Thursday, March 26, 2009

Harris County prosecutors disciplined for Batson violation

On Thursday, Harris County District Attorney Pat Lykos did something that signified the end of the good ol' boy network at 1201 Franklin. She sanctioned two prosecutors who committed a so-called Batson violation.

In a criminal trial in Texas, prosecutors and defense attorneys are allowed an unlimited number of challenges (to strke a potential juror) for cause. In order to strike for cause, the attorney must show that the potential juror cannot follow the law or has a bias or prejudice that would affect his ability to hear the case fairly. Both sides are also allowed a limited number of strikes without cause -- so long as a juror is not stricken based solely on his or her race, ethnicity or gender.

In Ricky Whitfield's murder trial, the prosecutors used seven of their ten strikes to excuse African-Americans from the jury panel. The result was a jury composed of ten whites and two Hispanics.

Mr. Whitfield's attorneys, Jacquelyn Carpenter and Eric Davis, raised a Batson challenge that forced the prosecutors to give a race-neutral reason for their strikes. After State District Judge Jeannine Barr heard their reasoning, she granted the defense motion and dismissed the jury panel.

Ms. Lykos docked the pay of the prosecutors and removed them from trial assignments. Said Ms. Lykos:

"I assume full responsibility for the incompetence of these two prosecutors. There is not invidious racism involved here, but negligence or incompetence if you will. If I thought for a moment that there were racial motives, [the prosecutors] would have been fired."

Ms. Lykos assigned division chief Terrence Windham to investigate the two prosecutors. Mr. Windham made the ridiculous assertion that the prosecutors were unaware they had stricken all of the African-American jurors.

"They were shocked when the twelve people were called from the panel to the jury box. They were shocked that they didn't see any African-Americans. That's when they realized they had stricken all the African-Americans from the jury." - Terrence Windham

I find Mr. Windham's assertions an insult our intelligence. Under Ms. Lykos' predecessor, the disgraced Chuck Rosenthal, Harris County prosecutors routinely referred to African-American panelists as "Canadians" and systematically eliminated them from serving on criminal juries. While I make no allegation that the prosecutors involved in Mr. Whitfield's case are racist, the office they work for is steeped in institutional racism.

What happened during jury selection in Mr. Whitfield's case was routine during the Holmes and Rosenthal regimes, what happened Thursday was refreshing. Ms. Lykos has made it clear that it is no longer business as usual on Franklin Street.

Said my colleague, Houston criminal defense attorney and president of the Harris County Criminal Lawyers Association: "It's an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones."

Mr. Whitfield will now sit behind bars at the Harris County Jail until his new trial date in June.

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