D.A. must end practice of disproportionately excluding minorities from juries
By Lisa Rasmussen
Racial disparities are endemic to our nation’s criminal justice systems, and Clark County is not exempt. Prosecutors in Clark County have engaged in a disturbing pattern of race discrimination when selecting juries, including in cases where they seek the ultimate punishment of death. Last year, Open File, a website that monitors prosecutor accountability, released a report identifying four cases from the last four years in which the Nevada Supreme Court reversed convictions because of unlawful discrimination in jury selection. In three of those cases the defendant was sitting on death row.
Recognizing this emerging trend back in 2015, Nevada Supreme Court Justice Michael Cherry chastised Clark County prosecutors for their repeated and blatant exclusion of racial minorities from juries. “This isn’t the first time we’ve been in the rodeo on [on this issue] with the Clark County district attorney’s office,” he said. “You’re so afraid of losing a case that you’re knocking off African-Americans consistently.”
These findings are startling in part because discrimination in jury selection is notoriously difficult to prove, so only the most blatant discrimination is brought to light on appeal. In the cases that were reversed, black defendants were deprived of a fair jury-selection process.
For example, in the capital case of Charles Conner, six of the nine potential jurors struck by prosecutors were people of color. They included an African-American correctional officer serving in the Air Force reserves who testified that he was willing to impose a death sentence if required by law—that is, the very sort of person with law enforcement experience the state typically wants in the jury room.
In the case against Jason McCarty, prosecutors struck two of three eligible black jurors, and were hostile to minority jurors who disclosed family members with a criminal history. One African-American woman faced 15 follow-up questions about a brother who had previously committed a crime, while prosecutors posed just one yes-or-no question to a white juror who made a similar disclosure about her father.
In my own case involving Julius Bradford, also an African American defendant, the district attorney’s office sought to strike three black jurors and the trial court refused to hear two of the Batson challenges at all, until after the jury was impaneled. As Justice Cherry said at oral argument, there are three people in the courtroom that are obligated to ensure that a defendant receives a fair trial and due process—defense counsel, the court and the prosecutor. In Julius Bradford’s case both the court and the prosecutor failed in fulfilling the most basic of their constitutionally mandated obligations, leading to the October 2017 reversal of his death penalty conviction because of jury discrimination challenges that were deemed to have violated his constitutional right to a fair trial.
Despite its own culpability, the district attorney’s office denies that race discrimination in criminal prosecutions remains a problem. Last year, District Attorney Steve Wolfson opposed legislation to abolish the death penalty in Nevada, despite the well-documented fact that – both in Clark County and across the country – the death penalty is disproportionately used against black defendants and is inexorably intertwined with our nation’s long history of systemic race discrimination and exclusion. In fact, 36 percent of people sentenced to death in Clark County between 2010 and 2015 were African American, while African Americans make up less than 12 percent of the county’s population. Black lives are devalued even when they are victims: of those African-American defendants sentenced to death, 67 percent of their victims were white, while none of the white defendants who received a death sentence were convicted of killing black victims.
Yet Wolfson’s second-in-command, Assistant District Attorney Christopher Lalli, suggested in legislative testimony that capital punishment disproportionately harms white men and said that “we’re actually underrepresenting African Americans in the number of death verdicts returned in Clark County.”
The Supreme Court has explained, when racial bias infects the jury selection process, the harm extends beyond the defendant facing judgment to reach both excluded jurors and the entire community that relies on a fair and equitable legal system. Jurors turned away because of their race are stigmatized and dehumanized—told, effectively, that they are incapable of being fair and are unworthy of participation in civic life. Convictions that rest on such invidious discrimination undermine the public’s confidence in the justice system and threaten the integrity of our democratic institutions.
In Clark County, the district attorney must recognize not just that race discrimination remains a persistent force in Nevada’s criminal courts, but that he is uniquely positioned and has a moral imperative to institute change. It is my hope that Steve Wolfson will work towards making these institutional changes.
Lisa Rasmussen is an attorney in private practice in Las Vegas. Her practice focuses on criminal defense and civil litigation in state and federal court. She is on the boards of both Nevada Attorneys for Criminal Justice and the Nevada ACLU affiliate.