These two facts – that the defense has supplied statistically significant hard data on the race of approximately one third (50 out of 157) potential jurors, and that if one compares the rates with which the prosecutor struck blacks when he could with the rates with which he struck whites when he could, the result one finds an almost grotesque disparity where a black person was at least ten times as likely to be struck as a white one – these two facts are the two big, big elephants in the courtroom in this case which won’t go away and are there for everyone to see but which none of the judges of the 3rd Circuit wanted to talk about.
You Do Not Need to Be a Rocket Scientist…
As we have just seen, even if one were to insist, against logic and common sense, that the composition of the whole venire, as opposed to the set of those jurors whom the prosecutor had an opportunity to strike or accept, is of tremendous importance, the defense has already supplied significant data that very much indicate that composition. In fact, the numbers supplied above, taken from defense filings which in turn took them – contra page 47, footnote 18 of the recent court decision – right from the record, are hardly surprising.
Actually at the May 17, 2007 Abu-Jamal court hearing two questions were brought up for the first time: (1) Should the composition of the whole venire be regarded as a decisively important question, and (2) Could it not be that there was such a heavy black overrepresentation of blacks in Abu-Jamal’s venire that could possibly justify the prosecutor’s 66.7 percent anti-black strike rate?
As for the first question, I have already argued above that a positive answer simply makes no sense. If the anti-black peremptory “strike rate” of a prosecutor is to be evaluated by context, that context should be the racial composition of the set of persons he had an opportunity to peremptorily strike at all, not to the composition of the entire venire, the vast majority he could not strike peremptorily in the first place.
Court precedent on Batson clearly – and rightly – says that statistical data to evaluate a claim of discrimination should not be applied “mechanically,” but rather, in a meaningful way. So it should be here.
As for the second question, journalist and author Dave Lindorff pointed out right after the May 17, 2007 court hearing that the argument is not only highly speculative but, given the concrete conditions in the case at hand, also bordering on the absurd.
Since in 1982 prospective jury pools were (theoretically randomly) drawn from voter lists, the likelihood of a heavy black overrepresentation – say, 50 percent, or 67 percent (the approximate “break-even” point), or 80 percent in a city like Philadelphia with a black population of around 38 percent in 1980 – is very small, since black people nationwide, and in Philadelphia in particular, tended, if anything, to be underrepresented in the voter registration lists.
One does not need to be a rocket scientist to understand Lindorff’s point, and, thinking of the language of Batson, one could even call it a prima facie case.
Some Additional Data
If one tries to go beyond the obvious and combs through the data, as I have done in at least a preliminary fashion with the transcripts of six of the seven Abu-Jamal jury selection days including data on 134 of the altogether 157 venirepersons, the picture is very much the same.
70 (or 52%) of the questioned jurors indicated where they lived by larger section, such as South Philadelphia, Germantown etc.; sometimes they also indicated the neighborhood, such as Roxborough, Nicetown etc., but I have not included these data here. 28 additional jurors (or 21%) only indicated the neighborhood. That is, there are residential data on 73% of the 85% (134 of 157) of the venirepersons for which I have the voir dire transcripts.
Philadelphia being the racially divided city it was at the time (and still is), the data once again very strongly suggest what one would have assumed from the start. 25 (or 36%) of the 70 persons who identified themselves by larger area came from Northeast Philadelphia, which in 1980 was almost lilywhite. 15 (or 21%) came from heavily black North Philadelphia. Another 12 (or 17%) came from racially mixed South Philadelphia – but most of these were Italian, i.e., white.
It is similar with the finer grained data for the neighborhoods – they reflect exactly the same picture of a strong statistical likelihood of a racial composition of the venire similar to the racial composition of the city as a whole in 1980, with a tendency, if any, of black underrepresentation – exactly what one would expect from the “prima facie” case made by Lindorff already in May 2007.
This is what the record whose alleged absence in the defense filings the 3rd Circuit judges deplore reflects when subjected to an even closer scrutiny than the one the defense has presented over the years. I will subject this conclusion to further, more exact research in the near future, but one can say already now that the result will hardly be very different.
Even at this preliminary stage, there is overwhelming evidence that the court’s speculation that prosecutor McGill’s 66.7 percent “strike rate” against blacks and the fact that a black juror was at least ten times as likely to not be accepted by him as a white one might be explained by some purported massive black overrepresentation is not only logically, but also factually wrong.
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