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A Black Defendant, a Racist Juror

Timothy K. Lewis, a Washington lawyer, is a former judge of the United States Court of Appeals for the Third Circuit and the U.S. District Court for the Western District of Pennsylvania.

A few days ago, a university baseball coach in Oklahoma casually used the word “nigger” in a pregame interview. Protesting criticism of his remarks, the coach explained that he only wanted to praise one of his outfielders, a “good black kid,” by comparing him favorably to less-responsible “niggers.” The coach was instantly placed on leave and later resigned for making what the university’s president called “a terrible mistake.”

The coach’s remarks were hardly a life-and-death matter. The Supreme Court appeal of Gary Sterling, however, is. Sterling was sentenced to death in 1989 in Corsicana, a small east Texas town that has been no stranger to racial incidents, the latest being a Ku Klux Klan rally on the courthouse steps in the 1990s. After Sterling’s murder trial, one of the 12 jurors who voted to send him to death row freely used the word “nigger” during a post-trial interview.

Displaying no concern over his language, the juror subsequently swore out a formal legal affidavit for Sterling’s lawyers in which he described how the “niggers” in his neighborhood, when not “in jail” or “dealing crack,” were usually to be found “hollering and cursing” at one another. He noted that “a couple of ‘em shot each other last Juneteenth over a card game.”

In open court, the juror affirmed that his affidavit reflected how he thought of blacks during Sterling’s trial and admitted that he knew blacks “highly resented” the phrase he had used for them. Needless to say, he also affirmed that he was not a racist and had plenty of black friends.

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In our legal system, it is primarily the role of the defense lawyer to spot and remove such biased jurors. In an appeal hearing, Sterling’s trial defense lawyer, a white man and prominent local lawyer, was asked whether he had reason to suspect the juror had racist views. In a stunning admission, the lawyer acknowledged he had known of this juror’s racist views long before the trial. Nevertheless, he never told his client or the court about the juror’s racist views. Defending his decisions, the lawyer said he had thought the juror could be fair despite his prejudice. In addition, he said he had thought his own long acquaintance with the juror might even work to Sterling’s advantage.

No one was happy with the juror’s comments, of course. During Sterling’s appeal, the federal district court called the documented evidence of the juror’s noxious racism “at least highly disturbing.” The U.S. Court of Appeals for the Fifth Circuit delicately substituted “n****r” for the word the juror actually used.

Nevertheless, both courts denied Sterling’s appeals, on the grounds that the defense lawyer had had “strategic” reasons for letting the biased juror serve. The attorney general of Texas, vigorously defending Sterling’s death sentence, resorted to arguing that the “mere use of the word ‘nigger’ ” does not make one a racist.

This is ludicrous on numerous levels. But now, because no appellate court has had the courage to give Sterling the new trial he deserves, only the Supreme Court stands between him and the death chamber. The court is scheduled to consider Sterling’s request for a last appeal during its conference today.

The lower courts’ failure to act is particularly ironic considering that public figures like the Oklahoma coach who use the ugliest of racial slurs cause a public outcry, yet racism in our courtrooms is not only being tolerated but allowed to play a role in a sentence of death.

The simple fact is this: In all criminal trials, jurors are admonished that they must review the case and view the accused without any bias or preconceived notions of guilt or innocence. This is especially true in cases with racial ramifications.

The U.S. Supreme Court has acknowledged that “it is the jury that is a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice’ ” and that “a defendant has the right to an impartial jury that can view him without racial animus.”

In 1999, Justice Sandra Day O’Connor noted with concern that two-thirds of African American survey respondents said they received “somewhat or far worse” treatment from the courts. According to O’Connor, this issue “should be of concern to all of us.”

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The court has a chance to act on that concern by granting Sterling a new trial free of the taint of racism. If it fails to do so, it will send a message to African Americans everywhere that overtly racist views do not matter in assessing the integrity of a conviction and a death sentence. Whether he is innocent or guilty, Sterling’s fate should not have been sealed by a juror who regarded him as a “nigger.”


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