ATLANTA – Prosecutors in the west Georgia focusing on the race of black potential jurors if they intentionally and systematically excluded them from the trials of black men facing the death penalty four decades ago, lawyers for one of the men said in a court filing this week.
An all-white jury in 1977, convicted Johnny Gates of the rape and murder of a white woman and sentenced him to death. His lawyers asked a judge for a new trial and argued in a court filing Monday that the recently announced prosecution trial notes of a series of capital cases tried in Muscogee County in the late 1970s, in combination with the constant striking of black prospective jurors, to prove systematic racial discrimination in the selection of the jury.
“If you like this kind of race discrimination infecting a trial from the beginning, it really undermines the reliability of the procedure all the way through,” said Patrick Mulvaney, a lawyer with the Southern Center for Human Rights, who represents Gates.
Gates, 62, was later resentenced to life in prison without parole. In addition to the allegations of discrimination during the selection of the jury, for other reasons, he should have a new trial, suppression and destruction of evidence and a DNA-claims that relate to obtaining evidence of the crime, Mulvaney said. A judge has scheduled a May 7 hearing on the motion for a new trial.
The Supreme court of the V. S. in May 2016, threw out the death penalty given to Timothy Foster, another black Georgia man sentenced to die by an all-white jury in the murder of a white woman. Chief Justice John Roberts wrote in the Foster case that Georgia “prosecutors were motivated in substantial part by the race,” when they struck black potential jurors from the jury pool.
Prosecutors in Foster’s case was tried in the north of Georgia in 1987, said that they had been eliminated prospective jurors for race-neutral reasons, but their comments showed they had marked black prospective jurors with a “B” in their comments, marked their names in the jury lists and circled their race on the juror questionnaires.
Douglas pullen, who was one of the officers of justice, in Foster’s case, was also an officer of justice in the Gates’ case, as well as four other capital cases involving black defendants in the west of Georgia between 1975 and 1979.
After the Supreme court ruling in Foster’s case, Gates’ lawyers argued that prosecutors had engaged in systematic discrimination in the selection of the jury in his case and others and asked the government the selection of the jury notes. The state refused, but the court last month ordered prosecutors to hand over the notes, and Gates’ lawyers received on 2 March.
Prosecutors wrote a “W” next to the names of the white prospective jurors, and “N” next to the names of the black prospective jurors and also the points in the margin next to black prospective jurors ‘names, according to Gates’ court filing Monday. Black prospective jurors were described in the notes as “slow,” “old + ignorant,” “stubborn,” “swindler,” “hostile” and “fat.”
Prosecutors highlighted with all four black prospective jurors in Gates’ cases ‘ 1 ‘ on a scale of one to five, with no explanation, but the only white prospective juror marked “1” was against the death penalty, the court filing says.
In one case, the prosecutor’s office kept a tally of the race of the jurors who were ultimately selected, with twelve characters in the white column, and nobody in the black column.
Pullen was involved in five capital trials for black men between 1975 and 1979, and the prosecution struck all 27 black prospective jurors in those cases, Gates’ filing says.
His co-counsel, William Smith, was involved in two of these trials, as well as two other capital trials of black defendants in that period. In one of the others, prosecutors struck all black prospective jurors. In the fourth trial, prosecutors struck 10 black prospective jurors, but there were more black prospective jurors in the final jury pool strikes available to the prosecutor, the filing says.
Reached by phone Tuesday, pullen said that he had not seen Gates’ court, but denied any racial motivation behind the jury strikes, that a number of times, “It’s not happened.” In complex cases where jury selection could stretch for several days, “identifying information on everyone, but it is just so that you can remember and recall,” he said.
Smith, who is now a senior judge, said that he would have been instructed by the Judicial Qualifications Commission not to make a public comment on any case under appeal.