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Brennan Center, Former Law Enforcement Officials, Join Death Penalty Case to Challenge Racial Bias In Jury Selection

March 23, 2004

For Immediate Release
March 23, 2004

Contact Information:
Natalia Kennedy, 212 998–6736

Brennan Center, Former Law Enforcement Officials, Join Death Penalty Case to Challenge Racial Bias in Jury Selection

New York—A The Brennan Center for Justice at NYU School of Law and four distinguished former law enforcement officials have filed an amicus brief in People v. McCoy charging that the all-white jury that convicted and sentenced to death Nicholson McCoy, an African-American, was the product of an unconstitutional jury selection process, and demanding that the flawed process be reviewed. The case is on appeal before the New York Court of Appeals.

The former law enforcement officials joining the Brennan Center as amici are John R. Dunne, former U.S. Assistant Attorney General for Civil Rights; Professor Bennett L. Gershman, former Assistant DA for New York County; Elizabeth Holtzman, former Brooklyn District Attorney; and James E. Johnson, former Assistant U.S. Attorney in the Southern District of New York.

Prosecutors have an obligation, said Kirsten D. Levingston, director of the Brennan Centers Criminal Justice Program and attorney for the amici, to uphold the law. That means selecting jurors without regard to race. In this case, the prosecutor summarily rejected virtually all of the available black, Hispanic, and Asian jurors in a racially-charged capital murder case involving a black defendant and a white victim. We see here fresh evidence that legal protections designed to eliminate racial bias in the criminal justice system must be carefully guarded, or they will be trampled upon.

During jury selection, Mr. McCoys attorney objected to the prosecutions removal of four of the five African Americans in the jury pool, which under current law should have prompted the trial judge to require demand that the prosecutor provide race neutral reasons for removing the jurors.

The judge denied this request, which led to the all-white jury. In a 1986 decision, Batson v. Kentucky, the Supreme Court ruled that courts must follow a three-step process to ensure that racial bias does not infect jury selection First, the defense establishes a pattern of race-based strikes. Second, the prosecutor offers race-neutral reasons for the strikes. Third, the defense must refute those reasons, demonstrating they are mere pretexts for racial bias.

In this case, the trial judge failed to enforce Batsons requirements. Even after the prosecutor struck 9 of the 11 people of color from the jury pool, the court failed to demand race-neutral explanations. As the Brennan Center brief states: Inadequate and indifferent judicial enforcement of Batsons requirements can only reinforce public concerns about the fairness of the criminal justice system, especially when the result is that a black capital defendant accused of killing a white woman is sentenced to death by an all white jury.

For more information or to speak to attorneys for amici, please contact: Natalia Kennedy at (212) 998–6736.

To view the Brennan Centers brief, please click here.
For more information about the Center’s Criminal Justice Program, please visit our Criminal Justice webpage.