amendment's equal protection clause.

Writing for a two-judge majority, Alito upheld Riley's conviction. He even stole a page from the prosecutor's playbook, and didn't bother to cite any stats, evidence, expert analysis or case law to justify the decision. In 2001, the full 3rd Circuit Court of Appeals held that Riley had marshaled overwhelming factual evidence to prove prosecutor bias, and reversed Alito's decision.

If Alito has not budged from his narrow, and truncated opinion in Riley that all-white juries are not inherently biased, that poses the grave danger of a return to a time when all-white juries were the norm in courtrooms and they routinely convicted black and minority defendants. Kent County prosecutors were well aware of that, and for a good reason. Whites are more likely to convict blacks particularly when the victim is white than black jurors.

A decade long study by the Capitol Jury Project begun in 1990 on juror racial attitudes found that white jurors were far more willing to believe the testimony of police, and prosecution witnesses than the testimony of black defendants and witnesses. Countless other studies have also shown that white jurors are more prone to convict black than white defendants in death penalty cases. In Riley's case, the storeowner that he killed was white, and allegedly had shouted a racial epitaph at him.

Though the Supreme Court ruled in Batson that prosecutors may not use race to strike jurors, courts have consistently ruled that any explanation that a prosecutor gives for striking a prospective black juror that appears to be race-neutral is acceptable. There is no constitutional requirement that the prosecutor's explanation be reasonable or even make sense. The Supreme Court has repeatedly reaffirmed the need to have jury diversity. But it has done little to clarify how to measure diversity, or how to attain it. It uses the vague and ambiguous standard that a jury must be representative of a "fair cross section of the community."

That puts the burden on defense attorneys to prove that prosecutors manipulated jury selection to exclude blacks from a jury. A defense attorney must do an exhaustive population study to show that whites are over represented on a jury, and blacks are underrepresented. They must also show that the paucity of blacks in a jury pool is due to deliberate and systematic exclusion by prosecutors. In most cases, that's nearly impossible to prove.

Riley, though, was able to proof that. But even that didn't satisfy Alito. And chances are that it won't again when the next racially tainted death penalty juror case is dumped in his lap if he sits on the Supreme Court.

Earl Ofari Hutchinson is an author and political analyst. He is the author of 'The Crisis in Black and Black' (Middle Passage Press).

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