Keeping African Americans off juries in criminal case is not a new phenomenon. In fact, currently pending before the U.S. Supreme Court is the case of Timothy Foster—a teenager convicted in a 1987 capital trial in Rome, Georgia during which prosecutors systematically excluded blacks in order to secure an all-white jury, who they felt would be more prone to convict a black defendant. Prosecutors encouraged the all-white jurors to return the death penalty for Foster in the murder-rape case “to deter other people out there in the projects” not to engage in crime against white people. The “projects,” of course, was virtually all-black.


Racial Discrimination Still Rampant


This sort of blatant racial discrimination still occurs today in 2016—some three decades after that white prosecutor in Rome, Georgia told an all-white jury to convict a black man because he committed a crime against a white person and a message of deterrence had to be sent to all those people living “in the projects.”


Something along these lines very well may be happening in Wharton County, Texas where an assistant district attorney recently told a criminal district court judge that the felt personally and professionally uncomfortable by remarks made by his boss, the county DA, that to secure criminal convictions blacks must be kept off juries.


Wharton County DA Keeping African Americans Off Juries?


ADA Nathan Wood told Judge Randy Clapp during a March 11 hearing that Wharton County District Attorney Ross Kurtz suggested that, in order to increase their number of convictions, assistant district attorneys in his office had to keep black Wharton County residents off juries in criminal cases.


“I was not ‘instructed’ to strike black jurors so much as I was advised or encouraged to do so as a matter of trial strategy,” Wood told Judge Clapp in an extraordinary display of professional candor. “Whatever the true intentions behind the statements made in our office, they made me feel uncomfortable, and I shared that discomfort with a friend.”


The “friend” betrayed the confidence of the “private” conversation he had with Wood by informing the court about the details of that conversation. This prompted Wood to request an opportunity to not only clarify the substance of the conversation with the friend (which, according to Wood, was misrepresented to the court by the friend) but to explain to the court exactly what transpired during the office discussion with DA Kurtz.


Impermissible Strikes Given Race Neutral Reasons


This unfortunate situation validates what many criminal defense lawyers know all too well; that some prosecutors still illegally use race as a factor in jury selection and are prepared to spout off race neutral reasons for their strikes when compelled to explain excluding jurors from service.


Batson v. Kentucky


Congress outlawed racial discrimination in jury service in the late 1800s.  In 1986, the Supreme Court, in the landmark case of Batson v. Kentucky, reiterated that jurors cannot be excluded from jury service on the basis of race.  The high court held that the Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury on account of race.  The Court also stated that denying a person participation in jury service on account of race unconstitutionally discriminates against the excluded juror.  Therefore, the impermissible use of race to strike a juror is unconstitutional on two fronts.



The Wharton County case offers prima facie evidence that most district attorneys, especially in Southern states with counties having a high African-American population, are significantly uncomfortable with black jurors hearing a case, particularly a capital case or one in which a black defendant committed a crime against a white person.




Study Shows All-White Juries Convict at Higher Rates


A 2012 Duke University study offers some clues. The study, which examined jury pools in two counties in North Carolina between 2000 and 2010, found that all-white juries convicted black defendants 16 times more often than they did white defendants.


“I think this is the first strong and convincing evidence that the racial composition of the jury pool actually had a major effect on trial outcomes,” said senior author of the study Patrick Bayer, chairman of Duke’s Economics Department.


“Our Sixth Amendment right to a trial by a fair and impartial jury of our peers is the bedrock of the criminal justice system in the U.S., and yet, despite the importance of that right, there’s been very little systematic analysis of how the composition of juries actually affects the outcomes, how rules that we have in place for selecting juries impact those outcomes,” Bayer said.


Former Harris County prosecutor and current president of the Harris County Criminal Lawyers Association JoAnne Musick told the Houston Chronicle in the wake of the Wharton County revelations:


“I had people tell me to go ahead and strike [African-Americans] and just write down race-neutral reasons,” she said. “I like to believe I never actually did it, but that’s the way I was told to do it.”


Musick added: “It goes on every day … Probably across the country, but I’d say it’s very common all over what I call the greater Houston area – including the bordering counties.”


Need Full Investigation and Hearing in Wharton County


Securing white juries at the expense of the jury service of African-Americans, and the equal protection rights of black defendants, in order to secure convictions is a dirty little secret in prosecutorial communities across the country.   We hope that the preliminary investigation into the Wharton County District Attorney’s Office receives a full and open hearing and that the results be communicated to the State Bar of Texas.


Hopefully, this Wharton County episode will make Texas district attorneys think twice about maintaining quasi-official policies of systematically excluding African-Americans from jury duty in criminal cases so they can get all-white juries more prone to convict.