These 45 alone already constitute a sizable 28.7 percent of the whole pool of potential jurors questioned during the voir dire process – the so-called “venire.” This is certainly a statistically significant number whose racial composition, if known, should allow for reasonable conclusions about the probable racial composition of the whole venire of 157 persons.
Subtracting from these 45 the 6 persons struck by the defense before the prosecutor could strike or accept them, we are left with 39 persons (24.8 percent of the whole venire) where the prosecutor had an opportunity to display either racial neutrality or racial bias via the number of black versus white persons he struck peremptorily. The racial composition of this set of 39 persons, and it alone, should logically be the basis to put the prosecutor’s “strike rate” of 66.7 percent against black persons into perspective, since they, and they alone, were the persons against whom he could use peremptory strikes.
What about these 39 persons who together formed almost a quarter of the whole venire? In connection with them I could barely trust my eyes when I read the March 27 court decision. Buried in footnote 18 on page 47, it says:
Abu-Jamal contends the prosecutor had the opportunity to strike thirty-nine venirepersons, of which fourteen were allegedly black, but he does not cite any record support for these numbers. We see no record support for these numbers.
This is stunning. Both the 39 persons who the prosecutor had an opportunity to accept or peremptorily strike and the additional 6 persons struck first by the defense are given by name, race and voir dire day and transcript page numbers on p. 18-20 of the July 19, 2006 defense filing quoted above. Even if the court were to insist to cast doubt on one or another step in the data collection in this defense filing, which it doesn’t even try – the contention that the defense “does not cite any record support for these numbers” is simply absurd.
In fact, the defense presents solid data showing that indeed of these 39 persons, 14 were black – and that the rest, 25, were white, that is, the composition was 35.9 percent black versus 65.1 percent white. This percentage of African Americans is already slightly smaller than their 1980 share in the racial composition of the city, but the prosecutor still used the vast majority, 66.7 percent, of his peremptories to remove even more of them.
Actually, if one wants to talk about “exclusion rates” in the sense defined by the court, the only thing that rationally makes sense is a comparison between these two numbers – 35, 9 percent blacks among the set of person where the prosecutor could strike peremptorily and 66.7 percent blacks among the set of persons where he did strike peremptorily.
Pushing this a little further and factoring in the 6 persons, all white, struck by the defense before the prosecutor could accept or strike them, we arrive at still 14 black but now 31 white persons, and the black/white relation is now 31.1 versus 68,9. These 45, all given by name and race in the July 19, 2006 defense filing, were the persons considered for service in the jury itself.
As mentioned above, there were also 5 persons who were considered as alternate jurors, one of whom was peremptorily struck (by the defense). Abu-Jamal’s 1999 habeas corpus petition[1] identifies all of them as white, which is not in doubt or even contested in the case of the 4 that were seated, and easily verified in the case of the juror peremptorily struck, who identified himself as “Italian” when he was questioned.
This raises the number of jurors whose race is either given in the July 19, 2006 defense filing (45) or identified in the 1999 habeas petition and easily checkable from the record (another 5) to 50, or 31.8 percent of the entire venire, certainly a not insubstantial percentage. Looking at the racial composition of these 50 persons, we find 28 percent blacks and 72 percent whites.
None of these data are mentioned anywhere in the March 27, 2008 ruling, not even in Judge Ambro’s 41-page dissent on the Batson question, even though, to his credit, it must be said that he argues for a new hearing for Abu-Jamal even without considering these data.
Also, very strikingly, the whole 118-page court decision fails to even mention any of the statistical data supplied by the defense on a systematic pattern of discrimination by the Philadelphia District Attorney’s Office in general or by Abu-Jamal prosecutor Joseph McGill in particular, data that went far beyond and supplied background to McGill’s 66.7 percent strike rate of blacks in Abu-Jamal’s June 1982 trial.
But that doesn’t mean that these data are not there and were not supplied by the defense. They were just ignored by the court, apparently being to inconvenient.
In its centrally important July 19, 2006 filing the defense clearly argues, from the known number and from the record that considering the 39 really relevant venirepersons
the prosecutor struck 71% (10/14 [10 of 14]) of the blacks he had an opportunity to strike, but struck just 20% (5/25 [5 of 25]) of the whites he had an opportunity to strike – i.e., he struck blacks at 3.6 times the rate than he struck whites. The odds of being struck if you were black were 2.5-to-1 (10/4 [10 to 4]), but the odds of being struck if you were white were just 0.25-to-1 (5/20 [5 to 20]) – i.e., a black person’s odds of being struck were 10 times higher than someone who is white. [Emphasis in original.]
Can anyone regard this as a statistical “warp” or accident? To pose the question is to answer it. If we factor in the 4 white alternate jurors that the prosecutor could have struck peremptorily but did not, the picture gets even starker.
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