This Isn’t About Race

August 17, 2015
Posted by Jay Livingston

Bill Clinton, facing impeachment in the Senate, chose former Senator and fellow Arkansan Dale Bumpers to make the closing argument for the defense. The impeachment charges were perjury and obstruction of justice. As the House Managers presenting the charges had said,

This case is not about sex or private conduct. It is about multiple obstructions of justice, perjury, false and misleading statements, and witness tampering - all committed or orchestrated by the President of the United States.

Bumpers merely pointed out what everyone in America knew:

H.L. Mencken said one time, “When you hear somebody say, ‘This is not about money,’ it’s about money.” [Laughter, not much at first, but then building after a second or two as the Senators realize where it’s going.] And when you hear somebody say, “This is not about sex,” it’s about sex. [The video, with Bumpers looking very much like Atticus Finch, is here.]

Republican dominated states have been passing voting registration laws, both before and, in the South, after the Supreme Court’s 2013 decision in Shelby. For Chief Justice Roberts, who wrote the majority opinion, the case was about federalism, especially since the South was no longer tainted by racism as it was when the Voting Rights Act was passed (“40 year-old facts having no logical relationship to the present day"). Of course, as soon as the decision was announced, Southern states rushed to pass new voter ID laws. These laws, according to their supporters, are intended merely to reduce voter fraud. They have nothing to do with race.

Right. Where are Mencken and Bumpers when you need them? When someone says, “This isn’t about race,” it’s about race.

The current venue for denying what is in plain sight is jury selection.

Here are some reasons prosecutors have offered for excluding blacks from juries: They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard. [from today’s New York Times]

These facts are related to a death-penalty case that the Supreme Court will hear in the coming term. A Black defendant was convicted by an all-White jury. The question is why none of the Blacks in the jury pool were selected, or more specifically why the prosecutors used peremptory challenges to remove all Black jurors.

It wasn’t about race, according to the prosecutor.

All the [Black] prospects were said to be some combination of confused, incoherent, hostile, disrespectful and nervous. Three did not make enough eye contact. A 34-year-old black woman was too close in age to the defendant, who was 19. (The prosecution did not challenge eight prospective white jurors age 35 or under.) “All I have to do is have a race-neutral reason,” Mr. Lanier said, “and all of these reasons that I have given the court are racially neutral.”

The judge agreed. But it now turns out – surprise, surprise – that the prosecutor’s real reasons may not have been racially neutral.

Prosecutors worked hard to exclude blacks from the jury. In notes that did not surface until decades later, they marked the names of black prospective jurors with a B. They highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.

The ball is now in the Court’s court. According to the Times, “Some legal experts said they hoped the Supreme Court would use the Georgia case to tighten the standards for peremptory challenges.”  I’m not sure what these experts are basing their hopes on. Scalia and Thomas have never met an execution they didn’t like. Alito “is probably the most pro-prosecution member of a pro-prosecution court” (Linda Greenhouse in the NYT here). Roberts, as he did in Shelby, can find lots of reasons to dance with the conservatives what brung him. That leaves Kennedy.

In Miller-El ten years ago, Kennedy sided with the defense. That case was egregious but instructive.

In support of his claim of systematic discrimination, Miller-El offered evidence that for decades, the Dallas County District Attorney’s Office had used written discriminatory policies, including a 1963 treatise on jury selection prepared by a top aide to then-Dallas County District Attorney, which warned prosecutors to avoid “Jews, Negroes, Dagos, Mexicans, or a member of any minority race [from sitting] on a jury no matter how rich or how well educated,” and a treatise written in 1969 but included in all training manuals for prosecutors until at least the early 1980s, which stated that minority jurors were undesirable because they “empathize with the accused.” The Court found this evidence to be persuasive, noting that “the prosecutors’ own notes proclaim that the [jury selection] Manual’s emphasis on race was on their minds when they considered every potential juror.” [source]

Just as the politicians writing and passing voter ID laws today know not to mention race, the writers of jury-selection manuals today know better than to specify race, and prosecutors today know better than to speak about it out loud. Like the lead prosecutor in this year’s case, they claim that their peremptories are based on the person being too young, or too old, or not making eye contact, etc. Yes, say the prosecutors in effect, “We use peremptories three times as often for Black jurors as for Whites. But racial intent? How could you even think such a thing? And yes, you may see lots of juries that are all-White. But who you gonna believe, me or your lyin’ eyes?”